UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): March 11, 2024
Rigel Resource Acquisition Corp
(Exact Name of Registrant as Specified in Charter)
| Cayman Islands |
|
001-41022 |
|
98-1594226 |
(State or Other Jurisdiction
of Incorporation) |
|
(Commission
File Number) |
|
(IRS Employer
Identification No.) |
7 Bryant Park
1045 Avenue of the Americas, Floor 25
New York, NY |
|
10018 |
| (Address of Principal Executive Offices) |
|
(Zip Code) |
(646) 453-2672
(Registrant’s telephone number, including area code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following provisions
(see General Instruction A.2. below):
| ☒ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e 4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined
in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Securities registered pursuant to Section 12(b) of the Act:
| Title of Each Class: |
|
Trading Symbol(s)
|
|
Name of Each Exchange on Which
Registered:
|
| Units, each consisting of one Class A ordinary share and one-half of one redeemable
warrant |
|
RRAC.U |
|
The New York Stock Exchange |
| Class A ordinary shares, par value $0.0001 per share |
|
RRAC |
|
The New York Stock Exchange |
| Redeemable warrants, each whole warrant exercisable for Class A ordinary share at
an exercise price of $11.50 per share |
|
RRAC WS |
|
The New York Stock Exchange |
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant has elected
not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 1.01 |
Entry Into a Material Agreement |
On March 11, 2024, Rigel Resource Acquisition
Corp, a Cayman Islands exempted company (“Rigel”), entered into a Business
Combination Agreement (the “Business Combination Agreement”), by and among
Rigel, Blyvoor Gold Resources Proprietary Limited, a South African private limited liability company (“Blyvoor
Resources”), Blyvoor Gold Operations Proprietary Limited, a South African private limited liability company (“Tailings”
and, together with Blyvoor Resources, the “Target Companies”, each a “Target
Company”), RRAC NewCo, a Cayman Islands exempted company and wholly-owned subsidiary of Rigel (“Newco”),
and RRAC Merger Sub, a Cayman Islands exempted company and wholly-owned subsidiary of Newco (“Merger
Sub”). Each of Newco and Merger Sub is a newly formed entity that was formed for the sole purpose of entering into and consummating
the transactions set forth in the Business Combination Agreement. Concurrently with the execution of the Business Combination Agreement,
Newco also entered into an Exchange Agreement (the “Exchange Agreement”),
by and among, Newco, Blyvoor Gold Proprietary Limited, a South African private limited liability company (“Blyvoor
Gold”), Orion Mine Finance Fund II L.P., a Bermuda limited partnership (“Orion”
and, together with Blyvoor Gold, the “Sellers”), and the Target Companies.
Pursuant to the terms, and subject to the conditions, set forth in the Business Combination Agreement, the parties thereto will enter into a business combination transaction
(together with the other transactions contemplated by the Business Combination Agreement, the “Transactions”), pursuant to which, among other things, (i) Rigel will merge with and into Merger Sub (the “Merger”), with Merger Sub being the surviving company, and (ii) Newco will acquire all of the outstanding equity interests of the Target Companies
(the “Share Exchange”). Following the Merger and the Share Exchange, each of the Target Companies and Merger Sub will be a wholly owned subsidiary of Newco, and Newco will become a publicly traded company. At the closing of the Transactions (the “Closing”), Newco is expected to change its name to Aurous Resources, and its ordinary shares, par value $0.0001 (the “Newco Ordinary Shares”), are expected to be listed on the NASDAQ.
The Transactions are expected to be consummated after the required approval by the
holders of Rigel ordinary shares and the satisfaction of certain other conditions summarized below.
Business Combination Agreement
Share Exchange
The consideration to the holders of the Target Companies’ outstanding equity interests at the Closing will consist of (a) 600,000 Newco Ordinary Shares to Blyvoor Gold in exchange for its shares of Tailings (the “Gold Tailings Consideration”), (b) 28,017,500 Newco Ordinary Shares to Blyvoor Gold in exchange for its shares of Blyvoor Resources (the “Gold Resources Consideration”), and (c) 6,982,500 Newco Ordinary Shares to Orion in exchange for its shares of Blyvoor Resources (the “Orion Resources Consideration” and, together with the Gold Tailings Consideration and the Gold Resources Consideration,
the “Exchange Consideration”). Pursuant to the Exchange Agreement, the Sellers have agreed, subject to customary
exceptions, not to transfer any Newco Ordinary Shares received as Exchange Consideration
until the 6-month anniversary of the Closing.
As additional consideration for its shares of Tailings, Blyvoor Gold will be entitled
to receive, as promptly as practicable after the date that is 90 days following the Closing, a number of Newco Ordinary Shares equal to the product of (A) the quotient of (i) the aggregate amount of proceeds from the PIPE Investment (as defined in the Business Combination Agreement), divided by (ii) 100,000, multiplied by (B) 346.6666667.
In addition to the foregoing, the Sellers shall have the contingent right to receive
additional Newco Ordinary Shares, as described below, (the “Earnout Shares”), subject to the following milestone conditions (the “Milestone Conditions”):
|
(i) |
If Net Cash Proceeds (as defined in the Business Combination Agreement) are equal
to or greater than $33,000,000 as of immediately prior to Closing: |
|
a. |
The Sellers will be
entitled to receive, upon the cumulative payable gold production of the Mine (as defined in the Business Combination Agreement)
exceeding 55,000 ounces (the “First Base Case Milestone”) for the
12-month period ending on the date that is the 18-month anniversary of the last day of the calendar month in which the Closing
occurs (the “First Earnout Period”), 1,050,000 Newco Ordinary Shares;
and |
|
b. |
the Sellers will be
entitled to receive, upon the cumulative payable gold production of the Mine exceeding 95,000 ounces (the “Second
Base Case Milestone”) for the 12-month period ending on the date that is the 30-month anniversary of the last day of
the calendar month in which the Closing occurs (the “Second Earnout
Period” and together with the First Earnout Period, the “Earnout
Periods”), 1,575,000 Newco Ordinary Shares; |
|
(ii) |
If Net Cash Proceeds are less than $33,000,000 as of immediately prior to Closing: |
|
a. |
the Sellers will be entitled to receive (such amount not to exceed 1,050,000
Newco Ordinary Shares), upon the cumulative payable gold production of the Mine for the First Earnout Period exceeding an amount, in ounces,
equal to (but in no event to be less than 32,650 ounces) the product of (1) the First Base Case Milestone multiplied by (2) the
sum of (x) one minus (y) the Adjustment Multiplier (as defined in the Business Combination Agreement), a number of Newco Ordinary
Shares equal to (but in no event to exceed 1,050,000 Newco Ordinary Shares) the product of (I) 1,050,000 Newco Ordinary Shares multiplied
by (II) the sum of (A) one minus (B) the product of (x) the Adjustment Multiplier multiplied by (y) 0.25 plus (C)
the Share Consideration Multiplier (as defined in the Business Combination Agreement); and |
|
b. |
the Sellers will be entitled to receive (such amount not to exceed 2,625,000
Newco Ordinary Shares, upon the cumulative payable gold production of the Mine for the Second Earnout Period exceeding an amount, in ounces,
equal to (but in no event to be less than 56,240 ounces) the product of (1) the Second Base Case Milestone multiplied by (2) the
sum of (x) one minus (y) the Adjustment Multiplier, a number of Newco Ordinary Shares equal to (but in no event to exceed, in the
aggregate with the First Earnout Share Consideration (as defined in the Business Combination Agreement), 2,625,000 Newco Ordinary Shares)
the product of (I) 1,575,000 Newco Ordinary Shares multiplied by (II) the sum of (A) one minus (B) the product of (x) the
Adjustment Multiplier multiplied by (y) 0.25 plus (C) the Share Consideration Multiplier; |
The respective Milestone Conditions described above will be deemed to be achieved, and the respective Earnout
Shares for the applicable Earnout Period(s) will be issued to the Sellers if, at any
point prior to the end of the applicable Earnout Period(s), there is a sale, exchange or other transfer, directly or indirectly, in one transaction or a series of related transactions, of
all or substantially all of the assets of the Target Companies or a merger, consolidation, recapitalization or other transaction in which any person other than Newco or any affiliate of Newco becomes the beneficial owner, directly or indirectly, of 50% or
more of the combined voting power of all interests in the Target Companies, taken as a
whole. Any Earnout Shares not properly earned by the end of the Earnout Periods shall no
longer be issuable to Sellers and the obligations of Newco to issue such Earnout Shares
shall be terminated.
Effect of the Merger
On the terms, and subject to the conditions, set forth in the Business Combination Agreement, at the effective time of the Merger (the “Merger Effective Time”), by virtue of the Merger:
| (i) | each Class A ordinary share of Rigel (a “Rigel Class
A Ordinary Share”) issued and outstanding immediately prior to the Merger Effective Time (other than shares to be cancelled
in accordance with the Business Combination Agreement and any Redemption Shares (as defined below)) will be automatically cancelled and
converted into the right to receive (A) cash consideration in an amount per share equal to the cash value per share as of the Closing
date to be received in respect of a Rigel Class A Ordinary Share redeemed in the Rigel Stockholder Redemption (as defined below) minus
$10.00 (the “Cash Consideration”) and (B) one Newco Ordinary Share (the “Equity Consideration”
and together with the Cash Consideration, the “Ordinary Shareholder Consideration”); |
| (ii) | each Rigel Class A Ordinary Share issued and outstanding immediately
prior to the Merger Effective Time with respect to which a Rigel stockholder has validly exercised its redemption rights (collectively,
the “Redemption Shares”) will not be converted into and become the Ordinary Shareholder Consideration, and instead
will at the Merger Effective Time be converted into the right to receive from Rigel, in cash, an amount per share calculated in accordance
with such stockholder’s redemption rights; |
| (iii) | each Class B ordinary share of Rigel (a “Rigel Class
B Ordinary Share”) issued and outstanding immediately prior to the Merger Effective Time will be automatically cancelled and
converted into the right to receive one Newco Ordinary Share; and |
| (iv) | each issued and outstanding public warrant of Rigel (the “Rigel
Public Warrants”) shall be converted automatically into the right of the holder thereof to receive one public warrant of Newco
(the “Newco Public Warrants”), and each issued and outstanding private warrant of Rigel (the “Rigel Private
Warrants”) shall be converted automatically into the right of the holder thereof to receive one private warrant of Newco (the
“Newco Private Warrants” and, together with the Newco Public Warrants, the “Newco Warrants”). Each
Newco Public Warrant shall have, and be subject to, substantially the same terms and conditions as are in effect with respect to the
Rigel Public Warrants, and each Newco Private Warrant shall have, and be subject to, substantially the same terms and conditions as are
in effect with respect to the Rigel Private Warrants, except that in each case they shall represent the right to acquire Newco Ordinary
Shares. |
Representations and Warranties
The Business Combination Agreement contains customary representations and warranties of the parties thereto with respect
to, among other things, (i) entity organization, standing, formation and authority,
(ii) authorization to enter into the Business Combination Agreement, (iii) capital structure, (iv) consents and approvals, (v) financial statements,
(vi) absence of changes, (vii) license and permits, (viii) litigation, (ix) material
contracts, (x) intellectual property, (xi) taxes, (xii) real and personal properties,
(xiii) employee matters, (xiv) benefit plans, (xv) compliance with laws, (xvi) environmental
matters, (xvii) benefit plans, (xviii) affiliate transactions, (xix) insurance, (xx)
business practices and (xx) finders and brokers. Except in the case of fraud or intentional
and willful breach, the representations and warranties of the parties contained in
the Business Combination Agreement will terminate and be of no further force and effect as of the Closing.
Covenants
The Business Combination Agreement contains customary covenants of the parties, including, among others, covenants providing
for (i) the operation of the Target Companies’ businesses in the ordinary course of business prior to consummation of the Transactions,
(ii) the parties’ efforts to satisfy conditions to obligations of the Transactions, (iii) the preparation and filing of a registration statement
on Form F-4 (the “Registration Statement”) in connection with the registration under the Securities Act of 1933, as amended
(the “Securities Act”), of the Newco Ordinary Shares and Newco Warrants to be issued pursuant to the Business Combination Agreement, which will also contain a prospectus and proxy statement for the purpose of soliciting
proxies from Rigel’s stockholders to vote in favor of certain matters (the “Rigel Stockholder Approval Matters”), (iv) Newco’s adoption of an equity incentive plan that provides for grants and awards to eligible
service providers, (v) the protection of, and access to, confidential information
of the parties, and (vi) the parties’ efforts to obtain necessary approvals from Governmental Authorities (as defined in
the Business Combination Agreement).
Pursuant to the Business Combination Agreement, Rigel’s public stockholders will be given an opportunity, in accordance with Rigel’s amended and restated articles and memorandum of association and the final prospectus
from Rigel’s initial public offering, which was filed with the SEC on November 8, 2021, to have their Rigel Class A Ordinary Shares redeemed (the “Rigel Stockholder Redemption”), in conjunction with the Rigel Stockholder Approval (as defined below).
During the Interim Period (as defined in the Business Combination Agreement), each of the parties to the Business Combination Agreement shall not, and shall cause
its representatives not to, solicit, initiate, continue or engage in discussions or negotiations with, or enter
into any agreement with, or knowingly encourage, respond to, or provide information
to, any person concerning an “Acquisition Transaction” or a “Business Combination Proposal”, as applicable.
Conditions to Closing
The consummation of the Transactions is subject to customary closing conditions for
transactions involving special purpose acquisition companies, including, among others:
(i) approval of the Rigel Stockholder Approval Matters by Rigel’s stockholders (the “Rigel Stockholder Approval”), (ii) no order, statute, rule or regulation enjoining or prohibiting the consummation
of the Transactions being in force, (iii) the Registration Statement having become effective, (iv) the shares of Newco Ordinary Shares to be issued pursuant to the Business Combination Agreement having been approved for listing on the NASDAQ and (v) certain other customary bring-down conditions. In addition, the obligation of the Sellers to consummate the Transactions is subject
to the availability of Aggregate Cash Proceeds (as defined in the Business Combination
Agreement) of not less than $50,000,000 at the Closing.
Termination
The Business Combination Agreement may be terminated as follows:
|
(i) |
by mutual written consent of the Target Companies and Rigel; |
|
(ii) |
prior to the Closing, by written notice to the Target Companies from Rigel if: |
|
a. |
there is any breach of any representation, warranty, covenant or agreement on the
part of the Target Companies set forth in the Business Combination Agreement, such
that certain closing conditions therein would not be satisfied; provided that the
Target Companies are provided the option to cure such breach as specified in the Business
Combination Agreement; |
|
b. |
if the Closing has not occurred on or before August 9, 2024 (the “Termination Date”); |
|
c. |
if the consummation of the Transactions is permanently enjoined, prohibited or prevented by the terms of a final,
non-appealable governmental order; |
|
(iii) |
prior to the Closing, by written notice to Rigel from the Target Companies if: |
|
a. |
there is any breach of any representation, warranty, covenant or agreement on the
part of Rigel, Newco or Merger Sub set forth in the Business Combination Agreement,
such that certain closing conditions therein would not be satisfied; provided that
Rigel, Newco, or Merger Sub, as applicable, are provided the option to cure such breach
as specified in the Business Combination Agreement; |
|
b. |
the Closing has not occurred on or before the Termination Date, |
|
c. |
the consummation of the Transactions is permanently enjoined, prohibited or prevented
by the terms of a final, non-appealable Governmental Order; or |
|
d. |
if there has been a Change in Recommendation (as defined in the Business Combination
Agreement). |
The foregoing description of the Business Combination Agreement and the Transactions does not purport to be complete and is qualified in its entirety
by the terms and conditions of the Business Combination Agreement and any related agreements. The Business Combination Agreement has been included as an exhibit to this Current Report on Form 8-K (this “Current Report”) to provide investors with information regarding its terms. It is not intended to
provide any other factual information about Rigel, the Target Companies or any other
party to the Business Combination Agreement or any related agreement. In particular, the representations, warranties, covenants
and agreements contained in the Business Combination Agreement, which were made only for purposes of such agreement and as of specific dates, are
solely for the benefit of the parties to the Business Combination Agreement, are subject to limitations agreed upon by the contracting parties (including being
qualified by confidential disclosures made for the purposes of allocating contractual
risk between the parties to the Business Combination Agreement instead of establishing these matters as facts) and are subject to standards of materiality
applicable to the contracting parties that may differ from those applicable to investors
and security holders. Investors and security holders are not third-party beneficiaries
under the Business Combination Agreement and should not rely on the representations, warranties, covenants and agreements,
or any descriptions thereof, as characterizations of the actual state of facts or
condition of any party to the Business Combination Agreement. Moreover, information concerning the subject matter of the representations and warranties
may change after the date of the Business Combination Agreement, which subsequent information may or may not be fully reflected in Rigel’s public disclosures.
The foregoing description of the Business Combination Agreement and the Exchange Agreement is not complete and is qualified in its entirety by reference to the Business Combination Agreement and the Exchange Agreement which are filed with this Current Report as Exhibit 2.1 and Exhibit 2.2, respectively,
and are incorporated herein by reference.
Related Agreements
Sponsor Support Agreement
In connection with the execution of the Business Combination Agreement, Rigel, the Target Companies, Rigel Resource Acquisition Holding LLC (the “Sponsor”) and the persons set forth on Schedule I thereto (collectively with the Sponsor, the “Sponsors”) have entered into a Sponsor Support Agreement (the “Sponsor Support Agreement”). The Sponsor Support Agreement provides that, among other things, the Sponsors
agree (i) to vote in favor of the Transactions, (ii) to appear at certain Rigel stockholder meetings for purposes of constituting a quorum, (iii) to vote against any
proposals that could reasonably be expected to prevent or materially impede the Transactions
and (iv) to waive any anti-dilution adjustment to the conversion ratio with respect
to their existing shares that would result from the issuance of Newco Ordinary Shares,
in each case, on the terms and subject to the conditions set forth in the Sponsor
Support Agreement.
In addition, pursuant to the Sponsor Support
Agreement, the Sponsors have agreed, subject to certain customary exceptions, not to transfer (i) any Newco Ordinary Shares owned by
such Sponsor until the 12-month anniversary of the Closing, (ii) a number of Newco Private Warrants equal to 40% of all Newco Private
Warrants owned by such Sponsor (including any Newco Ordinary Shares issuable upon the exercise of such warrants) until the 12-month anniversary
of the Closing and (iii) a number of Newco Private Warrants equal to 60% of all Newco Private Warrants owned by such Sponsor (including
any Newco Ordinary Shares issuable upon the exercise of such warrants) until the 24-month anniversary of the Closing. The foregoing restrictions
on transfer with respect to Newco Ordinary Shares shall be released if the last reported sale price of the Newco Ordinary Shares equals
or exceeds $12.00 per share for any 20 trading days within any 30-trading day period commencing at least 180 days after closing.
The foregoing description of the Sponsor Support Agreement is not complete and is qualified by reference to the Sponsor Support Agreement, which is filed with this Current Report as Exhibit 10.1 and is incorporated herein by reference.
Amended and Restated Registration Rights Agreement
Pursuant to the terms of the Business Combination Agreement, at the Closing, Newco,
the Sponsor and certain other holders of the Newco Ordinary Shares will enter into
an Amended and Restated Registration Rights Agreement (the “Registration Rights Agreement”). The Registration Rights Agreement will provide these holders (and their permitted
transferees) with the right to require Newco, at Newco’s expense, to register the Newco Ordinary Shares that they hold, on customary terms,
including customary demand and piggyback registration rights. The Registration Rights
Agreement will also provide that Newco pay certain expenses of the electing holders
relating to such registration and indemnify them against liabilities that may arise
under the Securities Act.
The foregoing description of the Registration Rights Agreement is not complete and
is qualified in its entirety by reference to the form of Registration Rights Agreement,
which is attached as Exhibit A to the Business Combination Agreement which is included as Exhibit 2.1 to this Current Report and is incorporated herein
by reference.
Subscription Agreements
Concurrently with the execution of the Business Combination Agreement, Rigel, Newco, Blyvoor Gold and the Sponsor entered into subscription agreements with certain institutional and accredited investors
(the “PIPE Investors”, and each a “PIPE Investor”, and the subscription agreements, the “Subscription Agreements”) pursuant to which the PIPE Investors have agreed, subject to the terms and conditions
set forth therein, to subscribe for and purchase from Newco at the Closing, an aggregate of 750,000 Newco Ordinary Shares (the “PIPE Shares”), at a purchase price of $10 per share, for an aggregate cash amount of $7,500,000.
Pursuant to the Subscription Agreements, a PIPE Investor may elect to reduce the number of PIPE Shares it is obligated to purchase
under its Subscription Agreement, on a one-for-one basis, up to the total amount of
PIPE Shares subscribed thereunder, to the extent PIPE Investor (i) purchases Rigel Class A Ordinary Shares (the “Open-Market Purchase Shares”) in open market transactions at a price of less than the Closing redemption price per-share prior to the record date established for voting at the Rigel stockholder meeting held to approve the Transactions (the “Rigel Stockholder Meeting”), but only if the PIPE Investor agrees, with respect to such Open-Market Purchase
Shares, to (A) not sell or transfer any such Open-Market Purchase Shares prior to
the Closing (B) not vote any such Open-Market Purchase Shares in favor of approving
the Transactions and instead submits a proxy abstaining from voting thereon and (C)
to the extent such investor has the right to have all or some of its Open-Market Purchase
Shares redeemed for cash in connection with the Closing, not exercise any such redemption
rights; and (ii) beneficially owned any Rigel Class A Ordinary Shares as of the date of its Subscription Agreement (the “Currently Owned Shares” and together with the Open-Market Purchase Shares and the PIPE Shares, the “Total PIPE Shares”), but only if the PIPE Investor agrees, with respect to such Currently Owned Shares,
to (A) not to sell or transfer and such Currently Owned Shares prior to the Closing,
(B) vote all of its Currently Owned Shares in favor of approving the Transactions
at the Rigel Stockholder Meeting, and (C) to the extent such investor has the right to have all or some
of its Currently Owned Shares redeemed for cash in connection with the Closing, not
exercise any such redemption rights.
In addition, in connection with the Closing and pursuant to the Subscription Agreements:
| (i) | the Sponsor shall surrender an aggregate number of Rigel Class
B Ordinary Shares it holds in an amount equal to (a) (I) 4, multiplied by (II) the aggregate number of Total PIPE Shares, divided
by (b) 10 (the “Sponsor Forfeit Shares”); and |
| (ii) | Blyvoor Gold shall surrender an aggregate number of Newco Ordinary
Shares it receives as Exchange Consideration in an amount equal to (a) (I) 1, multiplied by (II) the aggregate number of Total
PIPE Shares, divided by (b) 10 (the “Blyvoor Forfeit Shares”); and |
| (iii) | each PIPE Investors shall receive following the Closing, a number
of Newco Ordinary Shares equal to the sum of the Sponsor Forfeit Shares and the Blyvoor Forfeit Shares for no additional cash consideration. |
The foregoing description of the Subscription Agreements does not purport to be complete and is qualified in its entirety by the terms and
conditions of the form of the Subscription Agreement, a copy of which is filed as
Exhibit 10.2 hereto and are incorporated by reference herein.
| Item 3.02. |
Unregistered Sales of Equity Securities. |
The disclosure set forth above in Item 1.01 of this Current Report on Form 8-K is
incorporated by reference herein. The Newco Ordinary Shares issuable in connection with the Subscription Agreements will not
be registered under the Securities Act, in reliance on the exemption from registration
provided by Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder.
| Item 7.01. |
Regulation FD Disclosure. |
On March 11, 2024, Rigel and the Target Companies issued a joint press release (the “Press Release”) announcing the Transactions. The Press Release is attached hereto as Exhibit 99.1
and incorporated by reference herein.
In addition, furnished as Exhibit 99.2 hereto is the investor presentation dated December 2023, that will be used by Rigel and the Target Companies with respect to the Transactions.
The information in this Item 7.01, including Exhibit 99.1 and Exhibit 99.2 hereto,
is furnished and shall not be deemed “filed” for purposes of Section 18 of the Exchange Act, or otherwise subject to liabilities under that section, and shall not be deemed
to be incorporated by reference into the filings of Rigel under the Securities Act
or the Exchange Act, regardless of any general incorporation language in such filings.
This Current Report will not be deemed an admission as to the materiality of any information
of the information in this Item 7.01, including Exhibit 99.1 and Exhibit 99.2.
*******
No Offer or Solicitation
This Current Report shall not constitute an offer to sell or the solicitation of an offer to buy any securities,
or a solicitation of any vote or approval, nor shall there be any sale of any such
securities in any state or jurisdiction in which such offer, solicitation or sale
would be unlawful prior to registration or qualification under the securities laws
of any such state or jurisdiction. This Current Report does not constitute either advice or a recommendation regarding
any securities. No offering of securities shall be made except by means of a prospectus
meeting the requirements of the Securities Act of 1933, as amended, or an exemption
therefrom.
Forward Looking Statements
This Current Report contains forward-looking statements within the meaning of the “safe harbor” provisions of the United States Private Securities
Litigation Reform Act of 1995. Forward-looking statements generally relate to future
events or Rigel’s or the Target Companies’ future financial or operating performance. In some cases, you can identify forward-looking
statements by terminology such as “may,” “should,” “expect,” “intend,” “will,” “estimate,”
“anticipate,” “believe,” “predict,” “potential” or “continue,” or the negatives of
these terms or variations of them or similar terminology. Such forward-looking statements
are subject to risks, uncertainties, and other factors, which could cause actual results
to differ materially from those expressed or implied by such forward looking statements.
These statements are based on various assumptions and on the current expectations
of Rigel or the Target Companies, as applicable, and are not predictions of actual
performance. These forward-looking statements are provided for illustrative purposes
only and are not intended to serve as, and must not be relied on by any investor or
other person as, a guarantee, an assurance, a prediction or a definitive statement
of fact or probability. Actual events and circumstances are difficult or impossible
to predict and will differ from assumptions.
These forward-looking statements are based upon estimates and assumptions that, while
considered reasonable by Rigel and its management, the Target Companies and their
management, and Newco and its management, as the case may be, are inherently uncertain. Factors that may cause actual results
to differ materially from current expectations include, but are not limited to: (1) the occurrence of any event, change or other circumstances that could give rise to
the termination of the proposed business combination; (2) the outcome of any legal proceedings that may be instituted against Rigel, the Target Companies, Newco or others following the announcement of the proposed business combination and any
definitive agreements with respect thereto; (3) the inability to complete the proposed business combination due to the failure to
obtain approval of the shareholders of Rigel, the Target Companies or Newco, to obtain financing to complete the proposed business combination or to satisfy
other conditions to closing; (4) changes to the proposed structure of the proposed business combination that may be
required or appropriate as a result of applicable laws or regulations or as a condition
to obtaining regulatory approval of the proposed business combination; (5) the ability to meet the listing standards of NASDAQ or any other stock exchange following
the consummation of the proposed business combination; (6) the risk that the proposed business combination disrupts current plans and operations
of the Target Companies as a result of the announcement and consummation of the proposed
business combination; (7) the ability to recognize the anticipated benefits of the proposed business combination,
which may be affected by, among other things, competition, the ability of the Target
Companies to grow and manage growth profitably, maintain relationships with customers
and suppliers and retain their management and key employees; (8) costs related to the proposed business combination; (9) changes in applicable laws or regulations; (10) the possibility that the Target Companies may be adversely affected by other economic,
business and/or competitive factors; (11) the Target Companies’ estimates of their financial performance; (12) the possibility that the assumptions and estimates used in the S-K 1300 Technical
Reports may be different than the actual results; and (13) other risks and uncertainties set forth in the sections entitled “Risk Factors” and
“Cautionary Note Regarding Forward-Looking Statements and Risk Factor Summary” in
Rigel’s Prospectus dated November 4, 2021 filed with the Securities and Exchange Commission on November 8, 2021, the section entitled “Risk Factors” in Rigel’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021, for the fiscal year ended December 31, 2022, and in Rigel’s Quarterly Report on Form 10-Q for the quarterly period ended November 30, 2023 as well as any further risks and uncertainties to be contained in the Registration
Statement filed after the date hereof. In addition, forward-looking statements reflect
the Target Companies’, Rigel’s or Newco’s expectations, plans or forecasts of future events and views as of the date of this
Current Report. The Target Companies, Newco, and Rigel anticipate that subsequent events and developments will cause these assessments
to change. However, while the Target Companies and/or Rigel and/or Newco may elect to update these forward-looking statements at some point in the future,
each of the Target Companies, Newco, and Rigel specifically disclaim any obligation to do so. These forward-looking statements
should not be relied upon as representing the Target Companies’, Newco’s, nor Rigel’s assessments as of any date subsequent to the date of this Current Report.
Important Information for Investors and Stockholders
The Transactions will be submitted to stockholders of Rigel for their consideration and approval at a special meeting of stockholders. Rigel and the Target Companies will prepare the Registration Statement to be filed
with the SEC by Newco, which will include preliminary and definitive proxy statements
to be distributed to Rigel’s stockholders in connection with Rigel’s solicitation for proxies for the vote by Rigel’s stockholders in connection with the Transactions and other matters as described in the Registration Statement, as well as the prospectus
relating to the offer of the securities to be issued to Rigel’s stockholders in connection with the completion of the Transactions. After the Registration Statement has been filed and declared effective, Rigel will
mail a definitive proxy statement and other relevant documents to its stockholders as of the record date established for voting on the Transactions. Rigel’s stockholders and other interested persons are advised to read, once available, the preliminary
proxy statement/prospectus and any amendments thereto and, once available, the definitive
proxy statement/prospectus, in connection with Rigel’s solicitation of proxies for its special meeting of stockholders to be held to approve, among other things, the Transactions, because these documents will contain important information about Rigel, the Target
Companies, Newco and the Transactions. Stockholders may also obtain a copy of the preliminary or definitive proxy statement, once available,
as well as other documents filed with the SEC regarding the Transactions and other documents filed with the SEC by Rigel, without charge, at the SEC’s website located at www.sec.gov.
Participants in the Solicitation
Rigel, Newco, and the Target Companies and their respective directors, executive officers, other
members of management, and employees, under SEC rules, may be deemed to be participants in the solicitation of proxies of Rigel’s stockholders in connection with the Transactions. Information regarding the persons who may, under SEC rules, be deemed participants
in the solicitation of Rigel’s stockholders in connection with the Transactions will be set forth in the Registration Statement, including a proxy statement/prospectus, when it is filed with the SEC. Investors
and security holders may obtain more detailed information regarding the names and
interests in the Transactions of Rigel’s directors and officers in Rigel’s filings with the SEC and such information will also be in the registration statement
to be filed with the SEC by Rigel, which will include the proxy statement/prospectus of Rigel for the Transactions.
This Current Report is not a substitute for the Registration Statement or for any
other document that Rigel, the Target Companies, or Newco may file with the SEC in
connection with the potential Transactions. INVESTORS AND SECURITY HOLDERS ARE URGED
TO READ THE DOCUMENTS FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY
BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. Investors and security
holders may obtain free copies of other documents filed with the SEC by Rigel, the
Target Companies, and Newco through the website maintained by the SEC at http://www.sec.gov.
| Item 9.01. |
Financial Statement and Exhibits. |
EXHIBIT INDEX
| Exhibit No. |
|
Description of Exhibits |
| 2.1* |
|
Business Combination Agreement, dated March 11, 2024, by and among Blyvoor Gold Resources Proprietary Limited, Blyvoor Gold Operations Proprietary Limited,
Rigel Resource Acquisition Corp, RRAC NewCo, and RRAC Merger Sub |
| 2.2 |
|
Exchange Agreement, dated March 11, 2024, by and among RRAC NewCo, Blyvoor Gold Proprietary Limited, Orion Mine Finance Fund II L.P., Blyvoor Gold Operations Proprietary Limited and Blyvoor Gold Resources Proprietary Limited |
| 10.1* |
|
Sponsor Support Agreement, dated March 11, 2024, by and among Rigel Resource Acquisition Holding LLC, Rigel Resource Acquisition Corp, Blyvoor Gold Resources Proprietary Limited, Blyvoor Gold Operations Proprietary Limited and the persons set forth on Schedule I thereto |
| 10.2 |
|
Form of Subscription Agreement |
| 99.1 |
|
Joint Press Release of Rigel
Resources Acquisition Corp., Blyvoor Gold Resources Proprietary Limited, and Blyvoor Gold Operations Proprietary Limited issued
March 11, 2024 |
| 99.2 |
|
Investor Presentation dated March, 2024 |
| 104 |
|
Cover Page Interactive Data File (embedded within the Inline XBRL document) |
| * |
Schedules omitted pursuant to Item 601(b)(2) of Regulation S-K. Rigel Resources Acquisition Corp. agrees to furnish supplementally a copy of any omitted schedule to the Securities
and Exchange Commission upon request. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the
registrant has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
| |
RIGEL RESOURCE ACQUISITION CORP |
| |
|
|
| Date: March 11, 2024 |
By: |
/s/ Jonathan Lamb |
| |
Name: |
Jonathan Lamb |
| |
Title: |
Chief Executive Officer |
Exhibit 2.1
PRIVILEGED & CONFIDENTIAL
EXECUTION VERSION
BUSINESS COMBINATION AGREEMENT
by and among
Blyvoor Gold Resources Proprietary Limited,
Blyvoor Gold Operations Proprietary Limited
Rigel Resource Acquisition Corp,
RRAC NEWCO,
AND
RRAC MERGER SUB
dated as of
March 11, 2024
This document is intended solely to facilitate discussions among the parties identified
herein. It is not intended to create, and it will not be deemed to create, a legally
binding or enforceable offer or agreement of any type or nature prior to the actual
execution of this document by all such parties and the delivery of an executed copy
of this document by all such parties to all other parties.
TABLE OF CONTENTS
| Article I CERTAIN DEFINITIONS |
|
3 |
| |
|
|
| |
Section 1.01 |
|
Definitions |
|
3 |
| |
Section 1.02 |
|
Construction |
|
19 |
| |
Section 1.03 |
|
Equitable Adjustments |
|
20 |
| |
|
|
| Article II THE MERGER |
|
21 |
| |
|
|
| |
Section 2.01 |
|
The Merger |
|
21 |
| |
Section 2.02 |
|
Effective Time |
|
21 |
| |
Section 2.03 |
|
Effect of the Merger |
|
21 |
| |
Section 2.04 |
|
Governing Documents of the Surviving Company |
|
21 |
| |
Section 2.05 |
|
Directors and Officers |
|
21 |
| |
Section 2.06 |
|
Taking Necessary Action; Further Action |
|
22 |
| |
Section 2.07 |
|
Release of Funds from Trust Account |
|
22 |
| |
|
|
| Article III EFFECT OF
THE MERGER ON SHARE CAPITAL AND CAPITAL STOCK |
|
22 |
| |
|
|
| |
Section 3.01 |
|
Effect of Merger on Rigel Securities |
|
22 |
| |
Section 3.02 |
|
Treatment of Securities of Merger Sub |
|
23 |
| |
Section 3.03 |
|
Exchange of Book-Entry Shares |
|
23 |
| |
Section 3.04 |
|
Satisfaction of Rights |
|
25 |
| |
Section 3.05 |
|
Payment of Settlement Obligations |
|
25 |
| |
|
|
| Article IV SHARE EXCHANGE
TRANSACTIONS |
|
25 |
| |
|
|
| |
Section 4.01 |
|
Share Exchange |
|
25 |
| |
Section 4.02 |
|
Exchange Consideration |
|
25 |
| |
Section 4.03 |
|
Governing Documents |
|
28 |
| |
Section 4.04 |
|
Closing Payments |
|
28 |
| |
Section 4.05 |
|
Withholding Rights |
|
29 |
| |
|
|
| Article V CLOSING TRANSACTIONS |
|
29 |
| |
|
|
| |
Section 5.01 |
|
Closing |
|
29 |
| |
Section 5.02 |
|
Pre-Closing Deliverables |
|
29 |
| |
Section 5.03 |
|
Closing Deliverables |
|
30 |
| |
|
|
| Article VI REPRESENTATIONS
AND WARRANTIES OF THE TARGET COMPANIES |
|
32 |
| |
|
|
| |
Section 6.01 |
|
Corporate Organization of the Target Companies |
|
32 |
| |
Section 6.02 |
|
Target Company Subsidiaries |
|
32 |
| |
Section 6.03 |
|
Due Authorization |
|
32 |
| |
Section 6.04 |
|
No Conflict |
|
33 |
| |
Section 6.05 |
|
Governmental Authorities; Consents |
|
33 |
| |
Section 6.06 |
|
Current Capitalization |
|
33 |
| |
Section 6.07 |
|
Capitalization of Subsidiaries of the Target Companies |
|
34 |
| |
Section 6.08 |
|
Financial Statements |
|
35 |
| |
Section 6.09 |
|
Undisclosed Liabilities |
|
35 |
| |
Section 6.10 |
|
Litigation and Proceedings |
|
36 |
| |
Section 6.11 |
|
Compliance with Laws |
|
36 |
| |
Section 6.12 |
|
Contracts; No Defaults |
|
36 |
| |
Section 6.13 |
|
Company Benefit Plans |
|
38 |
| |
Section 6.14 |
|
Labor and Employment Matters |
|
39 |
| |
Section 6.15 |
|
Taxes |
|
40 |
| |
Section 6.16 |
|
Insurance |
|
42 |
| |
Section 6.17 |
|
Permits |
|
42 |
| |
Section 6.18 |
|
Real Property and Mineral Rights |
|
42 |
| |
Section 6.19 |
|
Intellectual Property and IT Security |
|
43 |
| |
Section 6.20 |
|
Environmental Matters |
|
44 |
| |
Section 6.21 |
|
Absence of Changes |
|
45 |
| |
Section 6.22 |
|
Brokers’ Fees |
|
45 |
| |
Section 6.23 |
|
Business Relationships |
|
45 |
| |
Section 6.24 |
|
Related Party Transactions |
|
46 |
| |
Section 6.25 |
|
Mining |
|
46 |
| |
Section 6.26 |
|
Information Supplied |
|
47 |
| |
Section 6.27 |
|
Regulatory Compliance |
|
47 |
| |
Section 6.28 |
|
No Additional Representations or Warranties |
|
48 |
| |
|
|
| Article VII REPRESENTATIONS
AND WARRANTIES OF RIGEL, NEWCO AND MERGER SUB |
|
48 |
| |
|
|
| |
Section 7.01 |
|
Corporate Organization |
|
48 |
| |
Section 7.02 |
|
Due Authorization |
|
49 |
| |
Section 7.03 |
|
No Conflict |
|
50 |
| |
Section 7.04 |
|
Litigation and Proceedings |
|
50 |
| |
Section 7.05 |
|
Governmental Authorities; Consents |
|
50 |
| |
Section 7.06 |
|
Financial Ability; Trust Account |
|
51 |
| |
Section 7.07 |
|
Brokers’ Fees |
|
51 |
| |
Section 7.08 |
|
SEC Reports; Financial Statements; Sarbanes-Oxley Act; Undisclosed Liabilities |
|
52 |
| |
Section 7.09 |
|
Business Activities |
|
53 |
| |
Section 7.10 |
|
Tax Matters |
|
54 |
| |
Section 7.11 |
|
Capitalization |
|
55 |
| |
Section 7.12 |
|
Listing |
|
57 |
| |
Section 7.13 |
|
PIPE Investment |
|
57 |
| |
Section 7.14 |
|
Related Party Transactions |
|
58 |
| |
Section 7.15 |
|
Investment Company Act |
|
58 |
| |
Section 7.16 |
|
Interest in Competitors |
|
58 |
| |
Section 7.17 |
|
Rigel Stockholders |
|
58 |
| |
Section 7.18 |
|
Registration Statement; Proxy Statement |
|
59 |
| |
|
|
| Article VIII COVENANTS
OF THE TARGET COMPANIES |
|
59 |
| |
|
|
| |
Section 8.01 |
|
Conduct of Business |
|
59 |
| |
Section 8.02 |
|
Inspection |
|
62 |
| |
Section 8.03 |
|
Regulatory Approvals |
|
63 |
| |
Section 8.04 |
|
No Claim Against the Trust Account |
|
63 |
| Article IX COVENANTS
OF RIGEL, NEWCO AND MERGER SUB |
|
63 |
| |
|
|
| |
Section 9.01 |
|
Regulatory Approvals |
|
63 |
| |
Section 9.02 |
|
Indemnification and Insurance |
|
64 |
| |
Section 9.03 |
|
Conduct of Rigel During the Interim Period |
|
66 |
| |
Section 9.04 |
|
PIPE and the Orion Forward Purchase Agreement |
|
67 |
| |
Section 9.05 |
|
Inspection |
|
68 |
| |
Section 9.06 |
|
Rigel Listing |
|
68 |
| |
Section 9.07 |
|
Rigel Public Filings |
|
68 |
| |
Section 9.08 |
|
Section 16 Matters |
|
68 |
| |
Section 9.09 |
|
Newco Board of Directors, Committees and Officers |
|
68 |
| |
Section 9.10 |
|
Incentive Equity Plan |
|
69 |
| |
Section 9.11 |
|
Qualification as an Emerging Growth Company |
|
69 |
| |
Section 9.12 |
|
Stockholder Litigation |
|
69 |
| |
|
|
| Article X JOINT COVENANTS |
|
69 |
| |
|
|
| |
Section 10.01 |
|
Support of Transaction; Further Assurances |
|
69 |
| |
Section 10.02 |
|
Registration Statement; Rigel Extraordinary General Meeting |
|
70 |
| |
Section 10.03 |
|
Exclusivity |
|
73 |
| |
Section 10.04 |
|
Tax Matters |
|
74 |
| |
Section 10.05 |
|
Confidentiality; Publicity |
|
75 |
| |
Section 10.06 |
|
Post-Closing Cooperation; Further Assurances |
|
76 |
| |
Section 10.07 |
|
Employee Matters |
|
76 |
| |
Section 10.08 |
|
PIPE Financing |
|
77 |
| |
Section 10.09 |
|
Nasdaq Listing |
|
77 |
| |
Section 10.10 |
|
Additional Financial Information |
|
78 |
| |
|
|
| Article XI CONDITIONS
TO OBLIGATIONS |
|
78 |
| |
|
|
| |
Section 11.01 |
|
Conditions to Obligations of All Parties |
|
78 |
| |
Section 11.02 |
|
Additional Conditions to Obligations of Rigel, Newco and Merger Sub |
|
78 |
| |
Section 11.03 |
|
Additional Conditions to Obligations of the Target Companies |
|
79 |
| |
Section 11.04 |
|
Conditions to Obligations of Target Companies With Respect to the Tailings Acquisition and the Blyvoor Resources Acquisition |
|
80 |
| |
Section 11.05 |
|
Frustration of Conditions |
|
81 |
| |
|
|
| Article XII TERMINATION/EFFECTIVENESS |
|
81 |
| |
|
|
| |
Section 12.01 |
|
Termination |
|
81 |
| |
Section 12.02 |
|
Effect of Termination |
|
82 |
| |
|
|
| Article XIII MISCELLANEOUS |
|
82 |
| |
|
|
| |
Section 13.01 |
|
Waiver |
|
82 |
| |
Section 13.02 |
|
Notices |
|
82 |
| |
Section 13.03 |
|
Assignment |
|
84 |
| |
Section 13.04 |
|
Rights of Third Parties |
|
84 |
| |
Section 13.05 |
|
Expenses |
|
84 |
| |
Section 13.06 |
|
Governing Law |
|
84 |
| |
Section 13.07 |
|
Captions; Counterparts |
|
84 |
| |
Section 13.08 |
|
Schedules and Exhibits |
|
84 |
| |
Section 13.09 |
|
Entire Agreement |
|
85 |
| |
Section 13.10 |
|
Amendments |
|
85 |
| |
Section 13.11 |
|
Severability |
|
85 |
| |
Section 13.12 |
|
Jurisdiction; WAIVER OF TRIAL BY JURY |
|
85 |
| |
Section 13.13 |
|
Enforcement |
|
85 |
| |
Section 13.14 |
|
Non-Recourse |
|
86 |
| |
Section 13.15 |
|
Nonsurvival of Representations, Warranties and Covenants |
|
86 |
| |
Section 13.16 |
|
Acknowledgements |
|
86 |
| |
Section 13.17 |
|
Provisions Respecting Representation of the Target Companies |
|
87 |
| |
Section 13.18 |
|
Obligations of Rigel, Newco and Merger Sub |
|
88 |
| EXHIBITS |
|
|
|
|
| |
|
|
|
|
|
| |
Exhibit A |
– |
Form of Registration Rights Agreement |
|
A-1 |
| |
Exhibit B |
– |
Sponsor Support Agreement |
|
B-1 |
| |
Exhibit C |
– |
Form of Restrictive Legend |
|
C-1 |
BUSINESS COMBINATION AGREEMENT
THIS BUSINESS COMBINATION AGREEMENT (this “Agreement”) is made and entered into as of March 11, 2024, by and among Blyvoor Gold Resources Proprietary Limited, a South African private limited liability company (“Blyvoor Resources”), Blyvoor Gold Operations Proprietary Limited, a South African private limited liability company (“Tailings”), Rigel Resource Acquisition Corp, a Cayman Islands exempted company (“Rigel”), RRAC NewCo, a Cayman Islands exempted company (“Newco”), and RRAC Merger Sub, a Cayman Islands exempted company (“Merger Sub”). Blyvoor Resources, Tailings, Rigel, Newco and Merger Sub are collectively referred to herein as the “Parties” and individually as a “Party.” Capitalized terms used and not otherwise defined herein have the meanings set forth
in Section 1.01.
RECITALS
WHEREAS, Rigel is a blank check company incorporated as a Cayman Islands exempted
company and formed for the purpose of effecting a merger, share exchange, asset acquisition,
share purchase, reorganization or similar business combination with one or more businesses
through a Business Combination;
WHEREAS, each of Newco and Merger Sub is a newly formed, wholly owned, direct or indirect, Subsidiary of Rigel that was formed for purposes of consummating
the Transactions;
WHEREAS, at the Merger Effective Time, Newco will be treated as a corporation and Merger Sub will be treated as an entity
disregarded as separate from Newco, in each case, for U.S. federal income tax purposes;
WHEREAS, upon the terms and subject to the conditions set forth herein and in accordance with the Cayman Act, at least one (1) day prior to the Closing Date, Rigel will merge with and into Merger Sub (the “Merger”), as a result of which (a) the separate corporate existence of Rigel will cease and Merger Sub will continue
as the surviving company and a wholly owned, direct Subsidiary of Newco, and (b) each security of Rigel issued and outstanding immediately prior to the Merger Effective
Time shall no longer be outstanding and shall automatically be cancelled in exchange
for the right of the holder thereof to receive a substantially equivalent security
of Newco in accordance with the terms of this Agreement;
WHEREAS, in connection with the Merger, the Parties desire for Newco to (a) register the issuance of Newco Ordinary Shares to Legacy Rigel Holders with the
SEC and (b) cause the Newco Ordinary Shares to become listed on NASDAQ or another mutually agreeable national stock exchange;
WHEREAS, (a) Sellers collectively own, directly or indirectly, all of the issued and
outstanding ordinary no par value shares of Blyvoor Resources (the “Blyvoor Resources Shares”) as follows: (i) Blyvoor Gold owns 590 issued and outstanding Blyvoor Resources Shares (the “Gold Resources Shares”); and (ii) Orion owns 147 issued and outstanding Blyvoor Resources Shares (the “Orion Resources Shares”), which collectively represent all of the issued and outstanding Blyvoor Resources
Shares as of the date hereof; and (b) Blyvoor Gold owns all of the ordinary no par
value shares of Tailings (the “Tailings Shares”) issued and outstanding as of the date hereof (the “Gold Tailings Shares”);
WHEREAS, upon the terms
and subject to the conditions set forth herein and in the Share Exchange Agreement (a) Blyvoor Gold desires to transfer to Newco, and
Newco desires to receive from Blyvoor Gold, all of the Gold Resources Shares and the Gold Tailings Shares, in exchange for the Gold Resources
Share Consideration and the Gold Tailings Share Consideration, respectively; and (b) Orion desires to transfer to Newco, and Newco desires
to receive from Orion, all of the Orion Resources Shares, in exchange for the Orion Share Consideration;
WHEREAS, as a condition and inducement to Rigel’s willingness to enter into this Agreement, simultaneously with the execution and
delivery of this Agreement, Sellers have delivered to Rigel the Company Stockholder Approvals;
WHEREAS, the board of directors of Blyvoor Resources has (a) determined that it is
in the best interests of Blyvoor Resources and the stockholders of Blyvoor Resources,
and declared it advisable, to enter into this Agreement providing for the Transactions,
(b) approved this Agreement and the Transactions, on the terms and subject to the
conditions of this Agreement, and (c) adopted a resolution recommending that this
Agreement and the Transactions be adopted by the stockholders of Blyvoor Resources;
WHEREAS, the board of directors of Tailings has (a) determined that it is in the best
interests of Tailings and the stockholders of Tailings, and declared it advisable,
to enter into this Agreement providing for the Transactions, (b) approved this Agreement
and the Transactions, on the terms and subject to the conditions of this Agreement,
and (c) adopted a resolution recommending that this Agreement and the Transactions
be adopted by the stockholders of Tailings;
WHEREAS, the board of directors of Rigel has (a) determined that it is in the best interests of Rigel and the Rigel Stockholders, and declared it advisable, to enter into this Agreement providing for the Transactions,
(b) approved this Agreement and the Transactions, on the terms and subject to the conditions of this Agreement, and (c) passed resolutions recommending that this Agreement and the Transactions, be approved by the Rigel Stockholders (the “Rigel Board Recommendation”);
WHEREAS, the board of directors of Newco has (a) determined that it is in the best
interests of Newco and the stockholder of Newco, and declared it advisable, to enter into this Agreement
providing for the Transactions, (b) approved this Agreement and the Transactions,
on the terms and subject to the conditions of this Agreement, and (c) adopted a resolution
recommending that this Agreement and the Transactions be adopted by the stockholder
of Newco;
WHEREAS, the board of directors of Merger Sub has (a) determined that it is in the
best interests of Merger Sub and the stockholder of Merger Sub, and declared it advisable, to enter into this Agreement
providing for the Transactions, (b) approved this Agreement and the Transactions,
on the terms and subject to the conditions of this Agreement, and (c) adopted a resolution
recommending that this Agreement and the Transactions be adopted by the stockholder
of Merger Sub;
WHEREAS, Newco, as the sole shareholder of Merger Sub, has approved the execution,
delivery and performance of this Agreement and the consummation of the Transactions
and has adopted this Agreement;
WHEREAS, in furtherance of the Transactions and in accordance with the terms hereof,
Rigel shall provide an opportunity to the Rigel Stockholders to have their outstanding Rigel Class A Shares redeemed on the
terms and subject to the conditions set forth in this Agreement and Rigel’s Organizational Documents in connection with obtaining the Rigel Stockholder Approval;
WHEREAS, at the Closing, the Sponsor, Newco, Sellers and certain other parties will enter into a Registration Rights Agreement,
substantially in the form of Exhibit A attached hereto (as amended, restated, modified, supplemented or waived from time
to time, the “Registration Rights Agreement”);
WHEREAS, as a condition and inducement to the other Parties’ willingness to enter into this Agreement, concurrently with the execution and delivery of this Agreement, the Sponsor, the Target Companies, Newco, Rigel, and the other parties thereto have entered into the Sponsor Support Agreement, a copy of which is attached as Exhibit B;
WHEREAS, on or prior to the date hereof, Rigel has obtained commitments from certain investors for a private placement of Newco Ordinary Shares (the “PIPE Investment”) pursuant to the terms of one or more subscription agreements (each, a “Subscription Agreement”), pursuant to which, among other things, such investors have agreed to subscribe
for and purchase, and Newco has agreed to issue and sell to such investors, an aggregate number of Newco Ordinary Shares set forth in the Subscription Agreements in exchange for an aggregate purchase price
of at least $7,500,000.00 on the Closing Date, on the terms and subject to the conditions set forth therein; and
WHEREAS, for U.S. federal income tax purposes, it is intended that (a) (i) the Merger qualify as a “reorganization” within the meaning of Section 368(a)(1)(F) of the Code, (ii) this Agreement constitutes, and is adopted as, a “plan
of reorganization” for purposes of Sections 354 and 361 of the Code and (iii) Rigel, Newco and Merger Sub will be parties to such
“reorganization” with the meaning of Section 368(b) of the Code and (b) (i) the Blyvoor Resources Acquisition qualifies as a “reorganization” within the meaning of Section 368(a)(1)(B) of the Code, (ii) this Agreement constitutes, and is adopted as, a “plan
of reorganization” for purposes of Sections 354 and 361 of the Code, (iii) Newco and Blyvoor Resources will be parties to such “reorganization” within the meaning of Section 368(b) of the Code (collectively, the “Intended Tax Treatment”) and (iv) the Cash Consideration will be treated as a distribution under Section 301 of the Code.
NOW, THEREFORE, in consideration of the foregoing and the respective representations,
warranties, covenants and agreements set forth in this Agreement, and intending to be legally bound, the Parties hereby agree as follows:
Article I
CERTAIN DEFINITIONS
Section 1.01 Definitions. For purposes of this Agreement, the following capitalized terms have the following
meanings:
“Acquisition Transaction” has the meaning specified in Section 10.03(a).
“Action” means any claim, enforcement, action, suit, assessment, inquiry, audit, investigation, arbitration, mediation, or other legal, regulatory, governmental, judicial or administrative proceeding (whether at law or in equity) or other alternative dispute resolution process.
“Additional PIPE Investors” has the meaning specified in Section 10.08.
“Adjustment Factor” means a number equal to one (1); provided, that (a) if the Net Cash Proceeds are greater than $20,000,000, the Adjustment Factor
shall be increased by 0.04 on a sliding scale basis for every rounded $1,000,000 by
which the Net Cash Proceeds exceed $20,000,000 and (b) if the Net Cash Proceeds are
less than $20,000,000, the Adjustment Factor shall be decreased by 0.04 on a sliding
scale basis for every rounded $1,000,000 by which the Net Cash Proceeds are less than
$20,000,000.
“Adjustment Multiplier” means the percentage equal to the product of (a) the sum of (i) one (1) minus (ii) the quotient of (x) Net Cash Proceeds divided by (y) $33,000,000 multiplied by (b) the Adjustment Factor.
“Affiliate” means, with respect to any specified Person, any Person that, directly or indirectly, controls, is controlled by, or is under common control
with, such specified Person, through one or more intermediaries or otherwise. The term “control” means the ownership of a majority of the voting securities of the applicable Person
or the possession, direct or indirect, of the power to direct or cause the direction
of the management and policies of the applicable Person, whether through ownership
of voting securities, by Contract or otherwise, and the terms “controlled” and “controlling” have meanings correlative thereto; provided, that for the avoidance of doubt, Orion shall not be considered an Affiliate of Blyvoor Gold or, prior to the Closing, any Target Group Company. For the avoidance of doubt, Sponsor shall be deemed to be an Affiliate of Rigel prior to the Closing.
“Aggregate Cash Proceeds” means an amount equal to (a) all amounts in the Trust Account (after reduction for
the aggregate amount of payments required to be made in connection with the Rigel
Stockholder Redemption), plus (b) the aggregate amount of cash that has been funded to Rigel pursuant to the Subscription
Agreements with respect to the PIPE Investment and the PIPE Financing, in each case, as of immediately prior to the Closing, plus (c) the aggregate amount of cash that has been funded to Newco pursuant to the Orion Forward Purchase Agreement, minus (d) the aggregate Cash Consideration.
“Agreement” has the meaning specified in the preamble hereto.
“Anti-Corruption Laws” means, collectively: (a) the U.S. Foreign Corrupt Practices Act, as amended (FCPA); (b) the UK Bribery Act 2010; (c) the Prevention and Combating of Corrupt Activities Act, No. 12 of 2004 of South
Africa; (d) the Prevention of Organised Crime Act, No. 121 of 1998 of South Africa
and (e) any other applicable anti-bribery or anti-corruption Laws related to combating bribery, corruption and
money laundering.
“Antitrust Fees” has the meaning specified in the definition of “Rigel Transaction Expenses”.
“Arrangement Costs” has the meaning specified in the definition of “Rigel Transaction Expenses.”
“Blyvoor Capital” means Blyvoor Gold Capital Proprietary Limited, a South African private limited
liability company.
“Blyvoor Gold” means Blyvoor Gold Proprietary Limited, a South African private limited liability company.
“Blyvoor Gold Stockholder Approval” means the adoption of a special resolution of the shareholders of Blyvoor Gold approving
this Agreement and the Transactions.
“Blyvoor Empowerment Partners” means Blyvoor Empowerment Partners (RF) Proprietary Limited, a South Africa private limited liability company.
“Blyvoor Resources” has the meaning specified in the preamble hereto.
“Blyvoor Resources Acquisition” has the meaning specified in Section 4.01(a).
“Blyvoor Resources Shares” has the meaning specified in the Recitals hereto.
“Business Combination” has the meaning ascribed to such term in the Memorandum and Articles of Association.
“Business Combination Proposal” has the meaning specified in Section 10.03(b).
“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks
in New York, New York or Johannesburg, South Africa are authorized or required by Law to close.
“Cash Consideration” has the meaning specified in Section 3.01(a)(i).
“Cayman Act” means the Companies Act (as revised) of the Cayman Islands.
“Change in Recommendation” has the meaning specified in Section 10.02(b).
“Class A Merger Consideration” has the meaning specified in Section 3.01(a)(i).
“Closing” has the meaning specified in Section 5.01.
“Closing Date” has the meaning specified in Section 5.01.
“Code” means the Internal Revenue Code of 1986, as amended.
“Companies Act” means the Companies Act, No. 71 of 2008 of the Republic of South Africa, together
with the Companies Regulations 2011, promulgated thereunder.
“Company Benefit Plan” has the meaning specified in Section 6.13(a).
“Company Closing Statement” has the meaning specified in Section 5.02(b).
“Company Cure Period” has the meaning specified in Section 12.01(b).
“Company Data” means all confidential data, information, and data compilations contained in the IT
Systems or any databases of the Target Companies, including Personal Information,
that are used or held for use in the conduct of the business of, the Target Companies.
“Company Software” means all Software owned or purported to be owned by any of the Target Group Companies.
“Company Stockholder Approvals” means the Resources Stockholder Approval and the Tailings Stockholder Approval and, to the extent required in terms of section 112 and 115 of the Companies Act, the Blyvoor Gold Stockholder Approval.
“Confidentiality Agreement” has the meaning specified in Section 13.09.
“Continuing Employee” has the meaning specified in Section 10.07(a).
“Contracts” means any legally binding contracts, agreements, subcontracts and leases and all material amendments, written modifications and written supplements thereto.
“Counsel” has the meaning specified in Section 13.17.
“COVID-19” means SARS-CoV-2 or COVID-19, and any evolutions thereof or any other epidemics, pandemics or disease outbreaks.
“COVID-19 Measures” means any quarantine, “shelter in place,” “stay at home,” workforce reduction, social distancing, shut down, closure, sequester or any other
Law, Governmental Order, Action, directive, pronouncement, guidelines or recommendations by any Governmental Authority (including the
Centers for Disease Control and Prevention and the World Health Organization) in connection with, related to or in response to COVID-19, including, but not limited to, the Coronavirus Aid, Relief, and Economic Security Act and the Families First Coronavirus Response Act, or any changes thereto.
“Cumulative Issue Price” has the meaning specified in Section 3.01(b).
“Data Room” means the Project BLAZE virtual data room hosted by Firmex Inc.
“D&O Cost” has the meaning specified in the definition of “Rigel Transaction Expenses”.
“D&O Tail” has the meaning specified in Section 9.02(b).
“Data Protection Requirements” means with respect to the protection or Processing of Personal Information: (a) Laws
and binding regulations applicable to the Target Group Companies relating to data
protection, information security, cybercrime, Security Incident notification, social
security number protection, outbound communications and/or electronic marketing, use
of electronic data and privacy matters (including online privacy) in any applicable
jurisdictions; (b) each Contract relating to the Processing of Personal Information
binding on a Target Group Company; and (c) any other rule, code of conduct, or other
requirement of self-regulatory bodies and industry standards binding on the conduct
of a Target Group Company, including, to the extent applicable, the Payment Card Industry
Data Security Standard (“PCI-DSS”).
“Deeds Registry Office” means the deeds registry offices contemplated in section 1 of the Deeds Registries Act, No. 47 of 1937 of South Africa.
“Debt Payoff” has the meaning specified in Section 4.04(b).
“Deferred Share Consideration” means such number of Newco Ordinary Shares that is equal to the product of (A) the quotient of (i) the aggregate amount of PIPE Investment proceeds divided by (ii) 100,000 multiplied by (B) 346.6666667.
“Disclosure Letter” means, as applicable, the Target Company Disclosure Letter or the Rigel Disclosure Letter.
“DTC” has the meaning specified in Section 3.03(b).
“Earnout Period” means, as applicable, the First Earnout Period or the Second Earnout Period.
“Earnout Share Consideration” means, as applicable, the First Earnout Share Consideration and the Second Earnout Share Consideration.
“Enforceability Exceptions” has the meaning specified in Section 6.03.
“Environmental Laws” means any Laws relating to pollution or protection of the environment, natural resources or health and safety, or relating to the use, generation, management, manufacture, processing, treatment,
storage, transportation, remediation, cleanup, handling, disposal or Release of or threatened Release of, or exposure to, Hazardous Materials, including but not limited to the National Water Act, 1998, the National Environmental
Management Act, 1998, the Environment Conservation Act, 1989, the National Environmental
Management: Air Quality Act, 2004, the National Environmental Management: Biodiversity
Act, 2004, and the National Environmental Management: Waste Act, 2008.
“Environmental Permit” means any permit, license, approval, registration, notification, exemption, waiver, consent, directive, entitlement, or other authorization required by or from a Governmental Authority under Environmental
Law.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Exchange Agent” has the meaning specified in Section 3.03(a).
“Exchange Fund” has the meaning specified in Section 3.03(a).
“Export Control Laws” means (a) the U.S. Export Administration Regulations and all import and export control
Laws adopted by Governmental Authorities of other countries relating to the same matter
and (b) the anti-boycott regulations administered by the U.S. Department of Commerce
and the U.S. Department of the Treasury and all anti-boycott Laws adopted by Governmental
Authorities of other countries relating to the same matter.
“Extraordinary General Meeting” has the meaning specified in Section 10.02(b).
“Final Prospectus” has the meaning specified in Section 7.06(a).
“Financial Statements” has the meaning specified in Section 6.08(a).
“First Base Case Milestone” has the meaning specified in Section 4.02(b)(i)(A).
“First Downside Milestone” means the amount of cumulative payable gold production of the Mine, in ounces, equal to
(a) the First Base Case Milestone multiplied by (b) the sum of (i) one (1) minus (ii) the Adjustment Multiplier; provided, that in no event shall the First Downside Milestone be less than 32,650 ounces. An illustrative calculation of the First Downside Milestone is included on Section 1.01(a) of the Target Company Disclosure Letter.
“First Earnout Period” means the 12-month period ending on the date that is the 18-month anniversary of
the last day of the calendar month in which the Closing Date falls.
“First Earnout Share Consideration” means (a) in the event the First Earnout Share Consideration is issuable pursuant to Section 4.02(b)(i), 1,050,000 Newco Ordinary Shares and (b) in the event the First Earnout Share Consideration is issuable pursuant to
Section 4.02(b)(ii), the product of (i) 1,050,000 Newco Ordinary Shares multiplied by (ii) the sum of (A) one (1) minus (B) the product of (x) the Adjustment Multiplier multiplied by (y) 0.25 plus (C) the Share Consideration Multiplier; provided that, the number of shares issued to Sellers as First Earnout Share Consideration shall in no event exceed 1,050,000 Newco Ordinary Shares.
“Fraud” shall mean an act, committed by a Person, with intent to deceive another Person, or
to induce such Person to enter into this Agreement, or otherwise act or refrain from
acting, and requires (a) the making of a false representation or warranty in Article VI or Article VII, as applicable; (b) with knowledge that such representation or warranty is false;
(c) with an intention to induce reliance by the Party to whom such representation
or warranty is made; and (d) justifiable reliance by the Party to whom the representation
is made on such representation or warranty; provided, however, that any reckless or similar misrepresentation of a material fact will not be deemed
“Fraud”, it being the intention of the Parties that “reckless fraud” and other forms of constructive fraud shall not constitute “Fraud” for any purpose under this Agreement.
“GAAP” means United States generally accepted accounting principles, consistently applied.
“Gold Resources Consideration” means $280,175,000.
“Gold Resources Share Consideration” means the number of shares (rounded to the nearest whole share) of Newco Ordinary Shares determined by dividing an amount equal to (a) the Gold Resources Consideration by (b) $10.00.
“Gold Resources Shares” has the meaning specified in the Recitals hereto.
“Gold Tailings Share Consideration” means 600,000 Newco Ordinary Shares.
“Gold Tailings Shares” has the meaning specified in the Recitals hereto.
“Governing Documents” means the legal document(s) by which any Person (other than an individual) establishes
its legal existence or which govern its internal affairs, in each case as amended, restated, modified or supplemented from time to time. For example, the “Governing Documents” of a corporation are its certificate of incorporation and by-laws,
the “Governing Documents” of a limited partnership are its limited partnership agreement
and certificate of limited partnership, the “Governing Documents” of a limited liability company are its operating agreement and
certificate of formation, the “Governing Documents” of an exempted company are its memorandum and articles of association, the “Governing Documents” of a South African private limited liability company are its memorandum of incorporation.
“Governmental Authority” means any federal, state, provincial, municipal, local or foreign government, governmental
authority, regulatory or administrative agency, governmental commission, department,
board, bureau, agency or instrumentality, court or tribunal, or arbitral body.
“Governmental Order” means any order, judgment, injunction, decree, writ, stipulation, determination
or award, in each case, entered by or with any Governmental Authority.
“Hazardous Material” means any material, substance or waste that is listed, regulated, or otherwise defined
as “dangerous goods”, “hazardous,” “toxic,” or “radioactive”, or as a “pollutant” or “contaminant” or words of similar intent or meaning under Environmental Laws or for which liability may be imposed pursuant to Environmental Law, including petroleum or petroleum by-products, radon, radioactive materials or wastes, per- and polyfluoroalkyl substances, asbestos or asbestos-containing materials and polychlorinated biphenyls.
“IFRS” means the International Financial Reporting Standards, as issued by the International
Accounting Standards Board and as applied in the relevant jurisdiction.
“Incentive Equity Plan” has the meaning specified in Section 9.10.
“Indebtedness” means, with respect to any Person as of any time, without duplication, (a) all indebtedness for borrowed money of such Person, (b) indebtedness evidenced by any note, bond, debenture or other debt security, in each
case, as of such time of such Person, (c) any premiums, prepayment fees or other penalties, fees, costs or expenses associated
with payment of any indebtedness of such Person, in each case to the extent payable
as a result of the consummation of the Transactions, and (d) all indebtedness of the type referred to in clauses (a) - (c) of this definition of any other Person, guaranteed directly or indirectly, jointly
or severally. Notwithstanding anything to the contrary contained herein, “Indebtedness” of any Person shall not include any item that would otherwise constitute
“Indebtedness” of such Person that is an
obligation between such Person and any wholly
owned Subsidiary of such Person or between any two or more wholly owned Subsidiaries
of such Person.
“Indemnitee Affiliate” has the meaning specified in Section 9.02(c).
“Intended Tax Treatment” has the meaning specified in the Recitals.
“Intellectual Property” means all intellectual property and intellectual property rights worldwide including:
(a) patents, published, or unpublished patent applications (and any patents that issue
as a result of those patent applications), inventions (whether or not patentable or
whether or not reduced to practice), invention disclosures, and industrial designs,
together with all parents, (b) copyrights and rights in works of authorship and copyrightable
subject matter (including Software), together with any moral rights related thereto,
including all rights of authorship, use, publication, reproduction, distribution,
and performance, transformation and ownership, together with all other interests accruing
by reason of international copyright conventions, (c) trade secrets, know-how and
confidential information, and (d) trademarks, trade names, logos, service marks, trade
dress, business names (including any fictitious or “dba” names), Internet domain names,
slogans, symbols, and other similar designations of source or origin together with
the goodwill of the business symbolized by or associated with any of the foregoing.
“Interim Period” has the meaning specified in Section 8.01.
“IT Systems” means any information technology and computer systems, servers, networks, databases, websites,
Software, computer hardware and equipment used to process, store, generate, analyze, maintain
and operate data or information that are owned or under the control of the Target Group Companies.
“JOBS Act” has the meaning specified in Section 9.11.
“Key Executives” means the individuals set forth on Section 1.01(b) of the Target Company Disclosure Letter.
“Knowledge” means (i) with respect to the Target Companies, the knowledge that each of the individuals listed on Section 1.01(c) of the Target Company Disclosure Letter actually has, or the knowledge that any of them would have actually had following a reasonable
inquiry with his or her direct reports directly responsible for the applicable subject
matter and (ii) with respect to Rigel, the knowledge that each of the individuals listed
on Section 1.01(a) of the Rigel Disclosure Letter actually has, or the knowledge that any of them would have actually had following a reasonable
inquiry with his or her direct reports directly responsible for the applicable subject
matter; provided that, for the avoidance of doubt, other than such reasonable inquiry with direct
reports directly responsible for the applicable subject matter, no such individual
will be under any express or implied duty to investigate.
“Labor Union” has the meaning specified in Section 6.14(a).
“Law” means any statute, law, ordinance, rule, regulation or Governmental Order, in each case, of any Governmental Authority.
“Legacy Rigel Holders” means the holders of Rigel Securities as of immediately prior to the Merger Effective Time.
“License” means any authorization, approval, consent, concession, exemption, license, lease, grant, permit, franchise, right, privilege or no-action letter from any
Governmental Authority having jurisdiction
with respect to any specified person, property,
transaction or event, or with respect to any of such Person’s property or business and affairs (including any zoning approval, mining permit,
development permit or building permit) or from any Person in connection with any easements,
contractual rights or other matters;
“Lien” means any mortgage, notarial bond, deed of trust, pledge, hypothecation, encumbrance, easement, license, option, right
of first refusal, security interest or other lien of any kind.
“Listing” has the meaning specified in Section 10.09.
“Mailing Costs” has the meaning specified in the definition of “Rigel Transaction Expenses”.
“Malicious Code” means any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,” “ransomware,” or “worm” (as such terms are commonly understood in the software industry) or any other
code designed or intended to have any of the following functions: (i) disrupting,
disabling, harming, interfering with or otherwise impeding in any manner the operation
of, or providing unauthorized access to, a computer system or network or other device
on which such code is stored or installed; or (ii) damaging or destroying any data
or file without the user’s consent.
“Material Adverse Effect” means, with respect to the Target Group Companies, any effect, occurrence, development,
fact, condition or change (“Effect”) that has had, or would reasonably be expected to have, individually or in the aggregate,
a material adverse effect on the business, results of operations or financial condition
of the Target Group Companies, taken as a whole; provided, however, that in no event would any of the following, alone or in combination, be deemed
to constitute, or be taken into account in determining whether there has been or will
be, a “Material Adverse Effect”: (a) any change in applicable Laws or IFRS or any interpretation thereof, (b) any change in interest rates or economic, political, business, financial, commodity,
currency or market conditions generally, (c) the announcement or the execution of this Agreement, the pendency or consummation
of the Transactions or the performance of this Agreement, including the impact thereof
on relationships, contractual or otherwise, with customers, suppliers, landlords,
licensors, regulators, Governmental Authorities, distributors, partners, providers
and employees, (d) any Effect generally affecting any of the industries or markets in which any Target
Group Company operates or the local or global economy as a whole, (e) the compliance with the terms of this Agreement or the taking of any action (or failure to take any action) required or contemplated by this Agreement or with
the prior written consent of Rigel or at the request of Rigel, (f) any earthquake, hurricane, epidemic, pandemic, tsunami, tornado, flood, mudslide,
wild fire or other natural disaster, act of God or other force majeure event, (g) any national or international political or social conditions in countries in which,
or in the proximate geographic region of which, any Target Group Company operates
or by which it may be effected, including the engagement by the United States, South
Africa or such other countries in hostilities or the escalation thereof, whether or
not pursuant to the declaration of a national emergency or war, or the occurrence
or the escalation of any military or terrorist attack upon the United States, South
Africa or such other country, or any territories, possessions, or diplomatic or consular
offices of the United States, South Africa or such other countries or upon any United
States, South Africa or such other country military installation, equipment or personnel,
(h) any failure of the Target Group Companies, taken as a whole, to meet any projections,
forecasts or budgets; provided, that clause (h) shall not prevent a determination that any Effect not otherwise excluded from this
definition of Material Adverse Effect underlying such failure to meet projections
or forecasts has resulted in a Material Adverse Effect, (i) COVID-19 or any COVID-19 Measures, or any Target Group Company’s compliance therewith, (j) any cyberattack on or involving any Target Group Company, (k) any matters set forth on the Target Company Disclosure Letter, and (l) any Effect to the extent actually known by those individuals set forth on Section 1.01(a) of the Rigel Disclosure Letter on or prior to the date hereof; provided that, in the case of clauses (a), (b), (f) and (g), such changes may be taken into account to the extent (but only to the extent) that
such changes have had a disproportionate and adverse impact on the Target Group Companies,
taken as a whole,
as compared to other similarly situated competitors or comparable
entities operating in the industries and markets in which the Target Group Companies
operate.
“Material Contracts” has the meaning specified in Section 6.12(b).
“Material Supplier” has the meaning specified in Section 6.23(a).
“Memorandum and Articles of Association” means the Amended and Restated Memorandum and Articles of Association of Rigel, adopted by special resolution dated November 4, 2021 and effective on November 4, 2021, and amended by special resolution dated August 7, 2023 and in effect on the date hereof.
“Merger” has the meaning specified in the Recitals hereto.
“Merger Date” means the date on which the Merger occurs.
“Merger Effective Time” has the meaning specified in Section 2.02.
“Merger Sub” has the meaning specified in the preamble hereto.
“Merger Sub Shares” means the ordinary shares of par value per share of US$1.00 in the share capital of Merger Sub.
“Mine” means the gold mine being, or to be, developed, constructed, owned and operated
by the Target Group Companies, being the mining operations, the gold processing plant
operations, and all operations and activities incidental thereto and related infrastructure
established to access and mine minerals in terms of the Mining Right on the Mining
Areas, including (a) the Peter Skeat Shaft and gold processing plant located on an
area within the immovable property described as Remaining Extent of Portion 24 of
the Farm Doornfontein No. 118 1.Q, Gauteng Province and shall include all associated
surface and underground equipment, structures, erections and infrastructure located
within such area and such other infrastructure located elsewhere in the Mining Area
which the Target Group Companies have the right to access or use for the purposes
of the mining operations, and (b) all other movable equipment related to such mine
and mining operations located on the Mining Areas.
“Mineral Rights” means the Mining Right, including all prospecting rights or licenses, exploration licenses, mining leases, mining licenses, mineral and exploitation
concessions, mining Contracts, association agreements, easements, and surface rights
and other forms of mineral tenure or other rights to Minerals (including exploitation
and development rights), or rights to work upon or occupy lands, and all material
permits, agreements, approvals, consents, certificates, dockets, proceedings, registrations
and authorizations granting such licenses, rights, or easements for the purposes of
searching for, developing, extracting or disposing of Minerals under any form of mineral
tenure or right, whether contractual, statutory, regulatory, or otherwise or any interest
therein.
“Minerals” means all ores, and ores and concentrates derived therefrom, of precious, base and
industrial minerals, which may be lawfully explored for, mined and sold pursuant to
Mineral Rights and other instruments of title.
“Mining Areas” shall bear the meaning ascribed thereto in section 1 of the MPRDA in respect of the Mining Right.
“Mining Real Property” has the meaning specified in Section 6.18(a).
“Mining Right” means the mining right (DMR reference: GP 30/5/1/2/2/143MR) converted in terms of
Item 7 of Schedule II to the MPRDA, held in respect of gold in respect of various
portions of the farms Blyvooruitzicht 116 IQ, Doornfontein 118 IQ and Varkenslaagte
119 IQ in the magisterial district of Oberholzer in Gauteng Province measuring 6708.4273 hectares in extent, which mining right was registered
in the Mining Titles Office on 4 August 2017 under MPT reference 21/2017MR and that was notarial ceded to Blyvoor Gold Capital Proprietary Limited under the notarial deed of cession registered in the Mineral Titles Office on 7 August 2017 under MPT reference 17/2017MR.
“Mining Titles Office” means the Mineral and Petroleum Titles Registration Office contemplated in section 2 of the Mining Titles Registration Act, No. 16 of 1967 of South Africa.
“Most Recent Balance Sheet Date” means February 28, 2023.
“MPRDA” means the Mineral and Petroleum Resources Development Act, No. 28 of 2002 of South
Africa.
“Nasdaq” means the Nasdaq Capital Market.
“Net Cash Proceeds” means an amount equal to (a) all amounts in the Trust Account (after reduction for
the aggregate amount of payments required to be made in connection with the Rigel
Stockholder Redemption), plus (b) the aggregate amount of cash that has been funded to Rigel pursuant to the Subscription
Agreements with respect to the PIPE Investment and the PIPE Financing, in each case,
as of immediately prior to the Closing, plus (c) the aggregate amount of cash that has been funded to Newco pursuant to the Orion Forward Purchase Agreement, minus (d) expenses of Rigel and its Affiliates incurred prior to the Closing Date consistent
with the disclosure set forth in the SEC Reports (other than Rigel Transaction Expenses), minus (e) the Rigel Transaction Expenses, minus (f) the Target Group Company Transaction Expenses, minus (g) the Payoff Indebtedness, minus (h) the Aggregate Cash Consideration.
“Newco” has the meaning specified in the preamble hereto.
“Newco Memorandum” means subject to obtaining the Rigel Stockholder Approval, an amended and restated
memorandum and articles of association of Newco in a customary form mutually agreed by Rigel and the Target Companies, acting
reasonably and in good faith.
“Newco Ordinary Shares” means the ordinary shares of par value per share of US$1.00 in the share capital of Newco.
“Newco Private Warrant” means one (1) warrant of Newco entitling the holder thereof to purchase one (1)
Newco Ordinary Share on substantially the same terms and conditions described in the
Final Prospectus with respect to the private warrants of Rigel.
“Newco Public Warrant” means one (1) warrant of Newco entitling the holder thereof to purchase one (1)
Newco Ordinary Share on substantially the same terms and conditions described in the
Final Prospectus with respect to the public warrants of Rigel.
“Newco Securities” means the Newco Ordinary Shares and the Newco Warrants, collectively.
“Newco Stockholder Approval” has the meaning set forth in Section 5.03(a)(i).
“Newco Warrants” means the Newco Private Warrants and Newco Public Warrants, collectively.
“NYSE” means the New York Stock Exchange.
“Offer Documents” has the meaning specified in Section 10.02(a)(i).
“Open Source Software” means software or other material that is distributed as “free software”, “open source software” or under a similar licensing or distribution terms including any license approved by the Open Source Initiative and listed at opensource.org/licenses.
“Orion” means Orion Mine Finance Fund II L.P., a Bermuda limited partnership.
“Orion Forward Purchase Agreement” means the Forward Purchase Agreement, entered into as of November 4, 2021, by and between Rigel and Orion Mine Finance, as amended, restated, modified or supplemented from time to time.
“Orion Mine Finance” means Orion Mine Finance Fund III LP.
“Orion Resources Consideration” means $69,825,000.
“Orion Resources Shares” has the meaning specified in the Recitals hereto.
“Orion Share Consideration” means the number of shares (rounded to the nearest whole share) of Newco Ordinary Shares determined by dividing an amount equal to (a) the Orion Resources Consideration by (b) $10.00.
“Owned Intellectual Property” means all Intellectual Property that is owned or purported to be owned by any Target Group Company.
“Party” has the meaning specified in the preamble hereto.
“Payoff Documentation” means, with respect to the Payoff Indebtedness, payoff and release letters (or similar
instruments) evidencing the termination, repayment and release of all such Payoff
Indebtedness as of the Closing Date and any and all Liens granted with respect thereto.
“Payoff Indebtedness” means all indebtedness set forth on Section 1.01(d) of the Target Company Disclosure Letter.
“Permits” has the meaning specified in Section 6.17.
“Permitted Liens” means (a) statutory or common law Liens of mechanics, materialmen, warehousemen, landlords, carriers, repairmen, construction
contractors and other similar Liens that arise in the ordinary course of business, that relate to amounts not yet delinquent
or that are being contested in good faith through appropriate Actions for which appropriate reserves have been established in accordance with IFRS, (b)
Liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business, (c) Liens for Taxes not yet due and payable or which are being contested in good faith through appropriate
Actions for which appropriate reserves have been established in accordance with IFRS, (d) Liens, encumbrances and restrictions on real property (including easements, covenants, rights of way and similar restrictions of record) or zoning, building, entitlement and other land use and environmental regulations that (i) are matters of record, (ii) would be discovered by a current, accurate survey or physical inspection of such real property, or (iii) do not materially interfere with the present uses of such real property, (e) Liens that that do not, individually or in the aggregate, materially and adversely affect,
or materially disrupt, the ordinary course operation of the
businesses of the Target
Group Companies, taken as a whole, (f) non-exclusive licenses of Intellectual Property entered into in the ordinary course of business, (g) Liens securing any Indebtedness of any Target Group Company and (h) Liens described on Section 1.01(e) of the Target Company Disclosure Letter.
“Person” means any individual, firm, corporation, partnership, limited liability company, incorporated or unincorporated association, joint venture, joint stock company, governmental agency or instrumentality or other entity of any kind.
“Personal Information” means information relating to or reasonably capable of being associated with an identified
or identifiable person, device, or household, including, but not limited to “personal data,” “personal information,” “protected health information,” “nonpublic personal information,” or other similar terms as defined by Data Protection
Requirements.
“PIPE Financing” has the meaning specified in Section 10.08.
“PIPE Financing Amount” has the meaning specified in Section 10.08.
“PIPE Investment” has the meaning specified in the Recitals hereto.
“PIPE Investment Amount” has the meaning specified in Section 7.13(a).
“PIPE Investor” means an investor party to a Subscription Agreement.
“Plan of Merger” has the meaning specified in Section 2.02.
“Policies” has the meaning specified in Section 6.16.
“Privileged Communications” has the meaning specified in Section 13.17.
“Processing,” “Process,” or “Processed” means any collection, access, acquisition, storage, protection, use, recording,
maintenance, operation, dissemination, re-use, disposal, disclosure, re-disclosure,
deletion, destruction, sale, transfer, modification, or any other processing (as defined
by Data Protection Requirements) of Company Data or IT Systems.
“Proxy Statement” has the meaning specified in Section 10.02(a)(i).
“Registered Intellectual Property” has the meaning specified in Section 6.19(a).
“Registrar” has the meaning specified in Section 2.02.
“Registration Rights Agreement” has the meaning specified in the Recitals hereto.
“Registration Statement” has the meaning specified in Section 10.02(a)(i).
“Regulatory Consent Authorities” means the Financial Surveillance Department of the South African Reserve Bank.
“Release” means any release, spill, emission, leaking, pumping, pouring, emptying, escape, injection,
deposit, disposal, discharge, dispersal, dumping, leaching or migration of Hazardous
Materials into or through the indoor or outdoor environment or into or out of any
property, including the movement of Hazardous Materials through or in the air, soil,
surface water, or groundwater.
“Representative” means, as to any Person, any of the officers, directors, managers, employees, counsel, accountants, financial
advisors, and consultants of such Person.
“Resources Stockholder Approval” means the approval of this Agreement and the Transactions, including the making
of any filings, notices or information statements in connection with the foregoing,
by (a) special resolution of the holders of at least eighty percent (80%) of the voting power of the outstanding Blyvoor Resources Shares, voting together as a single class and (b) prior written approval from Orion, in each case, in accordance with the terms and subject to the conditions of Blyvoor Resources’ Governing Documents and applicable Law.
“Restrictive Legend” has the meaning specified in Section 5.03(a)(i).
“Rigel” has the meaning specified in the preamble hereto.
“Rigel Board Recommendation” has the meaning specified in the Recitals hereto.
“Rigel Class A Shares” means the class A ordinary shares of a par value per share of US$0.0001 in the share
capital of Rigel.
“Rigel Class B Shares” means the class B ordinary shares of a par value per share of US$0.0001 in the share
capital of Rigel.
“Rigel Closing Statement” has the meaning specified in Section 5.02(a).
“Rigel Cure Period” has the meaning specified in Section 12.01(c).
“Rigel Disclosure Letter” has the meaning specified in the introduction to Article VII.
“Rigel Organizational Documents” means the Memorandum and Articles of Association, as amended, restated, modified
or supplemented from time to time.
“Rigel Preferred Stock” means the undesignated preference shares, par value $0.0001 per share, of Rigel.
“Rigel Private Warrant” means each one (1) warrant of Rigel entitling the holder thereof to purchase one
(1) Rigel Class A Share in accordance with terms described in the Final Prospectus with respect to the private placement warrants of Rigel.
“Rigel Public Warrant” means each one (1) warrant of Rigel entitling the holder thereof to purchase one (1)
Rigel Class A Share in accordance with terms described in the Final Prospectus with respect to the public warrants of Rigel.
“Rigel Representations” means the representations and warranties of Rigel expressly and specifically set
forth in Article VII of this Agreement, as qualified by the Rigel Disclosure Letter.
“Rigel Securities” means the Rigel Units, the Rigel Shares, the Rigel Public Warrants and the Rigel
Private Warrants, collectively.
“Rigel Shares” means the Rigel Class A Shares and the Rigel Class B Shares.
“Rigel Stockholder Approval” has the meaning specified in Section 7.02(b).
“Rigel Stockholder Matters” has the meaning specified in Section 10.02(b).
“Rigel Stockholder Redemption” has the meaning specified in Section 10.02(b).
“Rigel Stockholders” means the holders of Rigel Shares.
“Rigel Transaction Expenses” means all accrued and unpaid fees, costs and expenses of Rigel and its Affiliates incurred prior to and through the Closing Date in connection with the negotiation, preparation and execution of this Agreement,
the other Transaction Agreements, the performance and compliance with all Transaction Agreements and conditions contained
herein to be performed or complied with by Rigel or any of its Affiliates at or before Closing, and the consummation of the Transactions, including (a) the fees, costs, expenses and disbursements of counsel, accountants,
advisors and consultants of Rigel or any of its Affiliates, (b) fifty percent (50%) of (i) any and all filing fees payable to the antitrust or
competition Law authorities of any jurisdiction in connection with the Transactions
(the “Antitrust Fees”), (ii) the cost of the D&O Tail to be obtained pursuant to Section 9.02 (the “D&O Cost”), (iii) the fees, costs and expenses incurred in connection with the preparation,
filing and mailing of the Proxy Statement and the Registration Statement, as applicable, pursuant to and in accordance with the terms of this Agreement (collectively, the
“Mailing Costs”) and (iv) the fees, costs and expenses incurred in connection with the arrangement
of the PIPE Investment and the PIPE Financing (the “Arrangement Costs”).
“Rigel Units” means the units of Rigel, each unit consisting of one (1) Rigel Class A Share and
one-half of one (1) Rigel Public Warrant.
“Rigel Warrants” means the Rigel Private Warrants and Rigel Public Warrants, collectively.
“Sanctions Laws” means those economic sanctions Laws administered by the Office of Foreign Assets Control of the U.S. Department of the
Treasury, the U.S. Department of State, the European Union and enforced by its Member States, the United Nations, the United Kingdom, and any other Governmental Authority with jurisdiction over the Target Companies.
“SARS” means the South African Revenue Service.
“SEC” means the United States Securities and Exchange Commission.
“SEC Reports” has the meaning specified in Section 7.08(a).
“Second Base Case Milestone” has the meaning specified in Section 4.02(b)(i)(B).
“Second Downside Milestone” means the amount of cumulative payable gold production of the Mine, in ounces, equal
to (a) the Second Base Case Milestone multiplied by (b) the sum of (i) one (1) minus (ii) the Adjustment Multiplier; provided, that in no event shall the Second Downside Milestone be less than 56,240 ounces. An illustrative calculation of the Second Downside Milestone is included on Section 1.01(a) of the Target Company Disclosure Letter.
“Second Earnout Period” means the 12-month period ending on the date that is the 30-month anniversary of
the last day of the calendar month in which the Closing Date falls.
“Second Earnout Share Consideration” means (a) in the event the Second Earnout Share Consideration is issuable pursuant to Section 4.02(b)(i), 1,575,000 Newco Ordinary Shares and (b) in the event the Second Earnout Share Consideration is issuable pursuant
to Section 4.02(b)(ii), the product of (i) 1,575,000 Newco Ordinary Shares multiplied by (ii) the sum of (A) one (1) minus (B) the product of (x) the
Adjustment Multiplier multiplied by (y) 0.25 plus (C) the Share Consideration Multiplier; provided that, the number of shares issued to Sellers as Earnout Share Consideration shall
in no event exceed 2,625,000 Newco Ordinary Shares.
“Securities Act” means the Securities Act of 1933, as amended.
“Securities Laws” means the securities Laws of any state, federal or foreign entity and the rules
and regulations promulgated thereunder.
“Security Incident” means any unauthorized Processing of Company Data, any unauthorized access or disruption
to the Target Companies’ IT Systems, or any such incident that may require notification to any Person, Governmental Authority, or
any other entity under Data Protection Requirements.
“Seller Group” has the meaning specified in Section 13.17.
“Sellers” means, collectively, Blyvoor Gold and Orion, each, a “Seller”.
“Settlement Obligations” has the meaning specified in Section 3.01(d).
“Share Consideration Multiplier” means the percentage equal to (a) with respect to the First Earnout Share Consideration,
the product of (i) the sum of (A) the quotient of (I) the amount of cumulative payable
gold production of the Mine in ounces during the First Earnout Period divided by (II) the First Downside Milestone minus (B) one (1) multiplied by (ii) 0.25 and (b) with respect to the Second Earnout Share Consideration, the product
of (i) the sum of (A) the quotient of (I) the amount of cumulative payable gold production
of the Mine in ounces during the Second Earnout Period divided by (II) the Second Downside Milestone minus (B) one (1) multiplied by (ii) 0.25.
“Share Exchange Agreement” means the share exchange agreement among Newco, Sellers and the Target Companies in form and substance reasonably satisfactory to Rigel, pursuant to which Sellers shall agree to consummate the transactions contemplated by Section 4.01 and Section 4.02.
“Software” means all computer programs (including any and all software, firmware, or implementation
of algorithms, models and methodologies whether in source code, executable code, or
object code), APIs, assemblers and compilers, data files, software libraries, device
drivers, databases and database schema and compilations (including any and all data
and collections of data, whether machine readable or otherwise), and documentation
(including user manuals and training materials) relating to any of the foregoing.
“Specified Representations” has the meaning specified in Section 11.02(a)(i).
“Sponsor” means Rigel Resource Acquisition Holding LLC, a Cayman Islands limited liability company.
“Sponsor Support Agreement” means that certain Letter Agreement, dated as of the date hereof, by and among the
Sponsor, the Target Companies, Newco, Rigel and the other parties signatory thereto, as amended, restated, modified or supplemented
from time to time.
“Stock Exchange” means, as applicable, at any time (i) prior to the Listing, the NYSE and (ii) following the Listing, the Nasdaq.
“Subscription Agreement” has the meaning specified in the Recitals hereto.
“Subsidiary” means, with respect to a Person, any corporation or other organization (including a limited liability company or a partnership), whether incorporated or unincorporated, of which such Person directly or indirectly owns or controls a majority of the securities or other interests
having by their terms ordinary voting power to elect a majority of the board of directors
or others performing similar functions with respect to such corporation or other organization
or any organization of which such Person or any of its Subsidiaries is, directly or indirectly, a general partner or managing member.
“Subsidiary Securities” has the meaning specified in Section 6.07(b).
“Surviving Company” has the meaning specified in Section 2.01.
“Surviving Provisions” has the meaning specified in Section 12.02.
“Tailings” has the meaning specified in the preamble hereto.
“Tailings Acquisition” has the meaning specified in Section 4.01(a).
“Tailings Shares” has the meaning specified in the Recitals hereto.
“Tailings Stockholder Approval” means the approval of this Agreement and the Transactions, including the making
of any filings, notices or information statements in connection with the foregoing,
by special resolution of the holders of at least seventy-five percent (75%) of the voting
power of the outstanding Tailings Shares, voting together as a single class, in accordance with the terms and subject to the conditions of Tailing’s Governing Documents and applicable Law.
“Target Companies” means Blyvoor Resources and Tailings, each a “Target Company”.
“Target Company Disclosure Letter” has the meaning specified in the introduction to Article VI.
“Target Group Companies” means the Target Companies and their respective Subsidiaries.
“Target Group Company Transaction Expenses” means all accrued and unpaid fees, costs and expenses of the Target Group Companies incurred prior to and through the Closing Date in connection with the negotiation,
preparation and execution of this Agreement, the other Transaction Agreements, the
performance and compliance with all Transaction Agreements and conditions contained
herein to be performed or complied with at or before Closing, and the consummation
of the Transactions, including (a) the fees, costs, expenses and disbursements of counsel, accountants, advisors and
consultants of the Target Group Companies, (b) any severance, transaction, change of control, or retention bonuses or similar payments paid to current or former employees, directors or independent contractors of any Target Group Company solely as a result of the Transactions (plus the employer portion of any payroll or employment Taxes related thereto), but excluding any transaction bonuses implemented between the date of this Agreement
and the Closing up to an aggregate amount set forth on Section 1.01(f) of the Target Company Disclosure Letter; and (c) fifty percent (50%) of (i) the Antitrust Fees, (ii) the D&O Cost, (iii) the Mailing Costs, and (iv) the Arrangement Costs.
“Tax” means any federal, state, provincial, territorial, local, foreign or other net income, alternative or add-on minimum, franchise, gross income, adjusted gross income or
gross receipts, employment related (including employee withholding or employer payroll),
ad valorem, transfer, franchise, license, excise, severance, stamp, occupation, premium,
personal property, real property, environmental, capital stock, profits, disability, registration, value added, estimated, customs duties, sales or use, levy, withholding or other tax or like assessment or charge in the nature of a tax, and any interest, penalty, addition to tax or
additional amount imposed with respect thereto
by a Governmental Authority (including on account of any failure to file a Tax Return or the improper filing
or preparation of a Tax Return).
“Tax Return” means any return, report, statement, refund, claim, declaration, information return, estimate or other document filed or required to
be filed with a Governmental Authority in respect of Taxes, including any schedule or attachment thereto and including any amendments thereof.
“Terminating Company Breach” has the meaning specified in Section 12.01(b).
“Terminating Rigel Breach” has the meaning specified in Section 12.01(c).
“Termination Date” has the meaning specified in Section 12.01(b).
“Transaction Agreements” shall mean this Agreement, the Registration Rights Agreement, the Sponsor Support Agreement, the Subscription Agreements, the Share Exchange Agreement, the Orion Forward Purchase Agreement, the Newco Memorandum and all the other agreements, documents, instruments and certificates entered into in connection herewith and/or therewith and any and all exhibits and
schedules thereto.
“Transaction Compensation Agreements” shall mean the compensatory arrangements referred to in Section 10.07(c) of the Target Company Disclosure Letter.
“Transactions” means the transactions contemplated by this Agreement and the other Transaction Agreements.
“Transfer Taxes” has the meaning specified in Section 10.04(a).
“Treasury Regulations” means the regulations promulgated under the Code.
“Trust Account” has the meaning specified in Section 7.06(a).
“Trust Agreement” has the meaning specified in Section 7.06(a).
“Trust Premium” means the sum of (a) cash value per share as of the Closing Date to be received in respect of a Rigel Class A Share redeemed in the Rigel Stockholder Redemption minus (b) $10.00.
“Trustee” has the meaning specified in Section 7.06(a).
“Warrant Agreement” means that certain Warrant Agreement, dated June 8, 2020, by and between Rigel and Continental Stock Transfer & Trust Company, as warrant agent.
Section 1.02 Construction.
(a) Unless the context of this Agreement otherwise requires, (i) words of any gender include each other gender, (ii) words using the singular or plural
number also include the plural or singular number, respectively, (iii) the terms “hereof,” “herein,” “hereby,” “hereto” and derivative or similar words refer to this entire Agreement, (iv) the terms “Article”, “Section”, “Disclosure Letter”, “Exhibit” and “Annex” refer to the specified Article, Section, Disclosure Letter, Exhibit or Annex of or to this Agreement unless otherwise specified, (v) the word “including” shall mean “including without limitation,” (vi) the word “or” shall be disjunctive but not exclusive, (vii) the phrase “to the extent” means the degree to which a thing extends (rather than if), and (viii) references
to “$” or dollar shall be references to United States dollars.
(b) When used herein, “ordinary course of business” means an action taken, or omitted to be taken, in the ordinary and usual course of the Target Group Companies’ business, consistent with past practice (including, for the avoidance of doubt, recent
past practice in light of COVID-19).
(c) Unless the context of this Agreement otherwise requires, references to agreements and other documents shall be deemed to include all subsequent amendments and other
modifications thereto.
(d) Unless the context of this Agreement otherwise requires, references to statutes shall
include all regulations promulgated thereunder and references to statutes or regulations
shall be construed as including all statutory and regulatory provisions consolidating,
amending or replacing the statute or regulation.
(e) The language used in this Agreement shall be deemed to be the language chosen by the
Parties to express their mutual intent and no rule of strict construction shall be applied
against any Party.
(f) Whenever this Agreement refers to a number of days, such number shall refer to calendar
days unless Business Days are specified. If any action is to be taken or given on or by a particular calendar day, and such calendar day
is not a Business Day, then such action may be deferred until the next Business Day.
(g) All accounting terms used herein and not expressly defined herein shall have the meanings
given to them under IFRS.
(h) The phrases “provided to,” “furnished to,” “made available” and phrases of similar import when used herein, unless the context otherwise requires,
means that a copy of the information or material referred to has been provided no
later than 9:00 a.m. Eastern Time on the day that is immediately prior to the date of this Agreement to the Party to which such information or material is to be provided or furnished (i) in the Data Room or (ii) by delivery to such Party or its legal counsel via electronic mail or hard
copy form.
Section 1.03 Equitable Adjustments. If, between the date of this Agreement and the Closing, the outstanding Blyvoor Resources Shares, Tailings Shares, Newco Securities or Rigel Securities shall have been changed into a different number of shares or a different class, by
reason of any stock dividend, subdivision, reclassification, reorganization, recapitalization,
split, combination or exchange of shares, or any similar event shall have occurred,
or if there shall have been any breach by Rigel or Newco with respect to the Newco Securities, the Rigel Securities or rights to acquire Newco Securities or Rigel Securities, then any number, value (including dollar value) or amount contained herein which
is based upon the number of Blyvoor Resources Shares, Tailings Shares, Newco Securities or Rigel Securities, as applicable, will be appropriately adjusted to provide to the holders of Blyvoor Resources Shares, Tailings Shares, Newco Securities or Rigel Securities, as applicable, the same economic effect as contemplated by this Agreement prior
to such event; provided, however, that this Section 1.03 shall not be construed to permit any of Rigel, Newco, Sellers or the Target Companies to take any action with respect to their respective securities that is prohibited by the terms and conditions
of this Agreement and/or any other Transaction Agreement.
Article II
THE MERGER
Section 2.01 The Merger. At the Merger Effective Time, upon the terms and subject to the conditions set forth
in this Agreement and the Cayman Act, Rigel shall be merged with and into Merger Sub,
with Merger Sub being the surviving entity in the Merger (hereinafter referred to
for the periods at and after the Merger Effective Time as the “Surviving Company”). Upon consummation of the Merger, the separate corporate existence of Rigel shall
cease, Rigel will be struck off the Register of Companies in the Cayman Islands and
Merger Sub, as the Surviving Company, shall continue its corporate existence under
the Cayman Act as a wholly owned Subsidiary of Newco.
Section 2.02 Effective Time. Subject to the satisfaction or waiver of all of the conditions set forth in Section 11.01, Section 11.02 and Section 11.03, and provided that this Agreement has not theretofore been terminated pursuant to
its terms, at least one (1) day prior to the Closing Date, Merger Sub and Rigel shall execute a plan of merger (the “Plan of Merger”) and file the Plan of Merger and any other documents required to effect the Merger
pursuant to the Cayman Act with the Registrar of Companies in the Cayman Islands (the
“Registrar”) in accordance with Section 233 of the Cayman Act. The Merger shall become effective at the time specified in the
Plan of Merger in accordance with the Cayman Act (the “Merger Effective Time”).
Section 2.03 Effect of the Merger. At the Merger Effective Time, the Merger shall have the effects set forth in this
Agreement and the applicable provisions of the Cayman Act. Without limiting the generality
of the foregoing, and subject thereto, at the Merger Effective Time, all the rights,
property of every description including choses in action, and the business, undertaking, goodwill, benefits, immunities and privileges
of each of Merger Sub and Rigel shall vest in the Surviving Company, and all contracts,
claims, debts, liabilities, obligations, restrictions, disabilities and duties of
each of Merger Sub and Rigel shall become the contracts, claims, debts, liabilities,
obligations, restrictions, disabilities and duties of the Surviving Company in accordance
with the Cayman Act.
Section 2.04 Governing Documents of the Surviving Company. At the Merger Effective Time, the memorandum and articles of association of Merger
Sub as in effect immediately prior to the Merger Effective Time, as previously adopted in form mutually agreed by Rigel and the Target Companies, acting
reasonably and in good faith, shall be the memorandum and articles of association of the Surviving Company until
thereafter amended in accordance with its terms or applicable Law.
Section 2.05 Directors and Officers.
(a) At the Merger Effective Time, the Parties shall take all actions necessary to ensure
that, as of the Merger Effective Time, the directors and officers of Merger Sub as of immediately prior to the Closing shall be the directors and officers of the Surviving Company, each to hold office in accordance with the Governing Documents
of the Surviving Company and the Cayman Act.
(b) The Parties shall take all actions necessary to ensure that, from and after the Closing,
the Persons identified as the initial post-Closing directors and officers of Newco
in accordance with the provisions of Section 9.09 shall be the directors and officers (and in the case of such officers, holding such
positions as are set forth on Section 2.05(b) of the Target Company Disclosure Letter), as applicable, of Newco, each to hold office
in accordance with the Governing Documents of Newco and the Cayman Act.
Section 2.06 Taking Necessary Action; Further Action. If, at any time after the Merger Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement
and to vest the Surviving Company with full right, title and possession to all the
rights, property of every description including choses in action, and the business, undertaking, goodwill, benefits, immunities and privileges
of Merger Sub and Rigel, the officers and directors of Newco and the Surviving Company
are fully authorized in the name of the Surviving Company to take, and will take,
all such lawful and necessary action, so long as such action is not inconsistent with
this Agreement or applicable provisions of the Cayman Act.
Section 2.07 Release of Funds from Trust Account. Subject to the terms and conditions of the Trust Agreement, each Party shall use
its commercially reasonable efforts, and shall cooperate fully with the other Parties,
to take, or cause to be taken, all actions and to do, or cause to be done, all things
reasonably necessary, proper or advisable under applicable Laws and regulations to
cause the funds held in the Trust Account to be released simultaneously with, or as
promptly as practicable after, the Closing, but in any event, no later than forty-eight (48) hours after Closing.
Article III
EFFECT OF THE MERGER ON SHARE CAPITAL AND CAPITAL STOCK
Section 3.01 Effect of Merger on Rigel Securities.
(a) Conversion of Rigel Securities. Each Rigel Unit outstanding immediately prior to the Merger Effective Time shall
be automatically detached and the holder thereof shall be deemed to hold one (1) Rigel
Class A Share and one-half (1/2) of a Rigel Public Warrant in accordance with the
terms of the applicable Rigel Unit, which underlying Rigel Securities shall be converted
in accordance with the applicable terms of this Section 3.01. At the Merger Effective Time, by virtue of the Merger and without any action on
the part of any Party (except as provided herein) or the holders of securities of Rigel or Newco:
(i) Rigel Class A Shares. Each issued and outstanding Rigel Class A Share (other than those described in Section 3.01(b)) shall be converted automatically into the right of the holder thereof to receive
(A) Trust Premium in cash per Rigel Class A Share (the “Cash Consideration”), subject to any applicable withholding Tax, and (B) one (1) validly issued, fully paid and nonassessable Newco Ordinary Share (together with the Cash Consideration, collectively, the “Class A Merger Consideration”), following which, all Rigel Class A Shares shall cease to be outstanding and shall
automatically be canceled and shall cease to exist. The holders of Rigel Class A Shares
(evidenced by entry in the register of members of Rigel) immediately prior to the
Merger Effective Time shall cease to have any rights with respect to such shares,
except the right to receive the applicable consideration described in this Section 3.01(a)(i) into which such Rigel Class A Shares shall have been converted or as otherwise as
provided herein or by Law.
(ii) Rigel Class B Shares. Each issued and outstanding Rigel Class B Share (other than those described in Section 3.01(b)) shall be converted automatically into the right of the holder thereof to receive
one (1) validly issued, fully paid and nonassessable Newco Ordinary Share, following
which, all Rigel Class B Shares shall cease to be outstanding and shall automatically
be canceled and shall cease to exist. The holders of Rigel Class B Shares (evidenced
by entry in the register of members of Rigel) immediately prior to the Merger Effective
Time shall cease to have any rights with respect to such shares, except the right
to receive the applicable consideration described in this Section 3.01(a)(ii) into which such Rigel Class B Shares shall have been converted or as otherwise as
provided herein or by Law.
(iii) Rigel Warrants. (A) Each issued and outstanding Rigel Public Warrant shall be converted automatically into
the right of the holder thereof to receive one (1) Newco Public Warrant, and (B) each issued and outstanding Rigel Private Warrant shall be converted automatically into
the right of the holder thereof to receive one (1) Newco Private Warrant. At the Merger
Effective Time, the Rigel Warrants shall cease to be outstanding and shall automatically
be canceled and retired and shall cease to exist. Each of the Newco Public Warrants
shall have, and be subject to, substantially the same terms and conditions set forth
in the Rigel Public Warrants, and each of the Newco Private Warrants shall have, and
be subject to, substantially the same terms and conditions set forth in the Rigel
Private Warrants, except that in each case they shall represent the right to acquire
Newco Ordinary Shares. At or prior to the Merger Effective Time, Newco shall take
all corporate actions necessary to reserve for future issuance and shall maintain
such reservation for so long as any of the Newco Warrants remain outstanding, a sufficient
number of Newco Ordinary Shares for delivery upon the exercise of such Newco Warrants.
(b) Issue Price of Newco Ordinary Shares. The Newco Ordinary Shares to be issued pursuant to Section 3.01(a) shall be issued at a cumulative issue price equal to the excess of the amount of cash in the Trust Account (after reduction for the aggregate amount of payments
required to be made in connection with the Rigel Stockholder Redemption) as of the Merger Effective Date over the Cash Consideration (the “Cumulative Issue Price”), which Cumulative Issue Price shall be proportionally allocated to each Newco Ordinary Share issued pursuant to Section 3.01(a).
(c) Cancellation of Capital Shares Owned by Rigel. At the Merger Effective Time, (i) any shares of Newco that are owned by Rigel shall be surrendered for no consideration and (ii) if there are any shares of Rigel that are owned by Rigel as treasury shares, such
shares shall be canceled and extinguished without any conversion thereof or payment
therefor.
(d) Obligations of Merger Sub. Notwithstanding anything in this Agreement to the contrary, it is understood and
agreed that, at the Merger Effective Time, (i) Merger Sub shall cause Newco to (A) issue the Newco Securities to be issued and (B) pay the Cash Consideration to be paid, in each case, pursuant to Section 3.01(a), (ii) Newco shall perform these obligations and (iii) Merger Sub shall be indebted to Newco for (A) the Cumulative Issue Price of such Newco Securities and (B) an amount equal to the Cash Consideration (collectively, the “Settlement Obligations”).
Section 3.02 Treatment of Securities of Merger Sub. At the Merger Effective Time, the Merger Sub Shares shall remain outstanding.
Section 3.03 Exchange of Book-Entry Shares.
(a) Exchange Agent. Prior to the Merger Effective Time, Newco shall appoint an exchange agent acceptable to the Target Companies (which acceptance shall not be unreasonably withheld, delayed or conditioned) (the
“Exchange Agent”) for the purpose of exchanging Rigel Securities for Newco Securities and the Cash
Consideration, as applicable, in accordance with this Article III and shall enter into an agreement acceptable to the Target Companies (which acceptance shall not be unreasonably withheld, delayed or conditioned) with
the Exchange Agent relating to the services to be performed by the Exchange Agent.
At or prior to the Merger Effective Time, Merger Sub shall cause Newco to deposit, or cause to be deposited, with the Exchange Agent, for the benefit of the
Legacy Rigel Holders, the Newco Securities (which shall be in non-certificated book-entry
form) issuable pursuant to Section 3.01 and delivered pursuant to this Section 3.03 and cash in an aggregate amount necessary to pay the Cash Consideration portion of
the Class A Merger
Consideration, as applicable, in exchange for outstanding Rigel
Securities (such Newco Securities and aggregate Cash Consideration, together with
any dividends or distributions with respect thereto, being hereinafter referred to
as the “Exchange Fund”).
(b) Exchange Procedures. As soon as practicable after the Merger Effective Time (and in no event later than five (5) Business Days after the Merger Effective Time), Newco shall cause the Exchange Agent to mail to each Legacy Rigel
Holder a letter of transmittal and instructions (which shall specify that the delivery
shall be effected, and risk of loss and title shall pass, only upon transfer of the
Rigel Securities to the Exchange Agent) for use in effecting the surrender of Rigel
Securities in exchange for Newco Securities issuable pursuant Section 3.01 in book-entry form. Upon receipt of a letter of transmittal duly completed and validly
executed in accordance with the instructions thereto or an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the
Exchange Agent may reasonably request), the applicable Legacy Rigel Holder shall be
entitled to receive in exchange for its surrendered Rigel Securities, subject to any
required withholding Taxes, Newco Securities issuable pursuant Section 3.01 without interest and, as applicable, cash in the amount equal to the Cash Consideration
multiplied by the number of shares of Rigel Securities previously held by such holder (subject
to any applicable withholding Tax). The Newco Ordinary Shares to be delivered pursuant
Section 3.01 shall be settled through the Depository Trust Company (“DTC”) and issued in uncertificated book-entry form through the procedures of DTC, unless
a physical Newco Security is required by applicable Law, in which case Newco shall
cause the Exchange Agent to promptly send certificates representing such Newco Security to such holder. If any of the Newco Security issuable pursuant Section 3.01 are to be issued to a person other than the person in whose name the Rigel Securities
surrendered in exchange therefor is registered, it shall be a condition of payment
that (A) the person requesting such exchange present proper evidence of transfer or
shall otherwise be in proper form for transfer and (B) the person requesting such
payment shall have paid any transfer and other Taxes required by reason of the issuance
of the Newco Security issuable pursuant to Section 3.01 to a person other than the registered holder of the Rigel Securities surrendered or
shall have established to the reasonable satisfaction of Newco that such Tax either
has been paid or is not applicable.
(c) Distributions with Respect to Rigel Securities. All Newco Securities issuable pursuant to Section 3.01 shall be deemed issued and outstanding as of the Merger Effective Time. Subject to the effect of escheat, Tax or other applicable Laws, the
holder of the Rigel Securities representing an entitlement to whole Newco Securities issued in exchange therefor will be promptly paid, without interest (subject to any
applicable withholding Tax), the amount of dividends or other distributions with a
record date after the Merger Effective Time and theretofore paid with respect to such whole Newco Security.
(d) Transfer Books. At the Merger Effective Time, the register of members of Rigel shall be closed and
thereafter there shall be no further registration of transfers on the register of
members of the Surviving Company of the Rigel Securities that were issued and outstanding
immediately prior to the Merger Effective Time.
(e) Termination of Exchange Fund. At any time following the first (1st) anniversary of the Closing Date, Newco shall
be entitled to require the Exchange Agent to deliver to Newco (or its designee) any
funds or other property (including any interest received with respect thereto) that
had been made available to the Exchange Agent and which has not been disbursed in
accordance with this Article III and, thereafter, the Persons entitled to receive payment pursuant to this Article III may seek recourse against Newco (subject to abandoned property, escheat or other
similar Laws) only as general creditors thereof with respect to the delivery of any
Newco Securities issuable pursuant Section 3.01 and any dividends or other distributions to which such holder is
entitled pursuant
to Section 3.03(b), in each case without interest (subject to any applicable withholding Tax), that
may be payable upon surrender of any Rigel Securities held by such holders, as determined
pursuant to this Agreement, without any interest thereon.
(f) No Liability. None of the Exchange Agent, Newco or the Surviving Company will be liable to any
person for any Newco Securities issuable from the Exchange Fund in accordance with
this Section 3.03 or other cash delivered to a public official pursuant to any abandoned property, escheat
or similar Law. Any portion of the Exchange Fund remaining unclaimed by any person
as of a date that is immediately prior to such time as such amounts would otherwise
escheat to or become property of any Governmental Authority will, to the extent permitted
by applicable Law, become the property of Newco free and clear of any claims or interest
of any person previously entitled thereto.
Section 3.04 Satisfaction of Rights. All securities issued upon the surrender of the Rigel Securities in accordance with
the terms hereof shall be deemed to have been issued in full satisfaction of all rights
pertaining to such securities.
Section 3.05 Payment of Settlement Obligations. Promptly following receipt of the amount of cash in the Trust Account (after reduction for the aggregate amount of payments required
to be made in connection with the Rigel Stockholder Redemption) pursuant to Section 2.07, Merger Sub shall pay, or procure that the Trustee pay, to Newco a cash amount equal to the Settlement Obligations, which amount shall be paid to Newco as promptly as practicable following the release of the funds held in the Trust Account as contemplated by Section 2.07. As a result of such payment, (x) the Newco Securities to be issued pursuant to Section 3.01(a) will be fully paid up, (y) the Cumulative Issue Price will be fully paid and settled and (z) the Cash Consideration will be fully paid and settled.
Article IV
SHARE EXCHANGE TRANSACTIONS
Section 4.01 Share Exchange. On the terms and subject to the conditions set forth in this Agreement and the Share Exchange Agreement, at the Closing, (a) the Target Companies shall cause Blyvoor Gold to convey, assign, transfer and deliver to Newco or a designated Affiliate of Newco, and Newco shall, or shall cause a designated Affiliate of Newco to, acquire and accept from Blyvoor Gold, all of Blyvoor Gold’s right, title and interest in and to the Gold Tailings Shares (the “Tailings Acquisition”) and (b) as soon as practicable following the Tailings Acquisition and the Debt Payoff, and
in any case on the same day as the Tailings Acquisition and the Debt Payoff, the Target Companies shall cause Sellers to convey, assign, transfer and deliver to Newco or a designated Affiliate of Newco, and Newco shall, or shall cause a designated Affiliate of Newco to, acquire and accept from each Seller, all of such Seller’s right, title and interest in and to the Gold Resources Shares and the Orion Resources Shares, as applicable (the “Blyvoor Resources Acquisition”), in each case of clauses (a) and (b), free and clear of all Liens, other than any Liens arising as a result of any of
the Transaction Agreements, Liens imposed by Newco or its Affiliates or restrictions on transfer imposed by applicable Securities Laws.
Section 4.02 Exchange Consideration.
(a) Closing Consideration. On the terms and subject to the conditions set forth in this Agreement and the Share
Exchange Agreement, at the Closing, Newco shall (a) in exchange for the Gold Tailings Shares, issue and allot to Blyvoor Gold, free and clear of all Liens, other than any Liens arising as a result
of any of the Transaction Agreements, Liens imposed by Blyvoor Gold or its Affiliates
or restrictions on transfer imposed by applicable Securities Laws, the Gold Tailings
Share Consideration, (b) in exchange for the Gold Resources Shares, issue and allot to Blyvoor
Gold, free and clear of all Liens, other than any Liens arising as a result
of any of the Transaction Agreements, Liens imposed by Blyvoor Gold or its Affiliates
or restrictions on transfer imposed by applicable Securities Laws, the Gold Resources
Share Consideration and (c) in exchange for the Orion Resources Shares, issue and allot to Orion, free and clear of all Liens, other than any Liens arising as a result of
any of the Transaction Agreements, Liens imposed by Orion or its Affiliates or restrictions
on transfer imposed by applicable Securities Laws, the Orion Share Consideration.
(b) Earnout Share Consideration.
(i) Base Case Earnout. In the event that, as of immediately prior to the Closing, the Net Cash Proceeds are equal to or greater than $33,000,000, the First Earnout Share Consideration and the Second Earnout Share Consideration,
as applicable, shall be issuable to Sellers as follows, as additional compensation for the Blyvoor Resources Shares:
(A) if, during the First Earnout Period, the cumulative payable gold production of the
Mine exceeds 55,000 ounces (the “First Base Case Milestone”), Sellers shall be entitled to receive, and Newco shall issue or cause to be issued to Sellers, upon the terms and subject to the conditions
set forth in this Agreement and the Transaction Agreements (as applicable), the First
Earnout Share Consideration, which shall be issued to Sellers no later than ten Business
Days after the expiration of the First Earnout Period; and
(B) if, during the Second Earnout Period, the cumulative payable gold production of the
Mine exceeds 95,000 ounces (the “Second Base Case Milestone”), Sellers shall be entitled to receive, and Newco shall issue or cause to be issued to Sellers, upon the terms and subject to the conditions
set forth in this Agreement and the Transaction Agreements (as applicable), the Second
Earnout Share Consideration, which shall be issued to Sellers no later than ten Business
Days after the expiration of the Second Earnout Period.
(ii) Downside Earnout. In the event that, as of immediately prior to the Closing, the Net Cash Proceeds
are less than $33,000,000, the First Earnout Share Consideration and the Second Earnout Share Consideration,
as applicable, shall be issuable to Sellers as follows, as additional compensation for the Blyvoor Resources Shares:
(A) if, during the First Earnout Period, the cumulative payable gold production of the
Mine exceeds the First Downside Milestone, Sellers shall be entitled to receive, and Newco shall issue or cause to
be issued to Sellers, upon the terms and subject to the conditions set forth in this
Agreement and the Transaction Agreements (as applicable), the First Earnout Share
Consideration, which shall be issued to Sellers no later than ten Business Days after
the First Downside Milestone is achieved; and
(B) if, during the Second Earnout Period, the cumulative payable gold production of the
Mine exceeds the Second Downside Milestone, Sellers shall be entitled to receive, and Newco shall issue or cause to
be issued to Sellers, upon the terms and subject to the conditions set forth in this
Agreement and the Transaction Agreements (as applicable), the Second Earnout Share
Consideration, which shall be issued to Sellers no later than ten Business Days after
the Second Downside Milestone is achieved.
(iii) Allocation of Earnout Share Consideration. Any Earnout Share Consideration issuable to Sellers pursuant to Section 4.02(b) shall be issued such that each Seller shall receive the number of shares (rounded
to the nearest whole share) of Newco Ordinary Shares determined by multiplying (A) the applicable Earnout Share Consideration by
(B) the percentage set forth opposite such Seller’s name on Section 4.02(b)(iii) of the Target Company Disclosure Letter.
(iv) Sale of the Target Companies. If, at any time prior to the expiration of the First Earnout Period or the Second
Earnout Period, as applicable (and a final determination that no further Earnout Share
Consideration is or may be payable to Sellers with respect to such Earnout Period), there is a sale, exchange or other transfer,
directly or indirectly, in one transaction or a series of related transactions, of
all or substantially all of the assets of the Target Companies or a merger, consolidation,
recapitalization or other transaction in which any Person other than Newco or any
Affiliate of Newco becomes the beneficial owner, directly or indirectly, of 50% or
more of the combined voting power of all interests in the Target Companies, taken
as a whole, then, not later than (and in any event, prior to) the closing date of
such transaction, Newco shall issue or cause to be issued to Sellers, upon the terms
and subject to the conditions set forth in this Agreement and the other Transaction Agreements (as applicable), and Sellers shall be entitled to receive,
any and all Earnout Share Consideration that (x) has not been issued as of such date in accordance with Section 4.02(b)(i) or Section 4.02(b)(ii), as applicable, and (y) has not been finally determined to be not payable to Sellers pursuant to
Section 4.02(b). Newco agrees that, prior to consummating any such transaction, it shall provide
Sellers with any information or documentation that they may reasonably request in
connection with such transaction.
(v) At all times during the Earnout Periods, Newco shall (a) keep available for issuance
a number of unissued Newco Ordinary Shares equal to the aggregate unissued Earnout
Share Consideration and (b) take all actions required to increase the authorized number
of Newco Ordinary Shares if at any time there shall be insufficient unissued Newco
Ordinary Shares to permit such reservation. Sellers shall be entitled to receive,
without interest, (x) on the issuance date of the applicable Earnout Share Consideration, the amount
of all dividends or other distributions with a record date after the Closing Date
previously paid or payable on a number of Newco Ordinary Shares equal to the number
of Newco Ordinary Shares comprising the applicable Earnout Share Consideration issued
to such Seller, and (y) at the appropriate payment date, the amount of dividends or
other distributions with a record date after the Closing Date and payable after the
issuance date of the applicable Earnout Share Consideration on a number of Newco Ordinary
Shares equal to the number of Newco Ordinary Shares comprising the applicable Earnout
Share Consideration issued to such Seller.
(c) Deferred Consideration.
(i) As additional compensation for the Gold Tailings Shares, as promptly as practicable after the date that is 90 days following the Closing (but
in no event later than two (2) Business Days thereafter), Blyvoor Gold shall be entitled to receive, and Newco shall issue or cause to be
issued to Blyvoor Gold, upon the terms and subject to the conditions set forth in
this Agreement and the other Transaction Agreements, as applicable, the Deferred Share Consideration.
(ii) At all times during the 90-day period following the Closing, Newco shall (a) keep
available for issuance a number of unissued Newco Ordinary Shares equal to the
Deferred
Share Consideration and (b) take all actions required to increase the authorized number
of Newco Ordinary Shares if at any time there shall be insufficient unissued Newco
Ordinary Shares to permit such reservation. Blyvoor Gold shall be entitled to receive,
without interest, (x) on the issuance date of the Deferred Share Consideration, the
amount of all dividends or other distributions with a record date after the Closing
Date previously paid or payable on a number of Newco Ordinary Shares equal to the
number of Newco Ordinary Shares comprising the Deferred Share Consideration, and (y)
at the appropriate payment date, the amount of dividends or other distributions with
a record date after the Closing Date and payable after the issuance date of the Deferred
Share Consideration on a number of Newco Ordinary Shares equal to the number of Newco
Ordinary Shares comprising the Deferred Share Consideration.
Section 4.03 Governing Documents.
(a) Newco. Subject to Section 9.02, at the Closing, the memorandum and articles of association of Newco shall be amended and restated to be substantially in the form of the Newco Memorandum, until thereafter amended in accordance with its terms and as provided
by applicable Law.
(b) Target Companies. Immediately following the Closing, Newco, as the sole shareholder of (i) Blyvoor Resources, shall amend and restate the memorandum of incorporation
of Blyvoor Resources in customary form agreed by Rigel and the Target Companies, acting reasonably and in good faith, and such shall be the Governing Document of Blyvoor Resources, until thereafter amended in accordance with its terms and as provided by applicable
Law and (ii) Tailings, shall amend and restate the memorandum of incorporation of Tailings in customary form as agreed by Rigel and the Target Companies, acting reasonably and in good faith, and such shall be the Governing Document of Tailings, until thereafter amended in accordance with its terms and as provided by applicable
Law.
Section 4.04 Closing Payments. On the terms and subject to the conditions set forth in this Agreement, at the Closing,
Newco shall, or shall cause a designated Affiliate of Newco to:
(a) immediately following the consummation of the Tailings Acquisition and the Blyvoor
Resources Acquisition (i) grant a loan to Tailings, on an interest-free basis, amounting to the Rand equivalent of $6,000,000, with the Rand value of such loan calculated by applying
the quoted spot rate of exchange for converting United States dollars to Rand by Tailings’ bank in South Africa upon receipt of the funds, and (ii) pay such loan funding amount, in United States dollars, by wire transfer in immediately available funds to the designated bank account of
Tailings; and
(b) procure that Tailings, upon receipt of the loan funding amount or as soon as practicably
thereafter, repay the amount payable to each counterparty or holder of Payoff Indebtedness
in order to fully discharge such Payoff Indebtedness and terminate (x) all applicable
obligations and liabilities of Tailings and any of its Affiliates related thereto
and (y) all Liens on any assets of Tailings and any of its Affiliates related thereto
(collectively, the “Debt Payoff”), and which Debt Payoff Tailings undertakes to effect accordingly; and
(c) pay or cause to be paid by wire transfer of immediately available funds, (i) all Rigel
Transaction Expenses as set forth on the Rigel Closing Statement; and (ii) all Target
Group Company Transaction Expenses as set forth on the Company Closing Statement (it
being understood and agreed that the payment of funds on account, and in satisfaction,
of the Target
Group Company Transaction Expenses may be effected through means of
a subscription for ordinary shares in the Target Companies and subsequent payment
of the Target Group Company Transaction Expenses by the Target Companies).
Section 4.05 Withholding Rights. Notwithstanding anything in this Agreement to the contrary, all amounts or value
deliverable in connection with this Agreement by the Exchange Agent, Rigel, Sellers, any Target Company and their respective Affiliates shall be paid free and clear and without any deduction
or withholding for Taxes, except for any amount required to be deducted and withheld
with respect to the making of such payment under applicable Law. Prior to making any
deduction or withholding in respect of amounts payable to any Seller in connection with this Agreement, Rigel or any of its Affiliates, as applicable, shall provide or cause to be provided at least five (5) days prior written notice of such deduction or withholding to the applicable Seller, and all parties shall reasonably cooperate to reduce or eliminate any applicable withholding. To the extent that amounts
are so withheld and paid over to the appropriate Governmental Authority, such withheld
amounts shall be treated for all purposes of this Agreement as having been paid to
the Person in respect of which such deduction and withholding was made. Any amounts
so withheld shall be timely remitted to the applicable Governmental Authority.
Article V
CLOSING TRANSACTIONS
Section 5.01 Closing. On the terms and subject to the conditions set forth in this Agreement, the closing of the Transactions (the “Closing”) shall take place (a) electronically by the mutual exchange of electronic signatures (including portable
document format (.PDF)) commencing as promptly as practicable following the satisfaction
or (to the extent permitted by applicable Law) waiver of the conditions set forth
in Article XI (other than those conditions that by their terms or nature are to be satisfied at
the Closing; provided that such conditions are satisfied or (to the extent permitted by applicable Law)
waived at the Closing), or (b) at such other place, time or date as Rigel and the Target Companies may mutually agree in writing. The date on which the Closing shall occur is referred
to herein as the “Closing Date.”
Section 5.02 Pre-Closing Deliverables.
(a) Rigel Closing Statement. On the date that is five (5) Business Days prior to the Closing Date, Rigel shall prepare and deliver to the Target Companies a written statement (the “Rigel Closing Statement”) setting forth its good faith estimate and calculation of: (i) the aggregate amount of cash in the Trust Account (prior to giving effect to the
Rigel Stockholder Redemption) and each of the PIPE Investment proceeds, the PIPE Financing proceeds and the Orion Forward Purchase Agreement proceeds received or to be received by Rigel or Newco prior to the Closing; (ii) the aggregate amount of all payments required to be made in connection with the Rigel Stockholder Redemption; (iii) the number of shares of Newco Ordinary Shares to be outstanding as of the Closing after giving effect to the Rigel Stockholder Redemption and the issuance of Newco Ordinary Shares pursuant to the Subscription Agreements and the Orion Forward Purchase Agreement; (iv) the aggregate amount of all expenses of Rigel and its Affiliates incurred prior to the Closing Date consistent with the disclosure
set forth in the SEC Reports (other than the Rigel Transaction Expenses); (v) the number of Newco Ordinary Shares that may be issued upon the exercise of all Newco Warrants issued and outstanding as of the Closing after giving effect to the PIPE
Investment, the PIPE Financing, the Orion Forward Purchase Agreement and the exercise prices therefor; and (vi) the Rigel Transaction Expenses, in each case, including a detailed itemization of the components thereof and reasonable supporting documentation and detail therefor. The Rigel Closing Statement and each component thereof shall be prepared and calculated in accordance with the
definitions contained in this Agreement. From and after delivery of the Rigel Closing Statement and through the Closing Date, (A) Rigel shall promptly provide to the Target
Companies any changes to the Rigel Closing Statement (including any component thereof), and (B) the Target Companies shall have the right to review and comment on such calculations and estimates, Rigel shall consider in good faith any such comments made by the Target Companies, and the Target Companies and Rigel shall cooperate with each other through the Closing Date and use good faith efforts
to resolve any differences regarding the calculations and estimates contained in the
Rigel Closing Statement (and any updates or revisions as may be agreed to by the Target Companies and Rigel shall be included in the Rigel Closing Statement). Rigel shall, and shall cause its Representatives to, (x) reasonably cooperate with the Target Companies and their Representatives to the extent related to the Target Companies’ review of the Rigel Closing Statement and the calculations and estimates contained therein (including
engaging in good faith discussions related thereto) and (y) provide access to personnel, books, records and other information during normal
business hours to the extent related to the preparation of the Rigel Closing Statement and reasonably requested by the Target Companies or their respective Representatives, at the Target Companies’ sole expense, in connection with such review; provided that, the Target Companies shall not, and shall cause their respective Representatives to not, unreasonably interfere with the business of Rigel and its Subsidiaries in connection with any such access.
(b) Company Closing Statement. On the date that is three (3) Business Days prior to the Closing Date, the Target Companies shall deliver to Rigel a written statement (the “Company Closing Statement”) setting forth their good faith calculation of: (i) the Target Group Company Transaction Expenses, (ii) the Payoff Indebtedness and (iii) the Aggregate Cash Proceeds, in each case, determined based on the information provided in the Rigel Closing Statement, in each case, including a detailed itemization of the components
thereof, and determined pursuant to the definitions contained in this Agreement. Following
Rigel’s receipt of the Company Closing Statement and through the Closing Date, Rigel shall have the right to review and comment on such calculations and estimates, the Target Companies shall consider in good faith any such comments made by Rigel, and the Target Companies and Rigel shall cooperate with each other through the Closing Date and use good faith efforts
to resolve any differences regarding the calculation of the items set forth on the
Company Closing Statement (and any updates or revisions as may be agreed to by the Target Companies and Rigel shall be included in the Company Closing Statement, with such Company Closing Statement
and all items and amounts set forth therein being final, conclusive, and binding upon,
and non-appealable by, the parties hereto). The Target Companies shall, and shall cause their respective Representatives to, (x) reasonably cooperate with Rigel and its Representatives to the extent related to Rigel’s review of the Company Closing Statement and the calculations and estimates contained
therein (including engaging in good faith discussions related thereto) and (y) provide access to personnel, books, records and other information during normal
business hours to the extent related to the preparation of the Company Closing Statement
and reasonably requested by Rigel or its Representatives, at Rigel’s sole expense, in connection with such review; provided that, Rigel shall not, and shall cause its Representatives to not, unreasonably interfere with
the business of any of the Target Group Companies in connection with any such access.
Section 5.03 Closing Deliverables.
(a) Newco Deliverables.
(i) Sellers. At the Closing, Newco shall deliver, or cause to be delivered, (A) to Blyvoor Gold, the Gold Resources Share Consideration and the Gold Tailings Share Consideration, (B) to Orion, the Orion Share Consideration, in each case pursuant to and in accordance with Section 4.02, and the Share Exchange Agreement; it being understood
and agreed that such Newco Ordinary Shares shall be in book entry form and uncertificated, subject to a book-entry notation
bearing a restrictive legend in the form of Exhibit C (the “Restrictive Legend”) and (C) to the Target Group Companies, resolutions passed by the sole shareholder of Newco duly authorizing Newco’s entry into and performance of its obligations under this Agreement, which resolutions
shall include any approvals required in terms of the Cayman Act (the “Newco Stockholder Approval”).
(ii) Target Companies. At or prior to the Closing, Newco shall deliver, or cause to be delivered, to the Target Companies:
(A) the certificate referred to in Section 11.03(d); and
(B) counterparts to each Transaction Agreement to be entered into at Closing to which
Newco or one or more of its Affiliates is a party, duly executed by Newco and/or such Affiliates, as applicable.
(b) Target Company Deliverables. At or prior to the Closing, the Target Companies shall deliver, or cause to be delivered, to Newco:
(i) (A) for any Blyvoor Resources Shares or Tailings Shares that are in certificated form, if any, share certificates (or, in relation
to certificates that are missing or lost, a lost share certificate or indemnity in
favor of Newco, in a form reasonably acceptable to Newco), evidencing any Blyvoor Resources Shares or Tailings Shares owned by the applicable Seller to the extent that such Blyvoor Resources Shares or Tailings Shares are in certificated form, duly endorsed in blank or accompanied by a stock power
duly executed in blank in proper form to transfer, by such Seller, and (B) for any Blyvoor Resources Shares or Tailings Shares that are in uncertificated form (or are in certificated form but not bearing), if
any, an instrument of transfer in respect of the Blyvoor Resources Shares and/or Tailings Shares held by such Seller, in form reasonably acceptable to Newco, executed by such Seller;
(ii) counterparts to each Transaction Agreement to be entered into at Closing to which
any Target Company, Seller or one or more of their respective Affiliates (is a party, duly executed by the Target Company(ies), Seller(s) and/or such Affiliates, as applicable);
(iii) the certificate referred to in Section 11.02(c);
(iv) to the extent required by applicable Law to occur at or prior to Closing in order
to effect the Transactions, the statutory registers and minute books in which Newco is recorded as sole owner and shareholder of each Target Company with all voting rights with respect to the Blyvoor Resources Shares and Tailings Shares, with accompanying new share certificates with respect to the Blyvoor Resources Shares
and Tailings Shares, each such share certificate to be endorsed “non-resident” for exchange control purposes (unless the Exchange Control regulatory approval referred to in Section 11.01(a) of the Target Company Disclosure Letter indicates otherwise), as soon as possible after the Closing;
(v) duly executed written Payoff Documentation with respect to any and all Payoff Indebtedness,
to be provided by the applicable creditor(s) (or the administrative agent on behalf
thereof, if applicable), in respect thereof, dated as of a date no later than two
(2) Business Days prior to the Closing Date; and
(vi) written waiver by Blyvoor Gold, with respect to any and all rights of pre-emption
Blyvoor Gold has or may have to acquire the Orion Resources Shares (or any part thereof),
whether such rights arise out of the Governing Documents of Blyvoor Resources or otherwise.
Article VI
REPRESENTATIONS AND WARRANTIES OF THE TARGET COMPANIES
Except as set forth in the disclosure letter delivered to Rigel by the Target Companies on the date of this Agreement (the “Target Company Disclosure Letter”) (each section of which qualifies (a) the correspondingly numbered representation, warranty
or covenant if specified therein and (b) such other representations, warranties or
covenants where its relevance as an exception to (or disclosure for purposes of) such
other representation, warranty or covenant is reasonably apparent on its face), the Target Companies represents and warrants to Rigel, Newco and Merger Sub as follows:
Section 6.01 Corporate Organization of the Target Companies. Each Target Company is a South African private limited liability company duly organized,
validly existing and in good standing (in each case to the extent such concepts are
applicable) under the Laws of its jurisdiction of organization and has all requisite
corporate or other applicable organizational power and authority to own, lease or
operate its assets and properties and to conduct its business as it is now being conducted, except as would not be material to such Target Company. The copies of the memorandum of incorporation of each Target Company lodged by the Companies and Intellectual Property Commission, an agency of the Department of
Trade and Industry, as in effect on the date hereof, previously made available by the Target Companies to Rigel are true, correct and complete. Each of the Target Companies has the requisite corporate power and authority to own, operate and lease all of its properties, rights and assets and to carry on its business as it is now
being conducted and as contemplated to be conducted, except where failure to have such corporate power and authority to own, operate
and lease and to be so licensed or qualified would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 6.02 Target Company Subsidiaries. The Subsidiaries of the Target Companies and their respective jurisdictions of incorporation or organization, in each case,
as of the date of this Agreement are set forth on Section 6.02 of the Target Company Disclosure Letter. The Subsidiaries of the Target Companies have been duly formed or organized, are validly existing and in good standing (in each case to the extent such concepts are applicable) under the laws of their jurisdiction of incorporation or organization and have the
power and authority to own, operate and lease their properties, rights and assets
and to conduct their business as it is now being conducted, except as would not be
material to the Target Group Companies, taken as a whole. Each Subsidiary of a Target Company is duly licensed or qualified, except where the failure to be so licensed or qualified
would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 6.03 Due Authorization. Each Target Company has the requisite corporate or other applicable organizational power and authority to execute and deliver this Agreement and each Transaction Agreement to which it is or will be a party and (subject to the approvals described in Section 6.05 of the Target Company Disclosure Letter) to perform all obligations to be performed by it hereunder and thereunder and to consummate
the Transactions. The execution, delivery and performance of this Agreement and such Transaction Agreements and the consummation of the Transactions have been duly authorized by the board of directors of each Target Company, respectively, and all necessary action on the part of Sellers, and no other corporate proceeding on the part of either Target Company is necessary to authorize this Agreement or such Transaction Agreements or either Target Company’s performance hereunder or thereunder. This Agreement has been, and each such Transaction Agreement (when executed and delivered by the Target Companies, as applicable) will be, duly and validly executed and delivered by
the Target Companies and, assuming due and valid authorization, execution and delivery by each other party hereto and thereto, this Agreement constitutes, and each such Transaction Agreement will constitute, a valid and binding obligation of the Target Companies, enforceable against the Target Companies in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar Laws affecting or relating to creditors’ rights generally and subject, as to enforceability, to general principles of equity,
whether such enforceability is considered in a proceeding in equity or at Law (the “Enforceability Exceptions”).
Section 6.04 No Conflict. Subject to the receipt of the consents, approvals, authorizations and other requirements
set forth in Section 6.05 of the Target Company Disclosure Letter, the execution, delivery and performance of this Agreement and each Transaction Agreement to which a Target Group Company is or will be a party by the Target Group Companies, as applicable, and the consummation of the Transactions do not and will not (a) conflict with or violate any provision of, or result in the breach of or default
under, the Governing Documents of any Target Group Company, (b) violate any provision of, or result in the breach of or default by any Target Group Company under any applicable Law, (c) except as set forth on Section 6.04(c) of the Target Company Disclosure Letter, require any consent, waiver or other action by any Person under, violate, or result in a breach of, constitute a default under, result in the
acceleration, cancellation, termination or modification of, or create in any party the right to accelerate, terminate, cancel or modify, the terms, conditions or provisions
of any Material Contract, (d) result in the creation of any Lien (except for Permitted Liens) upon any of the material properties, rights or assets
of any Target Group Company, or (e) constitute an event which, after notice or lapse of time or both, would result in
any such violation, breach, termination, acceleration, modification, cancellation
or creation of a Lien or (f) result in a violation or revocation of any license, permit or approval from any Governmental Authority or other Person, except, in each case of clauses (b) through (f), for such violations, conflicts, breaches, defaults or failures to act that would
not reasonably be expected to be, individually or in the aggregate, material to any Target Companies.
Section 6.05 Governmental Authorities; Consents. Assuming the truth and completeness of the representations and warranties of Rigel contained in this Agreement, no action by, notice to, consent, approval, waiver, permit or authorization of, or designation, declaration or filing with, any Governmental Authority is required on the part of the Target Companies with respect to the Target Companies’ execution, delivery and performance of this Agreement and the consummation of the
Transactions, except for (a) applicable requirements of Securities Law, (b) any filing with the appropriate Governmental Authorities in connection with the
amendment and restatement of Governing Documents pursuant to and in accordance with
Section 4.03(b), (c) any actions, consents, approvals, permits or authorizations, designations, declarations or filings, the absence of which would
not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the ability of the Target Companies to perform or comply with on a timely basis
any material obligation of the Target Companies under this Agreement or to consummate
the Transactions in accordance with the terms hereof and (d) as otherwise disclosed on Section 6.05 of the Target Company Disclosure Letter.
Section 6.06 Current Capitalization.
(a) As of the date hereof, the authorized capital stock of (i) Blyvoor Resources consists of 1,000 Blyvoor Resources Shares, 737 of which are currently outstanding and (ii) Tailings consists of 1,000 Tailings Shares, 100 of which are currently outstanding. The outstanding shares of capital stock or other equity interests of the Target Companies have been duly authorized and validly issued and are fully paid and nonassessable.
(b) The Target Companies have provided to Rigel, prior to the date of this Agreement, a list of holders of capital stock, warrants and equity awards of the Target Companies. Other than
as set forth in this Section 6.06 (including in the lists referenced herein) or on Section 6.06(b) of the Target Company Disclosure Letter, there are (i) no subscriptions, calls, options, warrants, rights (including preemptive rights),
puts or other securities convertible into or exchangeable or exercisable for Blyvoor Resources Shares and/or Tailings Shares, or other equity interests in, any Target Company, or any other Contracts to which any Target Company is a party or by which any Target Company or any of its assets or properties are bound obligating such Target Company to issue or sell any shares of capital stock of, other equity interests in
or debt securities of, any Target Company, (ii) no equity equivalents, stock appreciation rights, restricted stock rights, restricted stock unit rights, phantom stock ownership interests or similar rights in any Target Company, (iii) as of the date hereof, (A) no outstanding contractual obligations of any Target Company to repurchase, redeem or otherwise acquire any securities or equity interests of
any Target Company and (B) no outstanding bonds, debentures, notes or other indebtedness of any Target Company having the right to vote (or convertible into, or exchangeable for, securities
having the right to vote) on any matter for which any Target Company’s stockholders may vote, (iv) no shareholders agreements, voting agreements, proxies, registration rights agreements or other similar agreements relating to any Target Company’s equity interests to which any Target Company is a party and (v) as of the date hereof, no shares of common stock, preferred stock or other equity
interests of any Target Company issued and outstanding.
Section 6.07 Capitalization of Subsidiaries of the Target Companies.
(a) The outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Target Companies have been duly authorized and validly issued and are fully paid and nonassessable.
Except as set forth on Section 6.07(a) of the Target Company Disclosure Letter, all of the outstanding ownership interests in each Subsidiary of the Target Companies are directly owned by the Target Companies, free and clear of any Liens (other than the restrictions under applicable Securities Laws, transfer restrictions existing under the terms of the Governing Documents of such
Subsidiary, and Permitted Liens) and free of any other limitation or restriction (including
any restriction on the right to vote, sell or otherwise dispose of such ownership
interests) and have not been issued in violation of preemptive or similar rights.
(b) Except as set forth on Section 6.07(b) of the Target Company Disclosure Letter, there are no outstanding (i) securities of any Target Group Company convertible into or exchangeable for ownership interests in any Subsidiary of a Target Company, (ii) obligations, options, warrants or other rights (including preemptive rights), commitments or arrangements to acquire from any Target Group Company, or other obligations or commitments of a Target Company or any of its Subsidiaries to issue, sell or otherwise transfer, any ownership interests in, or any securities convertible into
or exchangeable for any ownership interests in, any Subsidiary of the Target Companies or (iii) restricted shares, stock appreciation rights, performance shares, contingent value
rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic
benefits based, directly or indirectly, on the value or price of, any ownership interests
in, any Subsidiary of the Target Companies (the items in clauses (i)-(iii), in addition to all ownership interests of the Subsidiaries of the Target Companies, being referred to collectively as the “Subsidiary Securities”). There are no (x) voting trusts, proxies, equityholders agreements or other similar agreements or understandings to which any Subsidiary of the Target Companies is a party or by which any Subsidiary of the Target Companies is bound with respect to the voting or transfer of any shares of capital stock of
such Subsidiary, or (y) obligations or commitments of a Target Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of the Subsidiary Securities or make payments in respect of such shares, including based on the value thereof,
or to make any investment (in the form of a loan, capital contribution or otherwise)
in any other Person. Except for the Subsidiary Securities, no Target Group Company owns any equity,
ownership, profit, voting or similar interest in or any interest
convertible, exchangeable or exercisable for, any equity, profit, voting or similar
interest in, any Person.
(c) (i) Sellers collectively own, directly or indirectly, all of the issued and outstanding
Blyvoor Resources Shares as follows: (A) Blyvoor Gold owns 590 issued and outstanding Blyvoor Resources Shares; and (B) Orion owns 147 issued and outstanding Blyvoor Resources Shares, which collectively represent all of the issued and outstanding
Blyvoor Resources Shares as of the date hereof; and (ii) Blyvoor Gold owns all of the Tailings Shares issued and outstanding as of the date
hereof.
Section 6.08 Financial Statements.
(a) Attached as Section 6.08(a) of the Target Company Disclosure Letter hereto are true and complete copies of the audited statement of financial position, statement of profit or loss and other comprehensive
income, statement of changes in equity and statement of cash flows of each of (i) Blyvoor Resources, (ii) Tailings and (iii) Blyvoor Capital for the years ended February 28, 2021 and February 28, 2022, respectively, and the unaudited statement of financial position, statement of profit or loss and other comprehensive
income, statement of changes in equity and statement of cash flows of each of (i) Blyvoor Resources, (ii) Tailings and (iii) Blyvoor Capital for
the year ended February 28, 2023 (the “Financial Statements”).
(b) The Financial Statements (i) have been prepared from, and reflect in all material respects, the books and
records of the Target Group Companies in accordance with IFRS, (ii) present fairly, in all material respects, the consolidated financial position,
cash flows and changes in shareholders’ equity of the Target Group Companies as of the dates and for the periods indicated in such Financial Statements in conformity with IFRS consistently applied in all material respects throughout the periods covered thereby and (iii) when delivered by the Target Companies for inclusion in the Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 10.02, will comply in all material respects with the applicable accounting requirements
and with the rules and regulations of the SEC, the Exchange Act and the Securities
Act applicable to a registrant, in effect as of the respective dates thereof.
(c) The Target Group Companies have established and maintained systems of internal controls sufficient to (i) provide
reasonable assurance regarding the reliability of the Target Group Companies’ financial reporting and (ii) permit the preparation of financial statements in accordance
with IFRS. The books and records of the Target Group Companies have been kept and maintained in accordance with applicable Laws, except where the failure to do so would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect.
Section 6.09 Undisclosed Liabilities. As of the date hereof, no Target Group Company has any liability, debt or obligation, whether accrued, contingent, absolute, determined,
determinable or otherwise, required to be reflected or reserved for on a balance sheet prepared in accordance
with IFRS, except for liabilities, debts or obligations (a) reflected or reserved for on the Financial Statements or disclosed in the notes thereto, (b) that have arisen since the Most Recent Balance Sheet Date in the ordinary course of business of the Target Group Companies that are not, individually or in the aggregate, material to the Target Group Companies, taken as a whole, (c) arising under this Agreement and/or the performance by the Target Companies of their obligations hereunder, including Target Group Company Transaction Expenses, (d) disclosed on Section 6.09 of the Target Company Disclosure Letter, (e) that will be discharged or paid off prior to or at the Closing or (f) that would reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect.
Section 6.10 Litigation and Proceedings. Except as set forth on Section 6.10 of the Target Company Disclosure Letter, as of the date hereof, there are no pending or, to the Knowledge of the Target Companies, threatened in writing Actions against any Target Group Company or any of their respective properties, rights or assets which, if determined adversely, would, individually or
in the aggregate, reasonably be expected to materially impede the ability of the Target Companies to enter into and perform their obligations under this Agreement. Except as set forth on Section 6.10 of the Target Company Disclosure Letter, as of the date hereof, there is no Governmental Order imposed upon or, to the Knowledge of the Target Companies, threatened in writing against any Target Group Company or any of their respective properties, rights or assets that would, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect on the ability of the Target Companies to enter into and perform their obligations under this Agreement. As of the date hereof, there is no unsatisfied judgment or any open injunction binding upon any Target Group Company which, if determined adversely, would, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect on the ability of the Target Companies to enter into and perform their obligations under this Agreement.
Section 6.11 Compliance with Laws. Except as would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, and except (a) with respect to compliance with Environmental Laws (as to which certain representations and warranties are made pursuant to Section 6.20) and compliance with Tax Laws (which are the subject of Section 6.15) and (b) as set forth on Section 6.11 of the Target Company Disclosure Letter, the Target Group Companies are, and since December 31, 2020 have been, in compliance with all applicable Laws and Governmental Orders. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, since December 31, 2020 through the date hereof, (i) no Target Group Company has received any written notice of any violations of applicable Laws, Governmental Orders or Permits, and (ii) no charge, claim, assertion or Action of any violation of any Law, Governmental Order or material Permit by any Target Group Company is currently threatened in writing against any Target Group Company. As of the date hereof (A) no investigation or review by any Governmental Authority with respect to any Target Group Company is pending or, to the Knowledge of the Target Companies, threatened in writing, other than those the outcome of which would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and (B) no such investigations have been conducted by any Governmental Authority since
December 31, 2020, other than those the outcome of which did not, individually or in the aggregate,
result in material liability to the Target Group Companies, taken as a whole.
Section 6.12 Contracts; No Defaults.
(a) Section 6.12(a) of the Target Company Disclosure Letter sets forth a complete and accurate list of all of the following Contracts to which, as of the date of this Agreement, any Target Group Company is a party or is otherwise bound (but excluding any Company Benefit Plan):
(i) Contracts with any material business customer or Material Supplier;
(ii) Each Contract that (A) requires aggregate future payments to the Target Group Companies in excess of $500,000 in any calendar year and (B) grants to any Person (other than the Target Group Companies) (1) any “most favored nation” provisions or other price guarantees for a period greater than one (1) year with respect to such payments described in clause (A), or (2) material non-competition, non-solicitation or no-hire provisions imposed on any Target Group Company;
(iii) (x) Contracts entered into during the one (1) year prior to the date hereof with respect to mergers, acquisitions or sales of any Person or material business unit thereof by any Target Group Company other than such Contracts between the Target Group
Companies (each an “M&A Contract”), or (y) M&A Contracts in which any Target Group Company has any ongoing material obligations or liabilities, including deferred purchase price payments, earn-out
payments or indemnification obligations;
(iv) Contracts establishing partnerships or joint ventures, in each case, that are material to the Target Group Companies, taken as a whole;
(v) each Contract with Governmental Authorities requiring aggregate future payments to the Target Group Companies in excess of $500,000 in any calendar year;
(vi) Contracts for indebtedness for borrowed money or any guarantee thereof, including any mortgage,
indenture, note, installment obligation or other instrument or agreement related thereto,
except any such Contract (A) with an aggregate outstanding principal amount not exceeding $1,000,000 or (B) between or among the Target Group Companies;
(vii) Contracts that relate to the settlement or final disposition of any material Action
within the last year pursuant to which any Target Group Company has ongoing obligations or liabilities, in each case, in excess of $1,000,000;
(viii) each Contract to which any Target Group Company is a party whereby any Target Group Company has granted any Person any license under any material Owned Intellectual Property
or whereby any Target Group Company is granted a license to any material Intellectual Property (excluding (A) non-exclusive
licenses granted by or to customers in the ordinary course of business, (B) licenses
to Open Source Software, (C) nondisclosure agreements, (D) invention assignment agreements with current
and former employees, consultants, and independent contractors of the Target Group Companies, (E) employment agreements with any current or former employee, and (F) licenses
in respect of commercially available off-the-shelf software);
(ix) Contracts for the employment of any executive or other employee of the Target Group Companies who provide services on a full-time or part-time
basis to the Target Group Companies of any Target Group Company that (A) provides for annualized compensation in excess
of $150,000; or (B) cannot be terminated upon 30 days’ notice without any liability to any Target Group Company, unless pursuant to applicable
Law;
(x) Contracts that are a coexistence agreement, settlement agreement, a covenant not to
sue, or a similar agreement, in each case under which any Target Group Company is
restricted in its right to use, enforce or register any Intellectual Property and
Contracts under which any material Intellectual Property has been or is anticipated
to be developed by or for any Target Group Company;
(xi) Contracts with any officer, director, manager, stockholder, member of an Affiliate
of any Target Group Company or any of their respective relatives or Affiliates (excluding Contracts set forth
under Section 6.12(a)(xii) of the Target Company Disclosure Letter and offer letters for at-will employment that are terminable without any liability
to any Target Group Company); and
(xii) each collective bargaining agreement or similar labor Contract between any Target Group Company, on the one hand, and any labor or trade union, works council, or other body representing employees of any Target Group Company, on the other hand.
(b) All of the foregoing set forth on Section 6.12(a) of the Target Company Disclosure Letter, including all amendments and modifications thereto, are sometimes collectively referred
to as “Material Contracts”. The Target Companies have furnished or otherwise made available to Rigel true, complete and correct copies of all Material Contracts. Each Material Contract
sets forth the entire agreement and understanding between the Target Group Companies and the other parties thereto. Each Material Contract is valid, binding and in full
force and effect (subject to the Enforceability Exceptions and assuming such Material
Contract is a valid and legally binding obligation of the counterparty thereto). No Target Group Company nor, to the Knowledge of the Target Companies, any other party thereto is in default or violation of any Material Contract in any
material respect. There is no event or condition that exists that constitutes or,
with or without notice or the passage of time or both, would constitute any such default
or violation by any Target Group Company or, to the Knowledge of the Target Companies, any other party thereto, or give rise to any acceleration of any obligation or loss
of rights or any right of termination of a Material Contract. Since January 1, 2023, no Target Group Company has received any notice or request, in each case, in writing, on behalf of any other
party to a Material Contract to terminate, cancel or not renew such Material Contract,
or to renegotiate any material term thereof that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, or alleging or disputing any breach or default under such Material Contract.
Section 6.13 Company Benefit Plans.
(a) Section 6.13(a) of the Target Company Disclosure Letter sets forth a true and complete list of each Company Benefit Plan. For purposes of
this Agreement, “Company Benefit Plan” includes but is not limited to each material “employee benefit plan” and any material stock purchase, stock option, equity compensation, severance, retirement, employment,
individual consulting, retention, change-in-control, fringe benefit, bonus, incentive,
deferred compensation, providence fund, gratuity, medical, prescription medication, disability, welfare,
sick or vacation leave, paid time-off and all other employee benefit plans, agreements, programs or other arrangements, which are contributed to (or required to be contributed to), sponsored by or maintained
by any Target Group Company for the benefit of any current or former employee, officer, director or individual
consultant of any Target Group Company or pursuant to which any Target Group Company could have any liability, other than any statutory plan, program or arrangement that is required under applicable
Laws and maintained or sponsored by any Governmental Authority.
(b) With respect to each Company Benefit Plan, the Target Companies have delivered or made available to Rigel copies of (i) each Company Benefit Plan and any current trust agreement or other funding instrument relating to such plan, including any amendments thereto, (ii) the most recent summary plan description.
(c) (i) each Company Benefit Plan has been administered in material compliance with its terms and all applicable Laws and (ii) all contributions required to be made with respect to any Company Benefit Plan on or before the date hereof have been made, except as would not be material to any Target Company. There is no material Action pending or, to the Knowledge of the Target Companies, threatened with respect to any Company Benefit Plan or the assets of any Company Benefit Plan (other than routine
claims for benefits).
(d) Except with respect to statutory benefits required to be provided pursuant to applicable
Law, no Target Group Company provides or has incurred any current or projected liability in respect of post-employment or post-retirement
health, medical, or life insurance benefits for current, former or retired employees
of any Target Group Company.
(e) Except as set forth on Section 6.13(e) of the Target Company Disclosure Letter, neither the execution and delivery of this Agreement by the Target Companies nor the consummation of the Transactions will (whether alone or in connection with any subsequent event(s)) (i) result in the payment, acceleration, vesting, funding or creation of any compensatory rights of any current or former director, officer, employee or individual service provider of any Target Group Company to payments or benefits or increases in any payments or benefits (including any loan
forgiveness) under any Company Benefit Plan or otherwise, (ii) result in severance pay or any increase in severance pay, or (iii) require any contributions or payments to fund any obligations under any Company Benefit
Plan or a payment or benefit described in (i), or cause the any Target Group Company to transfer or set aside any assets to fund any Company Benefit Plan or a payment or benefit described in (i).
(f) Each Company Benefit Plan that has been established or maintained for current or former
employees, officers, directors, or individual service providers of any Target Group Company whose principle workplace is in a jurisdiction
other than the United States (i) has been established and maintained, in all material
respects, in compliance with its terms and applicable Laws, (ii) if intended to qualify
for special tax treatment, meets all the requirements for such treatment, and (iii)
to the extent required by applicable Law, has assets with a fair market value, together with any accrued contributions and
book reserve, that are sufficient to procure or provide for the accrued benefit obligations,
as of the date of this Agreement, with respect to all current and former participants
in such plan according to the actuarial assumptions and valuations most recently used
to determine employer contributions to such Company Benefit Plan.
Section 6.14 Labor and Employment Matters.
(a) Except as set forth on Section 6.14(a) of the Target Company Disclosure Letter, as of the date of this Agreement and for the past three (3) years, no Target Group Company is (i) a party to, or bound by, any collective bargaining agreement or similar Contract with a labor organization, union, works, council, trade association, or employee representative (collectively,
“Labor Union”), or (ii) has agreed to recognize any Labor Union. As of the date of this Agreement and for the past three (3) years, there has been no demand made or threatened or petitions filed for recognition
by any Labor Union. To the Knowledge of the Target Companies, as of the date of this Agreement and for the past three (3) years, except as would not be material to any Target Group Company (i) there are and have been no activities or proceedings of any Labor Union to organize any of the Employees, and (ii) there is no, and has been no, labor dispute or strike, slowdown, concerted
refusal to work overtime, or work stoppage against any Target Group Company, in each case, pending or threatened.
(b) Since December 31, 2022, no Target Group Company has implemented any plant closings, furloughs, or employee layoffs, or similar collective redundancy process affecting any site of employment or one
or more facilities or operating units within any site of employment or facility with
respect to any Target Group Company within the six (6) months prior to the date of
this Agreement.
(c) Except as would not be material to any Target Group Company, each of the Target Group Companies are in compliance in all respects with all applicable Laws regarding employment and employment practices, including, without
limitation, all laws respecting terms and conditions of employment, health and safety,
employee classification, non-discrimination, wages and hours, immigration, disability
rights or benefits, equal opportunity, plant closures and layoffs, affirmative action,
workers’ compensation, labor relations, “whistle blower” rights, retaliation, discrimination, harassment, sexual harassment policies, employee leave, paid time off, meal and rest breaks, the
proper classification of employees and independent contractors, the proper payment
of overtime and minimum wage, classification of employees as exempt and non-exempt,
and unemployment insurance. Except as would not be material to any Target Group Company, there is no Action against any Target Group Company pending or, to the Knowledge of the Target Companies, threatened before any Governmental Authority based on, arising
out of, in connection with or otherwise relating to the employment, consultancy, termination
of employment or consultancy, or failure to hire or employ by any Target Group Company,
of any Person, including, without limitation, any Action arising under or relating
to the foregoing Laws.
(d) Except as would not be material to any Target Group Company, no Target Group Company is delinquent with regard to payments to any current or former
employee or independent for any wages, salaries, overtime, commissions, bonuses, incentive
compensation, vacation pay, sick pay, paid-time-off, end-of-service gratuity payments,
or other direct or indirect compensation for any services performed by them through
the date of this Agreement, or amounts required to be reimbursed to any current or
former employee or independent contractor.
Section 6.15 Taxes.
(a) All income and other material Tax Returns of each Target Group Company which are required to be filed by a Target Group Company have been filed within the requisite period and are complete and correct in all material respects and are not, and are not reasonably
likely to be, the subject of any dispute between a Target Group Company and, or material
claim against a Target Group Company by, SARS or any other Governmental Authority.
(b) All income and other material amounts of Taxes due and owing by the Target Group Companies have been timely paid (taking into account validly obtained extensions).
(c) Each of the Target Group Companies has (i) withheld and deducted all material amounts of Taxes required to have been withheld or deducted by it in connection with amounts paid
or owed to any employee, independent contractor, creditor, shareholder or any other
third party, (ii) timely remitted, or will remit on a timely basis, such amounts to the appropriate
Governmental Authority; and (iii) complied in all material respects with applicable Law with respect to Tax withholding, including all reporting and record keeping requirements.
(d) None of the Target Group Companies is engaged in any audit, administrative proceeding or judicial proceeding with respect
to material Taxes. None of the Target Group Companies has received any written notice from a Governmental Authority of a dispute or claim with respect to material Taxes, other than disputes or claims that have since been finally resolved, and no such claims have been threatened in writing. No written claim has
been made since December 31, 2018, by any Governmental Authority in a jurisdiction where a Target Group Company does not pay a specific type of Tax or file a specific type of Tax Return that such entity is or may be subject to such material amounts of Taxes or required to file such a Tax Return in that jurisdiction. There are no outstanding agreements extending or waiving the statutory period of limitations applicable to any claim
for, or the period for the collection or assessment or reassessment of, material Taxes of the Target Group Companies and, to the knowledge of the Target Companies, no written request for any such waiver or extension is currently pending (in each case, except in connection with any extensions of time to file Tax Returns
obtained in the ordinary course of business).
(e) None of the Target Group Companies (or any predecessor thereof) has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended
to qualify under Section 355 of the Code (or so much of Section 356 of the Code as relates to Section 355 of the Code) or any similar provision of state, local or foreign Law since December 31, 2018.
(f) None of the Target Group Companies (i) has been a party to any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2) (or any similar provision of state, local or foreign Law), (ii) has requested, executed or entered into any “closing agreement,” private letter ruling, technical advice memorandum, advance pricing agreement or other binding written agreement with respect to material Taxes with a Governmental Authority that created obligations that will bind the Target Group Companies after the Closing or (iii) has, or has ever had, a permanent establishment or otherwise become subject to income Taxation in a jurisdiction outside the country of its organization.
(g) Except with respect to deferred revenue or prepaid revenues collected by the Target Group Companies in the ordinary course of business, none of the Target Group Companies will be required to include any material item of income in, or exclude any material
item of deduction from, taxable income for any taxable period (or portion thereof)
ending after the Closing Date as a result of any: (A) change in, or use of an improper, method of accounting for a taxable period (or portion thereof) ending on or prior
to the Closing Date and made or used prior to the Closing; (B) installment sale or open transaction disposition made prior to the Closing; or (C) prepaid amount or deferred revenue received prior to the Closing.
(h) There are no Liens with respect to material Taxes on any of the assets of the Target Group Companies, other than Permitted Liens.
(i) None of the Target Group Companies has been a member of an affiliated, consolidated,
combined or unitary group filing a Tax Return, other than a group the common parent
of which was and is a Target Group Company. None of the Target Group Companies has any material liability for the Taxes of any Person (other than the Target Group Companies) (i) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law), (ii) as a transferee or successor or (iii) otherwise by operation of Law.
(j) Blyvoor Resources is treated as a corporation for U.S. federal income tax purposes.
Any entity classification elections made on Form 8832 (Entity Classification Election)
with respect to any Target Group Company are set forth on Section 4.15(k) of the Target Company Disclosure Letter.
(k) None of the Target Group Companies is a party to, or bound by, or has any obligation to any Governmental Authority or other Person (other than the Target Group Companies) under any Tax allocation, Tax sharing, Tax indemnification or similar agreements (except, in each case, for any such agreements that are commercial contracts not primarily relating to Taxes).
(l) None of the Target Group Companies has any material liability under any escheat or
unclaimed property Law.
(m) To the Knowledge of the Target Companies, the Tax losses (including the balance of unredeemed capital expenditure) of each Target
Group Company have been correctly and accurately calculated and reported in accordance
with applicable Law in all material respects, and any such balances reflected in the
annual financial statements and Tax assessments of the Target Group Companies are
available for future use and have not been misstated.
(n) No Target Group Company has taken, permitted, or agreed to take any action, and does
not intend to or plan to take any action, or has any Knowledge of any fact or circumstance
that could reasonably be expected to prevent the transactions contemplated by this Agreement from qualifying for the Intended Tax Treatments, other than (i) any such actions, facts or circumstances contemplated by this Agreement, the Transaction
Compensation Agreements and the other Transaction Agreements or (ii) where the existence of such action, fact or circumstance, or intention or
plan to act, has been disclosed in the information made available in the Data Room not less than two (2) Business Days prior to the date hereof.
Section 6.16 Insurance. Section 6.16 of the Target Company Disclosure Letter sets forth a list of all material policies of property, fire and casualty, product liability, workers’ compensation, directors and officers and other forms of insurance held by, or for
the benefit of, the Target Group Companies as of the date hereof (collectively, the “Policies”). Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect: (a) all of the Policies with respect to policy periods that include the date of this
Agreement are in full force and effect and all premiums due and payable for such Policies
have been duly paid, (b) no Target Group Company has received a written notice of cancellation of any of the Policies or of any material changes that are required in the conduct of the business of any Target Group Company as a condition to the continuation of coverage under, or renewal of, any of such Policies and (c) except as set forth on Section 6.16 of the Target Company Disclosure Letter, there is no material claim by any Target Group Company under any Policy. The Target Group Companies have reported to their respective insurers all material claims and circumstances known by employees of the Target Group Companies with such reporting responsibilities that would reasonably be likely to give rise
to a material claim by any Target Group Company under any Policy.
Section 6.17 Permits. Except as would not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect: (a) as of the date of this Agreement, each Target Group Company has all licenses, approvals, consents, registrations, franchises and permits that are required to own, lease or operate its properties and assets and to conduct its business as currently conducted
(except with respect to Environmental Permits required under Environmental Laws, as to which certain representations and warranties are made pursuant to Section 6.20) (the “Permits”), and all Permits are in full force and effect and (b) no Target Group Company is (i) in default or violation of such Permits or (ii) has been the subject of any pending action by a Governmental Authority seeking
the revocation, suspension or impairment of any Permit.
Section 6.18 Real Property and Mineral Rights.
(a) Section 6.18(a) of the Target Company Disclosure Letter sets forth the Deeds Registry Office description of all land, or portions thereof, together with all buildings, structures, material improvements and material fixtures located thereon, and all easements and other rights and interests appurtenant
thereto, including any owned real property or leases of any real property, which are or may be accessed, used, required and/or occupied by the Target Group Companies
for the purposes of the Mine, over which usufruct rights and/or access and/or services
and/or other servitudes have been granted and/or registered in the Deeds Registry
Office in favor of the Target Group Companies (the “Mining Real Property”). The Target Group Companies have good and marketable title to the Mining Real Property, free and clear of all Liens, except for Permitted Liens, and enjoys
peaceful and quiet access, use and/or occupation of the Mining Real Property. Except as set forth on Section 6.18(a) of the Target Company Disclosure Letter, no Target Group Company has leased, licensed or otherwise granted to any Person (other than the Target Group Companies) the right to use or occupy such Mining Real Property. To the Knowledge of the Target Companies, no condemnation proceeding or proposed Action or agreement for taking in lieu of
condemnation with respect to the Mining Real Property is pending or threatened.
(b) Section 6.18(b) of the Target Company Disclosure Letter sets forth a true and complete list of the
Mineral Rights of the Target Group Companies. The Target Group Companies own and have valid title to the Mineral Rights, free and clear of all Liens, except for Permitted Liens. Except as set forth on Section 6.18(b) of the Target Company Disclosure Letter (i) no Person has any interest (other than Permitted Liens) in the Target Group Companies’ Mineral Rights or the production or profits therefrom or any royalty, license, fee
or similar payment in respect thereof or any right to acquire any such interest; (ii) none of the Target Group Companies has executed any mining lease agreements, option
agreements, royalty agreements, streaming agreements, hedging agreements, off-take
agreements, forward sales or similar Contracts and there is no Action that might or
could materially adversely affect the right of the applicable Target Group Company
to use, transfer or, in the case of an exploitation license, exploit the Mineral Rights
or compromise the ability of the applicable Target Group Company to undertake the
activities presently conducted; (iii) there is no material adverse Action against or challenge to the title to or ownership of or leasehold interest in the
Target Group Companies’ Mineral Rights and, to the Target Companies’ knowledge, none have been threatened; and (iv) there are no material restrictions on the ability of the Target Group Companies,
taken as a whole, to use or exploit any of the Mineral Rights, except pursuant to
applicable Law.
Section 6.19 Intellectual Property and IT Security.
(a) Section 6.19(a) of the Target Company Disclosure Letter lists (i) all Owned Intellectual Property
for which applications have been filed or registrations have been obtained, whether in the United States or internationally as of the date
of this Agreement (“Registered Intellectual Property”); (ii) material unregistered trademarks owned by any of the Target Group Companies;
and (iii) Company Software that is material to the conduct of the business of the
Target Group Companies. All of the registrations, issuances and applications set forth
in of the Target Company Disclosure Letter are in full force and effect, and, to the Knowledge of the Target Companies, are valid and enforceable, and have not expired or been cancelled, abandoned or otherwise terminated. The Target
Group Companies own or have the right to use all material Intellectual Property used in the operation of the business of the Target Group Companies, as presently
conducted (provided, however, that the foregoing shall not be interpreted to be a
representation regarding non-infringement, which is solely addressed in Section 6.19(b)). The applicable Target Group Company is the sole and exclusive owner of all right,
title and interest in and to its Owned Intellectual Property, free and clear of Liens
(other than Permitted Liens).
(b) As of the date of this Agreement, except as set forth in Section 6.19(b) of the Target Company Disclosure Letter, there are no (and, since December 31, 2020, there have not been any) Actions pending or threatened, in writing, against
any Target Group Company asserting (i) any invalidity or unenforceability of, or challenging the ownership or scope of,
any Owned Intellectual Property (excluding ordinary course prosecution matters before
the United States Patent and Trademark Office or other Governmental Authorities responsible
for Registered Intellectual Property) or (ii) any infringement, dilution, violation or misappropriation by any Target Group Company
or the conduct and operation of the business of the Target Group Companies of the
Intellectual Property rights of any Person. To the Knowledge of the Target Companies,
(A) the conduct and operation of the business of the Target Group Companies is not
infringing upon, misappropriating, diluting or otherwise violating, and has not since
December 31, 2020 infringed upon, misappropriated, diluted or otherwise violated, any Intellectual
Property of any Person and (B) no third party is infringing upon, misappropriating, diluting, or otherwise violating,
and has not since December 31, 2020 infringed upon, misappropriated, diluted, or otherwise violated, any Owned
Intellectual Property.
(c) The Target Group Companies take, and have taken since December 31, 2020, commercially reasonable actions and measures to protect and maintain the
security of their IT Systems (and all data stored therein or transmitted thereby)
and material trade secrets. Except as set forth in Section 6.19(c) of the Target Company Disclosure Letter, the IT Systems (i) operate and perform in
all material respects in a manner sufficient to conduct the businesses of the Target
Group Companies as currently conducted, and (ii) to the Knowledge of the Target Companies,
do not contain and since December 31, 2020 have not been affected by any Malicious Code. Since December 31, 2020, none of the Target Group Companies have experienced a material outage of
the IT Systems where such effects on the IT Systems have not been materially cured.
(d) No current or former founder, director, member, officer or employee has developed,
and no contractor or consultant has been engaged to develop, Intellectual Property
that is material to the business of the Target Group Companies that is not owned by a Target Group Company by operation of law.
(e) All Intellectual Property used in the conduct of the business of the Target Group
Companies as currently conducted shall be owned or available for use by the Target
Group Companies immediately after the Closing on terms and conditions substantially
the same as those under which the Target Group Companies owned or used such Intellectual
Property immediately prior to the Closing in all material respects.
(f) The Target Companies maintain commercially reasonable administrative, technical and
physical safeguards to protect the integrity security and confidentiality of the IT
Systems and Company Data. All Company Data will continue to be available for Processing
by the Target Companies immediately following the Closing on substantially the same
terms and conditions as existed immediately before the Closing except as would not
be material to the Target Group Companies (taken as a whole).
(g) Except as set forth on Section 4.19(g) of the Target Company Disclosure Letter, the Target Companies, and with respect to
the processing of Company Data, to the Knowledge of the Target Companies, its data
processors, comply and since December 31, 2020 have complied with the Data Protection Requirements except as would not be
material to the Target Group Companies (taken as a whole).
(h) To the Knowledge of the Target Companies, each Target Company and its respective data
processors since December 31, 2020 have not suffered and are not suffering a Security Incident, have not been
and are not required to notify any Person or Governmental Authority of any Security
Incident, and are not adversely affected by any malicious code, ransomware or malware
attacks, or denial-of-service attacks on any IT Systems of the Target Companies. There
is no current Action pending, or, to the Knowledge of the Target Companies, threatened
in writing, against any Target Company, including by any Governmental Authority, with
respect to its Processing of Personal Information or its noncompliance with any Data
Protection Requirements.
Section 6.20 Environmental Matters. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or as set forth in Section 6.20 of the Target Company Disclosure Letter:
(a) the Target Group Companies are, and since December 31, 2020, have been, in compliance with all applicable Environmental Laws;
(b) the Target Group Companies hold all Environmental Permits required under applicable Environmental Laws to permit the Target Group Companies to operate their assets in a manner in which they are now operated and to conduct
the business of the Target Group Companies as currently conducted, all such Environmental Permits are in full force and effect, the Target Group Companies
are, and since December 31, 2020 have been, in compliance in all materials respects with all such Environmental
Permits, and there are no Actions pending, or to the Knowledge of the Target Companies, threatened that seek the revocation, cancellation, suspension
or material adverse modification of any such Environmental Permits;
(c) none of the Target Group Companies has received any written notice, citation, demand,
complaint, or claim of, and there are no Actions pending against or, to the Knowledge of the Target Companies, threatened against any Target Group Company alleging any violations of or liability under any Environmental Law or relating to Hazardous Materials;
(d) there is no unresolved Governmental Order relating to any Environmental Law imposed
upon or, to the Knowledge of the Target Companies, threatened in writing against any Target Group Company or, to the Knowledge of the Target Companies, any of their properties, rights or
assets;
(e) there has been no Release of any Hazardous Materials on, at, under or from any property currently or, to the Knowledge of the Target Companies, formerly owned, leased or operated by any Target Group Company or at any other location that could reasonably be expected to give rise to any liability under Environmental Laws on the part of any Target Group Company; and
(f) none of the Target Group Companies has assumed or provided indemnity against any liability
of any other Person under any Environmental Laws.
Section 6.21 Absence of Changes. Since the Most Recent Balance Sheet Date, no Material Adverse Effect has occurred.
Section 6.22 Brokers’ Fees. No broker, finder, financial advisor, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other similar fee, commission or other similar payment in connection with
the Transactions based upon arrangements made by any Target Group Company or any of their respective Affiliates for which Rigel or any Target Group Company has any obligation.
Section 6.23 Business Relationships.
(a) Section 6.23(a) of the Target Company Disclosure Letter sets forth a true and correct list of the ten (10) largest and current vendors, suppliers and service providers to the Target Group Companies (measured by aggregate spend during the fiscal year ended December 31, 2022) (collectively, the “Material Suppliers”).
(b) No Target Group Company has received any notice or threat in writing from any Material Supplier since January 1, 2023 of any intention to terminate or not renew its business dealings with the Target Group Companies, or to materially decrease purchasing or selling (as the case may be) services or
products to Target Group Companies, or to adversely modify its business dealings with the Target Group Companies in a way that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 6.24 Related Party Transactions. Except for the Contracts set forth on Section 6.24 of the Target Company Disclosure Letter, there are no Contracts (excluding Contracts related to (i) employee compensation and other ordinary incidents
of employment (including participation in Company Benefit Plans) set forth on Section 6.13(a) of the Target Company Disclosure Letter and (ii) equity ownership between any Target Group Company, on the one hand, and, to the Target Companies’ Knowledge, any Affiliate, officer or director of a Target Company, on the other hand), and (b) none of the officers, directors, managers or Affiliates of any Target Group Company owns any asset or property (intellectual, real or personal) used in and material
to the business of the Target Group Companies taken as a whole, except in its capacity as a security holder of the Target Companies.
Section 6.25 Mining
(a) The Target Group Companies are in exclusive possession or control of the right to
extract and/or process the Minerals that are locatable, subject to applicable Law, located in, on or under the
Mine.
(b) The Target Group Companies have all surface and access rights, including as applicable
fee simple estates, usufructs, leases, servitudes, easements, rights of way and permits, or licenses from landowners or Governmental
Authorities, permitting the use of land by such the Target Group Companies, and other interests
that are required for the current state of exploiting the development potential of
the Mine, and no third party or group holds any such rights that would be required
to conduct mineral exploration, drilling activities, and production on any of the
Mine.
(c) The Target Group Companies are not aware of any conflicting Mineral Rights owned by third parties which overlay with any of the Mine.
(d) The Mineral Rights include all material claims, leases, subleases, licenses, permits, access rights and
other rights and interest necessary to explore, in the planned area of operations
by the Target Group Companies at the Mine, for Minerals without any liability to pay any commission, royalty, license fee, net smelter royalty/return/receipt,
net profits or net proceeds interests, or any similar payment to any Person except
as disclosed in Section 6.25(d) of the Target Company Disclosure Letter.
(e) No Target Group Company is party to any, and to the Knowledge of the Target Companies, there is no, joint venture agreement, stockholder agreement,
partnership agreement, voting agreement, powers of attorney, co-ownership agreement,
co-tenancy agreements, management agreements or any other existing oral or written
agreement of any kind which does or would have any adverse impact whatsoever on record
or possessory title to the mineral estate of the Mineral Rights, or the access to, exploration, development or mining of same and no other Person
has any interest in the Mineral Rights or any right to acquire or otherwise obtain any such interest.
(f) No Target Group Company has received any notice, whether written or oral from any Governmental Authority of any revocation or intention to revoke the Target Group Companies’ interests in or file a contest action related to the Mineral Rights.
(g) The Target Companies have made available to Rigel all information and data pertaining to the Mineral Rights in their possession, including mining plans and plans of operation; reclamation plans;
life of mine studies and reports; notices of intent; including those related to exploration
drilling, pad and road construction; mining exploration; land and survey records;
the existence of minerals within the Mineral Rights, including relevant reserve and resource estimates;
metallurgical testwork and sampling
data; drill data and assay results; all reclamation and bond release information;
financial assurances for reclamation and all information concerning record, possessory,
legal or equitable title to the Mineral Rights which is within its possession or control.
(h) The Target Group Companies have the right, title, ownership and right to use all information
and data pertaining to the Mineral Rights in its possession.
(i) The estimated proven and probable mineral reserves and estimated indicated, measured
and inferred mineral resources publicly disclosed by the Target Group Companies have
been prepared and disclosed in all material respects in accordance with accepted mining,
engineering, geoscience and other approved industry practices, and all applicable
Laws. There has been no material reduction in the aggregate amount of estimated mineral
reserves or estimated mineral resources of the Target Group Companies from the amounts
so disclosed. To the Knowledge of the Target Companies, there are no facts or conditions which would reasonably be
expected to render the conclusions of resources and reserves contained in the reserve
report, as amended by the supplement, incorrect in any way.
Section 6.26 Information Supplied. None of the information supplied or to be supplied by or on behalf of the Target Group Companies specifically in writing for inclusion in the Registration
Statement will, at the date on which the Proxy Statement is first mailed to the Rigel Stockholders or at the time of the Extraordinary General Meeting, contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they are made, not misleading.
Section 6.27 Regulatory Compliance. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect:
(a) No Target Group Company, any of their respective Affiliates, or any of their respective directors, managers, officers, employees, equityholders,
partners, members or, to the Target Companies’ Knowledge, Representatives or any other Persons, in each case to the extent acting for and on behalf of any of the Target Group Companies, is or has been, in the past five (5) years, (i) a Person named on any Sanctions Laws-related list of designated Persons maintained
by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the U.S. Department of Commerce, Bureau of Industry
and Security, the U.S. Department of State, His Majesty’s Treasury of the United Kingdom, any committee of the United Nations Security Council;
or the European Union or its Member States; (ii) located, organized or resident in a country or territory which is itself the subject
of or target of any comprehensive Sanctions Laws (including Cuba, Iran, North Korea, Syria, and the Crimea and the so-called Donetsk
People’s Republic and Luhansk People’s Republic regions of Ukraine); (iii) an entity owned, directly or indirectly, individually or in the aggregate, fifty
percent or more by one or more Persons described in clauses (i) or (ii); (iv) knowingly transacting business directly with or on behalf of any Person described in clauses (i) – (iii) or any country or territory described in clause (ii) in violation of Sanctions Laws; or (v) otherwise in violation of Sanctions Laws or Export Control Laws.
(b) None of the Target Group Companies nor any of their Affiliates, nor any of their respective directors, managers, officers, employees, equityholders, partners, members
or, to the Target Companies’ Knowledge, Representatives, in each case to the extent acting for and on behalf of the Target Group Companies has, in the past five (5) years, (i) made, offered, promised, paid or received any unlawful bribes, kickbacks or other
similar improper payments to or from any Person or (ii) made or paid any contributions, directly or indirectly, to a domestic or foreign
political party
or candidate, in each case of clause (i) or (ii), in violation of the Anti-Corruption Laws or (iii) otherwise violated any Anti-Corruption Laws.
(c) To the Target Companies’ Knowledge, as of the date hereof, (i) there are no Actions, filings, Governmental Orders, inquiries or governmental investigations
alleging any violations of Anti-Corruption Laws, Sanctions Laws or Export Control Laws by any Target Group Company or any of their Affiliates, or any of their respective directors, managers, officers, employees, equityholders, partners, members or Representatives, in each case to the extent acting for and on behalf of the Target Group Companies, and (ii) in the past five (5) years, no such Actions, filings, Governmental Orders, inquiries or governmental investigations
have been threatened or are pending.
Section 6.28 No Additional Representations or Warranties. Except as provided in and this Article VI none of the Target Companies nor any of its Affiliates, nor any of their respective directors, managers, officers,
employees, equityholders, partners, members or Representatives has made, or is making, any representation or warranty whatsoever to
Rigel, Newco, Merger Sub or their respective Affiliates and no such party shall be liable in respect of the accuracy or completeness
of any information provided to Rigel, Newco, Merger Sub or any of their respective Affiliates.
Article VII
REPRESENTATIONS AND WARRANTIES OF RIGEL, NEWCO AND MERGER SUB
Except as set forth in the disclosure letter delivered by Rigel to the Target Companies on the date of this Agreement (the “Rigel Disclosure Letter”) (each section of which qualifies (a) the correspondingly numbered representation, warranty or covenant if specified therein
and (b) such other representations, warranties or covenants where its relevance as an exception
to (or disclosure for purposes of) such other representation, warranty or covenant
is reasonably apparent on its face) or in the SEC Reports filed or furnished by Rigel prior to the date hereof (excluding (a) any disclosures in such SEC Reports under the headings “Risk Factors,” “Forward-Looking Statements” or “Qualitative Disclosures About Market Risk” and other disclosures that are predictive, cautionary or forward looking in nature and (b) any exhibits or other documents appended thereto) (it being acknowledged that nothing disclosed in such SEC Reports will be deemed
to modify or qualify the representations and warranties set forth in Section 7.01 (Corporate Organization), Section 7.02 (Due Authorization), Section 7.06 (Financial Ability; Trust Account), Section 7.10 (Tax Matters) and Section 7.11 (Capitalization)), Rigel, Newco and Merger Sub each represents and warrants to the Target Companies as follows:
Section 7.01 Corporate Organization.
(a) Rigel is a Cayman Islands exempted company duly incorporated, validly existing and in good standing (in each case to the extent such concepts
are applicable) under the Laws of its jurisdiction of incorporation and has all requisite corporate or other applicable organizational power and authority to own, lease or operate its assets and properties and to conduct its business as it is now being
conducted, (b) Newco is a Cayman Islands exempted company duly incorporated, validly existing and in good standing (in each case to the extent
such concepts are applicable) under the Laws of its jurisdiction of incorporation
and has all requisite corporate or other applicable organizational power and authority
to own, lease or operate its assets and properties and to conduct its business as
it is now being conducted and (c) Merger Sub is a Cayman Islands exempted company duly incorporated, validly existing and in good standing (in each case to the extent
such concepts are applicable) under the Laws of its jurisdiction of incorporation
and has all requisite corporate or other applicable organizational power and authority
to own, lease or operate its assets and properties and to conduct its business as
it is now being conducted. The copies of the organizational documents of Rigel, Newco and Merger Sub previously delivered by Rigel to the Target Companies are
true, correct and complete and are in effect as of the date of this Agreement.
Each of Rigel, Newco and Merger Sub is, and at all times has been, in compliance in all material respects with all restrictions,
covenants, terms and provisions set forth in its respective Governing Documents. Each of Rigel, Newco and Merger Sub is duly licensed or qualified and in good standing as a foreign corporation or foreign
limited liability company, as applicable, in all jurisdictions in which its ownership of property or the character
of its activities is such as to require it to be so licensed or qualified, except
where failure to be so licensed or qualified has not and would not, individually or
in the aggregate, reasonably be expected to have a material adverse effect on the ability of Rigel, Newco or Merger Sub, as applicable to enter into this Agreement or to consummate the Transactions.
Section 7.02 Due Authorization.
(a) Each of Rigel, Newco and Merger Sub has all requisite corporate or other applicable organizational power and authority to execute and deliver this Agreement and each other Transaction Agreement to which it is or will be a party and, upon receipt of the Rigel Stockholder Approval and the Newco Stockholder Approval, to perform its obligations hereunder and thereunder and to consummate the Transactions. The execution, delivery and performance of this Agreement and such Transaction Agreements and the consummation of the Transactions have been duly, validly and unanimously authorized and approved by the board of directors
or equivalent governing body of each of Rigel, Newco, Merger Sub, and by Newco, as the sole shareholder of Merger Sub, and, except for the Rigel Stockholder Approval and the Newco Stockholder Approval, no other corporate or equivalent proceeding on the part of Rigel, Newco or Merger Sub is necessary to authorize this Agreement or such Transaction Agreements or Rigel, Newco or Merger Sub’s performance hereunder or thereunder. This Agreement has been, and each such Transaction Agreement to which Rigel, Newco or Merger Sub is or will be a party has been or will be, duly and validly executed and delivered by Rigel, Newco and/or Merger Sub, as applicable, and, assuming due authorization and execution by each other Party hereto and thereto, this Agreement constitutes, and each such Transaction Agreement to which Rigel, Newco or Merger Sub is or will be a party, constitutes or will constitute a legal, valid and binding obligation of Rigel, Newco and/or Merger Sub, as applicable, enforceable against Rigel, Newco or Merger Sub in accordance with its terms, subject to the Enforceability Exceptions.
(b) Assuming a quorum is present at the Extraordinary General Meeting, as adjourned or postposed, the only votes of any of Rigel’s capital stock necessary in connection with the entry into this Agreement by Rigel, the consummation of the Transactions, including the Merger and the Closing, and the approval of the Rigel Stockholder Matters are as set forth on Section 7.02(b) of the Rigel Disclosure Letter (such votes, collectively, the “Rigel Stockholder Approval”).
(c) At a meeting duly called and held, the board of directors of Rigel has unanimously: (i) determined that this Agreement and the Transactions are fair to and in the best interests of Rigel and the Rigel Stockholders; (ii) determined that the fair market value of the Target Companies is equal to at least 80% of the amount held in the Trust Account (less any deferred underwriting commissions and taxes payable on interest earned) as of the date hereof; (iii) approved the Transactions as a Business Combination; and (iv) resolved to recommend to the stockholders of Rigel approval of the Transactions.
(d) To the Knowledge of Rigel, the execution, delivery and performance of any Transaction Agreement by any party thereto, do not and will not conflict with or result in any violation of any provision
of any applicable Law or Governmental Order applicable to such party or any of such party’s properties or assets.
Section 7.03 No Conflict. The execution, delivery and performance of this Agreement and any other Transaction Agreement to which Rigel, Newco or Merger Sub is or will be a party by Rigel, Newco or Merger Sub and, upon receipt of the Rigel Stockholder Approval and the Newco Stockholder Approval, the consummation of the Transactions do not and will not (a) conflict with or violate any provision of, or result in the breach of the Rigel Organizational Documents, the Governing Documents of Newco or Merger Sub or any organizational documents of any other Subsidiaries of Rigel, (b) conflict with or result in any violation of any provision of any Law or Governmental Order applicable to Rigel, Newco, Merger Sub, any other Subsidiaries of Rigel or any of their respective properties or assets, (c) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in the termination
or acceleration of, or a right of termination, cancellation, modification, acceleration
or amendment under, accelerate the performance required by, or result in the acceleration
or trigger of any payment, posting of collateral (or right to require the posting
of collateral), time of payment, vesting or increase in the amount of any compensation
or benefit payable pursuant to, any of the terms, conditions or provisions of any
Contract to which Rigel, Newco, Merger Sub or any other Subsidiaries of Rigel is a party or by which any of their respective assets or properties may be bound or affected,
or (d) result in the creation of any Lien upon any of the properties or assets of Rigel, Newco, Merger Sub or any other Subsidiaries of Rigel, except (in the case of clauses (b), (c) or (d) above) for such violations, conflicts, breaches or defaults which would not, individually
or in the aggregate, reasonably be expected to materially impede the ability of Rigel, Newco or Merger Sub to enter into and perform its obligations under this Agreement or any other Transaction Agreement to which Rigel, Newco or Merger Sub is or will be a party.
Section 7.04 Litigation and Proceedings. There are no pending or, to the Knowledge of Rigel, threatened in writing Actions against Rigel, Newco, Merger Sub or any of their respective properties, rights or assets, which, if determined adversely, could, individually
or in the aggregate, reasonably be expected to be material to Rigel, Newco or Merger Sub and their ability to enter into and perform their respective obligations under this Agreement.
There is no Governmental Order imposed upon or, to the Knowledge of Rigel, threatened in writing against Rigel, Newco, Merger Sub or any of their respective properties, rights or assets which, if determined adversely, could, individually or
in the aggregate, reasonably be expected to have a material adverse effect on the ability of Rigel, Newco or Merger Sub to enter into and perform their respective obligations under this Agreement or any
other Transaction Agreement to which Rigel, Newco or Merger Sub is or will be a party. There is no unsatisfied judgment or any open injunction binding
upon Rigel, Newco or Merger Sub which could, individually or in the aggregate, reasonably be expected to materially adverse effect on the ability of Rigel, Newco or Merger Sub to enter into and perform its obligations under this Agreement or any other Transaction Agreement to which Rigel, Newco or Merger Sub is or will be a party.
Section 7.05 Governmental Authorities; Consents. No action by, notice to, consent, approval, waiver, permit or authorization of, or
designation, declaration or filing with, any Governmental Authority is required on
the part of Rigel, Newco or Merger Sub with respect to such Party’s execution, delivery and performance of this Agreement and the Transaction Agreements
to which it is or will be a party and the consummation of the Transactions, except for (a) applicable requirements of Securities Laws, (b) any filing with the appropriate Governmental Authorities in connection with the amendment
and restatement of Governing Documents pursuant to and in accordance with Section 2.04 and Section 4.03(a), (c) any actions, consents, approvals, permits or authorizations, designations, declarations
or filings, the absence of which would not reasonably be expected to have, individually
or in the aggregate, a material adverse effect on the ability of Rigel, Newco or Merger Sub to perform or comply with on a timely basis any material obligation under this Agreement
or to consummate the Transactions in accordance with the terms hereof and (d) as otherwise disclosed on Section 7.05 of the Rigel Disclosure Letter.
Section 7.06 Financial Ability; Trust Account.
(a) As of March 7, 2024, there was at least $ $273,328,940.59 invested in a trust account (the “Trust Account”), maintained by Continental Stock Transfer & Trust Company, a New York corporation, acting as trustee (the “Trustee”), pursuant to the Investment Management Trust Agreement, effective as of November 4, 2021, by and between Rigel and the Trustee on file with the SEC Reports of Rigel as of the date of this Agreement (the “Trust Agreement”). Prior to the Closing, none of the funds held in the Trust Account may be released except in accordance with the Trust Agreement, the Rigel Organizational Documents and Rigel’s final prospectus dated November 4, 2021 and filed with the SEC on November 8, 2021 (the “Final Prospectus”). Amounts in the Trust Account are invested in United States Government securities or in money market funds meeting
certain conditions under Rule 2a-7 promulgated under the Investment Company Act of 1940, as amended. Rigel has performed all material obligations required to be performed by it to date under,
and is not in material default, breach or delinquent in performance or any other respect
(claimed or actual) in connection with, the Trust Agreement, and no event has occurred which, with due notice or lapse of time or both, would
constitute such a default or breach thereunder. As of the date hereof, there are no claims or proceedings pending with respect to the Trust Account. Since November 4, 2021, Rigel has not released any money from the Trust Account (other than interest income earned on the principal held in the Trust Account as permitted by the Trust Agreement). As of the Closing, the obligations of Rigel to dissolve or liquidate pursuant to the Rigel Organizational Documents shall terminate, and, as of the Closing, Rigel shall have no obligation whatsoever pursuant to the Rigel Organizational Documents to dissolve and liquidate the assets of Rigel by reason of the consummation of the Transactions. To Rigel’s knowledge, as of the date hereof, following the Closing, no stockholder of Rigel shall be entitled to receive any amount from the Trust Account except to the extent such stockholder shall have elected to tender its Rigel Class A Shares for redemption pursuant to the Rigel Stockholder Redemption. The Trust Agreement is in full force and effect and is a legal, valid and binding obligation of Rigel and, to the Knowledge of Rigel, the Trustee, enforceable in accordance with its terms, subject to the Enforceability Exceptions. The Trust Agreement has not been terminated, repudiated, rescinded, amended or supplemented or modified,
in any respect, and, to the Knowledge of Rigel, no such termination, repudiation, rescission, amendment, supplement or modification
is contemplated. There are no side letters and there are no Contracts, arrangements or understandings, whether written or oral, with the Trustee or any other Person that would (i) cause the description of the Trust Agreement in the SEC Reports to be inaccurate or (ii) entitle any Person (other than stockholders of Rigel who shall have elected to redeem their Rigel Class A Shares pursuant to the Rigel Stockholder Redemption or the underwriters of Rigel’s initial public offering in respect of their Deferred Discount (as defined in the Trust Agreement)) to any portion of the proceeds in the Trust Account.
(b) As of the date hereof, assuming the accuracy of the representations and warranties
of the Target Companies contained herein and the compliance by the Target Companies with their respective obligations hereunder, Rigel has no reason to believe that any of the conditions to the use of funds in the Trust Account will not be satisfied or funds available in the Trust Account will not be available to Rigel on the Closing Date.
(c) As of the date hereof, Rigel does not have, or have any present intention, agreement, arrangement or understanding to enter into or incur, any obligations with respect
to or under any Indebtedness.
Section 7.07 Brokers’
Fees. Except fees described on Section 7.07 of the Rigel Disclosure Letter (including the amounts owed with respect thereto),
no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee, underwriting fee, deferred
underwriting fee, commission or other similar payment in connection with the Transactions based upon arrangements made by Rigel or any
of its Affiliates, including the Sponsor.
Section 7.08 SEC Reports; Financial Statements; Sarbanes-Oxley Act; Undisclosed Liabilities.
(a) Rigel has filed in a timely manner all required registration statements, reports, schedules, forms, statements and other documents required to be filed by it with the SEC since November 4, 2021 (collectively, as they have been amended since the time of their filing and including
all exhibits thereto, the “SEC Reports”). None of the SEC Reports, as of their respective dates (or if amended or superseded by a filing prior to the
date of this Agreement or the Closing Date, then on the date of such filing), contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary in
order to make the statements made therein, in light of the circumstances under which
they were made, not misleading. The audited financial statements and unaudited interim financial statements (including, in each case, the notes and schedules thereto) included in the SEC Reports complied as to form in all material respects with the published rules and regulations
of the SEC with respect thereto, were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated
therein or in the notes thereto and except with respect to unaudited statements as
permitted by Form 10-Q of the SEC) and fairly present (subject, in the case of the unaudited interim financial statements included therein, to normal year-end adjustments and the absence of complete footnotes)
in all material respects the financial position of Rigel as of the respective dates thereof and the results of their operations and cash flows
for the respective periods then ended. Rigel does not have any material off-balance sheet arrangements that are not disclosed in the SEC Reports.
(b) Rigel has established and maintains disclosure controls and procedures (as defined in Rule 13a-15 under the Exchange Act). Such disclosure controls and procedures are designed to ensure that material information
relating to Rigel is made known to Rigel’s principal executive officer and its principal financial officer, particularly during
the periods in which the periodic reports required under the Exchange Act are being prepared. To Rigel’s knowledge, such disclosure controls and procedures are effective in timely alerting
Rigel’s principal executive officer and principal financial officer to material information
required to be included in Rigel’s periodic reports required under the Exchange Act.
(c) Rigel has established and maintained a system of internal controls. To Rigel’s knowledge, such internal controls are sufficient to provide reasonable assurance
regarding the reliability of Rigel’s financial reporting and the preparation of Rigel’s financial statements for external purposes in accordance with GAAP.
(d) Each director and executive officer of Rigel has filed with the SEC on a timely basis all statements required by Section 16(a) of the Exchange Act and the rules and regulations promulgated thereunder. There are no outstanding loans or other extensions of credit made by Rigel to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of Rigel. Rigel has not taken any action prohibited by Section 402 of the Sarbanes-Oxley Act.
(e) Neither Rigel (including any employee thereof) nor Rigel’s independent auditors has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting
controls utilized by Rigel, (ii) any fraud, whether or not material, that involves Rigel’s management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by Rigel or (iii) any claim or allegation regarding any of the foregoing.
(f) As of the date hereof, there are no outstanding SEC comments from the SEC with respect to the SEC Reports. To the Knowledge of Rigel, none of the SEC Reports filed on or prior to the date hereof is subject to ongoing SEC review or investigation as of the date hereof.
Section 7.09 Business Activities.
(a) Since their respective dates of incorporation or formation, none of Rigel, Newco or Merger Sub has conducted any business activities other than activities directed toward the accomplishment
of a Business Combination. Except as set forth in the Rigel Organizational Documents or the Governing Documents of Newco or Merger Sub, as applicable, there is no agreement, commitment, or Governmental Order binding upon Rigel, Newco or Merger Sub or to which Rigel, Newco or Merger Sub is a party which has or would reasonably be expected to have the effect of prohibiting or impairing
any business practice of Rigel or any acquisition of property by Rigel or the conduct of business by Rigel as currently conducted or as contemplated to be conducted as of the Closing other than such effects, individually or in the aggregate, which have not had and
would not reasonably be expected to have a material and adverse effect on the ability of Rigel to enter into and perform its obligations under this Agreement.
(b) None of Rigel, Newco or Merger Sub owns or has any right to acquire, directly or indirectly, any interest or investment (whether
equity or debt) in any corporation, partnership, joint venture, business, trust or
other entity. Except for this Agreement and the Transactions, none of Rigel, Newco or Merger Sub has any interests, rights, obligations or liabilities with respect to, or is party to, bound by or has its assets or property subject to, in each case whether directly
or indirectly, any Contract or transaction which is, or could reasonably be interpreted as constituting, a Business Combination.
(c) Except for this Agreement and the agreements expressly contemplated hereby (including any agreements permitted by Section 9.03) or as set forth on Section 7.09(c) of the Rigel Disclosure Letter, each of Rigel, Newco and Merger Sub is not, and at no time has been, party to any Contract with any other Person that would require payments by such Party in excess of $10,000 monthly, $100,000 in the aggregate with respect to any individual
Contract or more than $500,000 in the aggregate when taken together with all other Contracts (other than this Agreement and the agreements expressly contemplated hereby (including any agreements permitted by Section 9.03) and Contracts set forth on Section 7.09(c) of the Rigel Disclosure Letter).
(d) There is no liability, debt or obligation of or claim or judgment against Rigel, Newco or Merger Sub (whether direct or indirect, absolute or contingent, accrued or unaccrued, known or
unknown, liquidated or unliquidated, or due or to become due), except for liabilities and obligations (i) reflected or reserved for on Rigel’s consolidated balance sheet for the nine months ended September 30, 2023 or disclosed in the notes thereto (other than any such liabilities not reflected,
reserved or disclosed as are not and would not be, in the aggregate, material to Rigel), (ii) that have arisen since the date of Rigel’s consolidated balance sheet for the nine months ended September 30, 2023 in the ordinary course of the operation of business of Rigel (other than any such liabilities as are not and would not be, in the aggregate, material
to Rigel), (iii) disclosed in the Disclosure Letters or (iv) incurred in connection with or contemplated by this Agreement and/or the Transactions.
(e) Since November 4, 2021, (a) there has not been any event or occurrence that has had, or would reasonably
be expected to have, individually or in the aggregate, a material adverse effect on
the ability of Rigel, Newco or Merger Sub to enter into and perform its obligations under this Agreement and (b) except as set
forth in Section 7.09(e) of the Rigel Disclosure Letter, Rigel,
Newco and Merger Sub each has, in all material respects, conducted its business and operated their properties
in the ordinary course of business consistent with past practice.
Section 7.10 Tax Matters.
(a) All income and other material Tax Returns required by Law to be filed by Rigel, Newco or Merger Sub have been timely filed (taking into account validly obtained extensions), and all such Tax Returns are true, correct and complete in all material respects.
(b) All income and other material amounts of Taxes due and owing by Rigel, Newco or Merger Sub have been timely paid (taking into account
validly obtained extensions).
(c) Each of Rigel, Newco and Merger Sub has (i) withheld and deducted all material amounts of Taxes required to have been withheld or deducted by it in connection with amounts paid
or owed to any employee, independent contractor, creditor, shareholder or any other
third party, (ii) timely remitted, or will remit on a timely basis, such amounts to the appropriate
Governmental Authority and (iii) complied in all material respects with applicable Law with respect to Tax withholding, including all reporting and record keeping requirements.
(d) None of Rigel, Newco or Merger Sub is engaged in any audit, administrative proceeding
or judicial proceeding with respect to material Taxes. None of Rigel, Newco or Merger Sub has received any written notice from a Governmental Authority of a dispute or claim with respect to material Taxes, other than disputes or claims that have since been finally resolved, and no such
claims have been threatened in writing. No written claim has been made, and to the
Knowledge of Rigel, no oral claim has been made, since December 31, 2018 by any Governmental Authority in a jurisdiction where any of Rigel, Newco
or Merger Sub does not pay a specific type of Tax or file a specific type of Tax Return
that any of Rigel, Newco or Merger Sub is or may be subject to material amounts of
such Taxes or required to file such a Tax Return in that jurisdiction. There are no
outstanding agreements extending or waiving the statutory period of limitations applicable to any claim
for, or the period for the collection or assessment or reassessment of, material Taxes of Rigel, Newco or Merger Sub and no written request for any such waiver or extension is currently
pending (in each case, except in connection with any extensions of time to file Tax
Returns obtained in the ordinary course of business).
(e) None of Rigel, Newco or Merger Sub nor any predecessor of any of them has constituted
either a “distributing corporation” or a “controlled corporation” in a distribution
of stock intended to qualify under Section 355 of the Code (or so much of Section 356 of the Code as relates to Section 355 of the Code) or any similar provision of state, local or foreign Law since December 31, 2018.
(f) None of Rigel, Newco or Merger Sub (i) has been a party to any “listed transaction”
within the meaning of Treasury Regulation Section 1.6011-4(b)(2) (or any similar provision of state, local or foreign Law), (ii) has
requested, executed or entered into any “closing agreement,” private letter ruling,
technical advice memorandum, advance pricing agreement or other binding written agreement
with respect to material Taxes with a Governmental Authority or (iii) has, or has
ever had, a permanent establishment or otherwise become subject to income Taxation
in a jurisdiction outside the country of its organization.
(g) There are no Liens with respect to material Taxes on any of the assets of any of Rigel,
Newco or Merger Sub, other than Permitted Liens.
(h) None of Rigel, Newco or Merger Sub has any material liability for the Taxes of any
Person (i) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), (ii) as a transferee
or successor or (iii) otherwise by operation of Law.
(i) None of Rigel, Newco or Merger Sub is a party to, or bound by, or is not subject to
any material obligation to any Governmental Authority or other Person under any Tax
allocation, Tax sharing or Tax indemnification agreement (except, in each case, for
any such agreements that are commercial contracts with persons that are not the Sponsor
or its direct or indirect equityholders or their Affiliates not primarily relating
to Taxes).
(j) Except with respect to deferred revenue or prepaid revenues collected by any of Rigel,
Newco or Merger Sub in the ordinary course of business, none of Rigel, Newco or Merger
Sub will be required to include any material item of income in, or exclude any material
item of deduction from, taxable income for any taxable period (or portion thereof)
ending after the Closing Date as a result of any: (A) change in, or use of an improper,
method of accounting for a taxable period (or portion thereof) ending on or prior
to the Closing Date and made or used prior to the Closing; (B) installment sale or
open transaction disposition made prior to the Closing; or (C) prepaid amount or deferred
revenue received prior to the Closing.
(k) Prior to, but no less than one (1) day before, the Closing Date, Newco is a South African “resident” and has been registered as a “taxpayer” with SARS in respect of “normal tax”, with all concepts as defined in section 1 of the Income Tax Act No 58 of 1962.
(l) At the time of the Merger, Newco will be treated as a corporation and Merger Sub will
be treated as an entity disregarded as separate from Newco, in each case, for U.S.
federal income tax purposes.
(m) None of Rigel, Newco, or Merger Sub has taken, permitted, or agreed to take any action,
and does not intend to or plan to take any action, or has any Knowledge of any fact
or circumstance that could reasonably be expected to prevent the transactions contemplated
by this Agreement from qualifying for the Intended Tax Treatment, other than any such actions, facts or circumstances contemplated by this Agreement
and the other Transaction Agreements.
(n) Prior to, but no less than one (1) day before the Closing Date, Newco is registered
as an external company in terms of section 23 of the Companies Act, with the Companies and Intellectual Property Commission, an
agency of the Department of Trade and Industry.
Section 7.11 Capitalization.
(a) The authorized share capital of Rigel consists of (i) 500,000,000 Rigel Class A Shares, (ii) 50,000,000 Rigel Class B Shares and (iii) 5,000,000 shares of Rigel Preferred Stock of which (A) 30,000,000 Rigel Class A Shares are issued and outstanding as of the date of this Agreement, (B) 7,500,000 Rigel Class B Shares are issued and outstanding as of the date of this Agreement and (C) no shares of Rigel Preferred Stock are issued and outstanding as of the date of this Agreement. All of the issued and
outstanding shares of Rigel Shares, Rigel Preferred Stock and Rigel Warrants (1) have been duly authorized and validly issued and are fully paid and nonassessable,
(2) were issued in compliance in all material respects with applicable Law, (3) were not issued in breach or violation of any preemptive rights or Contract and (4) are fully vested and not otherwise subject to a substantial risk of forfeiture
within the meaning of Section 83 of the Code, except as disclosed in the SEC Reports with respect to certain Rigel Shares held by the Sponsor. As of the date hereof, Rigel has issued 29,000,000 Rigel Warrants that entitle the holder
thereof to purchase Rigel Class A Shares at an exercise price of $11.50 per share (subject to adjustment) on the terms and
conditions set forth in the applicable warrant agreement.
(b) The authorized share capital of Newco consists of 50,000 Newco Ordinary Shares, of which one (1) share is issued and outstanding as of the date of this Agreement. All of the issued and outstanding
Newco Ordinary Shares (i) are owned beneficially and of record by Rigel, (ii) have been duly authorized
and validly issued and are fully paid and nonassessable, (iii) were issued in compliance
in all material respects with the Governing Documents of Newco and applicable Law, and (iv) were not issued in material breach or violation of any
preemptive rights or Contract. Except for this Agreement, the Subscription Agreements with respect to the PIPE Investment
and the PIPE Financing and the Orion Forward Purchase Agreement, there are (A) no subscriptions, calls, options, warrants, rights or other securities
convertible into or exchangeable or exercisable for shares of Newco Ordinary Shares or other equity securities of Newco, or any other Contracts to which Newco is a party or by which Newco is bound obligating Newco to issue or sell any shares of capital stock of, other equity securities in, or debt
securities of, Newco and (B) no equity equivalents, stock appreciation rights, phantom stock ownership
interests or similar rights in Newco.
(c) The authorized share capital of Merger Sub consists of 50,000 Merger Sub Shares, of which one (1) share is issued and outstanding as of the date of this Agreement. All of the issued and outstanding
Merger Sub Shares (i) are owned beneficially and of record by Newco, (ii) have been duly authorized
and validly issued and are fully paid and nonassessable, (iii) were issued in compliance
in all material respects with the Governing Documents of Merger Sub and applicable Law, and (iv) were not issued in material breach or violation
of any preemptive rights or Contract. There are (A) no subscriptions, calls, options,
warrants, rights or other securities convertible into or exchangeable or exercisable
for Merger Sub Shares or other equity securities of Merger Sub, or any other Contracts to which Merger
Sub is a party or by which Merger Sub is bound obligating Merger Sub to issue or sell any shares of capital stock of, other equity securities in, or debt
securities of, Merger Sub, and (B) no equity equivalents, stock appreciation rights,
phantom stock ownership interests or similar rights in Merger Sub.
(d) Newco anticipates issuing 1,125,000 Newco Ordinary Shares to the PIPE Investors, assuming no additional PIPE investments in excess of the PIPE Investment Amount, and to issue 7,200,000 Newco Ordinary Shares upon the conversion of Rigel’s Class B Common Stock in accordance with the Sponsor Support Agreement, and Newco will have up to 29,000,000 Newco Warrants issued and outstanding, of which (A) up to 14,000,000 will be issued to the Sponsor and (B) up to 15,000,000 Newco Warrants will be issued to Rigel’s Class A Common Stock holders, assuming 85% of the outstanding Rigel Class A Common Stock is redeemed prior to the Closing, entitling
the holders thereof to purchase Newco Ordinary Shares at an exercise price of $1.00 per share on the terms and conditions set forth in the applicable warrant agreement.
(e) Except for this Agreement, the Rigel Warrants and the Orion Forward Purchase Agreement, as of the date hereof, there are (i) no subscriptions, calls, options, warrants, rights or other securities convertible
into or exchangeable or exercisable for Rigel Shares or any other equity interests of Rigel, or any other Contracts to which Rigel is a party or by which Rigel is bound obligating Rigel to issue or sell any shares of, other equity interests in or debt securities of,
Rigel, and (ii) no equity equivalents, stock appreciation rights, phantom stock ownership
interests or similar rights in Rigel. Except as disclosed in the SEC Reports, the Rigel Organizational Documents or in the Sponsor Support Agreement, there are no outstanding contractual obligations of Rigel to repurchase, redeem or otherwise acquire any securities or equity interests of
Rigel. There are no outstanding bonds, debentures, notes or other indebtedness of Rigel having the right
to vote (or convertible into, or exchangeable for, securities having
the right to vote) on any matter for which Rigel’s stockholders may vote. Except as disclosed in the SEC Reports, Rigel is not a party to any shareholders agreement, voting agreement or registration rights agreement relating to Rigel Shares or any other equity interests of Rigel. Rigel does not own any capital stock or any other equity interests in any other Person or has any right, option, warrant, conversion right, stock appreciation right, restricted
share, phantom equity, redemption right, repurchase right, agreement, arrangement or commitment of any character under which a Person is or may become obligated to issue or sell, or give any right to subscribe for or
acquire, or in any way dispose of, any shares of the capital stock or other equity
interests, or any securities or obligations exercisable or exchangeable for or convertible
into any shares of the capital stock or other equity interests, of such Person.
(f) No Person and no syndicate or “group” (as defined in the Exchange Act and the rules thereunder) of a Person owns directly or indirectly beneficial ownership (as defined in the Exchange Act and the rules thereunder) of securities of Rigel representing 35% or more of the combined voting power of the issued and outstanding
securities of Rigel.
(g) (i) All Newco Ordinary Shares to be allotted and issued in accordance with Section 4.02 shall be, upon issuance and allotment thereof, duly authorized, validly issued, fully paid, non-assessable and free and
clear of all Liens, and (ii) upon entries being made in the register of members of Newco reflecting such issuance of Newco Ordinary Shares, each holder of such Newco Ordinary Shares shall have good and valid title to its portion of such Newco Ordinary Shares, in each case of clauses (i) and (ii), other than restrictions arising from applicable securities Laws, the Registration
Rights Agreement, the Newco Memorandum, the provisions of this Agreement and any Liens incurred by such holder
and the issuance of such Newco Ordinary Shares pursuant hereto will not be subject to or give rise to any preemptive rights
or rights of first refusal.
Section 7.12 Listing. The issued and outstanding Rigel Units are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the Stock Exchange under the symbol “RRAC.U”. The issued and outstanding Rigel Class A Shares are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the Stock Exchange under the symbol “RRAC”. The issued and outstanding Rigel Warrants are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the Stock Exchange under the symbol “RRAC WS”. Rigel is in compliance with the rules of the Stock Exchange and there is no Action pending or, to the Knowledge of Rigel, threatened against Rigel by the Stock Exchange or the SEC with respect to any intention by such entity to deregister the Rigel Class A Shares or Rigel Warrants or terminate the listing of Rigel Class A Shares or Rigel Warrants on the Stock Exchange, except as expressly contemplated by this Agreement. None of Rigel or its Affiliates has taken any action in an attempt to terminate the registration
of the Rigel Class A Shares or Rigel Warrants under the Exchange Act, except as expressly contemplated by this Agreement. Rigel has not received any notice from the NYSE or the SEC regarding the revocation of
such listing or otherwise regarding the delisting of the Rigel Class A Shares or Rigel Warrants from the NYSE or the SEC, except as expressly contemplated by this Agreement.
Section 7.13 PIPE Investment.
(a) Rigel has delivered to the Target Companies true, correct and complete copies of each of the Subscription Agreements entered into by Newco with the applicable PIPE Investors named therein, pursuant to which the PIPE Investors have committed to provide equity financing to Newco solely for purposes of consummating the Transactions in the aggregate amount of $7,500,000 (the “PIPE Investment Amount”). To the Knowledge of Rigel, with respect to each PIPE Investor, the Subscription Agreement with such PIPE Investor is in full force and effect and
has not been withdrawn or
terminated, or otherwise amended or modified, in any respect, and no withdrawal, termination,
amendment or modification is contemplated by Newco. Each Subscription Agreement is a legal, valid and binding obligation of Newco and, to the Knowledge of Rigel, each PIPE Investor, and neither the execution or delivery by any party thereto nor the performance of
any party’s obligations under any such Subscription Agreement violates or will violate any Laws.
The Subscription Agreements provide that the Target Companies are third-party beneficiaries thereof and are entitled to enforce such agreements against the PIPE Investor. There are no other agreements, side letters, or arrangements between Newco or any of its Affiliates, on the one hand, and any PIPE Investor, on the other hand, that could affect the obligation of such PIPE Investors to contribute to Newco the applicable portion of the PIPE Investment Amount set forth in the Subscription Agreement of such PIPE Investors, and, as of the date hereof, to the Knowledge of Rigel, there are no facts or circumstances that may reasonably be expected to result in any of the conditions
set forth in any Subscription Agreement with respect to the PIPE Investment not being satisfied, or the PIPE Investment Amount not being available to Newco, on the Closing Date. No event has occurred that, with or without notice, lapse of time or both, would
constitute a default or breach on the part of Newco under any material term or condition of any Subscription Agreement with respect to the PIPE Investment and, as of the date hereof, none of Newco or any of its Affiliates has any reason to believe that Newco will be unable to satisfy in all material respects on a timely basis any term or
condition to closing to be satisfied by Newco contained in any Subscription Agreement with respect to the PIPE Investment. The Subscription Agreements with respect to the PIPE Investment contain all of the conditions precedent (other than the conditions contained in this
Agreement) to the obligations of the PIPE Investors to contribute to Newco the applicable portion of the PIPE Investment Amount set forth in such Subscription Agreements on the terms therein.
(b) No fees, consideration or other discounts are payable or have been agreed by Rigel, Newco or any of their respective Subsidiaries (including, from and after the Closing, the Target Group Companies) to any PIPE Investor in respect of the PIPE Investment, except as set forth in the Subscription Agreements with respect to the PIPE Investment.
Section 7.14 Related Party Transactions. Except as described in the SEC Reports or in connection with the PIPE Investment or PIPE Financing, there are no transactions, Contracts, side letters, arrangements or understandings between Rigel, Newco or Merger Sub, on the one hand, and any director, officer, employee, stockholder, warrant holder
or Affiliate of Rigel, Newco or Merger Sub, on the other hand.
Section 7.15 Investment Company Act. Neither Rigel nor any of its Subsidiaries, if any, is an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
Section 7.16 Interest in Competitors. None of Rigel, Newco or Merger Sub owns any interest, nor does any of such Party’s respective Affiliates insofar as such Affiliate-owned interests would be attributed to Rigel, Newco or Merger Sub under any applicable antitrust Law, in any entity or Person that derives revenues
from any lines of products, services or business within any of the Target Group Companies’ lines of products, services or business.
Section 7.17 Rigel Stockholders. No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have
a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a substantial interest in the Target Companies as a result of the
Transaction such that a declaration to the Committee on Foreign Investment in the United States
would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Target Companies post-Closing.
Section 7.18 Registration Statement; Proxy Statement. On the effective date of the Registration Statement, the Registration Statement,
and when first filed in accordance with Rule 424(b) of the Securities Act and/or filed pursuant to Section 14A of the Exchange Act, the Proxy Statement (or any amendment or supplement thereto),
shall comply in all material respects with the applicable requirements of the Securities
Act and the Exchange Act. On the effective date of the Registration Statement, the
Registration Statement will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading. On the date of any filing in accordance
with Rule 424(b) of the Securities Act and/or pursuant to Section 14A of the Exchange Act, the date the Proxy Statement is first mailed to the Rigel Stockholders and at the time of the Extraordinary General Meeting, the Proxy Statement,
together with any amendments or supplements thereto, will not include any untrue statement
of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made,
not misleading. Notwithstanding the foregoing, Rigel makes no representations or warranties as to the information contained in or omitted
from the Registration Statement or the Proxy Statement in reliance upon and in conformity
with information furnished in writing to Rigel by or on behalf of the Target Companies specifically for inclusion in the Registration
Statement or the Proxy Statement.
Article VIII
COVENANTS OF THE TARGET COMPANIES
Section 8.01 Conduct of Business. From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms (the “Interim Period”), each Target Company shall, and shall cause the other Target Group Companies to, as applicable, except as required by this Agreement, required by applicable Law, as set forth on Section 8.01 of the Target Company Disclosure Letter or consented to in writing by Rigel (which consent shall not be unreasonably conditioned, withheld, delayed or denied),
use its reasonable efforts to operate its business in the ordinary course of business consistent with past practice
(including, for the avoidance of doubt, recent past practice in light of COVID-19
Measures; provided that any action taken, or omitted to be taken, that relates to, or arises out of, COVID-19 Measures shall be deemed to be in the ordinary course of business). Without limiting
the generality of the foregoing, except as required by Law, as required by this Agreement, as set forth on Section 8.01 of the Target Company Disclosure Letter or as consented to in writing by Rigel (which consent shall not be unreasonably conditioned, withheld, delayed or denied),
each Target Company shall not, and shall not permit any other Target Group Company to, as applicable, during the Interim Period:
(a) change or amend the Governing Documents of any Target Group Company;
(b) make, declare, set aside, establish a record date for or pay any dividend or distribution,
other than any dividends or distributions from any wholly owned Subsidiary of a Target Company to a Target Company or any other wholly owned Subsidiaries of a Target Company;
(c) except for transactions among the Target Companies and/or their Subsidiaries, (i) issue, deliver, sell, transfer, pledge, dispose of or place any Lien (other than a Permitted Lien) on any shares of capital stock or any other equity or voting securities of any Target Group Company or (ii) issue or grant any options, warrants or other rights to purchase or obtain
any shares of capital stock or any other equity or equity-based awards or voting securities of any Target Group Company;
(d) sell, assign, transfer, convey, lease, license, abandon, allow to lapse or expire, subject to or grant any Lien (other than Permitted Liens) on, or otherwise dispose of, any material tangible assets or properties of the Target Group Companies, taken as a whole, other than (i) the
sale of goods and services to customers, or the sale or other disposition of assets or equipment
deemed by the Target Group Company in its good faith reasonable business judgment to be obsolete or no longer
be material to the business of the Target Group Companies, taken as a whole, in each such case, in the ordinary course of business and (ii) transactions between a Target Company and any wholly owned Subsidiary of a Target Company or between wholly owned Subsidiaries of the Target Companies;
(e) sell, assign, transfer, lease, license, encumber, abandon or permit to lapse any of
its material Owned Intellectual Property except for non-exclusive licenses granted
in the ordinary course of business, or disclose any of its trade secrets or other
material confidential information to a third party other than in the ordinary course
of business pursuant to a written confidentiality agreement;
(f) (i) cancel or compromise any claim or Indebtedness owed to any Target Group Company or (ii) settle any pending or threatened Action (A) if such settlement would require payment by any Target Group Company in an amount greater than $1,000,000, (B) to the extent such settlement includes an agreement by any Target Group Company to accept or concede injunctive relief or (C) to the extent such settlement is adverse to a Target Group Company and involves an Action brought by a Governmental Authority alleging criminal wrongdoing;
(g) except as required by applicable Law or the terms of any existing Company Benefit Plans as in effect on the date hereof, and except with respect to the implementation of the arrangements contemplated under
Section 10.07, (i) increase the compensation or benefits of any employees or service providers except for increases in salary or hourly wage rates made in the ordinary course of business
and consistent with past practices to employees with annual base salary less than $150,000 (or the local equivalent thereof), (ii) make any grant of any severance, retention, incentive or termination payment to any
Person, except in connection with the promotion, hiring (to the extent permitted by clause
(iii) of this paragraph) or firing of any employee with an annual base salary less than $150,000 (or the local equivalent thereof) in the ordinary course of business and consistent with past practices, (iii) make any change in the key management structure of any Target Group Company, including the hiring or replacement of executives or officers or the termination (other than for “cause”) of existing executives or officers, (iv) hire, engage, or terminate (other than for cause) any employee or individual service provider, other than an employee or individual service provider with annual compensation of $100,000 or less (or the local equivalent thereof),
(v) establish, adopt, enter into, amend in any material respect or terminate any Company Benefit Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Benefit Plan if it were in existence as of the date of this Agreement, or (vi) promise to take any of the foregoing actions prohibited by subsections (i) – (iv); provided, that, notwithstanding the foregoing, the aggregate annualized value of all changes in subsections (i) - (v) absent Rigel consent shall not exceed $1,000,000 in the aggregate;
(h) directly or indirectly acquire by merging or consolidating with, or by purchasing
a substantially all or a material portion of the assets of, or by purchasing all of or a controlling equity interest in, any business or any corporation, partnership, limited liability
company, joint venture, association or other entity or Person or division thereof other than in the ordinary course of business;
(i) make any loans or advance or contribute any money or other property to any Person, except for (A) advances in the ordinary course of business to employees or officers of a Target Group Company for expenses not to exceed $25,000 individually or $100,000 in the aggregate, (B) prepayments and deposits paid to suppliers of the Target Group Companies in the
ordinary course of business, (C) trade credit extended to customers of the Target Group Companies in the ordinary course of business or (D) any loans, contributions or other payments or advances made by any Target
Group Company to the Blyvoor Gold Workers Trust or its beneficiaries, in each case, as required pursuant to a Company Benefit Plan;
(j) redeem, purchase or otherwise acquire, any shares of capital stock (or other equity
interests) of any Target Group Company or any securities or obligations convertible (whether currently convertible or convertible only after the passage
of time or the occurrence of certain events) into or exchangeable for any shares of
capital stock (or other equity interests) of any Target Group Company, except for (i) the acquisition by a Target Group Company of any shares of capital stock, membership interests or other equity interests of
a Target Group Company in connection with the forfeiture or cancellation of such interests, and (ii) transactions between a Target Company and any wholly owned Subsidiary of a Target Company or between
wholly owned Subsidiaries of the Target Companies;
(k) adjust, split, combine, subdivide, recapitalize, reclassify or otherwise effect any
change in respect of any shares of capital stock or other equity interests or securities
of any Target Group Company;
(l) make any change in its customary accounting principles or methods of accounting materially
affecting the reported consolidated assets, liabilities or results of operations of
the Target Group Companies, other than as may be required by applicable Law, IFRS or regulatory guidelines;
(m) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of any Target Group Company;
(n) make (except in the ordinary course of business), change or revoke any material Tax election, adopt or change (or request any Governmental
Authority to change) any material accounting method or accounting period with respect
to Taxes, file any amended material Tax Return, settle or compromise any material
Tax liability or claim for a refund of a material amount of Taxes, initiate or enter into any voluntary disclosure or closing agreement or other binding written agreement with respect to any material Tax, consent to any extension or waiver of the limitations period applicable to any
material Tax claim or assessment (other than pursuant to an automatic extension of time to file any Tax Return obtained in the ordinary course of business),
file any Tax Return other than one prepared in a manner consistent in material respects
with past practice, or enter into any Tax sharing or Tax indemnification agreement
or similar agreement (excluding commercial Contracts not primarily relating to Taxes), in each case, except as required by IFRS;
(o) issue any debt securities or assume, guarantee or endorse, or otherwise become responsible
for, the obligations of any Person for Indebtedness, other than in the ordinary course of business;
(p) terminate without replacement or amend in a manner materially detrimental to the Target Group Companies, taken as a whole, material insurance policies covering the Target Group Companies and their respective properties, assets and businesses;
(q) enter into any agreement that materially restricts the ability of any Target Group Company to engage or compete in any line of business or enter into a new line of business, except where such restriction does not, and would not be reasonably likely to, individually
or in the
aggregate, materially and adversely affect, or materially disrupt, the ordinary
course operation of the businesses of the Target Group Companies, taken as a whole;
(r) enter into, assume, assign, partially or completely amend any material term of or
terminate (excluding any expiration in accordance with its terms) any collective bargaining
or similar agreement, other than as required by applicable Law;
(s) except with respect to the implementation of the arrangements contemplated by Section 10.07, grant any bonus or other consideration to any Person triggered by the consummation
of the transaction contemplated by this Agreement;
(t) enter into, modify in any material respect or terminate any Contract that is (or would be if entered into prior to the date of this Agreement) a Material Contract of the type described in clauses (i), (iii), (iv), (vi), or (viii) of Section 6.12(a);
(u) acquire any ownership interest in any real property;
(v) make any change in any material respect to the policies or practices of the Target Group Companies regarding the payment of accounts payable, the collection of accounts receivable,
including accelerating the receipt of amounts due with respect to any accounts receivables,
or lengthening the period for payment of accounts payable, except for changes in the ordinary course of business consistent with past practice; or
(w) enter into any agreement, or otherwise become obligated, to do any action prohibited under this Section 8.01.
Section 8.02 Inspection. Subject to confidentiality obligations and similar restrictions that may be applicable to
information furnished to a Target Group Company by third parties that may be in a Target Group Company’s possession from time to time, and except for any information which (a) relates to interactions with prospective buyers of the Target Group Companies or the negotiation of this Agreement or the Transactions, (b) is prohibited from being disclosed by applicable Law or (c) on the advice of legal counsel of the Target Group Companies would result in the loss of attorney-client privilege or other privilege from disclosure, during the Interim
Period each Target Company shall, and shall cause the other Target Group Companies to, afford to Rigel and its Representatives reasonable access during normal business hours and with reasonable advance notice,
in such manner as to not unreasonably interfere with the normal operation of the Target Group Companies and so long as permissible under applicable Law, to their respective properties, assets, books, Contracts, commitments, Tax Returns, records and appropriate officers and employees of the Target Group Companies, and shall use its and their reasonable efforts to furnish such Representatives with
financial and operating data and other information concerning the business and affairs
of the Target Group Companies that are in the possession of the Target Group Companies, in each case, as Rigel and its Representatives may reasonably request solely for purposes of consummating the Transactions; provided, however, that Rigel shall not be permitted to perform any environmental sampling or testing at any Mining Real Property, including sampling of soil, groundwater, surface water, building materials, or air
or wastewater emissions absent Target Company consent; provided, further, however, that remote access may be provided by the Target Group Companies in lieu of physical access in response to COVID-19 to the extent reasonably necessary
(x) to protect the health and safety of such officers and employees or (y) in order to comply with any applicable COVID-19 Measures. The Parties shall use reasonable efforts to make alternative arrangements for such
disclosure where the restrictions in the preceding sentence apply. Any request, and
the provision of access or information, in each case pursuant to this Section 8.02 shall be made in a time and manner so as not to materially delay the Closing. All
information obtained by Rigel and its Representatives under this Agreement shall be subject to the Confidentiality Agreement prior to the Closing.
Section 8.03 Regulatory Approvals. The Target Companies shall promptly furnish to Rigel copies of any material notices or written communications received by any Target Group Company from any third party or any Governmental Authority, and detail any substantive oral communications between any Target Group Company and any Governmental Authority to the extent permitted by the applicable Governmental Authority, with respect to the approval of the Transactions, and the Target Companies shall permit counsel to Rigel an opportunity to review in advance, and the Target Companies shall consider in good faith the views of such counsel in connection with, any proposed
written communications by the Target Group Companies to any Governmental Authority concerning the Transactions; provided that the Target Companies shall not extend any waiting period or comparable period under any applicable antitrust Law or enter into any agreement with any Governmental Authority without the written consent of Rigel. The Target Companies agree to provide, to the extent permitted by the applicable Governmental Authority, Rigel and its counsel the opportunity, on reasonable advance notice, to participate in
any substantive meetings or discussions, either in person, by videoconferencing or by telephone, between any Target Group Company, its agents or advisors, on the one hand, and any Governmental Authority, on the other hand, concerning or in connection with the Transactions.
Section 8.04 No Claim Against the Trust Account. Each Target Company acknowledges that it has read the Final Prospectus and other SEC Reports, the Rigel Organizational Documents, and the Trust Agreement and understands that Rigel has established the Trust Account described therein for the benefit of Rigel’s public stockholders and that disbursements from the Trust Account are available only in the limited circumstances set forth in the Trust Agreement. Each Target Company further acknowledges that, if the Transactions, or, in the event of a termination of this Agreement, another Business Combination, are not consummated by August 9, 2024 or such later date as approved by the stockholders of Rigel to complete a Business Combination, Rigel will be obligated to return to its stockholders the amounts being held in the Trust Account. Accordingly, each Target Company (on behalf of itself and its controlled Affiliates) hereby waives any past, present
or future claim of any kind against, and any right to access, the Trust Account or to collect from the Trust Account any monies that may be owed to them by Rigel or any of its Affiliates for any reason whatsoever, and will not seek recourse against the Trust Account at any time for any reason whatsoever. Notwithstanding the foregoing, this Section 8.04 shall not serve to limit or prohibit a Target Company’s or its controlled Affiliates’ rights to pursue a claim against Rigel, Newco, Merger Sub or any of their respective Affiliates for legal relief against assets held outside the Trust Account (including from and after the consummation of a Business Combination other than as contemplated by this Agreement) or pursuant to Section 13.13 for specific performance or other injunctive relief. This Section 8.04 shall survive the termination of this Agreement for any reason.
Article IX
COVENANTS OF RIGEL, NEWCO AND MERGER SUB
Section 9.01 Regulatory Approvals.
(a) Each of Rigel, Newco and Merger Sub shall use reasonable best efforts to undertake promptly any and all action required to (i) prevent the entry in any Action brought by a Governmental Authority or any other Person of any Governmental Order which would prohibit, make unlawful or delay the consummation of the Transactions and (ii) if any such Governmental Order is issued in any such Action, cause such Governmental Order to be lifted.
(b) Each of Rigel, Newco and Merger Sub shall cooperate in good faith with the Regulatory Consent Authorities and use reasonable best efforts to undertake promptly any and all
action required to complete lawfully the Transactions as soon as practicable (but in any event prior to the Termination Date) and, with the prior written consent of the Target Companies, all action necessary or advisable to avoid, prevent, eliminate or remove the actual or threatened
commencement of any proceeding in any forum by or on behalf of any Governmental Authority or the issuance of any Governmental Order that would delay, enjoin, prevent, restrain or otherwise prohibit the consummation
of the Transactions, including (i) proffering and consenting and/or agreeing to a Governmental Order or other agreement providing for (A) the sale, licensing or other disposition, or the holding separate, of particular assets, categories of assets or lines of business of the Target Group Companies, Rigel, Newco or Merger Sub or (B) the termination, amendment or assignment of existing relationships and contractual
rights and obligations of the Target Group Companies, Rigel, Newco or Merger Sub and (ii) promptly effecting the disposition, licensing or holding separate of assets or lines of business or the termination, amendment or assignment
of existing relationships and contractual rights, in each case, at such time as may
be necessary to permit the lawful consummation of the Transactions on or prior to the Termination Date. The entry by any Governmental Authority in any Action of a Governmental Order permitting the consummation of the Transactions but requiring any of the assets or lines of business of Rigel, Newco or Merger Sub to be sold, licensed or otherwise disposed or held separate thereafter (including
the business and assets of the Target Group Companies) shall not be deemed a failure to satisfy any condition specified in Article XI.
(c) Each of Rigel, Newco and Merger Sub shall promptly furnish to the Target Companies copies of any material notices or written communications received by Rigel, Newco, Merger Sub or any of their respective Affiliates from any third party or any Governmental Authority with respect to the Transactions to the extent permitted by the applicable Governmental Authority, and each of Rigel, Newco and Merger Sub shall permit counsel to the Target Companies an opportunity to review in advance, and each of Rigel, Newco and Merger Sub shall consider in good faith the views of such counsel in connection with, any proposed
written communications by Rigel, Newco, Merger Sub and/or its Affiliates to any Governmental Authority concerning the Transactions; provided that none of Rigel, Newco or Merger Sub shall enter into any agreement with any Governmental Authority without the written
consent of the Target Companies. Rigel agrees to provide the Target Companies and its counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions,
either in person or by telephone, between Rigel, Newco, Merger Sub and/or any of their respective Affiliates, agents or advisors, on the one hand, and any Governmental Authority, on the other hand, concerning or in connection with the Transactions.
(d) Except as required by this Agreement, none of Rigel, Newco or Merger Sub shall engage in any action or enter into any transaction or permit any action to be taken or transaction to be entered into, that would reasonably
be expected to materially impair or delay Rigel’s, Newco’s or Merger Sub’s ability to consummate the Transactions or perform its obligations hereunder.
Section 9.02 Indemnification and Insurance.
(a) From and after the Closing, Newco agrees that it shall indemnify and hold harmless each present and former director,
manager and officer of the Target Companies and Rigel and each of their respective Subsidiaries against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining
to matters existing or occurring at or prior to the Closing, whether asserted or claimed prior to, at or after the Closing, to the fullest extent that the Target Companies, Rigel or their respective Subsidiaries, as the case may be, would have been permitted under applicable Law and their respective Governing
Documents in effect on the date of this Agreement to indemnify
such Person (including the advancing of expenses as incurred to the fullest extent permitted
under applicable Law). Without limiting the foregoing, Newco shall cause the Target Companies and each of its Subsidiaries, after the Closing, to, (i) maintain for a period of not less than six years from the Closing provisions in its Governing Documents concerning the indemnification and exoneration
(including provisions relating to expense advancement) of officers and directors/managers
that are no less favorable to those Persons than the provisions of such Governing Documents as of the date of this Agreement
and (ii) not amend, repeal or otherwise modify such provisions in any respect that
would adversely affect the rights of those Persons thereunder, in each case, except as required by Law.
(b) For a period of six years from the Closing, Newco shall, or shall cause one or more of its Subsidiaries to, maintain in effect directors’ and officers’ liability insurance covering those Persons who are currently covered by (i) the Target Group Companies’ directors’ and officers’ liability insurance policies (true, correct and complete copies of which have been heretofore made available to
Rigel or its agents or Representatives) on terms not less favorable than the terms of such current insurance coverage and (ii) Rigel’s directors’ and officers’ liability insurance policies (true, correct and complete copies of which have been
heretofore made available to the Target Companies or their respective agents or Representatives) on terms not less favorable than the terms of such current
insurance coverage; provided, however, that (x) Newco may cause coverage to be extended under the current directors’ and officers’ liability insurance contemplated by the preceding clauses (i) and (ii) by obtaining a six-year “tail” policy containing terms not materially less favorable than the terms of the applicable current insurance coverage with respect to claims existing or occurring at or prior to the Closing (each a “D&O Tail”) and (y) if any claim is asserted or made within such six-year period, any insurance required to be maintained
under this Section 9.02 shall be continued in respect of such claim until the final disposition thereof. Notwithstanding the foregoing, in no event shall
Newco be required to expend an annual premium for any such D&O Tail in excess of 300% of the last annual payment made by (I) the Target Companies or any of their respective Affiliates or (II) Rigel or any of its respective Affiliates, as applicable, for such directors’ and officers’ liability insurance policies currently in effect as of the date hereof and, in such
event, Newco shall purchase the maximum coverage available for 300% of the most recent annual
premium paid by the Target Group Companies or Rigel, as applicable, prior to the date of this Agreement.
(c) Rigel, Newco, Merger Sub and the Target Companies hereby acknowledge (on behalf of themselves and their respective Subsidiaries) that
the indemnified Persons under this Section 9.02 may have certain rights to indemnification, advancement of expenses and/or insurance
provided by current stockholders, members, or other Affiliates of such stockholders
or members (“Indemnitee Affiliates”) separate from the indemnification obligations of Rigel, Newco, Merger Sub, the Target Companies and their respective Subsidiaries hereunder. The Parties hereby agree (i) that Rigel, Newco, Merger Sub, the Target Companies and their respective Subsidiaries are the indemnitors of first resort (i.e., its
obligations to the indemnified Persons under this Section 9.02 are primary and any obligation of any Indemnitee Affiliate to advance expenses or
to provide indemnification for the same expenses or liabilities incurred by the indemnified
Persons under this Section 9.02 are secondary), (ii) that Rigel, Newco, Merger Sub, the Target Companies and their respective Subsidiaries shall be required to advance the full amount of
expenses incurred by the indemnified Persons under this Section 9.02 and shall be liable for the full amount of all expenses, judgments, penalties, fines
and amounts paid in settlement to the extent legally permitted and required by Rigel’s, Newco’s, Merger Sub’s, the Target Companies’ and their respective Subsidiaries’ Governing Documents or any director or officer indemnification agreements, without
regard to any rights the indemnified Persons under this Section 9.02 may have against any Indemnitee Affiliate, and (iii) that the Parties (on behalf
of themselves and their respective
Subsidiaries) irrevocably waive, relinquish and
release the Indemnitee Affiliates from any and all claims against the Indemnitee Affiliates
for contribution, subrogation or any other recovery of any kind in respect thereof.
(d) Notwithstanding anything contained in this Agreement to the contrary, this Section 9.02 shall survive the consummation of the Closing indefinitely and shall be binding, jointly and severally, on Rigel, Newco, Merger Sub, the Target Companies and all successors and assigns of Rigel, Newco, Merger Sub and the Target Companies. In the event that Rigel, Newco, Merger Sub, the Target Companies or any of their respective successors or assigns consolidates with or merges into
any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or transfers or conveys all or substantially all of its properties and assets to
any Person, then, and in each such case, proper provision shall be made so that the successors
and assigns of Rigel, Newco, Merger Sub or the Target Companies, as the case may be, shall succeed to the obligations set forth in this Section 9.02.
Section 9.03 Conduct of Rigel During the Interim Period.
(a) During the Interim Period, except as set forth on Section 9.03 of the Rigel Disclosure Letter, as required by this Agreement, as required by applicable Law or as consented to
by the Target Companies in writing (which consent shall not be unreasonably conditioned, withheld, delayed
or denied), Rigel shall not, and shall cause each of its Subsidiaries not to:
(i) change, modify, supplement, restate or amend the Trust Agreement, the Rigel Organizational Documents or the Governing Documents of Newco or Merger Sub;
(ii) (A) declare, set aside or pay any dividends on, or make any other distribution in
respect of any outstanding capital stock of, or other equity interests in, Rigel, Newco or Merger Sub; (B) split, combine or reclassify any capital stock of, or other equity interests in,
Rigel, Newco or Merger Sub; or (C) other than in connection with the Rigel Stockholder Redemption or as otherwise required by Rigel’s Organizational Documents in order to consummate the Transactions, repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise
acquire, any capital stock of, or other equity interests in, Rigel, Newco or Merger Sub;
(iii) make (except in the ordinary course of business), change or revoke any material Tax election, adopt or change (or request any Governmental
Authority to change) any material accounting method or accounting period with respect
to Taxes, file any amended material Tax Return, incur any material Tax liability outside
of the ordinary course of business, settle or compromise any material Tax liability
or claim for a refund of a material amount of Taxes, enter into any voluntary disclosure or closing agreement or other binding written agreement with respect to any material Tax, consent to any extension or waiver of the limitations period applicable to any
material Tax claim or assessment (other than pursuant to an automatic extension of time to file any Tax Return obtained in the ordinary course of business),
file any Tax Return other than one prepared in a manner consistent in all material
respects with past practice, or enter into any Tax sharing or Tax indemnification
agreement or similar agreement (excluding commercial Contracts not primarily relating
to Taxes), in each case, except as required by GAAP;
(iv) enter into, renew, modify, supplement, or amend any transaction or Contract with an
Affiliate of Rigel, Newco or Merger Sub (including, for the avoidance of doubt, the
Sponsor, and, where applicable, (x) anyone related by blood, marriage or
adoption
to the Sponsor or (y) any Person in which the Sponsor has a direct or indirect legal,
contractual or beneficial ownership of 5% or greater);
(v) waive, release, compromise, settle or satisfy any pending or threatened Action or
compromise or settle any liability except where such waivers, releases, settlements or compromises involve only the
payment of monetary damages in an amount less than $500,000 in the aggregate;
(vi) incur, guarantee or otherwise become liable for (whether directly, contingently or
otherwise) any Indebtedness;
(vii) (A) offer, issue, deliver, grant or sell, or authorize or propose to offer, issue,
deliver, grant or sell, any capital stock of, other equity interests, equity equivalents,
stock appreciation rights, phantom stock ownership interests or similar rights in,
Rigel, Newco or Merger Sub or any of their respective Subsidiaries or any securities convertible into, or any rights, warrants or options to acquire,
any such capital stock or equity interests, other than (x) issuance of Rigel Class A Shares in connection with the exercise of any Rigel Warrants outstanding on the date hereof or (y) issuance of Newco Ordinary Shares at not less than $10.00 per share and issuance of up to 2,500,000 Newco Warrants at an exercise price per share of not less than $11.50 per share, in each case on
the terms set forth in the Subscription Agreements and the Orion Forward Purchase Agreement, as applicable, or (B) amend, modify or waive any of the terms or rights set forth in, any Rigel Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth
therein; or
(viii) enter into any agreement, or otherwise become obligated, to take any action prohibited
under this Section 9.03.
(b) During the Interim Period, each of Rigel, Newco and Merger Sub shall, and shall cause their respective Subsidiaries to, comply with and continue performing under, as applicable, the Rigel Organizational Documents, the Governing Documents of Newco and Merger Sub, the Trust Agreement, the Transaction Agreements and all other agreements or Contracts to which Rigel, Newco, Merger Sub or their respective Subsidiaries may be a party.
Section 9.04 PIPE and the Orion Forward Purchase Agreement. Unless otherwise approved in writing by the Target Companies, neither Rigel or Newco shall permit any material amendment or modification to be made to, any waiver (in whole or in part) of, or provide
consent to modify (including consent to terminate), any provision or remedy under,
or any replacements of, any of the Subscription Agreements with respect to the PIPE Investment or the PIPE Financing or the Orion Forward Purchase Agreement (except, in the case of the Orion Forward Purchase Agreement, solely to contemplate
the issuance of Newco Ordinary Shares in lieu of Rigel Class A Shares). Subject to the immediately preceding sentence, each of Rigel and Newco shall use reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things required, necessary, proper or advisable to consummate the transactions contemplated by the Subscription Agreements with respect to the PIPE Investment and the PIPE Financing and the Orion Forward Purchase Agreement, in each case, on the terms and conditions described therein, including by enforcing its rights (a) under the Subscription Agreements with respect to the PIPE Investment and the PIPE Financing to cause the PIPE Investors and the Additional PIPE Investors, as applicable, to pay to (or as directed by) Newco the applicable purchase price under each PIPE Investor’s or Additional PIPE Investor’s applicable Subscription Agreement in accordance with its terms and (b) under the Orion Forward Purchase Agreement to cause Orion Mine Finance to pay to (or as directed by) Newco the applicable purchase price the Orion Forward Purchase Agreement in accordance with its terms.
Section 9.05 Inspection. Subject to confidentiality obligations and similar restrictions that may be applicable to
information furnished to Rigel, Newco, Merger Sub or their respective Subsidiaries by third parties that may be in Rigel’s, Newco’s, Merger Sub’s or their respective Subsidiaries’ possession from time to time, and except for any information which on the advice
of legal counsel of Rigel would result in the loss of attorney-client privilege or other privilege from disclosure, Rigel, Newco and Merger Sub shall, and shall cause their respective Subsidiaries to, afford to the Target Companies, their respective Affiliates and their respective Representatives reasonable access during the Interim Period, during normal business hours and with reasonable advance notice, to their respective properties and assets, books, Contracts, commitments, Tax Returns, records and appropriate officers and employees of Rigel, Newco, Merger Sub and their respective Subsidiaries, and shall use its and their reasonable efforts to furnish such Representatives with
all financial and operating data and other information concerning the business and
affairs of Rigel, Newco, Merger Sub and their respective Subsidiaries that are in the possession of Rigel, Newco, Merger Sub or their respective Subsidiaries, in each case as the Target Companies and their Representatives may reasonably request solely for purposes of consummating the Transactions; provided, however, that remote access may be provided by Rigel, Newco or Merger Sub, as applicable, in lieu of physical access in response to COVID-19 to the extent reasonably necessary
(a) to protect the health and safety of such officers and employees or (b) in order to comply with any applicable COVID-19 Measures. The Parties shall use reasonable efforts to make alternative arrangements for such disclosure
where the restrictions in the preceding sentence apply. Any request, and the provision
of access or information, in each case pursuant to this Section 9.05, shall be made in a time and manner so as not to materially delay the Closing. All
information obtained by the Target Companies, their respective Affiliates and their respective Representatives under this Agreement shall be subject to the Confidentiality Agreement prior to the Closing.
Section 9.06 Rigel Listing. Rigel shall use reasonable best efforts to ensure Rigel remains listed as a public
company on, and for the Rigel Securities (but, in the case of Rigel Warrants, only
to the extent issued as of the date hereof) to be listed on, the NYSE.
Section 9.07 Rigel Public Filings. From the date hereof through the Closing, Rigel shall keep current and timely file all reports required to be filed or furnished
with the SEC and otherwise comply in all material respects with its reporting obligations under
applicable Securities Laws.
Section 9.08 Section 16 Matters. Prior to the Closing, Rigel and Newco, as and to the extent applicable, shall take all reasonable steps as may be required (to the extent permitted under
applicable Law) to cause any acquisition or disposition of, with respect to Rigel, the Rigel Class A Shares or any derivative thereof and, with respect to Newco, the Newco Ordinary Shares or any derivative thereof, that occurs or is deemed to occur by reason of or pursuant to the Transactions by each Person who is or will be or may be subject to the reporting requirements
of Section 16(a) of the Exchange Act with respect to Rigel or Newco, as applicable, to be exempt under Rule 16b-3 promulgated under the Exchange Act, including by taking steps in accordance with the No-Action Letter, dated January 12, 1999, issued by the SEC regarding such matters.
Section 9.09 Newco Board of Directors, Committees and Officers.
(a) The Parties shall use reasonable best efforts to ensure that the individuals listed on Section 9.09(a) of the Target Company Disclosure Letter are appointed as directors of Newco effective at the Closing.
(b) The Parties shall use reasonable best efforts to ensure that individuals identified on Section 9.09(b) of the Target Company Disclosure Letter are appointed as the officers of Newco effective at the Closing, with each such individual holding the title set forth opposite
his or her
name. The Target Companies may replace any individual set forth on Section 9.09(b) of the Target Company Disclosure Letter with any individual prior to the Closing.
Section 9.10 Incentive Equity Plan. Prior to the Closing Date, Rigel or Newco, as applicable, shall approve, subject to
any approval of the stockholders of Rigel and/or Newco to the extent required under
applicable Law, an omnibus equity incentive plan (the “Incentive Equity Plan”), pursuant to which a number of Newco Ordinary Shares equal to (i) seven and one-half percent (7.5%) of the total aggregate Newco Ordinary Shares outstanding as of immediately following the Closing, plus (ii) the number
of Newco Ordinary Shares required to satisfy the equity-based awards described in Section 10.07(c) of the Target Company Disclosure Letter shall be reserved and available for issuance as of the Closing Date. The Incentive
Equity Plan shall include an “evergreen” share refresh feature which will provide
that the number of Newco Ordinary Shares available for issuance under the Incentive Equity Plan shall be automatically
increased on January 1st of each calendar year commencing after the Closing Date by two percent (2%) of the total aggregate Newco Ordinary Shares outstanding as of December 31st of the immediately preceding calendar year. No fewer than twenty (20) Business Days following the date hereof, the Target Group Companies shall provide
a copy of the Incentive Equity Plan to Rigel, and will incorporate any reasonable comments from Rigel and its advisors in good faith. Within ten (10) Business Days following the expiration of the sixty (60)
day period following the date Newco has filed current Form 10 information with the
SEC reflecting its status as an entity that is not a shell company, Newco shall file
an effective registration statement on Form S-8 (or other applicable form) with respect
to the Newco Ordinary Shares issuable under the Incentive Equity Plan and Newco shall
use commercially reasonable efforts to maintain the effectiveness of such registration
statement(s) (and maintain the current status of the prospectus or prospectuses contained
therein) for so long as awards granted pursuant to the Incentive Equity Plan remain outstanding.
Section 9.11 Qualification as an Emerging Growth Company. Each of Rigel, Newco and Merger Sub shall use reasonable best efforts from the date hereof until the Closing: (a) take all actions reasonably necessary to continue to qualify as an “emerging growth company” within the meaning of the Jumpstart Our Business Startups Act of 2012 (“JOBS Act”); and (b) not take any action that would directly cause Rigel or Newco to not qualify as an “emerging growth company” within the meaning of the JOBS Act, except for any action taken in compliance with the covenants of Rigel, Newco or Merger Sub set forth in this Agreement and the exhibits thereto.
Section 9.12 Stockholder Litigation. In the event that any litigation related to this Agreement, the other Transaction
Agreements or any of the Transactions is brought, or, to the Knowledge of Rigel, threatened in writing, against Rigel or the Board of Directors of Rigel by any of the Rigel Stockholders prior to the Closing, Rigel shall promptly notify the Target Companies of any such litigation and keep the Target Companies reasonably informed with respect to the status thereof. Rigel shall provide the Target Companies the opportunity to participate in (subject to a customary joint defense agreement),
but not control, the defense of any such litigation, shall give due consideration
to the Target Companies’ advice with respect to such litigation and shall not settle any such litigation without
prior written consent of the Target Companies, such consent not to be unreasonably withheld, conditioned or delayed.
Article X
JOINT COVENANTS
Section 10.01 Support of Transaction; Further Assurances. Without limiting any covenant contained in Article VIII or Article IX, including the obligations of the Target Companies, Rigel, Newco and Merger Sub with respect to the notifications, filings, reaffirmations and applications described
in Section 8.03 and Section 9.01, respectively, which obligations shall control to the extent of any conflict with
the succeeding provisions of this Section 10.01, Rigel, Newco, Merger Sub and the Target Companies
shall each, and shall each cause their respective Subsidiaries to: (a) use reasonable efforts to assemble, prepare and file any information (and, as needed,
to supplement such information) as may be reasonably necessary to obtain as promptly
as practicable all governmental and regulatory consents required to be obtained in
connection with the Transactions, it being specifically agreed that each Party shall (i) provide the other Parties
with drafts of all material correspondence, documents or other communications (including
drafts of the filings (if any)), (ii) give the other Parties reasonable opportunity
to comment on such material correspondence, documents or other communications prior
to their submission to the relevant Governmental Authorities, (iii) promptly provide
each other with copies of all communications received from the relevant Governmental
Authorities, (iv) involve the other Parties in any meetings or material discussions
with the relevant Governmental Authorities; and (v) promptly and in consultation with
each other, co-operate with and provide all necessary information and assistance reasonably
required by the relevant Governmental Authorities, (b) use reasonable best efforts to obtain all consents and approvals set forth on Section 10.01 of the Target Company Disclosure Letter and use reasonable efforts to obtain all material consents and approvals of third parties (other than those set forth on Section 10.01 of the Target Company Disclosure Letter) that any of Rigel, Newco, Merger Sub, the Target Companies, or their respective Affiliates are required to obtain in order to consummate the Transactions; provided that, to the extent agreed to by Rigel in writing, the Target Companies shall not be required to seek any such required consents or approvals of third-party
counterparties to Material Contracts with the Target Group Companies, and (c) take such other action as may reasonably be necessary or as another Party may reasonably request to satisfy the conditions of the other Party set forth in Article XI or otherwise to comply with this Agreement and to consummate the Transactions as soon as practicable (including amending the Orion Forward Purchase Agreement to contemplate the issuance
of Newco Ordinary Shares in lieu of Rigel Class A Shares). Notwithstanding the foregoing, in no event shall Rigel, Newco, Merger Sub or any Target Group Company be obligated to bear any material expense or pay any material fee or grant any material
concession in connection with obtaining any consents, authorizations or approvals
pursuant to the terms of any Contract to which any Target Group Company is a party or otherwise required in connection with the consummation of the Transactions. Except as set forth in this Agreement, the Parties shall further cooperate with each
other and use their respective reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things, necessary,
proper or advisable on their part under this Agreement and applicable Laws to consummate
the Transactions as soon as reasonably practicable, including negotiating the terms of each of (i)
the Newco Memorandum, (ii) the memorandum of incorporation of Blyvoor Resources, (iii) the memorandum of
incorporation of Tailings and the Incentive Equity Plan.
Section 10.02 Registration Statement; Rigel Extraordinary General Meeting.
(a) Registration Statement and Prospectus.
(i) As promptly as practicable following the execution and delivery of this Agreement,
(x) Rigel, Newco and each Target Company shall, in accordance with this Section 10.02(a), jointly prepare, and Newco shall file with the SEC, a preliminary proxy statement to be sent to the Rigel Stockholders relating to the Extraordinary General Meeting (such proxy statement, together with any amendments or supplements thereto, the “Proxy Statement”) and (y) Rigel, Newco and each Target Company shall jointly prepare, and Newco shall file with the SEC, a registration statement on Form F-4, or other appropriate form, which will contain the Proxy Statement, (such registration statement, including any pre-effective or post-effective amendments
or supplements thereto, the “Registration Statement”), in connection with the registration under the Securities Act of the Newco Securities that will be issued pursuant to the Merger. Rigel, Newco and each Target Company shall use its reasonable efforts to cause the Proxy Statement and the Registration Statement to comply with the rules and regulations promulgated by the SEC, to have the Registration Statement declared effective under the Securities Act as promptly
as practicable after such
filing and to keep the Registration Statement effective as long as is necessary to
consummate the Transactions. Each of Rigel and Newco agree to use their respective reasonable efforts to obtain all necessary state Securities Law or “Blue Sky” Permits required to carry out the Transactions, and the Target Companies shall furnish all information concerning the Target Group Companies and any of their respective members or stockholders as may be reasonably requested
in connection with any such action. Rigel, Newco and the Target Companies agree to furnish to the other Parties all information concerning itself, its Subsidiaries, officers, directors, managers,
stockholders, and other equityholders and information regarding such other matters
as may be reasonably necessary or advisable or as may be reasonably requested in connection
with the Registration Statement, a Current Report on Form 8-K or Form 6-K, as applicable, pursuant to the Exchange Act in connection with the Transactions, or any other statement, filing, notice or application made by or on behalf
of Rigel, Newco, the Target Companies or their respective Subsidiaries to any regulatory authority (including the Nasdaq) in connection with the Transactions (the “Offer Documents”). Subject to applicable Law, each of Rigel and Newco will use their respective reasonable best efforts to cause the definitive Proxy Statement to be disseminated
to the Rigel Stockholders as promptly as reasonably practicable after the Registration Statement is declared effective under the Securities Act.
(ii) To the extent not prohibited by Law, Rigel will advise the Target Companies, reasonably
promptly after Rigel or Newco receives notice thereof, of the time when the Registration Statement has become effective
or any supplement or amendment has been filed, of the issuance of any stop order or
the suspension of the qualification of the Newco Ordinary Shares for offering or sale in any jurisdiction, of the initiation or written threat of
any proceeding for any such purpose, or of any request by the SEC for the amendment
or supplement of the Registration Statement or for additional information. To the
extent not prohibited by Law, the Target Companies and their counsel shall be given
a reasonable opportunity to review and comment on the Registration Statement and any
Offer Document each time before any such document is filed with the SEC, and each of Rigel and Newco shall give reasonable and good faith consideration to any comments made by the Target
Companies and their counsel. To the extent not prohibited by Law, each of Rigel and Newco shall provide the Target Companies and their counsel with (A) any comments or other
communications, whether written or oral, that each of Rigel and Newco and its respective counsel may receive from time to time from the SEC or its staff with respect to the
Registration Statement or Offer Documents promptly after receipt of those comments
or other communications and (B) a reasonable opportunity to participate in the response
of each of Rigel and Newco to those comments and to provide comments on that response (to which reasonable and
good faith consideration shall be given), including by participating with the Target
Companies or their counsel in any discussions or meetings with the SEC.
(iii) Rigel, Newco and each Target Company shall ensure that none of the information supplied by or on its behalf for
inclusion or incorporation by reference in (A) the Registration Statement will, at the time the Registration Statement is filed with the SEC and at each time at which it is amended, and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein
or necessary to make the statements therein, not misleading
or (B) the Proxy Statement will, at the date it is first mailed to the Rigel Stockholders and at the time of the Extraordinary General Meeting, contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they are made, not misleading.
(iv) If, at any time prior to the Closing, any information relating to the Target Companies, Rigel, Newco or any of their respective Subsidiaries, Affiliates, directors or officers is discovered
by the Target Companies, Rigel or Newco, which is required to be set forth in an amendment or supplement to the Proxy Statement or the Registration Statement, so that neither of such documents would include any misstatement of a material fact or omit to state any material fact necessary
to make the statements therein, in light of the circumstances under which they were
made, not misleading, the Party which discovers such information shall promptly notify the other Parties and an appropriate amendment or supplement describing such information shall
be promptly filed with the SEC and, to the extent required by Law, disseminated to
the Rigel Stockholders.
(b) Rigel Extraordinary General Meeting. Rigel shall, prior to or as promptly as practicable after the Registration Statement
is declared effective under the Securities Act, establish a record date (which shall be mutually agreed with the Target Companies
acting reasonably) for, give notice of, and duly call and hold a meeting of the Rigel Stockholders (the “Extraordinary General Meeting”), which meeting shall be held not more than twenty-five (25) days after the date on which the Registration Statement
is declared effective (except as otherwise agreed by the Target Companies and Rigel acting reasonably and in good faith), for the purpose of obtaining the Rigel Stockholder Approval. The Extraordinary General Meeting shall be called for the purpose
of, among other things: (A) providing the Rigel Stockholders with the opportunity to redeem Rigel Class A Shares by tendering such shares for redemption not later than 5:00 p.m. Eastern
Time on the date that is two (2) Business Days prior to the date of the Extraordinary
General Meeting (the “Rigel Stockholder Redemption”); and (B) soliciting proxies from holders of Rigel Class A Shares to vote at the Extraordinary General Meeting, as adjourned or postponed,
in favor of: (1) the adoption of this Agreement and approval of the Transactions;
(2) the approval, by way of special resolution, of the Merger and Plan of Merger; (3)
the issuance of Newco Securities in connection with the Transactions (under the Stock Exchange); (4) the amendment and restatement of the memorandum and articles of association of Newco in the form of the Newco Memorandum; (5) the appointment of the individuals to Newco’s board of directors in accordance with Section 9.09, and the designation of the classes of such appointees to Newco’s board of directors; (6) the approval of the adoption of the Incentive Equity Plan; (7) any other proposals as either the SEC or the Stock Exchange (or the respective staff members thereof) may indicate are necessary in its comments
to the Registration Statement or in correspondence related thereto, or any other proposals the Parties agree are
necessary or desirable to consummate the Transactions; (8) adoption and approval of any other proposals as reasonably agreed by Rigel, Newco and the Target Companies to be necessary or appropriate in connection with the Transactions;
and (9) the adjournment of the Extraordinary General Meeting, if necessary, to permit further
solicitation of proxies because there are not sufficient votes to approve and adopt
any of the foregoing (collectively, the “Rigel Stockholder Matters”). Rigel shall include the Rigel Board Recommendation in the Proxy Statement. To the fullest extent permitted by applicable Law, the board of directors of Rigel shall not (and no committee or subgroup thereof shall) change, withdraw, withhold,
qualify or modify, or publicly propose to change, withdraw, withhold, qualify or modify,
the Rigel Board Recommendation for any reason (together with any change, withdrawal, withholding, qualification or modification of its recommendation to the Rigel Stockholders described in the Recitals hereto, a “Change in Recommendation”). To the fullest extent permitted by applicable Law, (A) Rigel agrees that its obligation to establish a record date for, duly call, give notice
of, convene and hold the Extraordinary General Meeting for the purpose of seeking the Rigel Stockholder Approval shall not be affected by any Change in Recommendation or other intervening event or circumstance, (B)
Rigel agrees to establish a record date for, duly call, give notice of, convene and hold
the Extraordinary General Meeting and submit for the approval of its stockholders the Rigel Stockholder Matters, in each case in accordance with this Agreement, regardless of any Change in Recommendation or other intervening event or circumstance, and (C) Rigel agrees that if the Rigel Stockholder Approval shall not have been obtained at any such Extraordinary General Meeting, then Rigel shall use reasonable best efforts to promptly continue to take all such necessary actions, including the actions required
by this Section 10.02(b), and hold additional Extraordinary General Meetings in order to obtain such approval. Rigel may only postpone or adjourn the Extraordinary General Meeting (and, in the case of the following clauses (ii) and (iii), at the request of the Target Companies, shall postpone or adjourn), for a period of no longer than fifteen (15) days and on a date no later than five (5) Business Days prior to the Termination Date: (i) to ensure that any supplement or amendment to the Proxy Statement that the board of directors of Rigel has determined in good faith after consultation with outside legal counsel is required by applicable Law is disclosed to the Rigel Stockholders and for such supplement or amendment to be promptly disseminated to the Rigel Stockholders prior to the Extraordinary General Meeting; (ii) if, as of the time for which the Extraordinary General Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient Rigel Class A Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business to be conducted
at the Extraordinary General Meeting; (iii) in order to solicit additional proxies from stockholders for purposes of obtaining
the Rigel Stockholder Approval; or (iv) only with the prior written consent of the Target Companies, for purposes of satisfying the condition set forth in Section 11.03(c) hereof; provided, that, notwithstanding any longer adjournment or postponement period specified at
the beginning of this sentence, in the event of any such postponement or adjournment,
the Extraordinary General Meeting shall be reconvened as promptly as practicable following such time as the matters
described in such clauses have been resolved.
Section 10.03 Exclusivity.
(a) During the Interim Period, the Target Companies shall not take, and they shall direct their respective Affiliates and Representatives not to take, whether directly or indirectly, any action
to (i) solicit, initiate, continue or engage in discussions or negotiations with, or
enter into any agreement with, or knowingly encourage, respond to, or provide information to, any Person (other than Rigel and/or any of its Affiliates or Representatives) concerning any merger, recapitalization or similar business combination transaction, or any sale of substantially all of the assets involving the Target Group Companies, taken as a whole (each such acquisition transaction, but excluding the Transactions, an “Acquisition Transaction”) or (ii) commence, continue or renew any due diligence investigation regarding, or that
is reasonably likely to give rise to or result in, any offer, inquiry, proposal or
indication of interest, written or oral, with respect to, or which is reasonably likely
to give rise to or result in, an Acquisition Transaction; provided, that, the execution, delivery and performance of this Agreement and the other Transaction
Agreements and the consummation of the Transactions shall not be deemed a violation
of this Section 10.03(a). The Target Companies shall, and each shall direct its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any Person conducted prior to the date hereof with respect to, or which is reasonably likely
to give rise to or result in, an Acquisition Transaction.
(b) During the Interim Period, Rigel shall not take, nor shall it permit any of its Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or
enter into any agreement with, or encourage, respond to, provide information to or commence due diligence
with respect to, any Person (other than the Target Companies, its shareholders and/or any of their Affiliates or
Representatives), concerning, relating to or which is intended or is reasonably likely to give rise
to or result in, any offer, inquiry, proposal or indication of interest, written or
oral relating to any Business Combination (a “Business Combination Proposal”) other than with the Target Companies, its shareholders and their respective Affiliates and Representatives; provided that, the execution, delivery and performance of this Agreement and the other Transaction
Agreements and the consummation of the Transactions shall not be deemed a violation
of this Section 10.03(b). Rigel shall, and shall direct its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any Person conducted prior to the date hereof with respect to, or which is reasonably likely
to give rise to or result in, a Business Combination Proposal.
Section 10.04 Tax Matters.
(a) Notwithstanding anything to the contrary contained herein, each Seller shall pay or refund the relevant Target Company, as appropriate, for all transfer, documentary, sales, use, stamp, registration, value-added or other similar Taxes incurred by any Party in connection with such Seller’s transfer of, as applicable, the Blyvoor Resources Shares or Tailings Shares (any such
Taxes, “Transfer Taxes”). The Party required to by applicable Law shall, at the expense of the Seller obligated to pay the relevant Transfer Tax, file all necessary Tax Returns with respect to all such Taxes, which shall include filing all necessary Tax Returns even where an exemption from
the payment of such Transfer Taxes is applicable, and, if required by applicable Law, such Seller, Rigel and the Target Companies will join in the execution of any such Tax Returns.
(b) Any and all Tax allocation or Tax sharing agreements between the Target Group Companies,
on the one hand, and any Seller or any of its Affiliates (other than the Target Group
Companies), on the other hand, shall be terminated as of the Closing Date and, from
and after the Closing Date, no Target Group Company shall be obligated to make any payment pursuant to any such agreement for any past
or future period. (and provided that the agreements to be cancelled pursuant to this
sentence (if any) shall be listed on Section 10.04(b) of the Rigel Disclosure Letter).
(c) Any and all Tax allocation or Tax sharing agreements between Rigel, on the one hand, and any direct or indirect equityholder of Rigel (or their Affiliates), on the other hand, shall be terminated as of the Closing Date
and, from and after the Closing Date, Rigel shall not be obligated to make any payment pursuant to any such agreement for any
past or future period (and provided that the agreements to be cancelled pursuant to
this sentence (if any) shall be listed on Section 10.04(c) of the Rigel Disclosure Letter).
(d) In accordance with applicable Law, Newco shall cause an election to be filed under Treasury Regulations Section 301.7701-3 to cause Merger Sub to be treated as an entity disregarded as separate from
Newco for U.S. federal income tax purposes effective as of the Merger Sub date of
formation.
(e) The Parties agree that for U.S. federal (and applicable state and local) income tax
purposes, (i) the Merger and the Blyvoor Resources Acquisition are intended to be treated consistent
with the Intended Tax Treatment and (ii) the Cash Consideration is intended to be treated as a distribution under
Section 301 of the Code. The Parties will prepare and file all Tax Returns consistent with the foregoing (including, if applicable, by filing Form 8937) and will not take any inconsistent
position on any Tax Return or before any taxing authorities unless otherwise required
pursuant to a “determination” as such term is defined in Section 1313 of the Code. Each Party agrees to use reasonable best efforts to promptly notify
all other Parties of any challenge to either the qualification of the Merger or the
Blyvoor Resources Acquisition for its Intended Tax Treatment by any Governmental Authority. Except as contemplated by this Agreement, the other
Transaction Agreements and the Transaction
Compensation Agreements, none of the Parties shall (and each of the Parties shall cause their respective
Subsidiaries not to) take any action, or fail to take any action, that could reasonably
be expected to cause the Merger or the Blyvoor Resources Acquisition to fail to qualify
for the Intended Tax Treatment.
(f) This Agreement is and is hereby adopted as a “plan of reorganization” for purposes
of Section 368 of the Code and the Treasury Regulations promulgated thereunder with respect to
the Merger and the Blyvoor Resources Acquisition.
(g) The Parties shall use commercially reasonable efforts to execute and deliver (i) officer’s certificates, in customary form, in a timely manner upon request by the other Party
and (ii) any other representations reasonably requested by counsel to Rigel or Newco
for purposes of rendering opinions regarding the Intended Tax Treatment, at such time
or times as may be requested by counsel to Rigel or Newco, including in connection
with any filing with the Securities and Exchange Commission.
(h) Following the Closing Date, but, in the case of any taxable period that ends after the Closing Date, only if Newco
knows, reasonably should know or there is a substantial likelihood that Newco is a
“passive foreign investment company” within the meaning of Section 1297(a) of the Code, Newco shall use its commercially reasonable efforts to (i) publicly post a PFIC Annual
Information Statement (as defined in Treasury Regulations Sections 1.1295-1(g)(1)) to enable the Persons who were Rigel Stockholders prior to the Closing
Date to make or maintain a “Qualifying Electing Fund” election under Section 1295 of the Code and compute any income or gain arising as a result of Rigel’s status as a “passive foreign investment company” within the meaning of Section 1297(a) of the Code for such taxable period and (ii) upon reasonable request and at
the cost of such Persons, any other information reasonably necessary and readily available
for such Person (or its direct or indirect owners) to compute any income or gain arising
as a result of Rigel’s status as a “passive foreign investment company” within the meaning of Section 1297(a) of the Code or a “controlled foreign corporation” within the meaning of Section 957(a) of the Code for any taxable year ending on or after the Closing Date, including
by timely providing information to enable the applicable Person to report its allocable
share of “subpart F” income under Section 951 of the Code for such taxable period.
(i) Following implementation of the Tailings Acquisition and the Blyvoor Resources Acquisition,
insofar as a Target Company has Tax losses (including the balance of unredeemed capital
expenditure) in excess of R50 million (fifty million South African Rand) for the prior
tax year of assessment, or is expected to have Tax losses in excess of R50 million
(fifty million South African Rand) for the current tax year of tax assessment such
Target Company shall report the Tailings Acquisition and the Blyvoor Resources Acquisition
in the prescribed form, to SARS in accordance with and to the extent required in terms
of Part B of Chapter 4 of the Tax Administration Act no 28 of 2011 (“TAA”) within
45 Business Days after the date on which the Tailings Acquisition or the Blyvoor Resources
Acquisition, as applicable, qualifies as a “reportable arrangement” (as defined in
the TAA). Each Target Company shall provide a written statement, as contemplated by
section 37(3) of the TAA, to Newco, Merger Sub and each of the Sellers stating that it has
disclosed the reportable arrangement as required.
Section 10.05 Confidentiality; Publicity.
(a) Each of Rigel, Newco and Merger Sub acknowledges that the information being provided to it in connection with this Agreement
and the consummation of the Transactions is subject to the terms of the Confidentiality Agreement, the terms of which are incorporated herein
by reference. The Confidentiality Agreement
shall survive the execution and delivery of this Agreement and shall apply to all
information furnished thereunder or hereunder and any other activities contemplated
hereby and thereby. The Target Companies acknowledges that, in connection with the PIPE Investment and the PIPE Financing, Rigel shall be entitled to disclose, pursuant to the Exchange Act, any information contained
in any presentation to the PIPE Investors or the Additional PIPE Investors, which information may include Evaluation Material (as defined in the Confidentiality
Agreement); provided that, Rigel provides the Target Companies with a reasonable opportunity to review and provide comments to such presentation
and the Target Companies consent to the contents thereof.
(b) The Target Companies and Rigel shall reasonably cooperate to create and implement a communications plan regarding
the Transactions promptly following the date hereof.
(c) The initial press release concerning this Agreement and the Transactions shall be a joint press release in the form mutually agreed by the Target Companies and Rigel prior to the execution of this Agreement, and such initial press release shall be
released as promptly as practicable after the execution of this Agreement.
Section 10.06 Post-Closing Cooperation; Further Assurances. Following the Closing, each Party shall, on the request of any other Party, execute such further documents, and perform such further acts, as may be reasonably
necessary or appropriate to give full effect to the allocation of rights, benefits,
obligations and liabilities contemplated by this Agreement and the Transactions.
Section 10.07 Employee Matters.
(a) Each employee and other individual service provider of a Target Group Company immediately
prior to the Closing shall continue in employment with a Target Group Company) immediately following the Closing (such employees, the “Continuing Employees”). Following the Closing, Newco and the Target Group shall honor and perform in accordance with their terms all Company Benefit Plans,
including all employment, severance, bonus, transaction, incentive and other compensation
arrangements.
(b) Except where applicable Law or the provisions of a Company Benefit Plan in effect
as of the date hereof require more favorable treatment, Newco shall, or shall cause
an Affiliate of Newco (including the Target Group Companies) to, for the period lasting
until twelve (12) months after the Closing Date (or, if earlier, until the date of
the applicable employee’s termination of employment with Newco or its Affiliates (including the Target Group
Companies)), provide to each Continuing Employee (a) a base salary or wage rate and
annual cash bonus opportunity that are, in each case, no less favorable than the base salary or wage rate and annual cash bonus opportunity provided by the
applicable Target Group Company to such Continuing Employee immediately prior to the
Closing Date, and (b) employee benefits (excluding any long-term incentive, equity, or equity-based
benefits) that are substantially comparable in the aggregate to those provided by
any Target Group Company to such Continuing Employee immediately prior to the Closing
Date.
(c) Prior to the Closing, the Target Group Companies will be permitted to implement the
arrangements described on Section 10.07(c) of the Target Company Disclosure Letter.
(d) Following the date hereof, the Parties will utilize the services of an independent
compensation consultant to review and make recommendations with respect to other post-Closing
compensation arrangements not referred to in this Section 10.07, and the Parties will work together to review the Target Group Companies’ existing compensation arrangements for purposes of
developing post-Closing market-based
compensation arrangements, including terms and conditions of customary employment
agreements for key employees, taking into account such recommendations.
(e) No fewer than 30 Business Days following the date hereof, the Target Group Companies
shall provide Rigel with a true and complete list, of all employees and independent
contractors of the Target Companies, containing: (i) their names (or if required by
applicable Law, a serial number) and status as an employee or contractor; (ii) the
entity with which they are employed or engaged; (iii) their positions or description
of services; (iv) their full-time, part-time, or temporary status; (v) their base
salaries or base hourly wage or contract rate; (vi) their target bonus rates or target
commission rates; (vii) any other compensation payable to them (including compensation
payable pursuant to any other bonus, deferred compensation, commission arrangements
or other compensation, and/or severance payments).
(f) This Section 10.07 shall be binding upon and inure solely to the benefit of each of the parties to this
Agreement, and nothing in this Section 10.07, express or implied, shall confer upon any other Person (including, for the avoidance
of doubt, any Company Employee or Continuing Employee) any rights (including third
party beneficiary rights) or remedies of any nature whatsoever under or by reason
of this Section 10.07. Nothing contained herein, express or implied, shall be construed to establish, amend
or modify any benefit plan, program, agreement or arrangement. The parties hereto
acknowledge and agree that the terms set forth in this Section 10.07 shall not create any right in any employee or any other Person to any continued employment
with Rigel or any of its Affiliates for any specific period of time or compensation or benefits of any nature or kind
whatsoever.
Section 10.08 PIPE Financing. Rigel shall, and shall cause its respective Affiliates to, use their respective reasonable
best efforts to take promptly, or cause to be taken, all actions, and to do promptly,
or cause to be done, all things necessary, proper or advisable to secure the PIPE
Financing, on terms (including as to type of security and price per security) reasonably
acceptable to the Target Companies, including all things reasonably necessary (x) to obtain executed Subscription Agreements with respect to the PIPE Financing, which shall have terms, and be in a form, substantially similar to the Subscription Agreements pertaining to the PIPE Investment
and otherwise as reasonably acceptable to the Target Companies and Rigel, from investors that are reasonably acceptable to the Target Companies and Rigel (the “Additional PIPE Investors”) pursuant to which the Additional PIPE Investors commit to make private investments in Newco in the form of the purchase Newco Ordinary Shares, other securities of Newco or indebtedness (including convertible indebtedness) of Newco, including a committed equity facility on terms acceptable to the Target Companies and Rigel, in exchange for an aggregate purchase price of at least $48,500,000.00 (the “PIPE Financing Amount”, and such financing, collectively, the “PIPE Financing”), and (y) to consummate the PIPE Financing substantially concurrently with the Closing.
Rigel and the Target Companies shall reasonably cooperate and coordinate the PIPE Financing process, including the
timing and substance of outreach to Additional PIPE Investors. Without limiting the foregoing, from the date hereof until the Closing Date, Rigel and the Target Companies shall, and shall cause their respective financial advisors and legal counsel to, keep
each other and their respective financial advisors and legal counsel reasonably informed
with respect to the PIPE Financing. Promptly following the execution thereof, Rigel shall deliver to the Target Companies
a true, correct and complete copy of each Subscription Agreement entered into by Newco
with the Additional PIPE Investors named therein.
Section 10.09 Nasdaq Listing. Rigel, Newco, Merger Sub and the Target Companies shall each, and shall each cause
their respective Subsidiaries to take, or cause to be taken, all actions, and do or
cause to be done all things, reasonably necessary, proper or advisable under applicable
Law and the rules and
policies of Nasdaq to cause the Newco Securities issued in connection
with the Transactions to be approved for listing on the Nasdaq as of the Closing (the
“Listing”).
Section 10.10 Additional Financial Information. The Target Companies shall use reasonable best efforts to deliver the PCAOB consolidated
audited financials of the Target Companies for (i) the fiscal year ended February 28, 2023, not later than April 1, 2024 and (ii) the fiscal year ended February 29, 2024, not later than May 30, 2024.
Article XI
CONDITIONS TO OBLIGATIONS
Section 11.01 Conditions to Obligations of All Parties. The obligations of the Parties to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following conditions, any one or more of which
may be waived (if legally permitted) in writing by the Target Companies and Rigel:
(a) Governmental Approvals. The approvals or clearances from a Governmental Authority listed on Section 11.01(a) of the Target Company Disclosure Letter and the termination or expiration of any applicable waiting period(s) under applicable antitrust Laws in respect of the Transactions (and any extension thereof, or any timing agreements, understandings or commitments
obtained by request or other action of any Governmental Authority) shall have expired, been terminated or obtained, as applicable.
(b) No Prohibition. There shall not be in force any Governmental Order enjoining or prohibiting the consummation of the Transactions.
(c) Net Tangible Assets. Rigel shall have at least $5,000,001 of net tangible assets (as determined in accordance
with Rule 3a51-1(g)(1) of the Exchange Act) remaining after the Rigel Stockholder Redemption.
(d) Rigel Stockholder Approval. The Rigel Stockholder Approval shall have been duly obtained in accordance with (i) the Cayman Act, (ii) the Rigel Organizational Documents and (iii) the rules and regulations of the Nasdaq.
(e) Registration Statement. The Registration Statement shall have become effective under the Securities Act
and no stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been initiated or
threatened by the SEC and not withdrawn.
(f) Listing Approval. The Listing shall be approved (subject to official notice of issuance).
Section 11.02 Additional Conditions to Obligations of Rigel, Newco and Merger Sub. The obligations of Rigel, Newco and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or
more of which may be waived in writing by Rigel:
(a) Representations and Warranties.
(i) The representations and warranties of the Target Group Companies contained in the first and second sentences of Section 6.01 (Corporate Organization of the
Target Companies), Section 6.03 (Due Authorization) and Section 6.06(a) (Current Capitalization) (collectively, the “Specified Representations”) shall be true and correct (without giving any effect to any limitation as to “materiality” or “Material Adverse Effect” or any similar limitation set forth therein) other than de minimis inaccuracies, as of the Merger Date, as though then made (except to the extent such representations and warranties expressly relate to an
earlier date, and in such case, shall be true and correct on and as of such earlier
date).
(ii) The representations and warranties of the Target Group Companies contained in Section 6.21 (Absence of Changes) shall be true and correct in all respects as of the Merger Date.
(iii) The representations and warranties of the Target Group Companies contained in Article VI (other than the Specified Representations and the representations and warranties of the Target Companies contained in Section 6.21), shall be true and correct (without giving any effect to any limitation as to “materiality” or “Material Adverse Effect” or any similar limitation set forth therein) as of the Merger Date as though then made (except to the extent such representations and warranties expressly
relate to an earlier date, and in such case, shall be true and correct on and as of
such earlier date), except, in each case, where the failure of such representations
and warranties to be so true and correct, individually or in the aggregate, has not
had, and would not reasonably be expected to result in, a Material Adverse Effect.
(b) Agreements and Covenants. The covenants and agreements of The Target Companies in this Agreement to be performed as of or prior to the Merger Date shall have been performed in all material respects; provided, that for purposes of this Section 11.02(b), a covenant of a Target Company shall only be deemed to have not been performed if such Target Company has materially breached such covenant and failed to cure within twenty (20)
days after notice (or if earlier, the Termination Date).
(c) No Material Adverse Effect. Since the date of this Agreement, there shall not have occurred a Material Adverse Effect
that is continuing.
(d) Officer’s Certificate. The Target Companies shall have delivered to Rigel a certificate signed by an officer of each Target Company, dated the Merger Date, certifying that, to the knowledge and belief of such officer, the conditions specified
in Section 11.02(a), Section 11.02(b) and Section 11.02(c) have been fulfilled.
Section 11.03 Additional Conditions to Obligations of the Target Companies. The obligation of each Target Company to consummate, or cause to be consummated, the Merger is subject to the satisfaction of the following additional conditions, any one or
more of which may be waived in writing by the Target Companies:
(a) Representations and Warranties.
(i) Each of the representations and warranties of Rigel, Newco and Merger Sub contained in Article VII (other than the representations and warranties of Rigel contained in Section 7.01 (Corporate Organization), Section 7.02 (Due Authorization), Section 7.10(k) (Tax Matters) and Section 7.11 (Capitalization)) shall be true and correct (without giving any effect to any limitation as to “materiality” or “material adverse effect” or any similar limitation set forth therein) as of the Merger Date as though then made
(except to the extent such representations and warranties expressly
relate to an earlier date, and in such case, shall be true and correct on and as of
such earlier date), except, in each case, where the failure of such representations
and warranties to be so true and correct, individually or in the aggregate, has not
had, and would not reasonably be expected to have, a material adverse impact on Rigel or prevent or materially delay or impair the ability of Rigel to perform its obligations under this Agreement or to consummate the Merger.
(ii) The representations and warranties of Rigel, Newco and Merger Sub contained in Section 7.01 (Corporate Organization), Section 7.02 (Due Authorization) and Section 7.11 (Capitalization) shall be true and correct other than de minimis inaccuracies, as of the Merger Date, as though then made (except to the extent such representations and warranties expressly relate to an
earlier date, and in such case, shall be true and correct on and as of such earlier
date).
(iii) The representations and warranties of Rigel, Newco and Merger Sub contained in Section 7.10(k) (Tax Matters) shall be true and correct in all respects as of the Merger Date as though then made.
(b) Agreements and Covenants. The covenants and agreements of Rigel, Newco and Merger Sub in this Agreement to be performed as of or prior to the Merger shall have been performed in all material respects; provided, that for purposes of this Section 11.03(b), a covenant of Rigel shall only be deemed to have not been performed if Rigel has materially breached such covenant and failed to cure within twenty (20) days after
notice (or if earlier, the Termination Date).
(c) Aggregate Cash Proceeds. The Aggregate Cash Proceeds shall not be less than $50,000,000; provided that the aggregate amount of Target Group Company Transaction Expenses and Rigel Transaction Expenses to be paid in cash by Newco in connection with the Closing shall not be in excess of $17,000,000.
(d) No Material Adverse Effect. Since the date of this Agreement, there shall not have occurred a Material Adverse
Effect with respect to Rigel, Newco and Merger Sub that is continuing; provided, that the definition of “Material Adverse Effect” with respect to this Section 11.03(d) shall replace references to (i) “Rigel” with “Target Group Companies”, (ii) “Target
Group Companies” with “Rigel”, (iii) “Target Company Disclosure Letter” with “Rigel
Disclosure Letter” and (iv) “Section 1.01(a) of the Rigel Disclosure Letter” with “Section 1.01(c) of the Target Disclosure Letter”.
(e) Officer’s Certificate. Rigel shall have delivered to the Target Companies a certificate signed by an officer of Rigel, dated the Merger Date, certifying that, to the knowledge and belief of such officer, the conditions specified
in Section 11.03(a), Section 11.03(b), Section 11.03(c) and Section 11.03(d) have been fulfilled.
Section 11.04 Conditions to Obligations of Target Companies With Respect to the Tailings Acquisition and the Blyvoor Resources Acquisition. The obligations of the Target Companies to consummate, or cause to be consummated, the Tailings Acquisition and the Blyvoor
Resources Acquisition are subject to the satisfaction of the following conditions,
any one or more of which may be waived (if legally permitted) in writing by the Target
Companies:
(a) Merger.
The Merger shall have been consummated at least one (1) day prior to the Tailings Acquisition and the Blyvoor Resources Acquisition.
(b) Officer’s Certificate. Prior to the consummation of the transactions contemplated by Section 4.01 and Section 4.02(a), Rigel shall have delivered to the Target Companies a certificate signed by an officer
of Rigel, dated the Merger Date, certifying that, to the knowledge and belief of such officer, all actions required to effect the consummation of the Merger shall have been taken.
(c) Other Closing Deliverables.
(i) At or prior to the Closing, Rigel shall have delivered, or caused to be delivered,
to the Target Companies all deliverables required by Section 5.03(a).
(ii) At or prior to the Closing, the Target Companies shall have delivered, or caused to
be delivered, to Rigel all deliverables required by Section 5.03(b).
Section 11.05 Frustration of Conditions. None of Rigel, Newco, Merger Sub or any Target Company may rely on the failure of any condition set forth in this Article XI to be satisfied if such failure was caused by such Party’s failure to act in good faith or to take such actions as may be necessary to cause
the conditions of the other Party to be satisfied, as required by Section 10.01.
Article XII
TERMINATION/EFFECTIVENESS
Section 12.01 Termination. This Agreement may be terminated and the Transactions abandoned:
(a) by mutual written consent of the Target Companies and Rigel;
(b) prior to the Closing, by written notice to the Target Companies from Rigel if (i) there is any breach of any representation, warranty, covenant or agreement on the part of the Target Companies set forth in this Agreement, such that the conditions specified in Section 11.02(a) or Section 11.02(b) would not be satisfied at the Closing (a “Terminating Company Breach”), except that, if such Terminating Company Breach is curable by the Target Companies through the exercise of its reasonable efforts, then, for a period of up to 30 days
(or any shorter period of the time that remains between the date Rigel provides written notice of such violation or breach and the Termination Date) after receipt by the Target Companies of notice from Rigel of such breach, but only as long as the Target Companies, as applicable, continue to use their reasonable efforts to cure such Terminating Company Breach (the “Company Cure Period”), such termination shall not be effective, and such termination shall become effective
only if the Terminating Company Breach is not cured within the Company Cure Period, (ii) the Closing has not occurred on or before August 9, 2024 (the “Termination Date”); or (iii) the consummation of the Transactions is permanently enjoined, prohibited or prevented by the terms of a final, non-appealable Governmental Order; provided, that, the right to terminate this Agreement under subsection (i) or (ii) shall not be available if Rigel, Newco or Merger Sub’s failure to fulfill any obligation under this Agreement has been the primary cause
of, or primarily resulted in, the failure of the Closing to occur on or before such date;
(c) prior to the Closing, by written notice to Rigel from the Target Companies if (i) there is any breach of any representation, warranty, covenant or agreement on the part of Rigel, Newco or Merger Sub set forth in this Agreement, such that the conditions specified in Section 11.03(a) or Section 11.03(b) would not be satisfied at the Closing (a “Terminating Rigel Breach”), except that, if any such Terminating Rigel Breach is curable by Rigel, Newco or Merger Sub, as applicable, through the exercise of its reasonable efforts, then, for a period of up to 30 days
(or any
shorter period of the time that remains between the date the Target Companies provides written notice of such violation or breach and the Termination Date) after receipt by Rigel of notice from the Target Companies of such breach, but only as long as Rigel, Newco or Merger Sub, as applicable, continues to exercise such reasonable efforts to cure such Terminating Rigel Breach (the “Rigel Cure Period”), such termination shall not be effective, and such termination shall become effective
only if the Terminating Rigel Breach is not cured within the Rigel Cure Period, (ii) the Closing has not occurred on or before the Termination Date, (iii) the consummation of the Transactions is permanently enjoined, prohibited or prevented by the terms of a final, non-appealable Governmental Order; or (iv) if there has been a Change in Recommendation; provided that the right to terminate this Agreement under subsection (i) or (ii) shall not be available if the Target Companies’ failure to fulfill any obligation under this Agreement has been the primary cause
of, or primarily resulted in, the failure of the Closing to occur on or before such date; or
(d) by written notice from the Target Companies to Rigel if the Extraordinary General Meeting has been held, the Rigel Stockholders have duly voted, and the Rigel Stockholder Approval has not been obtained (subject to any adjournment, postponement or recess of the meeting).
Section 12.02 Effect of Termination. Except as otherwise set forth in this Section 12.02 or Section 13.13, in the event of the termination of this Agreement pursuant to and in accordance with Section 12.01, this Agreement shall forthwith become void and have no effect, without any liability
on the part of any Party or its respective Affiliates, officers, directors, employees or stockholders, other than liability of any Party for any Fraud or intentional and willful breach of this Agreement by such Party occurring prior to such termination. The provisions of Section 8.04 (No Claim Against the Trust Account), Section 10.05 (Confidentiality; Publicity), this Section 12.02 (Effect of Termination) and Article XIII (MISCELLANEOUS) (collectively, the “Surviving Provisions”) and the Confidentiality Agreement, and any other Section or Article of this Agreement referenced in the Surviving Provisions which are required to survive in order to give appropriate effect to the Surviving Provisions, shall in each case survive any termination of this Agreement.
Article XIII
MISCELLANEOUS
Section 13.01 Waiver. Any Party may, at any time prior to the Closing, by action taken by its board of directors or equivalent governing body, or officers thereunto
duly authorized, except as otherwise set forth herein, (a) extend the time for the performance of
any of the obligations or other acts of the other Party, as applicable; (b) waive
any inaccuracies in the representations and warranties of the other Party contained
herein or in any document delivered pursuant hereto; and (c) subject to the requirements
of applicable Law, waive compliance by the other Party with any of the agreements
or conditions contained herein applicable to such Party, or agree to an amendment or modification to this Agreement in the manner contemplated
by Section 13.10 and by an agreement in writing executed in the same manner (but not necessarily by the same Persons) as this Agreement. Any such extension or waiver shall be valid only if set forth in an instrument in
writing signed by the Party or Parties to be bound thereby. Notwithstanding the foregoing,
no failure or delay by a Party in exercising any right hereunder shall operate as
a waiver thereof nor shall any single or partial exercise thereof preclude any other
or further exercise of any other right hereunder.
Section 13.02 Notices. All notices and other communications among the Parties shall be in writing and shall be deemed to have been duly given (i) when delivered in person, (ii) when delivered after posting in the United States mail having been sent registered
or certified mail return receipt requested, postage prepaid, (iii) when delivered
by FedEx or other nationally recognized overnight delivery service or
(iv) when e-mailed
during normal business hours (and otherwise as of the immediately following Business Day), addressed as follows:
| (a) | If to Rigel, Newco or Merger Sub to: |
Rigel Resource Acquisition Corp
7 Bryant Park
1045 Avenue of the Americas, Floor 25
New York, NY 10018
Attention: Nate Abebe
E-mail: nabebe@rigelresources.com
with a copy (which shall not constitute
notice) to:
Sidley Austin LLP
1999 Avenue of the Stars, 17th Floor
Los Angeles, CA 90067
Attention: Joshua DuClos; George Vlahakos
E-mail: jduclos@sidley.com; gvlahakos@sidley.com
| (b) | If to the Target Companies, to: |
Blyvoor Gold Proprietary Limited
Upper Level Change House
8 Fir Drive
Northcliff
Gauteng, 2195
South Africa
Attention: Alan Smith
E-mail: alan@aurousresources.com; alan@blyvoorgold.com
with copies (which shall not constitute notice) to:
Milbank LLP
55 Hudson Yards
New York, NY 10001
Attention: David Dixter and Iliana Ongun
E-mail: ddixter@milbank.com; iongun@milbank.com
and
ENS
Tower 1, The Marc
129 Rivonia Road
Sandton
Gauteng, 2196
South Africa
Attention: Atlegang Govuza and Lebusa Meso
E-mail: agovuza@ensafrica.com; lmeso@ensafrica.com
or to such other address or addresses as the Parties may from time to time designate in writing.
Section 13.03 Assignment. No Party shall assign this Agreement or any part hereof without the prior written consent
of Sellers and Rigel; provided that each Target Company may delegate the performance of its obligations or assign
its rights hereunder in part or in whole to any Affiliate of thereof so long as such
assigning Party remains fully responsible and liable for the performance of the delegated
obligations. Subject to the foregoing, this Agreement shall be binding upon and inure to the
benefit of the Parties and their respective permitted successors and assigns. Any attempted assignment in
violation of the terms of this Section 13.03 shall be null and void, ab initio.
Section 13.04 Rights of Third Parties. Nothing expressed or implied in this Agreement is intended or shall be construed
to confer upon or give any Person, other than the Parties, any right or remedies under or by reason of this Agreement; provided, however, that notwithstanding the foregoing (a) in the event the Closing occurs, the present and former officers and directors of the Target Companies and Rigel (and their successors, heirs and Representatives) and each of their respective Indemnitee Affiliates are intended third-party beneficiaries of, and may enforce, Section 9.02, (b) the past, present and future directors, officers, employees, incorporators, members,
partners, stockholders, Affiliates, agents, attorneys, advisors and Representatives of the Parties, and any Affiliate of any of the foregoing (and their successors, heirs and Representatives), are intended third-party beneficiaries of, and may enforce, Section 13.14 and Section 13.15 and (c) Counsel are intended to be third-party beneficiaries of, and may enforce,
Section 13.17.
Section 13.05 Expenses. Except as otherwise provided herein, each Party shall bear its own costs and expenses incurred in connection with this Agreement,
the other Transaction Agreements and the transactions herein and therein contemplated whether or not such transactions shall be consummated, including all fees of its legal counsel, financial advisers
and accountants (and with respect to Rigel, any and all Antitrust Fees); provided that if the Closing occurs, then Newco shall pay or cause to be paid, the Target Group Company Transaction Expenses, Rigel Transaction Expenses, and other specified expenses of Rigel or its Affiliates, in each case in accordance with Section 4.04(c). For the avoidance of doubt, any payments to be made (or to cause to be made) by
Rigel pursuant to this Section 13.05 shall be paid upon consummation of the Transactions and release of proceeds from the Trust Account.
Section 13.06 Governing Law. This Agreement, and all claims or causes of action based upon, arising out of, or related to this Agreement and/or the Transactions, shall be governed by, and construed in accordance with, the internal Laws of the State of Delaware, including its statute of limitations, without giving effect
to principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of Laws or statute of limitations of another jurisdiction.
Section 13.07 Captions; Counterparts. The captions in this Agreement are for convenience only and shall not be considered
a part of or affect the construction or interpretation of any provision of this Agreement.
This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same instrument.
Section 13.08 Schedules and Exhibits. The Disclosure Letters and Exhibits referenced herein are a part of this Agreement as if fully set forth
herein. All references herein to Disclosure Letters and Exhibits shall be deemed references to such parts of this Agreement, unless the
context shall otherwise require. Any disclosure made by a Party in the Disclosure Letters with reference to any section or schedule of this Agreement shall be deemed to be a disclosure with respect to all other sections
or schedules to which such disclosure may apply to the extent the relevance of such disclosure
is reasonably apparent on the face of the disclosure in such Disclosure Letter. Certain information set forth in the Disclosure Letters is included solely for informational purposes. The Parties agree that the content and scope of the representations and warranties
of the Target Group Companies contained in Section 6.08, Section 6.15, Section 6.20 and Section 6.27 shall be limited by any matter that has been disclosed in the Data Room.
Section 13.09 Entire Agreement. This Agreement (together with the Disclosure Letters and Exhibits to this Agreement and the other Transaction Agreements) and that certain
Nondisclosure Agreement, dated as of March 7, 2023, by and between Blyvoor Resources and Rigel (as amended, modified or supplemented from time to time, the “Confidentiality Agreement”), constitute the entire agreement among the Parties relating to the Transactions and supersede any other agreements, whether written or oral, that may have been made or entered into by or among any
of the Parties or any of their respective Subsidiaries relating to the Transactions. No representations, warranties, covenants, understandings, agreements, oral or otherwise, relating to the Transactions exist between the Parties except as expressly set forth or referenced in this Agreement, the other Transaction
Agreements and the Confidentiality Agreement.
Section 13.10 Amendments. This Agreement may be amended or modified in whole or in part, only by a duly authorized
agreement in writing executed in the same manner as this Agreement and which makes reference
to this Agreement. The approval of this Agreement by the stockholders of any of the
Parties shall not restrict the ability of the board of directors (or other body performing
similar functions) of any of the Parties to terminate this Agreement in accordance with Section 12.01 or to cause such Party to enter into an amendment to this Agreement pursuant to this Section 13.10.
Section 13.11 Severability. If any provision of this Agreement is held invalid or unenforceable by any court
of competent jurisdiction, the other provisions of this Agreement shall remain in
full force and effect. The Parties further agree that if any provision contained herein is, to any extent, held invalid
or unenforceable in any respect under the Laws governing this Agreement, they shall take any actions necessary to render the remaining provisions of this Agreement valid and enforceable
to the fullest extent permitted by Law and, to the extent necessary, shall amend or otherwise modify this Agreement to replace
any provision contained herein that is held invalid or unenforceable with a valid
and enforceable provision giving effect to the intent of the Parties.
Section 13.12 Jurisdiction; WAIVER OF TRIAL BY JURY. Any Action based upon, arising out of or related to this Agreement or the Transactions may only be brought in the state and federal courts located within the State of Delaware, and each of the Parties irrevocably submits to the exclusive jurisdiction of each such court in any such
Action, waives any objection it may now or hereafter have to personal jurisdiction, venue
or to convenience of forum, agrees that all claims in respect of the Action shall be heard and determined only in any such court, and agrees not to bring any
Action arising out of or relating to this Agreement or the Transactions in any other court. Nothing herein contained shall be deemed to affect the right of
any Party to serve process in any manner permitted by Law or to commence legal proceedings or otherwise proceed against any other Party in any other jurisdiction, in each case, to enforce judgments obtained in any Action brought pursuant to this Section 13.12. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION BASED UPON, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS.
Section 13.13 Enforcement. The Parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the Parties do not perform their obligations under the provisions of this Agreement (including
failing to take such actions as are required of them hereunder to consummate this Agreement) or any other Transaction
Agreement in accordance with its specified terms or otherwise breach such provisions.
The Parties acknowledge and agree that (a) the Parties shall be entitled to an injunction, specific performance, or other equitable relief,
to prevent breaches of this Agreement or any other Transaction Agreement and to enforce
specifically the terms and provisions hereof and thereof, without proof of damages,
prior to the valid termination of this Agreement in accordance with Section 12.01, this being in addition to any other remedy to which they are entitled under this
Agreement or any other Transaction Agreement, and (b) the right of specific enforcement is an integral part of the Transactions and without that right, none of the Parties would have entered into
this Agreement. Each Party agrees that it will not oppose the granting of specific performance and other
equitable relief on the basis that the other Parties have an adequate remedy at Law. The Parties acknowledge and agree that any Party seeking an injunction to prevent breaches of this Agreement or any other Transaction
Agreement and to enforce specifically the terms and provisions of this Agreement or
any other Transaction Agreement in accordance with this Section 13.13 shall not be required to provide any bond or other security in connection with any
such injunction.
Section 13.14 Non-Recourse. Subject in all respects to the last sentence of this Section 13.14, this Agreement may only be enforced against, and any Action based upon, arising out of, or related to this Agreement or the Transactions may only be brought against, the entities that are expressly named as Parties and then only with respect to the specific obligations set forth herein with respect
to such Party. The Parties further agree that, (a) no past, present or future director, officer, employee, incorporator, member, partner,
stockholder, Affiliate, agent, attorney, advisor or Representative or Affiliate of any Party and (b) no past, present or future director, officer, employee, incorporator, member, partner,
stockholder, Affiliate, agent, attorney, advisor or Representative or Affiliate of any of the foregoing shall have any liability (whether in contract, tort, equity or otherwise) for any one or more of the representations, warranties,
covenants, agreements or other obligations or liabilities of any one or more of the Target Companies or Rigel under this Agreement of or for any Action based on, arising out of, or related to this Agreement or the Transactions, and each Party hereby waives and releases all claims, causes of actions and liabilities
related thereto. Notwithstanding the foregoing, nothing in this Section 13.14 shall limit, amend or waive any rights or obligations of any party to any Transaction Agreement for any Action based on, in respect of or by reason of such rights or obligations.
Section 13.15 Nonsurvival of Representations, Warranties and Covenants. None of the representations, warranties, covenants, obligations or other agreements in this Agreement or in any certificate, statement or instrument delivered pursuant to this Agreement, including any rights
arising out of any breach of such representations, warranties, covenants, obligations,
agreements and other provisions, shall survive the Closing and each shall terminate and expire upon the occurrence of the Closing (and there shall be no liability after the Closing in respect thereof), except for (a) those covenants and agreements contained herein that by their terms expressly apply in whole or in part at or after
the Closing and then only with respect to any breaches occurring at or after the Closing and (b) this Article XIII. Nothing herein is intended to limit any Party’s liability for such Party’s Fraud.
Section 13.16 Acknowledgements.
(a) Each of the Parties acknowledges and agrees (on its own behalf and on behalf of its respective Affiliates and its and their respective Representatives) that: (i) it has conducted its own independent investigation of the financial condition, results
of operations, assets, liabilities, properties and projected operations of the other
Parties (and their respective Subsidiaries) and has been afforded satisfactory access to the books and records, facilities and
personnel of the other Parties (and their respective Subsidiaries) for purposes of conducting such investigation; (ii) the representations and warranties
of the Target Group Companies contained in Article VI constitute the sole and exclusive representations and warranties of the Target Companies
in connection with the Transactions; (iii) the Rigel Representations constitute the
sole and exclusive representations and warranties of Rigel; (iv) except for the Target
Company Representations by the Target Companies and the Rigel Representations by Rigel,
none of the Parties or any other Person makes, or has made, any other express or implied representation or warranty with
respect to any Party (or any Party’s Subsidiaries), including any implied warranty or representation as to condition, merchantability,
suitability or fitness for a particular purpose or trade as to any of the assets of
such Party or its Subsidiaries or the Transactions and all other representations and warranties of any kind or nature
expressed or implied (including (x) regarding the completeness or accuracy of, or any
omission to state or to disclose,
any information, including in the estimates, projections or forecasts or any other
information, document or material provided to or made available to any Party or their respective Affiliates or Representatives in certain “data rooms,” management presentations or in any other form in expectation of the Transactions, including meetings, calls or correspondence with management of any Party (or any Party’s Subsidiaries), and (y) any relating to the future or historical business, condition (financial or otherwise),
results of operations, prospects, assets or liabilities of any Party (or its Subsidiaries), or the quality, quantity or condition of any Party’s or its Subsidiaries’ assets) are specifically disclaimed by all Parties and their respective Subsidiaries and all other Persons (including the Representatives and Affiliates of any Party or its Subsidiaries); and (v) each Party and its respective Affiliates are not relying on any representations and warranties in connection with the Transactions except the Target Company Representations by the Target Companies and the Rigel Representations
by Rigel. The foregoing does not limit any rights of any Party pursuant to any other Transaction Agreement against any other Party pursuant to such Transaction Agreement to which it is a party or an express third party beneficiary thereof. Except as otherwise expressly set forth in this Agreement, Rigel
understands and agrees that any assets, properties and business of the Target Companies
and their respective Subsidiaries are furnished “as is”, “where is” and subject to and except for the Target Company Representations by the Target Companies
or as provided in any certificate delivered in accordance with Section 11.02(c), with all faults and without any other representation or warranty of any nature whatsoever.
Nothing in this Section 13.16(a) shall relieve any Party of liability in the case of Fraud committed by such Party.
(b) Effective upon Closing, each of the Parties waives, on its own behalf and on behalf of its respective Affiliates and Representatives, to the fullest extent permitted under applicable Law, any and all rights and Actions it may have against any other Party or their respective Subsidiaries and any of their respective current or former Affiliates or Representatives relating to the operation of any Party or its Subsidiaries or their respective businesses or relating to the subject matter of this Agreement,
the Disclosure Letters, or the Exhibits to this Agreement, whether arising under or based upon any federal,
state, local or foreign statute, Law, ordinance, rule or regulation or otherwise. Each Party acknowledges and agrees that it will not assert, institute or maintain any Action of any kind whatsoever, including a counterclaim, cross-claim, or defense, regardless of the legal or equitable theory under which such liability
or obligation may be sought to be imposed, that makes any claim contrary to the agreements and covenants set forth in this Section 13.16. Notwithstanding anything herein to the contrary, nothing in this Section 13.16(b) shall preclude any Party from seeking any remedy for Fraud by a Party. Each Party shall have the right to enforce this Section 13.16 on behalf of any Person that would be benefitted or protected by this Section 13.16 if they were a party hereto. The foregoing agreements, acknowledgements, disclaimers and waivers are irrevocable. For the avoidance of
doubt, nothing in this Section 13.16 shall limit, modify, restrict or operate as a waiver with respect to, any rights
any Party may have under any written agreement entered into in connection with the Transactions, including any other Transaction Agreement.
Section 13.17 Provisions Respecting Representation of the Target Companies. Each of the Parties hereby agrees, on its own behalf and on behalf of its directors,
managers, members, partners, officers, employees, stockholders and Affiliates, that
Milbank LLP and ENSafrica (each, “Counsel”) may serve as counsel to the Target Group Companies and their respective directors,
officers and employees (individually and collectively, the “Seller Group”) in connection with the negotiation, preparation, execution, delivery and performance
of this Agreement, and the consummation of the Transactions, and that, following consummation
of the Transactions, Counsel (or any of its respective successors) may serve as counsel
to the Seller Group or any director, manager, member, partner, stockholder, officer,
employee or Affiliate of any member of the Seller Group, in connection with any Action
or obligation arising out of or relating to this Agreement or the Transactions notwithstanding such representation or any continued
representations, and each of
the Parties (on its own behalf and on behalf of its Affiliates) hereby consents thereto
and irrevocably waives any conflict of interest arising therefrom, and each of such
Parties shall cause any Affiliate thereof to consent to irrevocably waive any conflict
of interest arising from such representation. The Parties agree to take the steps
necessary to ensure that any privilege attaching as a result of Counsel representing
any Target Group Company in connection with the Transactions shall survive the Closing and shall remain in effect. As to any privileged attorney-client communications between Counsel and any Target Group Company in connection with
the Transactions prior to the Closing Date (collectively, the “Privileged Communications”), Rigel and each Target Group Company, together with any of their respective Affiliates,
Subsidiaries, successors or assigns, agree that no such Persons may use or rely on
any of the Privileged Communications in any action against or involving any of the
parties after the Closing. In addition, if the Transactions are consummated, all Privileged Communications related to such Transactions will become
the property of (and be controlled by) the Seller Group, and none of Rigel, any Target Group Company or any of their respective Affiliates, Subsidiaries,
successors or assigns shall retain any copies of such records or have any access to them. In the event that
Rigel is legally required or requested by any Governmental Authority to access or obtain
a copy of all or a portion of the Privileged Communications, Rigel shall be entitled to access or obtain a copy of and disclose the Privileged Communications
to the extent necessary to comply with any such legal requirement or request.
Section 13.18 Obligations of Rigel, Newco and Merger Sub.
(a) Prior to the Merger, Rigel shall cause Merger Sub and each of its other Subsidiaries to comply with,
duly perform, satisfy and discharge on a timely basis, all of their respective covenants,
obligations and liabilities under this Agreement, and Rigel shall be jointly and severally
liable with its Subsidiaries for the due and timely performance, satisfaction and
discharge of each of the said covenants, obligations and liabilities.
(b) Following the Merger, Newco shall cause Merger Sub, each of its other Subsidiaries, and the Surviving Company,
to comply with, duly perform, satisfy and discharge on a timely basis, all of their
respective covenants, obligations and liabilities under this Agreement, and Newco
shall be jointly and severally liable with its Subsidiaries for the due and timely
performance, satisfaction and discharge of each of the said covenants, obligations
and liabilities.
[Signature pages follow.]
IN WITNESS WHEREOF, the parties hereto have hereunto caused this Business Combination Agreement to be duly executed as of the date hereof.
| |
Blyvoor
Gold Resources (Proprietary) Limited |
| |
|
|
By: |
/s/Alan
Smith |
|
Name: |
Alan Smith |
|
Title: |
Director |
| |
Blyvoor
Gold Underground Operations Proprietary Limited |
| |
|
|
By: |
/s/Alan
Smith |
|
Name: |
Alan Smith |
|
Title: |
Director |
[Signature Page to Business Combination Agreement]
IN WITNESS WHEREOF, the parties hereto have hereunto caused this Business Combination Agreement to be duly executed as of the date hereof.
| |
Rigel
Resource Acquisition Corp |
| |
|
|
By: |
/s/
Jonathan Lamb |
|
Name: |
Jonathan Lamb |
|
Title: |
Director |
| |
RRAC NEWCO |
| |
|
|
By: |
/s/ Alan Smith |
|
Name: |
Alan Gordon Smith |
|
Title: |
Director |
|
RRAC
MERGER SUB |
| |
|
|
|
By: |
/s/
Jonathan Lamb |
|
Name: |
Jonathan Lamb |
|
Title: |
Director |
[Signature Page to Business
Combination Agreement]
EXHIBIT A
Form of Registration Rights Agreement
[see attached]
FORM
OF AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of [●], 2024, is made and entered
into by and among RRAC NewCo, a Cayman Islands exempted company (the “Company”), and Rigel Resource Acquisition Holding
LLC, a Cayman Islands limited liability company (the “Sponsor”), the undersigned parties listed under Existing Holders
on the signature page hereto (each such party, together with the Sponsor and any person or entity deemed an “Existing Holder”,
the “Existing Holders” and, each, an “Existing Holder”) and the undersigned parties listed under
New Holders on the signature pages hereto (the “New Holders” and, each, a “New Holder”). Capitalized
terms used but not otherwise defined in this Agreement shall have the meaning ascribed to such term in the Business Combination Agreement
(as defined below).
RECITALS
WHEREAS,
Rigel Resource Acquisition Corp., a Cayman Islands exempted company (“SPAC”), the Sponsor and the Existing Holders
are party to that certain Registration Rights Agreement, dated November 4, 2021, (the “Existing Registration Rights Agreement”),
pursuant to which the Company granted the Existing Holders certain registration rights with respect to certain securities of SPAC;
WHEREAS,
SPAC has entered into that certain Business Combination Agreement (the “Business Combination Agreement”), dated as
of [●], 2024, by and among SPAC, the Company, Blyvoor Gold Resources Proprietary Limited, a South African private limited liability
company (“Blyvoor Resources”), Blyvoor Gold Operations Proprietary Limited, a South African private limited liability
company (“Tailings”), and RRAC Merger Sub, a Cayman Islands exempted company (“Merger Sub”);
WHEREAS,
pursuant to the transactions contemplated by the Business Combination Agreement (the “Transactions”) and subject to
the terms and conditions set forth therein, (i) the New Holders will receive ordinary shares of par value per share of US$[0.0001] in
the share capital of the Company (“Ordinary Shares”) and (ii) the outstanding shares of the SPAC owned by the Existing
Holders will be retired and the Existing Holders will receive Ordinary Shares upon the closing (the “Closing”) of
the Transactions; and
WHEREAS,
the Company, SPAC and all of the Existing Holders desire to amend and restate the Existing Registration Rights Agreement, in order to
grant the Existing Holders and the New Holders certain registration rights with respect to certain securities of the Company, as set
forth in this Agreement.
NOW,
THEREFORE, in consideration of the representations, covenants and agreements contained herein, and certain other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
Article
I
DEFINITIONS
1.1.
Definitions.
1.2.
The terms defined in this Article I shall, for all purposes of this Agreement, have the respective meanings set forth below:
“Adverse
Disclosure” shall mean any public disclosure of material non-public information, which disclosure, in the good faith judgment
of the Company, after consultation with counsel to the Company, (i) would be required to be made in any Registration Statement or Prospectus
in order for the applicable Registration Statement or Prospectus not to contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements contained therein (in the case of any prospectus and any preliminary prospectus, in
the light of the circumstances under which they were made) not misleading, (ii) would not be required to be made at such time if the
Registration Statement were not being filed and (iii) making such information public would materially interfere with a bona fide business,
acquisition or divestiture or financing transaction of the Company or is reasonably likely to require premature disclosure of material
information that the Company has a bona fide business purpose for preserving as confidential.
“Agreement”
shall have the meaning given in the Preamble.
“Board”
shall mean the Board of Directors of the Company.
“Block
Trade” shall mean an offering and/or sale of Registrable Securities by any Holder in a non-marketed underwritten takedown offering
taking the form of a bought deal or a block sale to a financial institution (including, without limitation, a same day trade, overnight
trade or similar transaction).
“Business
Combination” shall mean any merger, amalgamation, share exchange, asset acquisition, share purchase, reorganization or other
similar business combination with one or more businesses, involving the Company.
“Business
Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York or Johannesburg,
South Africa are authorized or required by applicable law to close.
“Closing”
shall have the meaning given in the Recitals hereto.
“Commission”
shall mean the United States Securities and Exchange Commission.
“Company”
shall have the meaning given in the Preamble.
“Company
Shelf Takedown Notice” shall have the meaning given in subsection 2.1.3.
“Demand
Registration” shall have the meaning given in subsection 2.2.1.
“Demanding
Holder” shall have the meaning given in subsection 2.2.1.
“Effectiveness
Deadline” shall have the meaning given in subsection 2.1.1.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as it may be amended from time to time.
“Existing
Holders” shall have the meaning in the Preamble.
“Existing
Registration Rights Agreement” shall have the meaning given in the Recitals hereto.
“Form
F-1 Shelf” shall have the meaning given in subsection 2.1.1.
“Form
F-3 Shelf” shall have the meaning given in subsection 2.1.2.
“Holders”
shall mean the Existing Holders and the New Holders and any person or entity who hereafter becomes a party to this Agreement pursuant
to Section 5.2.
“Holder
Indemnified Parties” shall have the meaning given in subsection 4.1.1.
“Maximum
Number of Securities” shall have the meaning given in subsection 2.2.4.
“Misstatement”
shall mean an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement
or Prospectus or necessary to make the statements in a Registration Statement or Prospectus (in the case of a Prospectus, in the light
of the circumstances under which they were made) not misleading.
“Ordinary
Shares” shall have the meaning given in the Recitals hereto.
“Permitted
Transferee” shall mean a person or entity to whom a Holder of Registrable Securities transfers such Registrable Securities,
including prior to the expiration of any applicable lock-up period in accordance with the terms of such lock-up agreement, and to any
transferee thereafter.
“Piggyback
Registration” shall have the meaning given in subsection 2.3.1.
“Pro
Rata” shall have the meaning given in subsection 2.2.4.
“Prospectus”
shall mean the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended
by any and all post-effective amendments and including all material incorporated by reference in such prospectus.
“Registrable
Security” shall mean (i) any Ordinary Shares, including any shares issued as a result of, or issuable upon, the conversion
or exercise of any options, warrants and other securities convertible into, or exchangeable or exercisable for Ordinary Shares, held
by a Holder immediately following the Closing, (ii) any Ordinary Shares acquired by a Holder following the date hereof to the extent
that such securities are (a) “restricted securities” (as defined in Rule 144) or (b) otherwise cannot be sold pursuant to
Rule 144 without volume or other restrictions or limitations including as to the manner or timing of sale, and (iii) any other equity
security of the Company sold or issued or issuable with respect to any such Ordinary Share by way of a share dividend or share sub-division
or in connection with a combination of shares, recapitalization, merger, consolidation, spin-off or reorganization; provided,
however, that, as to any particular Registrable Security, such securities shall cease to be Registrable Securities when: (A) a
Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities
shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement; (B) such securities shall
have been otherwise transferred, new certificates for such securities not bearing a legend restricting further transfer shall have been
delivered by the Company and subsequent public distribution of such securities shall not require registration under the Securities Act;
(C) such securities shall have ceased to be outstanding; or (D) such securities have been sold to, or through, a broker, dealer or underwriter
in a public distribution or other public securities transaction.
“Registration”
shall mean a registration effected by preparing and filing a registration statement or similar document in compliance with the requirements
of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement becoming effective.
“Registration
Expenses” shall mean the out-of-pocket expenses of a Registration, including, without limitation, the following:
| (a) | all
registration and filing fees (including fees with respect to filings required to be made with the Financial Industry Regulatory Authority,
Inc.) and any securities exchange on which the Ordinary Shares are then listed; |
| (c) | fees
and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of outside counsel for the Underwriters
in connection with blue sky qualifications of Registrable Securities); |
| (d) | printing,
messenger, telephone and delivery expenses; |
| (e) | reasonable
fees and disbursements of counsel for the Company; |
| (f) | reasonable
fees and disbursements of all independent registered public accountants of the Company incurred specifically in connection with such
Registration; and |
| (g) | reasonable
fees and expenses of one legal counsel selected by the majority-in-interest of the Demanding Holders initiating a Demand Registration,
the majority-in-interest of Holders participating in a Piggyback Registration or the majority-in-interest of Holders participating in
a Shelf Underwritten Offering, as applicable, |
excluding,
for the avoidance of doubt, any underwriting fees, expenses, commissions and discounts, which shall be borne by the Holder of Registrable
Securities included in such Registration.
“Registration
Statement” shall mean any registration statement that covers the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus included in such registration statement, amendments (including post-effective amendments) and supplements
to such registration statement, and all exhibits to and all material incorporated by reference in such registration statement.
“Requesting
Holder” shall have the meaning given in subsection 2.2.1.
“Rule
144” shall mean Rule 144 promulgated under the Securities Act or any successor rule promulgated thereafter by the Commission.
“Rule
415” shall have the meaning given in subsection 2.1.1.
“Securities
Act” shall mean the Securities Act of 1933, as amended from time to time.
“Sponsor”
shall have the meaning given in the Recitals hereto.
“Underwriter”
shall mean a securities dealer who purchases any Registrable Securities as principal in an Underwritten Offering and not as part of such
dealer’s market-making activities.
“Underwritten
Registration” or “Underwritten Offering” shall mean a Registration in which securities of the Company are
sold to an Underwriter in a firm commitment underwriting for distribution to the public.
Article
II
REGISTRATIONS
2.1.
Shelf Registration.
2.1.1
Initial Registration. The Company shall promptly, but in no event later than 45 days after the date hereof, file a Registration
Statement under the Securities Act to permit the public resale of all the Registrable Securities held by the Holders from time to time
as permitted by Rule 415 under the Securities Act (or any successor or similar provision adopted by the Commission then in effect) (“Rule
415”) on the terms and conditions specified in this subsection 2.1.1 and shall use commercially reasonable efforts
to cause such Registration Statement to be declared effective as soon as reasonably practicable after the filing thereof, but in no event
later than the earlier of (i) 60 days following the filing deadline (or 120 days after the filing deadline if the Registration Statement
is reviewed by, and receives comments from, the Commission) and (ii) 15 Business Days after the Company is notified (orally or in writing,
whichever is earlier) by the Commission that the Registration Statement will not be “reviewed” or will not be subject to
further review. The Registration Statement filed with the Commission pursuant to this subsection 2.1.1 shall be a shelf registration
statement on Form F-1 (a “Form F-1 Shelf”) or such other form of registration statement as is then available to effect
a registration for resale of such Registrable Securities, covering such Registrable Securities, and shall contain a Prospectus in such
form as to permit any Holder to sell such Registrable Securities pursuant to Rule 415 at any time beginning on the effective date for
such Registration Statement. A Registration Statement filed pursuant to this subsection 2.1.1 shall provide for the resale
pursuant to any method or combination of methods legally available to, and requested by, the Holders. The Company shall use commercially
reasonable efforts to cause a Registration Statement filed pursuant to this subsection 2.1.1 to remain effective, and to
be supplemented and amended to the extent necessary to ensure that such Registration Statement is available or, if not available, that
another Registration Statement is available, for the resale of all the Registrable Securities held by the Holders until all such Registrable
Securities have ceased to be Registrable Securities. As soon as reasonably practicable following the effective date of a Registration
Statement filed pursuant to this subsection 2.1.1, but in any event within five Business Days of such date, the Company shall
notify the Holders of the effectiveness of such Registration Statement. When effective, a Registration Statement filed pursuant to this
subsection 2.1.1 (including the documents incorporated therein by reference) will comply as to form in all material respects
with all applicable requirements of the Securities Act and the Exchange Act and will not contain any Misstatement.
2.1.2
Form F-3 Shelf. If the initial Registration Statement filed by the Company pursuant to subsection 2.1.1 is a Form
F-1 Shelf, upon the Company becoming eligible to register the Registrable Securities for resale by the Holders on a shelf registration
statement on Form F-3 (a “Form F-3 Shelf”), the Company shall use commercially reasonable efforts to amend such initial
Registration Statement to a Form F-3 Shelf or file a Form F-3 Shelf in substitution of such initial Registration Statement and cause
such Registration Statement to be declared effective as promptly as practicable thereafter. If the Company files a Form F-3 Shelf and
at any time thereafter the Company becomes ineligible to use Form F-3 for secondary sales, the Company shall use commercially reasonable
efforts to file a Form F-1 Shelf as promptly as practicable to replace the shelf registration statement that is a Form F-3 Shelf and
have the Form F-1 Shelf declared effective as promptly as practicable and to cause such Form F-1 Shelf to remain effective, and to be
supplemented and amended to the extent necessary to ensure that such Registration Statement is available or, if not available, that another
Registration Statement is available, for the resale of all the Registrable Securities held by the Holders until all such Registrable
Securities have ceased to be Registrable Securities.
2.1.3
Shelf Takedown. At any time and from time to time following the effectiveness of the shelf registration statement required by
subsection 2.1.1 or 2.1.2, any Holder or Holders (the “Shelf Demanding Holders”) may request to
sell all or a portion of their Registrable Securities in an underwritten offering that is registered pursuant to such shelf registration
statement, including a Block Trade (a “Shelf Underwritten Offering”), provided that such Holder(s) (a) reasonably
expect aggregate gross proceeds in excess of $[●] from such Shelf Underwritten Offering or (b) reasonably expects to sell all of
the Registrable Securities held by such Holder in such Shelf Underwritten Offering but in no event less than $[●]. All requests
for a Shelf Underwritten Offering shall be made by giving written notice to the Company (the “Shelf Takedown Notice”).
Each Shelf Takedown Notice shall specify the approximate number of Registrable Securities proposed to be sold in the Shelf Underwritten
Offering and the expected price range (net of underwriting discounts and commissions) of such Shelf Underwritten Offering. Except with
respect to a Block Trade requested pursuant to Section 2.5, within five Business Days after receipt of any Shelf Takedown
Notice, the Company shall give written notice of such requested Shelf Underwritten Offering to all other Holders of Registrable Securities
(the “Company Shelf Takedown Notice”) and, subject to reductions consistent with the Pro Rata calculations in subsection 2.2.4,
shall include in such Shelf Underwritten Offering all Registrable Securities with respect to which the Company has received written requests
for inclusion therein (the “Shelf Requesting Holders”), within five Business Days after sending the Company Shelf
Takedown Notice. The Company shall enter into an underwriting agreement in a form as is customary in Underwritten Offerings of securities
with the managing Underwriter or Underwriters selected by the initiating Holders after consultation with the Company and shall take all
such other reasonable actions as are reasonably requested by the managing Underwriter or Underwriters in order to facilitate the disposition
of such Registrable Securities. In connection with any Shelf Underwritten Offering contemplated by this subsection 2.1.3,
subject to Section 3.3 and Article IV, the underwriting agreement into which each Holder and the Company shall
enter shall contain such representations, covenants, indemnities and other rights and obligations of the Company and the selling shareholders
as are customary in underwritten offerings of securities by the Company.
2.1.4
Holder Information Required for Participation in Registration. At least ten Business Days prior to the first anticipated filing
date of a Registration Statement pursuant to this Article II, the Company shall use commercially reasonable efforts to notify
each Holder in writing of the information reasonably necessary about the Holder to include such Holder’s Registrable Securities
in such Registration Statement. Notwithstanding anything else in this Agreement, the Company shall not be obligated to include such Holder’s
Registrable Securities to the extent the Company has not received such information, and received any other reasonably requested agreements
or certificates, on or prior to the third Business Day prior to the first anticipated filing date of a Registration Statement pursuant
to this Article II.
2.2.
Demand Registration.
2.2.1
Request for Registration. Subject to the provisions of subsection 2.2.4 and Section 2.4 hereof and provided
that the Company does not have an effective Registration Statement pursuant to subsection 2.1.1 outstanding covering all
the Registrable Securities, at any time and from time to time on or after the first anniversary of the Closing, either (a) the Existing
Holders of at least a majority in interest of the then-outstanding number of Registrable Securities held by the Existing Holders, or
(b) the New Holders of at least a majority-in-interest of the then-outstanding number of Registrable Securities held by the New Holders
(the “Demanding Holders”), in each case, may make a written demand for Registration under the Securities Act of all
or part of their Registrable Securities, which written demand shall describe the amount and type of securities to be included in such
Registration and the intended method(s) of distribution thereof (such written demand a “Demand Registration”). The
Company shall, within ten Business Days of the Company’s receipt of the Demand Registration, notify, in writing, all other Holders
of Registrable Securities of such demand, and each Holder of Registrable Securities who thereafter wishes to include all or a portion
of such Holder’s Registrable Securities in a Registration pursuant to a Demand Registration (each such Holder that includes all
or a portion of such Holder’s Registrable Securities in such Registration, a “Requesting Holder”) shall so notify
the Company, in writing, within five Business Days after the receipt by the Holder of the notice from the Company. Upon receipt by the
Company of any such written notification from a Requesting Holder(s), such Requesting Holder(s) shall be entitled to have their Registrable
Securities included in a Registration pursuant to a Demand Registration and the Company shall effect, as soon thereafter as practicable,
the Registration of all Registrable Securities requested by the Demanding Holder(s) and Requesting Holder(s) pursuant to such Demand
Registration, including by filing a Registration Statement relating thereto as soon as practicable, but not more than 45 days immediately
after the Company’s receipt of the Demand Registration. Under no circumstances shall the Company be obligated to effect (i) a Demand
Registration under this subsection 2.2.1 unless such Demand Registration includes Registrable Securities having an aggregate
market value of at least $[●] (based on the Registrable Securities included in such Demand Registration by all Holders participating
in such Demand Registration) or (ii) more than an aggregate of three Demand Registrations under this subsection 2.2.1; provided,
however, that a Registration shall not be counted for such purposes unless a Registration Statement that may be available for
such purposes has become effective and all of the Registrable Securities requested by the Requesting Holders and the Demanding Holders
to be registered on behalf of the Requesting Holders and the Demanding Holders in such Registration Statement (or, where applicable,
the Pro Rata allocation thereof) have been sold, in accordance with Section 3.1 of this Agreement. Notwithstanding anything
to the contrary in this subsection 2.2.1, any Demand Registration in the form of an Underwritten Offering must include, in
the aggregate, Registrable Securities having an aggregate market value of at least $[●] (based on the Registrable Securities included
in such Demand Registration by all Holders participating in such Demand Registration).
2.2.2
Effective Registration. Notwithstanding the provisions of subsection 2.2.1 above or any other part of this Agreement,
a Registration pursuant to a Demand Registration shall not count as a Demand Registration unless and until (i) the Registration Statement
filed with the Commission with respect to a Registration pursuant to a Demand Registration has been declared effective by the Commission
and (ii) the Company has complied with all of its obligations under this Agreement with respect thereto; provided, further,
that if, after such Registration Statement has been declared effective, an offering of Registrable Securities in a Registration pursuant
to a Demand Registration is subsequently interfered with by any stop order or injunction of the Commission, federal or state court or
any other governmental agency the Registration Statement with respect to such Demand Registration shall be deemed not to have been declared
effective, unless and until, (i) such stop order or injunction is removed, rescinded or otherwise terminated, and (ii) such interference
by any stop order or injunction of the Commission, federal or state court or any other governmental agency is resolved and a majority-in-interest
of the Demanding Holders initiating such Demand Registration thereafter affirmatively elect to continue with such Registration and accordingly
notify the Company in writing, but in no event later than five Business Days, of such election; provided, further, that
the Company shall not be obligated or required to file another Registration Statement until the Registration Statement that has been
previously filed with respect to a Registration pursuant to a Demand Registration becomes effective or is subsequently terminated.
2.2.3
Underwritten Offering. Subject to the provisions of subsection 2.2.4 and Section 2.4 hereof, if a majority-in-interest
of the Demanding Holders so advise the Company as part of their written demand for a Demand Registration that the offering of the Registrable
Securities pursuant to such Demand Registration shall be in the form of an Underwritten Offering, then the right of such Demanding Holder
or Requesting Holder (if any) to include its Registrable Securities in such Registration shall be conditioned upon such Holder’s
participation in such Underwritten Offering and the inclusion of such Holder’s Registrable Securities in such Underwritten Offering
to the extent provided herein. All such Holders proposing to distribute their Registrable Securities through an Underwritten Offering
under this subsection 2.2.3 shall enter into an underwriting agreement in customary form with the Underwriter(s) selected
for such Underwritten Offering by the majority-in-interest of the Demanding Holders initiating the Demand Registration, which Underwriter(s)
shall be reasonably satisfactory to the Company (such consent not to be unreasonably withheld conditioned or delayed).
2.2.4
Reduction of Underwritten Offering. If the managing Underwriter or Underwriters in an Underwritten Registration, in good faith,
advises the Company, the Demanding Holders or the Shelf Demanding Holders, as applicable, in writing that the dollar amount or number
of Registrable Securities that the Demanding Holders or the Shelf Demanding Holders, as applicable, desire to sell, taken together with
all other Ordinary Shares or other equity securities that the Company desires to sell and the Ordinary Shares, if any, as to which a
Registration has been requested pursuant to separate written contractual piggy-back registration rights held by any other shareholders
who desire to sell, exceeds the maximum dollar amount or maximum number of equity securities that can be sold in the Underwritten Offering
without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering
(such maximum dollar amount or maximum number of such securities, as applicable, the “Maximum Number of Securities”),
then the Company shall include in such Underwritten Offering, as follows: (i) first, the Registrable Securities of the Demanding Holders
or the Shelf Demanding Holders and the Requesting Holders or Shelf Requesting Holders, as applicable, (pro rata based on
the respective number of Registrable Securities that each such Holder has requested be included in such Underwritten Registration and
the aggregate number of Registrable Securities that such Holders have requested be included in such Underwritten Registration (such proportion
is referred to herein as “Pro Rata”)) that can be sold without exceeding the Maximum Number of Securities; (ii) second,
to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (i), the Ordinary Shares or other
equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; and (iii) third,
to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i) and (ii), the Ordinary Shares
or other equity securities of other persons or entities that the Company is obligated to register in a Registration pursuant to separate
written contractual arrangements with such persons and that can be sold without exceeding the Maximum Number of Securities.
2.2.5
Demand Registration Withdrawal. Any Demanding Holder, Shelf Demanding Holder, Requesting Holder or Shelf Requesting Holder pursuant
to an Underwritten Registration under subsection 2.2.1 (as applicable) shall have the right to withdraw in good faith from
a Registration pursuant to such Demand Registration or a Shelf Underwritten Offering pursuant to subsection 2.1.3 for any
or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters (if any) of their intention to withdraw
in good faith from such Registration prior to the effectiveness of the Registration Statement (or, in the case of a Shelf Underwritten
Offering, at least 5 Business Days prior to the time of the pricing of the applicable offering) filed with the Commission with respect
to the Registration of their Registrable Securities pursuant to such Demand Registration or Shelf Underwritten Offering. Notwithstanding
anything to the contrary in this Agreement, (i) the Company may effect any Underwritten Registration pursuant to any then effective Registration
Statement, including a Form F-3, that is then available for such offering and (ii) the Company shall be responsible for the Registration
Expenses incurred in connection with a Registration pursuant to a Demand Registration or a Shelf Underwritten Offering prior to its withdrawal
of any such Holder under this subsection 2.2.5.
2.3.
Piggyback Registration.
2.3.1
Piggyback Rights. If the Company proposes to register an offering of equity securities, or securities or other obligations exercisable
or exchangeable for, or convertible into equity securities, for its own account or for the account of shareholders of the Company (or
by the Company and by the shareholders of the Company), other than a Registration Statement (i) filed in connection with any employee
share option or other benefit plan, (ii) for a rights offering or an exchange offer or offering of securities solely to the Company’s
existing shareholders, (iii) for an offering of debt that is convertible into equity securities of the Company, (iv) for a dividend reinvestment
plan or an at-the-market offering or (v) on Form F-4 or Form F-8 or their successor forms, then the Company shall give written notice
of such proposed filing to all of the Holders of Registrable Securities as soon as practicable but not less than ten Business Days before
the anticipated filing date of such Registration Statement, which notice shall (A) describe the amount and type of securities to be included
in such offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter or Underwriters, if any,
in such offering, and (B) offer to all of the Holders of Registrable Securities the opportunity to register the sale of such number of
Registrable Securities as such Holders may request in writing within five Business Days after receipt of such written notice (such Registration
a “Piggyback Registration”). The Company shall, in good faith, cause such Registrable Securities to be included in
such Piggyback Registration and shall use its reasonable best efforts to cause the managing Underwriter or Underwriters of a proposed
Underwritten Offering to permit the Registrable Securities requested by the Holders pursuant to this subsection 2.3.1 to
be included in a Piggyback Registration on the same terms and conditions as any similar securities of the Company included in such Registration
and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution
thereof. All such Holders proposing to distribute their Registrable Securities through an Underwritten Offering under this subsection 2.3.1
shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by the
Company.
2.3.2
Reduction of Piggyback Registration. If the managing Underwriter or Underwriters in an Underwritten Registration that is to be
a Piggyback Registration, in good faith, advises the Company and the Holders of Registrable Securities participating in the Piggyback
Registration in writing that the dollar amount or number of the Ordinary Shares that the Company desires to sell, taken together with
(i) the Ordinary Shares, if any, as to which Registration has been demanded pursuant to separate written contractual arrangements with
persons or entities other than the Holders of Registrable Securities hereunder (ii) the Registrable Securities as to which registration
has been requested pursuant to Section 2.3 hereof, and (iii) the Ordinary Shares, if any, as to which Registration has been
requested pursuant to separate written contractual piggy-back registration rights of other shareholders of the Company, exceeds the Maximum
Number of Securities, then:
(a)
If the Registration is undertaken for the Company’s account, the Company shall include in any such Registration (A) first, the
Ordinary Shares or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of
Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the
Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to subsection 2.3.1
hereof, Pro Rata, which can be sold without exceeding the Maximum Number of Securities; and (C) third, to the extent that the Maximum
Number of Securities has not been reached under the foregoing clauses (A) and (B), the Ordinary Shares, if any, as to which Registration
has been requested or demanded pursuant to written contractual piggy-back registration rights of other shareholders of the Company, which
can be sold without exceeding the Maximum Number of Securities;
(b)
If the Registration is pursuant to a request by persons or entities other than the Holders of Registrable Securities, then the Company
shall include in any such Registration (A) first, the Ordinary Shares or other equity securities, if any, of such requesting persons
or entities, other than the Holders of Registrable Securities, which can be sold without exceeding the Maximum Number of Securities;
(B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Registrable
Securities of Holders exercising their rights to register their Registrable Securities pursuant to subsection 2.3.1, Pro
Rata, based on the respective number of Registrable Securities that each Holder has requested be included in such Underwritten Registration
and the aggregate number of Registrable Securities that the Holders have requested to be included in such Underwritten Registration,
which can be sold without exceeding the Maximum Number of Securities; (C) third, to the extent that the Maximum Number of Securities
has not been reached under the foregoing clauses (A) and (B), the Ordinary Shares or other equity securities that the Company desires
to sell, which can be sold without exceeding the Maximum Number of Securities; and (D) fourth, to the extent that the Maximum Number
of Securities has not been reached under the foregoing clauses (A), (B) and (C), the Ordinary Shares or other equity securities for the
account of other persons or entities that the Company is obligated to register pursuant to separate written contractual arrangements
with such persons or entities, which can be sold without exceeding the Maximum Number of Securities.
2.3.3
Piggyback Registration Withdrawal. Any Holder of Registrable Securities shall have the right to withdraw from a Piggyback Registration
for any or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters (if any) of his, her or
its intention to withdraw from such Piggyback Registration prior to the effectiveness of the Registration Statement filed with the Commission
with respect to such Piggyback Registration (or in the case of an Underwritten Registration pursuant to Rule 415, at least two Business
Days prior to the time of pricing of the applicable offering). The Company (whether on its own good faith determination or as the result
of a request for withdrawal by persons pursuant to separate written contractual obligations) may withdraw a Registration Statement filed
with the Commission in connection with a Piggyback Registration at any time prior to the effectiveness of such Registration Statement.
Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in
connection with the Piggyback Registration prior to its withdrawal under this subsection 2.3.3.
2.3.4
Unlimited Piggyback Registration Rights. For purposes of clarity, any Registration effected pursuant to Section 2.3
hereof shall not be counted as a Registration pursuant to a Demand Registration effected under Section 2.2 hereof or a Shelf
Underwritten Offering effected under subsection 2.1.3 hereof.
2.4.
Restrictions on Registration Rights. If (A) during the period starting with the date 60 days prior to the Company’s good
faith estimate of the date of the filing of, and ending on a date 180 days after the effective date of, a Company initiated Registration
and provided that the Company has delivered written notice to the Holders prior to receipt of a Demand Registration pursuant to subsection 2.2.1
and it continues to actively employ, in good faith, all reasonable efforts to cause the applicable Registration Statement to become
effective; (B) the Holders have requested an Underwritten Registration and the Company and the Holders are unable to obtain the commitment
of an Underwriter(s) to firmly underwrite the offer; or (C) in the good faith judgment of the Company, such Registration would be detrimental
to the Company (including, inter alia, requiring preparation of audited financial statements for the Company as of a date other
than its fiscal year end or rendering the Company unable to comply with requirements under the Securities Act or Exchange Act) or would
require the Company to make an Adverse Disclosure and the Company concludes as a result that it is reasonable to defer the filing of
such Registration Statement at such time, in which case the Company shall furnish to such Holders a certificate signed by the Chief Executive
Officer or the Chief Financial Officer of the Company stating that in their good faith judgment it would be detrimental to the Company
to file such Registration Statement in the near future or would require the Company to make an Adverse Disclosure and that it is therefore
reasonable to defer the filing of such Registration Statement, then in each case, the Company shall have the right to defer such filing
for a period of not more than 90 days in any 12-month period. (the “Aggregate Blocking Period”). Notwithstanding anything
to the contrary in this Agreement, (A) the Company shall not be required to effect or permit any Registration or cause any Registration
Statement to become effective within 90 days after the effective date of a previous Registration in which Holders of Registrable Securities
were permitted to register the offer and sale under the Securities Act, and actually sold at least 80% of Registrable Securities requested
to be included therein (or, where applicable, the Pro Rata allocation thereof) and (B) each of the parties hereto agrees that the registration
rights provided to the Holders herein are not intended to, and shall not be deemed to, override or modify any other restrictions on transfer
to which any such Holder may otherwise be subject.
2.5.
Block Trades. Notwithstanding any other provision of this Article II, but subject to Sections 2.4 and 3.4,
if the Holders desire to effect a Block Trade by delivering a Shelf Takedown Notice pursuant to subsection 2.1.3 or a Demand
Registration pursuant to subsection 2.2.1, then such Demanding Holder(s) shall provide written notice to the Company at least
five (5) Business Days prior to the proposed date such Block Trade will commence. The Company shall use its reasonable best efforts to
facilitate such Block Trade. The Demanding Holders shall use best efforts to work with the Company and the Underwriter(s) (including
by disclosing the maximum number of Registrable Securities proposed to be the subject of such Block Trade) in order to facilitate preparation
of the Registration Statement, Prospectus and other offering documentation related to the Block Trade and any related due diligence and
comfort procedures. Prior to the filing of the applicable “red herring” prospectus or prospectus supplement used in connection
with a Block Trade, the Demanding Holders initiating such Block Trade shall have the right to withdraw from such Block Trade, in good
faith and en bloc, upon written notification to the Company and the Underwriter or Underwriters (if any) of their intention to
withdraw from such Block Trade. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the
Registration Expenses incurred in connection with a Block Trade prior to such Demanding Holders’ withdrawal under this Section 2.5.
Notwithstanding anything to the contrary in this Agreement, Section 2.3 shall not apply to a Block Trade initiated by a Demanding
Holder pursuant to this Agreement. The Demanding Holder(s) initiating a Block Trade shall have the right to select the Underwriter(s)
for such Block Trade (which shall consist of one or more reputable nationally recognized investment banks), which Underwriter(s) shall
be reasonably satisfactory to the Company. No Holder may effect more than [●] Block Trades pursuant to this Section 2.5
in any 12 month period.
2.6.
Rule 415; Removal. If at any time the Commission takes the position that the offering of some or all of the Registrable Securities
in a Registration Statement on Form F-3 filed pursuant to this Article II is not eligible to be made on a delayed or continuous
basis under the provisions of Rule 415 under the Securities Act (provided, however, the Company shall be obligated to use reasonable
efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the Commission guidance,
including without limitation, Compliance and Disclosure Interpretation 612.09) or requires a Holder to be named as an “underwriter,”
the Company shall (i) promptly notify each Holder of Registrable Securities thereof (or in the case of the Commission requiring a Holder
to be named as an “underwriter,” the Holders) and (ii) use reasonable efforts to persuade the Commission that the offering
contemplated by such Registration Statement is a valid secondary offering and not an offering “by or on behalf of the issuer”
as defined in Rule 415 and that none of the Holders is an “underwriter.” The Holders whose Registrable Securities are subject
to such position of the Commission shall have the right to select one (1) legal counsel designated by the Holders of a majority in-interest
of the Registrable Securities subject to such position of the Commission (at the Company’s sole cost and expense, provided such
cost is in line with market practice) to review and oversee any registration or matters pursuant to this Section 2.6, including
participation in any meetings or discussions with the Commission regarding the Commission’s position and to comment on any written
submission made to the Commission with respect thereto. No such written submission regarding the Holders with respect to this matter
shall be made to the Commission to which the applicable Holders’ counsel reasonably objects. In the event that, despite the Company’s
reasonable best efforts and compliance with the terms of this Section 2.6, the Commission refuses to alter its position,
the Company shall (i) remove from such Registration Statement such portion of the Registrable Securities (the “Removed Shares”)
and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the Commission
may require to assure the Company’s compliance with the requirements of Rule 415; provided, however, that, notwithstanding anything
to the contrary in this Agreement, the Company shall not agree to name any Holder as an “underwriter” in such Registration
Statement without the prior written consent of such Holder. In the event of a share removal pursuant to this Section 2.6,
the Company shall give the applicable Holders at least five days’ prior written notice along with the calculations as to such Holder’s
allotment. Any removal of shares of the Holders pursuant to this Section 2.6 shall be allocated between the Holders on a
Pro Rata basis based on the aggregate amount of Registrable Securities held by the Holders. In the event of a share removal of the Holders
pursuant to this Section 2.6, the Company shall promptly register the resale of any Removed Shares pursuant to subsection 2.1.2
hereof and in no event shall the filing of such Registration Statement on Form F-1 or subsequent Registration Statement on Form F-3
filed pursuant to the terms of subsection 2.1.2 be counted as a Demand Registration hereunder. Until such time as the Company
has registered all of the Removed Shares for resale pursuant to Rule 415 on an effective Registration Statement, the Company shall not
be able to defer the filing of a Registration Statement pursuant to Section 2.4 hereof.
Article
III
COMPANY PROCEDURES
3.1.
General Procedures. If the Company is required to effect the Registration of Registrable Securities pursuant to Article II
hereof, the Company shall use its best efforts to effect such Registration to permit the sale of such Registrable Securities in accordance
with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible:
(a)
prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and
use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities
covered by such Registration Statement have been sold;
(b)
prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements
to the Prospectus, as may be reasonably requested by the majority-in-interest of the Holders with Registrable Securities registered on
such Registration Statement or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions
applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration
Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended
plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
(c)
prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters,
if any, and each Holder of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such
Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including
all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including
each preliminary Prospectus), and such other documents as the Underwriters and each Holder of Registrable Securities included in such
Registration or the legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable Securities
owned by such Holders;
(d)
3.1.4 notify the Holders whose Registrable Securities are included in a Registration Statement promptly in all events within two Business
Days of the occurrence of any of the following: (i) when such Registration Statement becomes effective; (ii) when any post-effective
amendment to such Registration Statement becomes effective; and (iii) any request by the Commission for any amendment or supplement to
such Registration Statement or any Prospectus relating thereto or for additional information or of the occurrence of an event requiring
the preparation of a supplement or amendment to such Prospectus so that, as thereafter delivered to the purchasers of the securities
covered by such Registration Statement, such Prospectus will not contain a Misstatement, and promptly make available to the Holders whose
Registrable Securities are included in such Registration Statement any such supplement or amendment;
(e)
prior to any public offering of Registrable Securities, use its reasonable best efforts to (i) register or qualify the Registrable Securities
covered by the Registration Statement under such securities or “blue sky” laws of any applicable jurisdiction as any
Holder of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may reasonably
request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered
with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and
do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such
Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however,
that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required
to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it
is not then otherwise so subject;
(f)
cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities
issued by the Company are then listed;
(g)
provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective
date of such Registration Statement;
(h)
advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance
of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any
proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal
if such stop order should be issued;
(i)
at least five days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration
Statement or Prospectus furnish a copy thereof to each seller of such Registrable Securities or its counsel;
(j)
notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities
Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes
a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
(k)
permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriter(s),
if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense,
in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information
reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided,
however, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory
to the Company, prior to the release or disclosure of any such information; and provided further, the Company may not include the name
of any Holder or Underwriter or any information regarding any Holder or Underwriter in any Registration Statement or Prospectus, any
amendment or supplement to such Registration Statement or Prospectus, any document that is to be incorporated by reference into such
Registration Statement or Prospectus, or any response to any comment letter, without the prior written consent of such Holder or Underwriter
and providing each such Holder or Underwriter a reasonable amount of time to review and comment on such applicable document;
(l)
obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten
Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing
Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
(m)
on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel
representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any,
and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being
given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions
and negative assurance letters, and reasonably satisfactory to a majority in interest of the participating Holders;
(n)
in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary
form, with the managing Underwriter of such offering;
(o)
make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least 12 months
beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement
which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(p)
upon reasonable notice and during normal business hours, make available for inspection by the Holders whose Registrable Securities are
included in such Registration Statement, any Underwriter participating in any disposition pursuant to such Registration Statement and
any attorney, accountant or other professional retained by any Holder whose Registrable Securities are included in such Registration
Statement or any Underwriter, all financial and other records, pertinent corporate documents and properties of the Company, as shall
be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors
and employees to supply all information reasonably requested by any of them in connection with such Registration Statement;
(q)
if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $[●], use its reasonable
efforts to make available senior executives of the Company to participate in customary “road show” presentations that may
be reasonably requested by the Underwriter in any Underwritten Offering with all out-of-pocket costs and expenses incurred by the Company
or such officers in connection with such attendance and participation to be paid by the Company; and
(r)
otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in
connection with such Registration.
3.2.
Registration Expenses. Except as otherwise provided herein, the Registration Expenses of all Registrations shall be borne by the
Company. It is acknowledged by the Holders that the Holders shall bear all incremental selling expenses relating to the sale of Registrable
Securities, such as Underwriters’ commissions and discounts, brokerage fees, Underwriter marketing costs and, other than as set
forth in the definition of “Registration Expenses,” all reasonable fees and expenses of any legal counsel representing
the Holders.
3.3.
Requirements for Participation in Underwritten Offerings. No person may participate in any Underwritten Offering for equity securities
of the Company pursuant to a Registration initiated by the Company hereunder unless such person (i) agrees to sell such person’s
securities on the basis provided in any underwriting arrangements approved by the Company and (ii) completes and executes all customary
questionnaires, powers of attorney, indemnities, lock-up agreements, underwriting agreements and other customary documents as may be
reasonably required under the terms of such underwriting arrangements.
3.4.
Suspension of Sales; Adverse Disclosure. Upon receipt of written notice from the Company that a Registration Statement or Prospectus
contains a Misstatement, each of the Holders shall forthwith discontinue disposition of Registrable Securities until he, she or it has
received copies of a supplemented or amended Prospectus correcting the Misstatement (it being understood that the Company hereby covenants
to prepare and file such supplement or amendment as soon as practicable after the time of such notice), or until he, she or it is advised
in writing by the Company that the use of the Prospectus may be resumed. If the filing, initial effectiveness or continued use of a Registration
Statement in respect of any Registration at any time would require the Company to make an Adverse Disclosure or would require the inclusion
in such Registration Statement of financial statements that are unavailable to the Company for reasons beyond the Company’s control,
the Company may, upon giving prompt written notice of such action to the Holders, delay the filing or initial effectiveness of, or suspend
use of, such Registration Statement for the shortest period of time, but in no event more than 90 days, determined in good faith by the
Company to be necessary for such purpose. In the event the Company exercises its rights under the preceding sentence, the Holders agree
to suspend, immediately upon their receipt of the notice referred to above, their use of the Prospectus relating to any Registration
in connection with any sale or offer to sell Registrable Securities. The Company shall immediately notify the Holders of the expiration
of any period during which it exercised its rights under this Section 3.4.
3.5.
Reporting Obligations. As long as any Holder shall own Registrable Securities, the Company, at all times while it shall be a reporting
company under the Exchange Act, covenants to file timely (or obtain extensions in respect thereof and file within the applicable grace
period) all reports required to be filed by the Company after the date hereof pursuant to Sections 13(a) or 15(d) of the Exchange Act.
The Company further covenants that it shall take such further action as any Holder may reasonably request, all to the extent required
from time to time to enable such Holder to sell Ordinary Shares held by such Holder without registration under the Securities Act within
the limitation of the exemption provided by Rule 144 promulgated under the Securities Act, including providing any legal opinions.
Article
IV
INDEMNIFICATION AND CONTRIBUTION
4.1.
Indemnification.
4.1.1
The Company agrees to indemnify, to the extent permitted by law, each Holder of Registrable Securities, its officers, directors and agents
and each person who controls such Holder (within the meaning of the Securities Act) (the “Holder Indemnified Parties”)
against all losses, judgements, claims, actions, damages, liabilities and out-of-pocket expenses (including without limitation reasonable
outside attorneys’ fees) resulting from any untrue or alleged untrue statement of material fact contained in any Registration Statement,
Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are caused
by or contained in any information or affidavit so furnished in writing to the Company by such Holder expressly for inclusion therein.
The Company shall promptly reimburse the Holder Indemnified Parties for any legal and any other expenses reasonably incurred and documented
by such Holder Indemnified Party in connection with investigating and defending any such losses, judgments, claims, actions, damages,
liabilities or expenses. The Company shall indemnify the Underwriters, their officers and directors and each person who controls such
Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to the indemnification
of the Holder.
4.1.2
In connection with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish
to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration
Statement or Prospectus and, to the extent permitted by law, shall indemnify the Company, its directors, officers and agents and each
person who controls the Company (within the meaning of the Securities Act) against all losses, judgements, claims, actions, damages,
liabilities and out-of-pocket expenses (including without limitation reasonable outside attorneys’ fees) resulting from any untrue
or alleged untrue statement of material fact contained in any Registration Statement, Prospectus or preliminary Prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, but only to the extent that such untrue statement or omission is contained in any information
or affidavit so furnished in writing by such Holder expressly for inclusion therein; provided, however, that the obligation
to indemnify shall be several, not joint and several, among such Holders of Registrable Securities, and the liability of each such Holder
of Registrable Securities shall be in proportion to and limited to the net proceeds received by such Holder from the sale of Registrable
Securities pursuant to such Registration Statement. The Holders of Registrable Securities shall indemnify the Underwriters, their officers,
directors and each person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in
the foregoing with respect to indemnification of the Company.
4.1.3
Any person entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s right to indemnification
hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s
reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit
such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense
is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its
consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume
the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may
exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall,
without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled
in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement)
or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect to such claim or litigation.
4.1.4
The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified party or any officer, director or controlling person of such indemnified party and shall survive the transfer
of securities. The Company and each Holder of Registrable Securities participating in an offering also agrees to make such provisions
as are reasonably requested by any indemnified party for contribution to such party in the event the Company’s or such Holder’s
indemnification is unavailable for any reason.
4.1.5
If the indemnification provided under Section 4.1 hereof from the indemnifying party is unavailable or insufficient to hold
harmless an indemnified party in respect of any losses, claims, damages, liabilities and out-of-pocket expenses referred to herein, then
the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified
party as a result of such losses, claims, damages, liabilities and out-of-pocket expenses in such proportion as is appropriate to reflect
the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact,
was made by, or relates to information supplied by, such indemnifying party or indemnified party, and the indemnifying party’s
and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action and
the benefits received by such indemnifying party or indemnified party; provided, however, that the liability of any Holder
under this subsection 4.1.5 shall be limited to the amount of the net proceeds received by such Holder in such offering giving
rise to such liability (after payment of any underwriting fees, discounts commissions or taxes). The amount paid or payable by a party
as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in
subsections 4.1.1, 4.1.2 and 4.1.3 above, any legal or other fees, charges or out-of-pocket expenses reasonably
incurred by such party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable
if contribution pursuant to this subsection 4.1.5 were determined by Pro Rata allocation or by any other method of allocation,
which does not take account of the equitable considerations referred to in this subsection 4.1.5. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this subsection 4.1.5
from any person who was not guilty of such fraudulent misrepresentation.
Article
V
MISCELLANEOUS
5.1.
Notices. Any notice or communication under this Agreement must be in writing and given by (i) deposit in the United States mail,
addressed to the party to be notified, postage prepaid and registered or certified with return receipt requested, (ii) delivery in person
or by courier service providing evidence of delivery, or (iii) transmission by hand delivery, electronic mail or facsimile. Each notice
or communication that is mailed, delivered, or transmitted in the manner described above shall be deemed sufficiently given, served,
sent, and received, in the case of mailed notices, on the third Business Day following the date on which it is mailed and, in the case
of notices delivered by courier service, hand delivery, electronic mail or facsimile, at such time as it is delivered to the addressee
(with the delivery receipt or the affidavit of messenger) or at such time as delivery is refused by the addressee upon presentation.
Any notice or communication under this Agreement must be addressed, if to the Company, to: [Newco Address], and, if to any Holder, at
such Holder’s address or contact information as set forth in the Company’s books and records. Any party may change its address
for notice at any time and from time to time by written notice to the other parties hereto.
5.2.
Assignment; No Third Party Beneficiaries.
5.2.1
This Agreement and the rights, duties and obligations of the Company and the Holders of Registrable Securities, as the case may be, hereunder
may not be assigned or delegated by the Company or the Holders of Registrable Securities, as the case may be, in whole or in part, except
in connection with a transfer of Registrable Securities by such Holder to a Permitted Transferee.
5.2.2
This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and its successors
and the permitted assigns of the Holders, which shall include Permitted Transferees.
5.2.3
This Agreement shall not confer any rights or benefits on any persons that are not parties hereto, other than as expressly set forth
in this Agreement and Section 5.2 hereof.
5.2.4
No assignment by any party hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate the
Company unless and until the Company shall have received (i) written notice of such assignment as provided in Section 5.1
hereof and (ii) the written agreement of the assignee, in a form reasonably satisfactory to the Company, to be bound by the terms and
provisions of this Agreement (which may be accomplished by an addendum or certificate of joinder to this Agreement). Any transfer or
assignment made other than as provided in this Section 5.2 shall be null and void.
5.3.
Counterparts. This Agreement may be executed in multiple counterparts (including facsimile, electronic signature or PDF counterparts),
each of which shall be deemed an original, and all of which together shall constitute the same instrument, but only one of which need
be produced.
5.4.
Governing Law; Venue. NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY OF THE PARTIES HERETO, THE PARTIES
EXPRESSLY AGREE THAT THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF NEW YORK AS APPLIED TO AGREEMENTS
AMONG NEW YORK RESIDENTS ENTERED INTO AND TO BE PERFORMED ENTIRELY WITHIN NEW YORK.
5.5.
Amendments and Modifications. Upon the written consent of the Company and the Holders of at least a majority in interest of the
Registrable Securities at the time in question, compliance with any of the provisions, covenants and conditions set forth in this Agreement
may be waived, or any of such provisions, covenants or conditions may be amended or modified; provided, however, that notwithstanding
the foregoing, any amendment hereto or waiver hereof that affects either of (x) the Existing Holders as a group or (y) the New Holders
as a group, respectively, in a manner that is materially adversely different from any other Holders, as applicable, shall require the
prior written consent of (1) a majority-in-interest of the Registrable Securities held by such Existing Holders or (2) a majority-in-interest
of the Registrable Securities held by such New Holders, as applicable, prior to entering into such amendment or waiver, provided, further
that notwithstanding the foregoing, any amendment hereto or waiver hereof that affects one Holder or group of affiliated Holders, solely
in its capacity as a holder of the shares of capital stock of the Company, in a manner that is materially adversely different from the
other Holders (in such capacity) shall require the consent of the Holder or group of affiliated Holders so affected. No course of dealing
between any Holder or the Company and any other party hereto or any failure or delay on the part of a Holder or the Company in exercising
any rights or remedies under this Agreement shall operate as a waiver of any rights or remedies of any Holder or the Company. No single
or partial exercise of any rights or remedies under this Agreement by a party shall operate as a waiver or preclude the exercise of any
other rights or remedies hereunder or thereunder by such party.
5.6.
Other Registration Rights. The Company represents and warrants that no person, other than a Holder of Registrable Securities,
has any right to require the Company to register any securities of the Company for sale or to include such securities of the Company
in any Registration filed by the Company for the sale of securities for its own account or for the account of any other person. Further,
the Company represents and warrants that this Agreement supersedes any other registration rights agreement or agreement with similar
terms and conditions and in the event of a conflict between any such agreement or agreements and this Agreement, the terms of this Agreement
shall prevail.
5.7.
Term. This Agreement shall terminate upon the tenth anniversary of the date of this Agreement, and shall be of no further force
or effect with respect to any party (other than the Company) on the date that such party no longer holds any Registrable Securities.
The provisions of Section 3.5 and Article IV shall survive any termination.
5.8.
Legend Removal. If a Holder holds Registrable Securities that are eligible to be sold without restriction under Rule 144 (other
than the restriction set forth under Rule 144(i)) or pursuant to an effective Registration Statement, then, at such Holder’s request,
accompanied by such additional representations and other documents as the Company shall reasonably request, the Company shall cause the
Company’s transfer agent to remove any restrictive legend set forth on the Registrable Securities held by such Holder in connection
with any sale of such Registrable Securities pursuant to Rule 144 or the effective Registration Statement, as applicable (including,
if required by the Company’s transfer agent, by delivering to the Company’s transfer agent a direction letter and opinion
of counsel).
5.9.
Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof
shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any
such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision
as similar in terms to such invalid or unenforceable provision as may be possible that is valid and enforceable.
5.10.
Entire Agreement. This Agreement (including all agreements entered into pursuant hereto and all certificates and instruments delivered
pursuant hereto and thereto) constitute the entire agreement of the parties with respect to the subject matter hereof and supersede all
prior and contemporaneous agreements, representations, understandings, negotiations and discussions between the parties, whether oral
or written.
5.11.
Titles and Headings. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction
of any provision of this Agreement.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
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COMPANY: |
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RIGEL RESOURCE ACQUISITION CORP. |
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a Cayman Islands exempted company |
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By: |
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Name: |
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Title: |
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SPONSOR: |
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RIGEL RESOURCE ACQUISITION HOLDING LLC, |
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a Cayman Islands limited liability company |
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By: |
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Name: |
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Title: |
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[Signature Page to Registration
Rights Agreement]
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EXISTING
HOLDERS: |
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[●],
a [●] |
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By: |
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Name: |
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Title: |
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[Signature Page to Registration
Rights Agreement]
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NEW HOLDERS: |
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[●],
a [●] |
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By: |
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Name: |
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Title: |
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[Signature Page to Registration
Rights Agreement]
EXHIBIT B
Sponsor Support Agreement
[see attached]
EXHIBIT C
Form of Restrictive Legend
[see attached]
Exhibit 2.2
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ENSafrica
The MARC | Tower 1
129 Rivonia Road Sandton
Johannesburg South Africa 2196
P O Box 783347 Sandton South Africa 2146
Docex 152 Randburg
tel +2711 269 7600
info@ENSafrica.com |
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11.3.24
Execution Version
EXCHANGE AGREEMENT
entered into between
RRAC NEWCO
and
BLYVOOR GOLD PROPRIETARY LIMITED
(Registration No. 2015/122164/07)
and
ORION MINE FINANCE FUND II l.P.
(Company No. OC404376)
and
BLYVOOR GOLD OPERATIONS PROPRIETARY LIMITED
(Registration No. 2015/252759/07)
and
BLYVOOR GOLD RESOURCES PROPRIETARY LIMITED
(Registration No. 2016/357084/07)
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law | tax | forensics | IP |
Edward
Nathan Sonnenbergs Incorporated |
registration
number 2006/018200/21 |
WHEREBY IT IS AGREED AS FOLLOWS:
|
1. |
INTERPRETATION AND PRELIMINARY |
The headings of the clauses in this Agreement are for the purpose of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms of this Agreement nor any clause hereof. Unless a contrary intention clearly appears -
|
1.1.1. |
any one gender include the other two genders; |
|
1.1.1 |
the singular include the plural and vice versa; and |
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1.1.2. |
persons include natural person, juristic persons, created entities (corporate or un-incorporate), the State and vice versa; |
|
1.2. |
each of the following terms shall have the meaning assigned to them in the BCA and cognate expressions shall have corresponding meanings: “Acquisition Transaction”; “Blyvoor Gold”; “Blyvoor Resources”; “Closing Date”; “Contract”; “Deferred Share Consideration”; “Earnout Share Consideration”; “Exchange Act”; “First Earnout Share Consideration”; “First Base Case Milestone”; “First Downside Milestone”; “Gold Resources Shares”; “Gold Resources Share Consideration”; “Gold Tailings Shares”; “Gold Tailings Share Consideration”; “Intended Tax Treatment”; “Knowledge”; “Law”; “Merger Sub”; “Newco”; “Newco Ordinary Shares”; “Orion”; “Orion Resources Shares”; “Orion Resources Consideration”; “Orion Share Consideration”; “Registration Statement”; “Rigel”; “SARS”; “SEC”; “Securities Act”; “Seller”; “Sellers”; “Second Earnout Share Consideration”; “Second Base Case Milestone”; “Second Downside Milestone”; “Tax Returns”; “Tailings”; “Target Companies”; “Target Group Companies”; “Transactions”; and “Transaction Agreements”; |
|
1.3. |
the following terms shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings, namely – |
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1.3.1. |
“Agreement” means this exchange agreement together with all annexures attached hereto (if any), as may be amended from time to time; |
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1.3.2. |
“BCA” means the business combination agreement entered into, or to be entered into, between Blyvoor Resources, Tailings, Rigel, Merger Sub and Newco, contemporaneously with this Agreement; |
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1.3.3. |
“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York or Johannesburg, South Africa are authorized or required by Law to close; |
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1.3.4. |
“Companies Act” means the Companies Act No. 71 of 2008, as amended; |
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1.3.5. |
“Dispose” means undertaking any transaction or arrangement whose ultimate direct or indirect effect is to transfer ownership, possession, interest and/or economic benefit in all or any of the shares from one person to another, including by, and whether in whole or in part, selling, donating, exchanging, ceding, assigning, unbundling, distributing or otherwise alienating and/or transferring their ownership, possession, interest and/or economic benefit in all or any of the shares (and whether by undertaking any back-to-back arrangement/s or transaction/s or series of arrangements or transactions, grant of any options or any other transaction which has the same effect as aforesaid), whether or not such aforesaid transaction/s are subject to any suspensive, resolutive or other condition/s, and “Disposal”, “Disposed” and “Disposing” shall be construed accordingly; |
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1.3.6. |
“Exchange Consideration” means collectively the Gold Resources Share Consideration, the Orion Share Consideration, the First Earnout Share Consideration (if applicable) and the Second Earnout Share Consideration (if applicable); |
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1.3.7. |
“Exchange Shares” means collectively the Gold Resources Shares and the Orion Resources Shares; |
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1.3.8. |
“Income Tax Act” means the Income Tax Act No. 58 of 1962, as amended; |
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1.3.9. |
“Milestone” means, as applicable, the First Base Case Milestone, the First Downside Milestone, the Second Base Case Milestone and the Second Downside Milestone; |
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1.3.10. |
“Parties” means the parties to this Agreement, being Blyvoor Gold, Orion, Blyvoor Resources, Newco and Tailings, and includes reference to any one or more of them, as the context may require; |
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1.3.11. |
“Signature Date” means the date of signature of this Agreement by the Party signing last in time; |
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1.3.12. |
“STT Liability” means securities transfer tax levied in terms of the STT Act and all related penalties, charges, costs and interest whether by way of assessment or otherwise which may be levied or may arise on such securities transfer tax; |
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1.3.13. |
“STT Act” means the Securities Transfer Tax Act No. 25 of 2007, as amended; and |
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1.3.14. |
“Voting Shares” means, taken together, all securities of Blyvoor Resources and Tailings beneficially owned (as such term is defined in Rule 13d-3 under the Exchange Act, excluding shares of stock underlying unexercised options or warrants, but including any shares of stock acquired upon exercise of such options or warrants) by each Seller, including any and all securities of Blyvoor Resources or Tailings acquired and held in such capacity subsequent to the date hereof; |
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1.4. |
when any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which case the last day shall be the succeeding Business Day. |
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1.5. |
the rule of construction that a contract shall be interpreted against the Party responsible for the drafting or preparation of the contract, shall not apply; |
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1.6. |
the expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this; |
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1.7. |
any reference in this Agreement to a Party shall include a reference to that Party’s assigns expressly permitted under this Agreement and, if such Party is liquidated, placed under business rescue proceedings or sequestrated, be applicable also to and binding upon that Party’s liquidator, business rescue practitioner or trustee, as the case may be; and |
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1.8. |
the words “include”, “including”, “in particular”, “other” and “otherwise” shall be construed as being by way of example or emphasis only and shall not be construed as, nor shall they take effect as, limiting the generality of any preceding word/s (and as such the eiusdem generis rule shall not apply). |
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2.1. |
It is recorded that the Parties intend to enter into a series of separate but indivisible transactions, as set out in clause 4, in terms of which, inter alia – |
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2.1.1. |
Blyvoor Gold will: |
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2.1.1.1. |
Dispose of the Gold Resources Shares to Newco, and in turn, acquire from Newco, who will allot and issue, the Gold Resources Share Consideration, and where applicable Blyvoor Gold’s proportion of the Earnout Share Consideration, to Blyvoor Gold; and |
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2.1.1.2. |
Dispose of the Gold Tailings Shares to Newco, and in turn, acquire from Newco, who will allot and issue, the Gold Tailings Share Consideration and the Deferred Share Consideration, to Blyvoor Gold, |
(collectively the “Blyvoor Exchange Transaction”); and
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2.1.2. |
Orion will Dispose of the Orion Resources Shares to Newco, and in turn, acquire from Newco, who will allot and issue, the Orion Share Consideration to Orion, |
(collectively, the “Exchange Transactions”).
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2.2. |
The Parties have set out the terms and conditions of the Exchange Transactions in this Agreement. |
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3.1. |
The Exchange Transactions are subject to the fulfilment of the following Conditions Precedent: |
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3.1.1. |
the BCA is concluded and becomes unconditional in accordance with its terms; and |
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3.1.2. |
the conditions in Section 11.04 of the BCA have been fulfilled. |
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3.2. |
The Conditions Precedent are incapable of waiver. |
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3.3. |
Should the Conditions Precedent not be fulfilled then the provisions of clause 1 (Interpretation and Preliminary), this clause 3 (Conditions Precedent) and 11 (General) shall continue to be of force and effect. |
The Parties shall consummate the Exchange Transactions, and with effect on and as from the Closing Date, as follows:
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4.1.1. |
Blyvoor Gold hereby sells to Newco, which hereby purchases from Blyvoor Gold, the Gold Tailings Shares in terms of an “asset-for-share transaction” as defined in section 42(1) of the Income Tax Act. |
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4.1.2. |
In consideration for the sale of the Gold Tailings Shares, Newco hereby allots and issues the Gold Tailings Share Consideration, credited as fully paid-up, to Blyvoor Gold upon update to the register of members of Newco. |
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4.1.3. |
As additional consideration for the transfer, cession, delegation and assignment of the Gold Tailings Shares, Newco shall allot and issue the Deferred Share Consideration, credited as fully paid-up, to Blyvoor Gold as promptly as practicable after the date that is 90 days following the Closing (but in no event later than two (2) Business Days thereafter). |
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4.1.4. |
Newco shall, on the Closing Date and against the full and final discharge of Blyvoor Gold’s obligations with respect to the Gold Tailings Shares (which, it is recorded, is the cession, delegation and assignment of, all of Blyvoor Gold’s rights, obligations and interests in, under and in terms of the Gold Tailings Shares, which Newco accepts), allot and issue the Gold Tailings Share Consideration to Blyvoor Gold, credited as fully paid-up. Accordingly, ownership, risk and benefit in and to the Gold Tailings Shares shall pass from Blyvoor Gold to Newco with effect on and as of the Closing Date. |
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4.2.1. |
Immediately subsequent to the transactions contemplated in clauses 4.1.1 and 4.1.2 above, Blyvoor Gold hereby sells to Newco, which hereby purchases from Blyvoor Gold, the Gold Resources Shares in terms of an “asset-for-share transaction” as defined in section 42(1) of the Income Tax Act and Orion hereby sells to Newco, which hereby purchases from Orion, the Orion Resources Shares. |
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4.2.2. |
In consideration for the - |
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4.2.2.1. |
sale of the Gold Resources Shares, Newco hereby allots and issues the Gold Resources Share Consideration, credited as fully paid-up, to Blyvoor Gold; and |
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4.2.2.2. |
sale of the Orion Resources Shares, Newco hereby allots and issues the Orion Share Consideration, credited as fully paid-up, to Orion. |
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4.2.3. |
As additional consideration for the transfer, cession, delegation and assignment of the Blyvoor Resources Shares, Newco shall allot and issue the First Earnout Share Consideration, credited as fully paid-up, to Blyvoor Gold and Orion in their relevant proportions, as applicable, no later than 10 Business Days after the expiration of the First Earnout Period; provided that the applicable Milestone, as provided in Section 4.02(b) of the BCA, is met during the First Earnout Period. |
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4.2.4. |
As additional further consideration for the transfer, cession, delegation and assignment of the Blyvoor Resources Shares, Newco shall allot and issue the Second Earnout Share Consideration, credited as fully paid-up, to Blyvoor Gold and Orion in their relevant proportions, as applicable, no later than 10 Business Days after the expiration of the Second Earnout Period; provided that the applicable Milestone, as provided in Section 4.02(b) of the BCA, is met during the Second Earnout Period. |
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4.2.5. |
Newco shall, on the Closing Date and against the full and final discharge of each Sellers’ obligation with respect to the applicable Exchange Shares (which, it is recorded, is the cession, delegation and assignment of all of Sellers’ obligations and interests in, under and in terms of the Exchange Shares, which Newco accepts) allot and issue the applicable Exchange Consideration to the Sellers, credited as fully paid up. Accordingly, ownership, risk and benefit in and to the Exchange Consideration shall pass from the Sellers to Newco with effect on and as from the Closing Date. |
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5. |
TRANSACTIONS IN TERMS OF SECTION 42 OF THE INCOME TAX ACT |
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5.1. |
Newco and Blyvoor Gold acknowledge and agree that the provisions of section 42 of the Income Tax Act, dealing with corporate tax roll-over relief in the case where an asset is exchanged for the issue of shares, will apply to Newco, Blyvoor Gold, Blyvoor Resources and Tailings in respect of the transactions referenced in clause 2.1.1 of this Agreement. |
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5.2. |
With reference to section 42 of the Income Tax Act, - |
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5.2.1. |
Blyvoor Gold affirms that the Gold Resources Shares and the Gold Tailings Shares were held as capital assets and that the market value of each of the Gold Resources Shares and Gold Tailings Shares exceed their respective, individual base cost as at the Closing Date; and |
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5.2.2. |
Newco affirms that each of the Gold Resources Shares and the Gold Tailings Shares is to be acquired as capital assets of Newco. |
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5.3. |
For the purpose of clause 5.1 above, Newco and Blyvoor Gold hereby record and agree that, as at the Closing Date, all the requirements for section 42 of the Income Tax Act have been met, in that – |
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5.3.1. |
Blyvoor Gold is a ‘person’ as defined in section 1 of the Income Tax Act; |
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5.3.2. |
Newco is a ‘resident’ of South Africa as defined in section 1 of the Income Tax Act; |
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5.3.3. |
the cession, delegation and assignment of all of Blyvoor Gold’s rights, obligations and interests in, under and in terms of the Gold Resources Shares and Gold Tailings Shares respectively will constitute the transfer of an ‘asset’ as defined in section 42 of the Income Tax Act read with paragraph 1 of the Eighth Schedule to the Income Tax Act; |
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5.3.4. |
both the Gold Resources Share Consideration and the Gold Tailings Share Consideration constitute equity shares (as defined in section 1 of the Income Tax Act) and each of the Deferred Share Consideration and the applicable Earnout Share Consideration will constitute equity shares issued (if applicable); and |
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5.3.5. |
Blyvoor Gold will hold a ‘qualifying interest’ (as defined in section 42(1) of the Income Tax Act) in Newco at the close of the Closing Date (being the close of the day on which all of Blyvoor Gold’s rights, obligations and interests in, under and in terms of the Gold Resources Shares and Gold Tailings Shares are ceded, assigned and delegated by Blyvoor Gold to Newco). |
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5.4. |
Newco and Blyvoor Gold shall abide by the terms of section 42 of the Income Tax Act for the purpose of the implementation of this Agreement and hereby confirm that they have not jointly elected for the provisions of section 42 of the Income Tax Act not to apply to the exchange of shares contemplated in this Agreement in terms of section 42(8A)(a) of the Income Tax Act. |
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5.5. |
Notwithstanding the foregoing, Newco, Blyvoor Gold, Tailings and Blyvoor Resources hereby agree that they shall remain solely responsible for any Tax that may be levied upon, or recovered from, them, whether arising out of, pursuant to or in connection with any inability to avail themselves or to take advantage of the provisions of section 42 of the Income Tax Act or any forfeiture or failure of the roll-over relief provided thereby, irrespective of the reason(s) therefore. |
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6. |
SECURITIES TRANSFER TAX AND TAX RETURNS |
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6.1. |
The Parties record and agree that each Disposal referred to in clause 2.1 will be a ‘transfer’ as defined in section 1 of the STT Act (each being a “Transfer”) and that the relevant Target Company whose shares are being transferred will report and disclose in the Tax Return as pertains to securities transfer tax that a Transfer benefits from an exemption from securities transfer tax pursuant to the provisions of section 8(1)(a)(i) of the STT Act, provided that in respect of the relevant Transfer the following conditions are both satisfied: (x) the Seller, before the Closing Date, has provided the Target Company with a sworn affidavit or solemn declaration whereby it represents and warrants to the Target Company that such Transfer benefits from the noted relief and (y) the public officer of the Target Company, on the Closing Date, has made a sworn affidavit or solemn declaration that such Transfer complies with the provisions of section 8(1)(a)(i) of the STT Act (as required by section 8(1)(a) of the STT Act) and has provided a copy of this to Newco and the relevant Seller on the Closing Date. |
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6.2. |
Any STT Liability arising on a Transfer shall be paid by the relevant Target Company as required by applicable Law. Where such STT Liability arises, each Target Company undertakes to make payment of such STT Liability to SARS within the period prescribed by applicable Law. Each Seller undertakes to refund the relevant Target Company for the STT Liability which arises on or in respect of the Transfer made by such Seller within (two) Business Days after being presented with the Tax Return or Tax assessment, whichever occurs first, pertaining to such Transfer and to pay such amount by wire transfer in immediately available funds to the designated bank account of the relevant Target Company. |
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6.3. |
The Target Companies undertake to file all required Tax Returns as prescribed by applicable Law and in accordance with clause 6.1 and, if required by applicable Law, each Seller, Newco and the relevant Target Company will join in the execution of any such Tax Returns and furthermore, where required by applicable Law, provide the necessary confirmations that such Tax Returns have been filed. |
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6.4. |
Should a Tax Authority challenge the STT Liability declared in the return referred to in clause 6.3, the relevant Target Company, Seller and Newco will mutually agree in writing whether such challenge should be defended or the STT Liability paid. If the challenge is to be defended, the Parties agree that the relevant Seller will pay to the Target Company the amount of any costs and expenses (and VAT thereon) reasonably and properly incurred by the Target Company or a Target Group Company in doing so (including legal costs and other advisor and accounting costs), upon receipt of a written demand to pay which is accompanied by the relevant invoices. |
Implementation Step 1:
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7.1.1. |
Blyvoor Gold shall deliver to Newco – |
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7.1.1.1. |
its share certificates in respect of the Gold Tailings Shares for cancellation; |
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7.1.1.2. |
the instruments of transfer in respect of the Gold Tailings Shares, and signed by Blyvoor Gold and dated as at the Closing Date, as required by section 51(6) of the Companies Act; |
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7.1.1.3. |
a copy of the resolution(s) passed by the board of directors of Tailings– |
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7.1.1.3.1. |
approving the transfer of the Gold Tailings Shares to Newco; |
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7.1.1.3.2. |
approving the issue of new share certificates to Newco for the Gold Tailings Shares, registered in Newco’s name with effect from the Closing Date; |
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7.1.1.3.3. |
approving the instrument of transfer presented by Blyvoor Gold as constituting a proper instrument of transfer for the purposes of section 51(6)(a) of the Companies Act; and |
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7.1.1.3.4. |
directing any director of Tailings to update the securities register of Tailings to reflect Newco as the registered holder of the Gold Tailings Shares with effect from the Closing Date; and |
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7.1.1.4. |
original new share certificates in respect of the Gold Tailings Shares reflecting Newco as the holders of the Gold Tailings Shares; |
|
7.1.1.5. |
a copy of the securities register of Tailings, as updated to reflect Newco as the owner of the Gold Tailings Shares with effect from the Closing Date; |
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7.1.2.1. |
issue and allot the Gold Tailings Share Consideration, credited as fully paid-up, to Blyvoor Gold; and |
|
7.1.2.2. |
deliver to Blyvoor Gold - |
|
7.1.2.2.1. |
a copy of a resolution or resolutions passed by the board of directors of Newco – |
|
7.1.2.2.2. |
approving the issue of the Gold Tailings Share Consideration to Blyvoor Gold and determining that the consideration for the Gold Tailings Shares (which, it is recorded, is the cession, delegation and assignment of all of Blyvoor Gold’s rights, obligations and interests in, under and in terms of the Gold Tailings Shares) is adequate consideration; |
|
7.1.2.2.3. |
approving the instrument of transfer presented by Blyvoor Gold as constituting a proper instrument of transfer; |
|
7.1.2.2.4. |
approving the issue of an appropriate new share certificate(s) in respect of the Gold Tailings Share Consideration to Blyvoor Gold; |
|
7.1.2.2.5. |
directing the company secretary or any one director of Newco to issue new share certificates in respect of the Gold Tailings Share Consideration in the name of Blyvoor Gold and update the securities register of Newco to reflect Blyvoor Gold as the registered holder of the Gold Tailings Share Consideration; and |
|
7.1.2.2.6. |
noting the appointment of the persons appointed by Blyvoor Gold as a directors of Newco. |
|
7.1.2.3. |
original new share certificate in respect of the Gold Tailings Share Consideration reflecting Blyvoor Gold as the holder of the Gold Tailings Share Consideration; and |
|
7.1.2.4. |
a copy of the register of members of Newco, as updated to reflect Blyvoor Gold as the owner of the Gold Tailings Share Consideration with effect from the Closing Date. |
Implementation Step 2:
|
7.2. |
At the Closing, and upon fulfilment of Step 1 as contemplated in clause 7.1, |
|
7.2.1. |
Each Seller shall deliver to Newco – |
|
7.2.1.1. |
their share certificates in respect of the Exchange Shares for cancellation; |
|
7.2.1.2. |
the instruments of transfer in respect of the Exchange Shares, and signed by each Seller and dated as at the Closing Date, as required by section 51(6) of the Companies Act; |
|
7.2.1.3. |
a copy of the resolution(s) passed by the board of directors of Blyvoor Resources – |
|
7.2.1.3.1. |
approving the transfer of the Exchange Shares to Newco; |
|
7.2.1.3.2. |
approving the issue of new share certificates to Newco for the Exchange Shares, registered in Newco’s name with effect from the Closing Date; |
|
7.2.1.3.3. |
approving the instrument of transfer presented by the Sellers as constituting a proper instrument of transfer for the purposes of section 51(6)(a) of the Companies Act; and |
|
7.2.1.3.4. |
directing any director of such Target Company to update the securities register of such Target Company to reflect Newco as the registered holder of the Exchange Shares with effect from the Closing Date; and |
|
7.2.1.4. |
original new share certificate(s) in respect of the Exchange Shares reflecting Newco as the holder of such Exchange Shares; |
|
7.2.1.5. |
a copy of the securities register of Blyvoor Resources, as updated to reflect Newco as the owner of the Exchange Shares with effect from the Closing Date; |
|
7.2.2.1. |
issue and allot the Gold Resources Share Consideration and the Orion Share Consideration, credited as fully paid-up, to each Seller, as applicable; and |
|
7.2.2.2. |
deliver to each Seller a copy of a resolution or resolutions passed by the board of directors of Newco -- |
|
7.2.2.2.1. |
approving the issue of the Exchange Consideration to each Seller, as applicable, and determining that the consideration for the Exchange Shares (which, it is recorded, is the cession, delegation and assignment of all of the Sellers’ rights, obligations and interests in, under and in terms of the Exchange Shares) is adequate consideration; |
|
7.2.2.2.2. |
approving the instrument of transfer presented by each Seller as constituting a proper instrument of transfer; |
|
7.2.2.2.3. |
approving the issue of an appropriate new share certificate(s) in respect of the Exchange Consideration to each Seller; |
|
7.2.2.2.4. |
directing the company secretary or any one director of Newco to issue new share certificates in respect of the Exchange Consideration in the name of each Seller and update the securities register of Newco to reflect each Seller as the registered holder of the applicable Exchange Consideration; and |
|
7.2.2.2.5. |
noting the appointment of the persons appointed by each Seller as a directors of Newco. |
|
7.2.2.3. |
original new share certificates in respect of the Exchange Consideration reflecting each Seller as the holder of the applicable Exchange Consideration; and |
|
7.2.2.4. |
a copy of the register of members of Newco, as updated to reflect each Seller, as applicable, as the owner of the applicable Exchange Consideration with effect from the Closing Date. |
Implementation: Deferred Shares / Earnout Shares
|
7.3. |
The Parties agree that the issue and allotment of the Deferred Share Consideration, First Earnout Share Consideration and Second Earnout Share Consideration, as contemplated in clauses 4.1.3, 4.2.3 and 4.2.4, respectively, shall be implemented within the time periods contemplated in clauses 4.1.3, 4.2.3 and 4.2.4 and in mutatis mutandis the same manner and in accordance with the same processes as contemplated in clauses 7.1 and 7.2 above. |
|
8.1.1. |
Subject to clause 8.1.2, each Seller hereby agrees that such Seller shall not Transfer any Lock-up Shares until the expiration of the Lock-up Period: |
|
8.1.2. |
Notwithstanding the provisions set forth in clause 8.1.1, each Seller (or its Permitted Transferees) may Transfer its Lock-up Shares during the Lock-up Period: |
|
8.1.2.1. |
to (A) Newco’s officers or directors, (B) any Affiliates or family members of Newco’s officers or directors, (C) to any Affiliates or any member of such Seller’s immediate family or any Affiliates of such Seller or (D) any equityholders of such Seller or their Affiliates, any Affiliates of such Seller, or any employees of such Affiliates; |
|
8.1.2.2. |
in the case of an individual, (A) by gift to a member of such individual’s immediate family or to a trust, the beneficiary of which is a member of such individual’s immediate family, an Affiliate of such individual or to a charitable organization, (B) by virtue of applicable laws of descent and distribution upon death of such individual, or (C) pursuant to a qualified domestic relations order or in connection with a divorce settlement; |
|
8.1.2.3. |
in the case of a trust, by distribution to one or more of the permissible beneficiaries of such trust; |
|
8.1.2.4. |
by virtue of the applicable laws of such Seller’s jurisdiction of incorporation or organization, Seller’s organizational documents or the rights attaching to the equity interests in such Seller, upon dissolution of such Seller; |
|
8.1.2.5. |
upon the exercise of any options, warrants or other convertible securities to purchase Newco Ordinary Shares (which exercises may be effected on a cashless basis to the extent the instruments representing such options or warrants permit exercises on a cashless basis); provided, that any Newco Ordinary Shares issued upon such exercise of Lock-up Shares subject to the Seller Lock-Up shall also be subject to the Seller Lock-Up; |
|
8.1.2.6. |
in the event of Newco’s liquidation, merger, capital stock exchange or other similar transaction which results in all of the Newco’s stockholders having the right to exchange their Newco Ordinary Shares for cash, securities or other property subsequent to the Closing Date; and |
|
8.1.2.7. |
in connection with any bona fide mortgage, pledge, hypothecation, encumbrance or other grant of a security interest to an unaffiliated financial institution in connection with any bona fide loan or debt transaction or enforcement thereunder, including foreclosure thereof (so long as any such mortgage, pledge, hypothecation, encumbrance or grant of security interest shall be on terms consistent with customary loan or debt transactions), and such Seller shall provide Newco with written notice prior to entering into such transaction. |
provided, that in the case of clauses 8.1.2.1 through 8.1.2.5, such transferee, to the extent not already party hereto, must enter into a written agreement agreeing to be bound by the restrictions herein.
|
8.1.3. |
If any Transfer is made or attempted contrary to the provisions of this clause 8, such Transfer shall be null and void ab initio, and Newco shall refuse to recognize any such transferee of the Lock-up Shares as one of its equity holders for any purpose. In order to enforce this clause 8, Newco may impose stop-transfer instructions with respect to the Lock-up Shares of the applicable Seller (and any Permitted Transferees thereof) until the end of the Lock-Up Period. |
|
8.1.4. |
During the Lock-Up Period, each certificate (if issued) or book entry position evidencing any Lock-up Shares subject to the Seller Lock-Up shall be stamped, notated or otherwise imprinted with a legend in substantially the following form, in addition to any other applicable legends: |
“THE SECURITIES REPRESENTED BY
THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN A SHARE EXCHANGE AGREEMENT, DATED AS OF MARCH 11, 2024, BY AND
AMONG THE ISSUER OF SUCH SECURITIES (THE “ISSUER”), THE ISSUER’S SECURITY HOLDER NAMED THEREIN AND THE OTHER
PARTIES THERETO, AS AMENDED. A COPY OF SUCH SHARE EXCHANGE AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE ISSUER TO THE HOLDER
HEREOF UPON WRITTEN REQUEST.”
|
8.1.5. |
For the avoidance of any doubt, each Seller shall retain all of the rights of a holder of the Lock-up Shares held by such Seller during the Lock-Up Period, including, where applicable, the right to vote any Lock-up Shares, in each case, for so long as such Seller owns such Lock-up Shares. |
|
8.1.6. |
For purposes of this clause 8: |
|
8.1.6.1. |
the term “Lock-up Period” means the period beginning on the Closing Date and ending on the date that is six (6) months after the Closing Date. |
|
8.1.6.2. |
the term “Lock-up Shares” means the Newco Ordinary Shares held by each Seller immediately following the Closing (other than Newco Ordinary Shares acquired in the public market or pursuant to a transaction exempt from registration under the Securities Act, pursuant to a subscription agreement where the issuance of Newco Ordinary Shares occurs on or after the Closing); provided, that, for clarity, Newco Ordinary Shares issued in connection with the PIPE Investment or the PIPE Financing shall not constitute Lock-up Shares. |
|
8.1.6.3. |
the term “Permitted Transferees” means any Person to whom a Seller is permitted to transfer such Lock-up Shares prior to the expiration of the Lock-up Period pursuant to clause 8.1.2. |
|
8.1.6.4. |
the term “Transfer” means to, directly or indirectly, (i) transfer (including by operation of law), sell, assign, exchange, offer to sell, contract or agree to sell, hypothecate, pledge, encumber, grant any option to purchase or otherwise dispose of or agree to dispose of, file (or participate in the filing of) a registration statement with the SEC (other than the Registration Statement) or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, with respect to any Newco Ordinary Shares owned by such Seller, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Newco Ordinary Shares owned by such Seller or (iii) publicly announce any intention to effect any transaction specified in clause (i) or (ii) of this sentence. |
|
9.1. |
Each Seller shall take, or cause to be taken, all actions and do, or cause to be done, all things reasonably necessary or appropriate under any applicable Laws to, in the most expeditious manner reasonably practicable, effect the purposes of this Agreement and consummate the Transactions on the terms and subject to the conditions set forth in the BCA and herein, and execute customary documents incidental to the consummation of the Transactions. |
|
9.2. |
At any duly called meeting of the shareholders of Blyvoor Resources or Tailings or at any adjournment thereof, or in any other circumstance in which the vote, consent or other approval of the shareholders of Blyvoor Resources or Tailings is sought, in each case, as contemplated by the BCA, each Seller shall (x) appear at each such meeting or otherwise cause all of its Voting Shares to be counted as present thereat for purposes of establishing a quorum and (y) vote (or cause to be voted), or execute and deliver a written consent (or cause a written consent to be executed and delivered) covering, all of the Voting Shares that he, she or it “beneficially owns”: |
|
9.2.1. |
in favor of (A) the BCA and the Transactions, (B) any proposal to adjourn or postpone such meeting of shareholders of Blyvoor Resources or Tailings to a later date if there are not sufficient votes to approve the BCA or the Transactions and (C) any other matter reasonably necessary to the consummation of the Transactions and considered and voted upon by the shareholders of Blyvoor Resources or Tailings; |
|
9.2.2. |
against any Acquisition Transaction or any proposal relating to an Acquisition Transaction (in each case, other than the Transactions); |
|
9.2.3. |
against any proposal or offer from any Person (other than Rigel or any of its Affiliates) concerning (A) any transaction agreement (other than the BCA), merger, consolidation, combination, share exchange, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by, or other business combination transaction involving Blyvoor Resources or Tailings (B) the issuance or acquisition of shares of capital stock or other equity securities of Blyvoor Resources or Tailings or (C) the sale, lease, exchange or other disposition of any significant portion of Blyvoor Resources or Tailings’ respective properties or assets; and |
|
9.2.4. |
against any proposal, action or agreement that could reasonably be expected to (A) prevent or materially impede, frustrate, inhibit, interfere with, delay, discourage, or adversely affect the timely consummation of the Transactions or result in any of the conditions set forth in Section 11.03 (Additional Conditions to Obligations of the Target Companies) and Section 11.04 (Conditions to Obligations of Target Companies with Respect to the Tailings Acquisition and the Blyvoor Resources Acquisition) of the BCA not being fulfilled, (B) result in a breach in any respect of any covenant, representation, warranty or any other obligation or agreement of Blyvoor Resources or Tailings under the BCA or such Seller hereunder, (C) result in any of the conditions set forth in Section 11.02 (Additional Conditions to Obligations of Rigel, Newco and Merger Sub) of the BCA not being fulfilled or (D) change in any manner the dividend policy or capitalization of, including the voting rights of any class of capital stock of, Blyvoor Resources or Tailings. |
|
9.3. |
Each Seller hereby agrees that it shall not commit or agree to take any action inconsistent with the foregoing. |
|
9.4. |
During the period commencing on the date hereof and ending on the earlier of the consummation of the Closing and the termination of the BCA pursuant to Article XII thereof, each Seller shall not modify or amend any Contract between or among such Seller, anyone related by blood, marriage or adoption to such Seller or any Affiliate of such Seller (other than Blyvoor Resources or Tailings or any of its Subsidiaries), on the one hand, and Blyvoor Resources or Tailings or any of Blyvoor Resources or Tailings’ respective Subsidiaries, on the other hand. |
|
10. |
DOMICILIUM CITANDI ET EXECUTANDI |
|
10.1. |
The Parties choose as their address for service and execution (domicilia citandi et executandi) for all purposes under this Agreement, the following addresses: |
|
C/o: |
Rigel Resource Acquisition Corp |
|
Physical: |
7 Bryant Park, 1045 Avenue of the Americas, Floor 25, New York, NY 10018 |
|
E-mail: |
nabebe@rigelresources.com |
|
Attention: |
Nate Abebe |
|
Physical: |
Change House, 8 Fir Drive, Northcliff, 2195 |
|
Email: |
alan@blyvoorgold.com |
|
Attention: |
Alan Smith |
|
10.1.3. |
Blyvoor Resources: |
|
Physical: |
Change House, 8 Fir Drive, Northcliff, 2195 |
|
Email: |
alan@blyvoorgold.com |
|
Attention: |
Alan Smith |
|
Physical: |
Change House, 8 Fir Drive, Northcliff, 2195 |
|
Email: |
alan@blyvoorgold.com |
|
Attention: |
Alan Smith |
|
Physical: |
Fourth Floor, 33 Welbeck Street, London, England, W1G 8EX |
|
Email: |
mbarton@orionrp.com |
|
Attention: |
Mike Barton |
|
10.2. |
Notwithstanding anything to the contrary herein contained, a written notice or communication (including telefax or e-mail) actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi. |
|
11.1. |
Each of the Parties hereby warrants unto and in favour of the others that it has the legal capacity and has taken all necessary corporate action required to empower and authorise it to enter into this Agreement. |
|
11.2. |
No addition to, variation, novation or agreed cancellation of any provision of this Agreement shall be binding upon the Parties unless reduced to writing and signed by or on behalf of the Parties. |
|
11.3. |
No part of this Agreement shall constitute a stipulatio alteri in favour of any person who is not a Party to the Agreement unless the provision in question expressly provides that it does constitute a stipulatio alteri. |
|
11.4. |
No Party shall be entitled to cede, assign, transfer, encumber or delegate any of its rights, obligations and/or interests in, under or in terms of this Agreement to any third Party without the prior written consent of the other Parties. |
|
11.5. |
Any dispute between the Parties arising out of or relating to this Agreement, including with respect to the interpretation of any provision of this Agreement, shall be finally decided by arbitration in terms of the commercial rules of the Arbitration Foundation of Southern Africa (or its successor-in-title). |
|
11.6. |
Cancellation of this Agreement, upon breach, shall not be a competent remedy. |
|
11.7. |
Any information obtained by any Party to this Agreement in terms of, or arising from the implementation of, or the contents of this Agreement shall be treated as confidential by the other Party. |
|
11.8. |
This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same agreement as at the date of signature of the Party that signs its counterpart last in time. |
|
11.9. |
This Agreement shall be governed by and construed in accordance with the laws of the Republic of South Africa. |
[Remainder of Page Intentionally Left Blank]
SIGNED by the Parties and witnessed on the following dates and at the following places respectively:
| For: |
RRAC NEWCO |
| |
|
| Signature: |
/s/ Alan Smith |
|
| |
who warrants that he / she is duly authorised thereto |
| |
|
| Name: |
Alan Smith |
|
| |
|
|
| Date: |
10 March 2024 |
|
| |
|
|
| Place: |
Johannesburg |
|
| |
|
|
| Witness |
|
|
| For: |
BLYVOOR GOLD PROPRIETARY LIMITED |
| |
|
| Signature: |
/s/ Richard Llewellyn Floyd |
|
| |
who warrants that he / she is duly authorised thereto |
| |
|
| Name: |
Richard Llewellyn Floyd |
|
| |
|
|
| Date: |
10 March 2024 |
|
| |
|
|
| Place: |
Johannesburg |
|
| |
|
|
| Witness |
|
|
| For: |
BLYVOOR GOLD OPERATIONS PROPRIETARY LIMITED |
| |
|
| Signature: |
/s/ Alan Smith |
|
| |
who warrants that he / she is duly authorised thereto |
| |
|
| Name: |
Alan Smith |
|
| |
|
|
| Date: |
10 March 2024 |
|
| |
|
|
| Place: |
Johannesburg |
|
| |
|
|
| Witness |
/s/ Abigail Taliep |
|
| For: |
BLYVOOR GOLD RESOURCES PROPRIETARY LIMITED |
| |
|
| Signature: |
/s/ Alan Smith |
|
| |
who warrants that he / she is duly authorised thereto |
| |
|
| Name: |
Alan Smith |
|
| |
|
|
| Date: |
10 March 2024 |
|
| |
|
|
| Place: |
Johannesburg |
|
| |
|
|
| Witness |
/s/ Abigail Taliep |
|
| For: |
ORION Mine finance fund ii l.p. |
| |
|
| Signature: |
/s/ Dov Lader |
|
| |
who warrants that he / she is duly authorised thereto |
| |
|
| Name: |
Dov Lader, Director |
|
| |
|
|
| Date: |
Mar 8, 2024 |
|
| |
|
|
| Place: |
New York, New York |
|
| |
|
|
| Witness |
/s/ Caroline Roosje |
|
Exhibit 10.1
Execution Version
SPONSOR
SUPPORT AGREEMENT
This
Sponsor Support Agreement (this “Sponsor Agreement”) is dated as of March 11, 2024 by and among Rigel Resource Acquisition
Holding LLC, a Cayman Islands limited liability company (the “Sponsor Holdco”), the Persons set forth on Schedule
I hereto (such Persons together with the Sponsor Holdco, each, a “Sponsor” and, together, the “Sponsors”),
Rigel Resource Acquisition Corp, a Cayman Islands exempted company (“Rigel”), RRAC Newco, a Cayman Islands exempted
company (“Newco”), Blyvoor Gold Resources Proprietary Limited, a South African private limited liability company (“Blyvoor
Resources”), and Blyvoor Gold Operations Proprietary Limited, a South African private limited liability company (“Tailings”,
together with Blyvoor Resources, each a “Target Company” and, together, the “Target Companies”).
Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Business Combination Agreement (as defined
below).
RECITALS
WHEREAS,
as of the date hereof, the Sponsors collectively are the holders of record and the “beneficial owners” (within the meaning
of Rule 13d-3 under the Securities Exchange Act of 1934 (the “Exchange Act”)) and are entitled to dispose of (or to
direct the disposition of) and to vote (or direct the voting of) such number of Rigel Class B Shares and Rigel Private Warrants as are
indicated opposite each of their names on Schedule I attached hereto;
WHEREAS,
contemporaneously with the execution and delivery of this Sponsor Agreement, Rigel, Newco, Merger Sub, a Cayman Islands exempted company
and the Target Companies have entered into that certain Business Combination Agreement (as amended or modified from time to time, the
“Business Combination Agreement”), dated as of the date hereof, pursuant to which, among other transactions, following
the completion of the Merger, the Tailings Acquisition and the Blyvoor Resources Acquisition, the Target Companies will become a wholly
owned subsidiaries of Newco, on the terms and conditions set forth therein; and
WHEREAS,
as an inducement to Rigel and the Target Companies to enter into the Business Combination Agreement and to consummate the Transactions,
the parties hereto desire to agree to certain matters as set forth herein.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing and the mutual agreements contained herein and in the Business Combination Agreement, and
as an inducement and in consideration therefor, and intending to be legally bound, the parties hereto hereby agree as follows:
ARTICLE
I
SPONSOR SUPPORT AGREEMENT; COVENANTS
Section
1.1 Binding Effect of the Business Combination Agreement. Each
Sponsor hereby acknowledges that it has read the Business Combination Agreement and this Sponsor Agreement and shall be bound by and
comply with Sections 10.03(b) (Exclusivity) and 10.05 (Confidentiality; Publicity) of the Business Combination Agreement
(and any relevant definitions contained in any such sections) as if such Sponsor was an original signatory to the Business Combination
Agreement with respect to such provisions.
Section
1.2 No Transfer. During the period commencing on the date hereof
and ending on the earlier of (a) the Closing and (b) the liquidation of Rigel, each Sponsor shall not, directly or indirectly, (i) transfer
(including by operation of law) sell, assign, exchange, offer to sell, contract or agree to sell, hypothecate, pledge, encumber, grant
any option to purchase or otherwise dispose of or agree to dispose of, file (or participate in the filing of) a registration statement
with the SEC (other than the Registration Statement) or establish or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act, with respect to any Rigel Securities or Newco Securities owned
by such Sponsor, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences
of ownership of any shares of Rigel Securities or Newco Securities owned by such Sponsor or (iii) publicly announce any intention to
effect any transaction specified in clause (i) or (ii) of this sentence (the actions specified in clauses (i) to (iii), “Transfer”).
Any attempted Transfer of Voting Shares (as defined below) or any interest therein in violation of this Section 1.2 shall be null
and void ab initio. This Section 1.2 shall not prohibit a Transfer of Voting Shares by any Sponsor (or prohibit any Sponsor
from entering into any contract, option or other agreement with respect to, or prohibit such Sponsor from consenting to, a Transfer of
any of his, her or its Voting Shares or such Sponsor’s voting or economic interest therein) (A) to any Affiliates or any member
of such Sponsor’s immediate family or any Affiliates of such Sponsor, (B) by gift to (1) in the case of an individual, a member
of such Sponsor’s immediate family, (2) a trust, the beneficiary of which is, or is an Affiliate of, such Sponsor or, in the case
of an individual, a member of such Sponsor’s immediate family, or (3) a charitable organization, (C) in the case of an individual,
by virtue of laws of descent and distribution upon death, (D) in the case of an individual, pursuant to a qualified domestic relations
order or in connection with a divorce settlement, (E) in the case of a trust, by distribution to one or more of the permissible beneficiaries
of such trust, (F) in the event of Rigel’s liquidation prior to Rigel’s completion of the Business Combination or (G) in
the case of an entity, by virtue of the laws of such Sponsor’s jurisdiction of incorporation or organization, such Sponsor’s
organizational documents or the rights attaching to the equity interests in such Sponsor upon dissolution of such Sponsor; provided,
however, that in the case of clauses (A) through (E), as a pre-condition to such Transfer, the transferee must agree in a writing,
reasonably satisfactory in form and substance to Rigel and the Target Companies, to be bound by all of the terms of this Sponsor Agreement.
For purposes of this Sponsor Agreement, “immediate family” shall mean with respect to any natural person, any of the
following: such person’s spouse or domestic partner, the siblings of such person and his or her spouse or domestic partner, and
the direct descendants and ascendants (including adopted and step children and parents) of such person and his or her spouses or domestic
partners and siblings. Each Sponsor agrees that during the term of this Sponsor Agreement, such Sponsor will not, and will not permit
any entity under such Sponsor’s control to, deposit any Voting Shares in a voting trust, grant any proxies with respect to the
Voting Shares or subject any of the Voting Shares to any arrangement with respect to the voting of the Voting Shares except as contemplated
in this Sponsor Agreement. Each Sponsor hereby revokes any and all previous proxies and attorneys in fact with respect to the Voting
Shares.
Section
1.3 New Shares. In the event that (a) any Rigel Shares, Rigel
Warrants or any other equity securities of Rigel are issued to a Sponsor after the date of this Sponsor Agreement pursuant to any stock
dividend, stock split, recapitalization, reclassification, combination or exchange of Rigel Shares or Rigel Warrants of, on or affecting
the Rigel Shares or Rigel Warrants owned by such Sponsor or otherwise, (b) a Sponsor purchases or otherwise acquires beneficial ownership
of any Rigel Shares, Rigel Warrants or any other equity securities of Rigel after the date of this Sponsor Agreement, or (c) a Sponsor
acquires the right to vote or share in the voting of any Rigel Shares or any other equity securities of Rigel after the date of this
Sponsor Agreement (such Rigel Shares, Rigel Warrants or any other equity securities of Rigel, collectively the “New Securities”),
then such New Securities acquired or purchased by such Sponsor shall be subject to the terms of this Sponsor Agreement to the same extent
as if such New Securities constituted the Rigel Shares or Rigel Warrants owned by such Sponsor as of the date hereof.
Section
1.4 Sponsor Agreements.
(a)
At any duly called meeting of the shareholders of Rigel or at any adjournment thereof, or in any other circumstance in which the vote,
consent or other approval of the shareholders of Rigel is sought, in each case, as contemplated by the Business Combination Agreement,
each Sponsor shall (x) appear at each such meeting or otherwise cause all of its Voting Shares to be counted as present thereat for purposes
of establishing a quorum and (y) vote (or cause to be voted), or execute and deliver a written consent (or cause a written consent to
be executed and delivered) covering, all of the Voting Shares that he, she or it “beneficially owns”:
(i)
in favor of (A) the Business Combination Agreement and the Transactions, (B) any proposal to adjourn or postpone such meeting of shareholders
of Rigel to a later date if there are not sufficient votes to approve the Business Combination Agreement or the Transactions and (C)
any other matter reasonably necessary to the consummation of the Transactions and considered and voted upon by the shareholders of Rigel;
(ii)
against any Business Combination Proposal or any proposal relating to a Business Combination Proposal (in each case, other than the Transactions);
(iii)
against any proposal or offer from any Person (other than the Target Companies or any of their respective Affiliates) concerning (A)
any transaction agreement (other than the Business Combination Agreement), merger, consolidation, combination, share exchange, sale of
substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by, or other business combination
transaction involving Rigel (B) the issuance or acquisition of shares of capital stock or other equity securities of Rigel or (C) the
sale, lease, exchange or other disposition of any significant portion of Rigel’s properties or assets; and
(iv)
against any proposal, action or agreement that could reasonably be expected to (A) prevent or materially impede, frustrate, inhibit,
interfere with, delay, discourage or adversely affect the timely consummation of the Transactions or result in any of the conditions
set forth in Section 11.02 (Additional Conditions to Obligations of Rigel, Newco and Merger Sub) of the Business Combination Agreement
not being fulfilled, (B) result in a breach in any respect of any covenant, representation, warranty or any other obligation or agreement
of Rigel, Newco or Merger Sub under the Business Combination
Agreement
or such Sponsor hereunder, (C) result in any of the conditions set forth in Section 11.03 (Additional Conditions to Obligations of
the Target Companies) or Section 11.04 (Conditions to Obligations of All Parties With Respect to the Tailings Acquisition and
the Blyvoor Resources Acquisition) of the Business Combination Agreement not being fulfilled or (D) change in any manner the dividend
policy or capitalization of, including the voting rights of any class of capital stock of, Rigel.
(b)
Each Sponsor hereby agrees that it shall not commit or agree to take any action inconsistent with the foregoing.
(c)
Each Sponsor shall comply with, and fully perform all of its obligations, covenants and agreements set forth in that certain Letter Agreement,
dated November 4, 2021, by and among Rigel, its current executive officers and directors, and the Sponsor Holdco, as amended (the “Insider
Letter”), including the obligations of the Sponsors pursuant to Section 1 thereof to not redeem any Rigel Shares owned by such
Sponsor in connection with the Transactions.
(d)
During the period commencing on the date hereof and ending on the earlier of the consummation of the Closing and the termination of the
Business Combination Agreement pursuant to Article XII thereof, each Sponsor shall not modify or amend any Contract between or among
such Sponsor, anyone related by blood, marriage or adoption to such Sponsor or any Affiliate of such Sponsor (other than Rigel or any
of its Subsidiaries), on the one hand, and Rigel or any of Rigel’s Subsidiaries, on the other hand.
Section
1.5 Further Assurances. Each Sponsor shall take, or cause to
be taken, all actions and do, or cause to be done, all things reasonably necessary or appropriate under any applicable Laws to, in the
most expeditious manner reasonably practicable, effect the purposes of this Sponsor Agreement and consummate the Transactions on the
terms and subject to the conditions set forth in the Business Combination Agreement and herein, and execute customary documents incidental
to the consummation of the Transactions.
Section
1.6 No Inconsistent Agreement. Each Sponsor hereby represents
and covenants that such Sponsor has not entered into, and shall not enter into, any agreement that would restrict, limit or interfere
with the performance of such Sponsor’s obligations hereunder in any material respect.
Section
1.7 Sponsor Lock-Up.
(a)
Subject to Section 1.8(b), each Sponsor hereby agrees that such Sponsor shall not Transfer:
(i)
any Lock-up Shares until the expiration of the First Lock-up Period;
(ii)
a number of Lock-up Warrants equal to forty percent (40%) of all Newco Warrants (including the Newco Ordinary Shares issuable upon the
exercise of any Newco Warrants) held by such Sponsor as of immediately following the Closing until the expiration of the First Lock-up
Period; or
(iii)
a number of Lock-up Warrants equal to sixty percent (60%) of all Newco Warrants (including the Newco Ordinary Shares issuable upon the
exercise of any Newco Warrants) held by such Sponsor as of immediately following the Closing until the expiration of the Second Lock-up
Period (collectively, the “Sponsor Lock-up”).
(b)
Notwithstanding the provisions set forth in Section 1.8(a), each Sponsor (or its Permitted Transferees) may Transfer its Lock-up
Securities during the applicable Lock-up Period:
(i)
to (A) Rigel’s or Newco’s officers or directors, (B) any Affiliates or family members of Rigel’s or Newco’s officers
or directors, (C) to any Affiliates or any member of such Sponsor’s immediate family or any Affiliates of such Sponsor or (D) any
equityholders of the Sponsor Holdco or their Affiliates, any Affiliates of the Sponsor Holdco, or any employees of such Affiliates;
(ii)
in the case of an individual, (A) by gift to a member of such individual’s immediate family or to a trust, the beneficiary of which
is a member of such individual’s immediate family, an Affiliate of such individual or to a charitable organization, (B) by virtue
of applicable laws of descent and distribution upon death of such individual, or (C) pursuant to a qualified domestic relations order
or in connection with a divorce settlement;
(iii)
in the case of a trust, by distribution to one or more of the permissible beneficiaries of such trust;
(iv)
by virtue of the applicable laws of such Sponsor’s jurisdiction of incorporation or organization, Sponsor’s organizational
documents or the rights attaching to the equity interests in such Sponsor upon dissolution of such Sponsor;
(v)
upon the exercise of any options, warrants or other convertible securities to purchase Newco Ordinary Shares (which exercises may be
effected on a cashless basis to the extent the instruments representing such options or warrants permit exercises on a cashless basis);
provided, that any Newco Ordinary Shares issued upon such exercise of Lock-up Warrants subject to the Sponsor Lock-Up shall also
be subject to the Sponsor Lock-Up;
(vi)
in the event of the Newco’s liquidation, merger, capital stock exchange or other similar transaction which results in all of the
Newco’s stockholders having the right to exchange their Newco Ordinary Shares for cash, securities or other property subsequent
to the Closing Date;
(vii)
in connection with any bona fide mortgage, pledge, hypothecation, encumbrance or other grant of a security interest to an unaffiliated
financial institution in connection with any bona fide loan or debt transaction or enforcement thereunder, including foreclosure thereof
(so long as any such mortgage, pledge, hypothecation, encumbrance or grant of security interest shall be on terms consistent with customary
loan or debt transactions), and such Sponsor shall provide Newco with written notice prior to entering into such transaction;
(viii)
for purposes of satisfying any withholding and/or other taxes that become payable in connection with the exchange of Rigel Private Warrants
held by such Sponsor for Newco Private Warrants in connection with the consummation of the Business Combination; and
(ix)
for any purpose and to any Person if the last reported sale price of the Newco Ordinary Shares equals or exceeds $12.00 per share (as
adjusted for share sub-divisions, share dividends, rights issuances, reorganizations, recapitalizations and the like) for any 20 trading
days within any 30-trading day period commencing at least 180 days after the Closing Date;
provided,
that in the case of clauses (i) through (iv), such transferee, to the extent not already party hereto, must enter into a written agreement
agreeing to be bound by the restrictions herein.
(c)
If any Transfer is made or attempted contrary to the provisions of this Section 1.8, such Transfer shall be null and void ab
initio, and Newco shall refuse to recognize any such transferee of the Lock-up Securities as one of its equity holders for any purpose.
In order to enforce this Section 1.8, Newco may impose stop-transfer instructions with respect to the Lock-up Securities of the
applicable Sponsor (and any Permitted Transferees thereof) until the end of the applicable Lock-Up Period.
(d)
During the applicable Lock-Up Period, each certificate (if issued) or book entry position evidencing any Lock-up Securities subject to
the Sponsor Lock-Up shall be stamped, notated or otherwise imprinted with a legend in substantially the following form, in addition to
any other applicable legends:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN A SPONSOR SUPPORT AGREEMENT, DATED AS
OF MARCH 11, 2024, BY AND AMONG THE ISSUER OF SUCH SECURITIES (THE “ISSUER”), THE ISSUER’S SECURITY HOLDER NAMED THEREIN
AND THE OTHER PARTIES THERETO, AS AMENDED. A COPY OF SUCH SPONSOR SUPPORT AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE ISSUER TO
THE HOLDER HEREOF UPON WRITTEN REQUEST.”
(e)
For the avoidance of any doubt, each Sponsor shall retain all of the rights of a holder of the Lock-up Securities held by such Sponsor
during the applicable Lock-Up Period, including, where applicable, the right to vote any Lock-up Securities, in each case, for so long
as such Sponsor owns such Lock-up Securities.
(f)
The Sponsor Lock-up in this Section 1.8 shall supersede the lock-up provisions contained in Section 7 of the Insider Letter, which
provision in Section 7 of the Insider Letter shall be of no further force or effect.
(g)
For purposes of this Section 1.8:
(i)
the term “First Lock-up Period” means the period beginning on the Closing Date and ending on the date that is twelve
(12) months after the Closing Date;
(ii)
the term “Second Lock-up Period” means the period beginning on the Closing Date and ending on the date that is twenty-four
(24) months after the Closing Date;
(iii)
the term “Lock-up Shares” means the Newco Ordinary Shares (including the Newco Ordinary Shares issuable upon the exercise
of any Newco Warrants) held by each Sponsor immediately following the Closing (excluding Newco Ordinary Shares acquired in the public
market or pursuant to a transaction exempt from registration under the Securities Act, pursuant to a subscription agreement where the
issuance of Newco Ordinary Shares occurs on or after the Closing); provided, that, for clarity, Newco Ordinary Shares issued in
connection with the PIPE Investment or the PIPE Financing shall not constitute Lock-up Shares;
(iv)
the term “Lock-up Warrants” means the Newco Warrants held by each Sponsor immediately following the Closing;
(v)
the term “Lock-up Securities” means the Lock-up Shares and the Lock-up Warrants; and
(vi)
the term “Permitted Transferees” means any Person to whom a Sponsor is permitted to transfer such Lock-up Shares prior
to the expiration of the applicable Lock-up Period pursuant to Section 1.8(b).
Section
1.8 Unpaid SPAC Fees. Each Sponsor shall forfeit, on a pro
rata basis based on the aggregate number of Rigel Class B Shares and Rigel Warrants owned by such Sponsor as of immediately prior
to the Closing, at the election of such Sponsor, such number of Rigel Class B Shares and Rigel Warrants (“Forfeited Securities”)
as equals, to the extent such number is a positive number, (A) (i) outstanding Rigel Transaction Expenses minus (ii) Remaining
Net Cash Proceeds, divided by (B) $10.00. For purposes of this Section 1.8, “Remaining Net Cash Proceeds”
shall mean an amount equal to (a) all amounts in the Trust Account (after reduction for the aggregate amount of payments required to
be made in connection with the Rigel Stockholder Redemption), plus (b) the aggregate amount of cash that has been funded to Rigel
pursuant to the Subscription Agreements with respect to the PIPE Investment and the PIPE Financing, in each case, as of immediately prior
to the Closing, plus (c) the aggregate amount of cash that has been funded to Newco pursuant to the Orion Forward Purchase Agreement,
minus (d) the Cash Consideration, minus (e) $32,000,000.00. Notwithstanding the foregoing, the Sponsor Holdco may, at its sole
election, reduce the number of Forfeited Securities due from the Sponsor Holdco pursuant to this Section 1.8 by forgiving any
documented and outstanding indebtedness of Rigel owed to the Sponsor Holdco (“WC Loans”), by such number of Forfeited
Securities as equals (I) the amount of such forgiven indebtedness, divided by (II) $10.00.
Section
1.9 Waiver of Anti-Dilution Provisions. Each Sponsor hereby
irrevocably and unconditionally (but subject to the consummation of the Transactions) waives any adjustment to the Initial Conversion
Ratio (as defined in the Amended and Restated Memorandum and Articles of Association of Rigel (the “Existing Memorandum”))
to which it would otherwise be entitled pursuant to Section 17.3 of the Existing Memorandum that would result from the issuance of Newco
Ordinary Shares or Rigel Class A Shares or other equity-linked securities pursuant to the Subscription Agreements or otherwise in connection
with the Transactions.
Section
1.10 Redemption Rights. Each Sponsor agrees not to exercise any right to redeem any
Voting Shares “beneficially owned” as of the date hereof or acquired and held in such capacity subsequent to the date hereof.
Section
1.11 Dissenters’ Rights. Each Sponsor hereby agrees not to commence or participate
in any claim, derivative or otherwise, against Rigel relating to the negotiation, execution or delivery of this Sponsor Agreement or
the Business Combination Agreement or the consummation of the Transactions, including any claim (a) challenging the validity of, or seeking
to enjoin the operation of, any provision of this Sponsor Agreement or (b) alleging a breach of any fiduciary duty of the board of directors
of Rigel in connection with this Sponsor Agreement, the Business Combination Agreement or the Transactions.
Section
1.12 Transaction Expenses Cap. Notwithstanding anything in this Sponsor Agreement or
the Business Combination Agreement to the contrary, the Sponsor Holdco shall be liable for, 100% of the unpaid and otherwise not forgiven
or offset pursuant to Section 1.8 aggregate Target Group Company Transaction Expenses, Rigel Transaction Expenses and WC Loans
(i) in excess of $17 million in the event that Aggregate Cash Proceeds are less than or equal to $50 million and (ii) in excess of $20
million in the event that Aggregate Cash Proceeds are greater than $50 million.
ARTICLE
II
REPRESENTATIONS AND WARRANTIES
Section
2.1 Representations and Warranties of the Sponsors. Each Sponsor,
severally and not jointly, represents and warrants as of the date hereof to Rigel, Newco and the Target Companies (solely with respect
to itself, himself or herself and not with respect to any other Sponsor) as follows:
(a)
Organization; Due Authorization. If such Sponsor is not an individual, it is duly organized, validly existing and in good standing
under the Laws of the jurisdiction in which it is incorporated, formed, organized or constituted, and the execution, delivery and performance
of this Sponsor Agreement and the consummation of the transactions contemplated hereby are within such Sponsor’s corporate, limited
liability company or organizational powers and have been duly authorized by all necessary corporate, limited liability company or organizational
actions on the part of such Sponsor. If such Sponsor is an individual, such Sponsor has full legal capacity, right and authority to execute
and deliver this Sponsor Agreement and to perform his or her obligations hereunder. This Sponsor Agreement has been duly executed and
delivered by such Sponsor and, assuming due authorization, execution and delivery by the other parties to this Sponsor Agreement, this
Sponsor Agreement constitutes a legally valid and binding obligation of such Sponsor, enforceable against such Sponsor in accordance
with the terms hereof (except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights
and general principles of equity affecting the availability of specific performance and other equitable remedies). If this Sponsor Agreement
is being executed in a representative or fiduciary capacity, the Person signing this Sponsor Agreement has full power and authority to
enter into this Sponsor Agreement on behalf of the applicable Sponsor.
(b)
Ownership. Such Sponsor is the record and beneficial owner (as defined in the Securities Act) of, and has good title to, all of
such Sponsor’s Rigel Class B Shares and Rigel Warrants, and there exist no Liens or any other limitation or restriction (including
any restriction on the right to vote, sell or otherwise dispose of such Rigel Class B Shares or Rigel Warrants (other than transfer restrictions
under the Securities Act)) affecting any such Rigel Class B Shares or Rigel Warrants, other than Liens pursuant to (i) this Sponsor Agreement,
(ii) the Rigel Organizational Documents, (iii) the Business Combination Agreement or (iv) any applicable securities Laws. Such Sponsor’s
Rigel Class B Shares and Rigel Warrants are the only equity securities in Rigel owned of record or beneficially by such Sponsor on the
date of this Sponsor Agreement, and none of such Sponsor’s Rigel Class B Shares or Rigel Warrants are subject to any proxy, voting
trust or other agreement or arrangement with respect to the voting of such Rigel Class B Shares or Rigel Warrants, except as provided
hereunder and under the Voting Letter Agreement. Other than the Rigel Warrants, such Sponsor does not hold or own any rights to acquire
(directly or indirectly) any equity securities of Rigel or any equity securities convertible into, or which can be exchanged for, equity
securities of Rigel.
(c)
No Conflicts. The execution and delivery of this Sponsor Agreement by such Sponsor does not, and the performance by such Sponsor
of his, her or its obligations hereunder will not, (i) if such Sponsor is not an individual, conflict with or result in a violation of
the organizational documents of such Sponsor or (ii) require any consent or approval that has not been given or other action that has
not been taken by any Person (including under any Contract binding upon such Sponsor or such Sponsor’s Rigel Class B Shares or
Rigel Warrants), in each case, to the extent such consent, approval or other action would prevent, enjoin or materially delay the performance
by such Sponsor of its, his or her obligations under this Sponsor Agreement.
(d)
Litigation. There are no Actions pending against such Sponsor, or to the knowledge of such Sponsor threatened against such Sponsor,
before (or, in the case of threatened Actions, that would be before) any arbitrator or any Governmental Authority, which in any manner
challenges or seeks to prevent, enjoin or materially delay the performance by such Sponsor of its, his or her obligations under this
Sponsor Agreement.
(e)
Brokerage Fees. Except as described on Section 7.07 of the Rigel Disclosure Letter, no broker, finder, investment banker or other
Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by the
Business Combination Agreement based upon arrangements made by such Sponsor, for which Rigel or any of its Affiliates may become liable.
(f)
Acknowledgment. Such Sponsor understands and acknowledges that each of Rigel and the Company is entering into the Business Combination
Agreement in reliance upon such Sponsor’s execution and delivery of this Sponsor Agreement.
ARTICLE
III
MISCELLANEOUS
Section
3.1 Termination. This Sponsor Agreement and all of its provisions
shall terminate and be of no further force or effect upon the earliest of (a) the Closing, (b) earlier termination of the Business Combination
Agreement in accordance with its terms, (c) the liquidation of Rigel and (d) the written agreement of the Sponsor, Rigel, and the Target
Companies; provided, that in the case of clause (a) those rights and obligations that are explicitly provided for to survive after
the Closing (including Section 1.7 and any related definitions used therein) shall survive in accordance with their terms. Upon such
termination of this Sponsor Agreement, all obligations of the parties under this Sponsor Agreement will terminate, without any liability
or other obligation on the part of any party hereto to any Person in respect hereof or the transactions contemplated hereby, and no party
hereto shall have any claim against another (and no person shall have any rights against such party), whether under contract, tort or
otherwise, with respect to the subject matter hereof; provided, however, that the termination of this Sponsor Agreement
shall not relieve any party hereto from liability arising in respect of any breach of this Sponsor Agreement prior to such termination.
Notwithstanding the foregoing, this ARTICLE III shall survive the termination of this Sponsor Agreement.
Section
3.2 Governing Law. This Sponsor Agreement, and all claims or
causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Sponsor Agreement or the negotiation,
execution or performance of this Sponsor Agreement (including any claim or cause of action based upon, arising out of or related to any
representation or warranty made in or in connection with this Sponsor Agreement) will be governed by and construed in accordance with
the internal Laws of the State of Delaware applicable to agreements executed and performed entirely within such State.
Section
3.3 CONSENT TO JURISDICTION AND SERVICE OF PROCESS; WAIVER OF JURY
TRIAL.
(a)
THE PARTIES TO THIS SPONSOR AGREEMENT SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE STATE COURTS LOCATED IN WILMINGTON, DELAWARE OR THE
COURTS OF THE UNITED STATES LOCATED IN WILMINGTON, DELAWARE IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS
SPONSOR AGREEMENT AND ANY RELATED AGREEMENT, CERTIFICATE OR OTHER DOCUMENT DELIVERED IN CONNECTION HEREWITH AND BY THIS SPONSOR AGREEMENT
WAIVE, AND AGREE NOT TO ASSERT, ANY DEFENSE IN ANY ACTION FOR THE INTERPRETATION OR ENFORCEMENT OF THIS SPONSOR AGREEMENT AND ANY RELATED
AGREEMENT, CERTIFICATE OR OTHER DOCUMENT DELIVERED IN CONNECTION HEREWITH, THAT THEY ARE NOT SUBJECT THERETO OR THAT SUCH ACTION MAY
NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SUCH COURTS OR THAT THIS SPONSOR AGREEMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS OR THAT
THEIR PROPERTY IS EXEMPT OR IMMUNE FROM EXECUTION, THAT THE ACTION IS BROUGHT IN AN INCONVENIENT FORUM, OR THAT THE VENUE OF THE ACTION
IS IMPROPER. SERVICE OF PROCESS WITH RESPECT THERETO MAY BE MADE UPON ANY PARTY TO THIS SPONSOR AGREEMENT BY MAILING A COPY THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS AS PROVIDED IN Section
3.8.
(b)
WAIVER OF TRIAL BY JURY. EACH PARTY HERETO HEREBY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS SPONSOR
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS SPONSOR AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS SPONSOR AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I)
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF
THIS WAIVER, (III) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS SPONSOR
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS Section 3.3.
Section
3.4 Assignment. This Sponsor Agreement and all of the provisions
hereof will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns.
Neither this Sponsor Agreement nor any of the rights, interests or obligations hereunder will be assigned (including by operation of
law) without the prior written consent of the parties hereto.
Section
3.5 Specific Performance. The parties hereto agree that irreparable
damage may occur in the event that any of the provisions of this Sponsor Agreement were not performed in accordance with their specific
terms or were otherwise breached. It is accordingly agreed that the parties hereto shall be entitled to seek an injunction or injunctions
to prevent breaches of this Sponsor Agreement and to enforce specifically the terms and provisions of this Sponsor Agreement in the chancery
court or any other state or federal court within the State of Delaware, this being in addition to any other remedy to which such party
is entitled at law or in equity.
Section
3.6 Amendment. This Sponsor Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated, except upon the execution and delivery of a written agreement executed by Rigel,
the Target Companies and the Sponsor Holdco.
Section
3.7 Severability. If any provision of this Sponsor Agreement
is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Sponsor Agreement will remain in
full force and effect. Any provision of this Sponsor Agreement held invalid or unenforceable only in part or degree will remain in full
force and effect to the extent not held invalid or unenforceable.
Section
3.8 Notices. All notices and other communications among the
parties hereto shall be in writing and shall be deemed to have been duly given (a) when delivered in person, (b) when delivered after
posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, (c) when delivered
by FedEx or other nationally recognized overnight delivery service or (d) when e-mailed during normal business hours (and otherwise as
of the immediately following Business Day), addressed as follows:
If
to Rigel, Newco or the Sponsor Holdco to:
Rigel
Resource Acquisition Corp
7
Bryant Park
1045
Avenue of the Americas, Floor 25
New
York, NY 10018
| E-mail: | nabebe@rigelresource.com |
with
a copy (which shall not constitute notice) to:
Sidley
Austin LLP
1999
Avenue of the Stars, 17th Floor
Los
Angeles, CA 90067
| Attention: | Joshua
DuClos; George Vlahakos |
| E-mail: | jduclos@sidley.com;
gvlahakos@sidley.com |
If
to the Target Companies, to:
Blyvoor
Gold Proprietary Limited
Upper
Level Change House
8
Fir Drive
Northlcliff
Gauteng,
2915
South
Africa
| E-mail: | alan@aurousresources.com |
with
copies (which shall not constitute notice) to:
Milbank
LLP
55 Hudson Yards
New York, NY 10001
| Attention: | David
Dixter and Iliana Ongun |
| E-mail: | ddixter@milbank.com;
iongun@milbank.com |
and
ENS
Tower
1, The Marc
129
Rivonia Road
Sandton,
2196
South
Africa
| Attention: | Atlegang
Govuza and Lebusa Meso |
| Email: | agovuza@ensafrica.com;
lmeso@ensafrica.com |
If
to a Sponsor:
To
such Sponsor’s address set forth in Schedule I
with
a copy to (which will not constitute notice):
Sidley
Austin LLP
1999
Avenue of the Stars, 17th Floor
Los
Angeles, CA 90067
| Attention: | Joshua
DuClos; George Vlahakos |
| E-mail: | jduclos@sidley.com;
gvlahakos@sidley.com |
Section
3.9 Liability. The liability of any Sponsor under this Agreement
is several (and not joint). Notwithstanding any other provision of this Support Agreement, in no event will any Sponsor be liable for
any other Sponsor’s breach of such other Sponsor’s obligations under this Agreement.
Section
3.10 Disclosure. Each Sponsor authorizes Rigel and the Target Companies to publish and
disclose in any announcement or disclosure relating to the Transactions, including any such announcement or disclosure required or requested
by the SEC (or as otherwise required or requested pursuant to any applicable Laws or any other Governmental Authorities), such Sponsor’s
identity and ownership of the Lock-up Securities, the nature of such Sponsor’s obligations under this Agreement and a copy of this
Agreement, if reasonably deemed appropriate by Rigel and the Target Companies. Each Sponsor will promptly provide any information reasonably
requested in writing by Rigel or the Target Companies for any regulatory application or filing made or approval sought in connection
with the transactions contemplated by the Business Combination Agreement (including filings with the SEC).
Section
3.11 Counterparts. This Sponsor Agreement may be executed in two or more counterparts
(any of which may be delivered by electronic transmission), each of which shall constitute an original, and all of which taken together
shall constitute one and the same instrument.
Section
3.12 Entire Agreement. This Sponsor Agreement and the agreements referenced herein constitute
the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersede all prior understandings,
agreements or representations by or among the parties hereto to the extent they relate in any way to the subject matter hereof.
Section
3.13 Definitions. As used herein, the term “Voting Shares” shall
mean, taken together, all securities of Rigel (including any Newco Securities, as applicable) beneficially owned (as such term is defined
in Rule 13d-3 under the Exchange Act, excluding shares of stock underlying unexercised options or warrants, but including any shares
of stock acquired upon exercise of such options or warrants) by any Sponsor, including any and all securities of Rigel acquired and held
in such capacity subsequent to the date hereof.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
IN
WITNESS WHEREOF, the Sponsors, Rigel, and the Company have each caused this Sponsor Support Agreement to be duly executed as of the date
first written above.
| |
SPONSORS: |
| |
|
|
| |
RIGEL RESOURCE ACQUISITION HOLDING LLC |
| |
|
|
| |
By: |
/s/ Jonathan Lamb |
| |
|
Name: |
Jonathan Lamb |
| |
|
Title: |
Chief Executive Officer |
| |
|
|
|
| |
/s/ Oslar Lewnowski |
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Name: |
Oslar Lewnowski |
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/s/ Nathanael Abebe |
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Name: |
Nathanael Abebe |
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/s/ Christine Coignard |
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Name: |
Christine Coignard |
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/s/ Kelvin Dushnisky |
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Name: |
Kelvin Dushnisky |
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/s/ Timothy Keating |
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Name: |
Timothy Keating |
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/s/ L. Peter O’Hagan |
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Name: |
L. Peter O’Hagan |
[Signature Page to Sponsor
Support Agreement]
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RIGEL: |
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RIGEL RESOURCE ACQUISITION CORP |
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By: |
/s/ Jonathan Lamb |
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Name: |
Jonathan Lamb |
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Title: |
Chief Executive Officer |
[Signature Page to Sponsor Support Agreement]
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NEWCO: |
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RRAC NEWCO |
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By: |
/s/ Alan Gordon Smith |
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Name: |
Alan Gordon Smith |
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Title: |
Director |
[Signature Page to Sponsor
Support Agreement]
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TARGET COMPANIES: |
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BLYVOOR GOLD RESOURCES (PROPRIETARY) LIMITED |
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By: |
/s/ Alan Smith |
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Name: |
Alan Smith |
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Title: |
Director |
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BLYVOOR GOLD UNDERGROUND OPERATIONS PROPRIETARY LIMITED |
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By: |
/s/ Alan Smith |
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Name: |
Alan Smith |
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Title: |
Director |
[Signature Page to Sponsor Support Agreement]
Schedule
I
Sponsor
Rigel Class B Shares and Rigel Warrants
Exhibit 10.2
Execution Version
Subscription Agreement
This SUBSCRIPTION AGREEMENT (the “Subscription Agreement”) is entered into this 11th day of March, 2024, by and among Rigel Resource Acquisition Corp, a Cayman Islands exempted company (“Rigel”), RRAC NewCo, a Cayman Islands exempted company and wholly owned subsidiary of Rigel (“Newco”), and Blyvoor Gold Proprietary Limited, a South African private limited liability company (“Blyvoor Gold” or “Blyvoor Investors” and together with Orion Mine Finance Fund II L.P., a Bermuda limited partnership, the “Sellers”), Rigel Resource Acquisition Holding LLC (the “Sponsor”), and the undersigned (“Subscriber” or “you”). Defined terms used but not otherwise defined herein shall have the respective meanings ascribed thereto in the Business Combination Agreement (as defined below).
WHEREAS, Rigel, Newco, RRAC Merger Sub, a Cayman Islands exempted company and wholly owned subsidiary of Newco (“Merger Sub”), Blyvoor Gold Resources Proprietary Limited, a South African private limited liability company, expected to be renamed “Aurous Gold (Pty) Limited”, (“Blyvoor Resources”) and Blyvoor Gold Operations Proprietary Limited, a South African private limited liability company, expected to be renamed “Gauta Tailings (Pty) Limited” (“Tailings” and together with Blyvoor Resources, the “Target Companies”) will, immediately following the execution of this Subscription Agreement, enter into that certain Business Combination Agreement, dated the date hereof (as amended, modified, supplemented or waived from time to time in accordance with its terms, the “Business Combination Agreement”), pursuant to which, inter alia, at the Closing (as defined therein) (a) the Sellers, collectively owning all of the issued and outstanding ordinary no par value shares of Blyvoor Resources (the “Blyvoor Resources Shares”), shall transfer the Blyvoor Resources Shares to Newco (the “Resources Exchange”); (b) Blyvoor Gold, owning all of the issued and outstanding ordinary no par value shares of Tailings (the “Tailings Shares”), shall transfer the Tailings Shares to Newco (the “Tailings Exchange” and together with the Resources Exchange, the “Exchanges”); and (c) Rigel will have merged with and into Merger Sub, as a result of which Merger Sub will continue as the surviving company and wholly owned subsidiary of Newco (the “Merger”), in each case, on the terms and subject to the conditions set forth therein (the Exchanges, together with the Merger and the other transactions contemplated by the Business Combination Agreement, the “Transactions”);
WHEREAS, in connection with the Transactions, Subscriber desires to subscribe for and purchase from Newco that number of ordinary shares of par value per share of US$1.00 in the share capital of Newco (the “Newco Ordinary Shares”) set forth on the signature page hereto (the “Shares”) for a purchase price of $10.00 per share, for the aggregate purchase price set forth on Subscriber’s signature page hereto (the “Purchase Price”), and Newco desires to issue and sell to Subscriber the Shares in consideration of the payment of the Purchase Price therefor by or on behalf of Subscriber to Newco, all on the terms and conditions set forth herein;
WHEREAS, certain other “qualified institutional buyers” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”)) or institutional “accredited investors” (as described in Rule 501(a)(1), (2), (3), or (7) under the Securities Act) (each, an “Other Subscriber”) have entered on the date hereof, severally and not jointly, into separate subscription agreements with, inter alios, Rigel and Newco (the “Other Subscription Agreements”), pursuant to which such investors have agreed to purchase Newco Ordinary Shares on the Closing Date at the same per share purchase price as Subscriber, and the aggregate amount of securities to be sold by Newco pursuant to this Subscription Agreement and the Other Subscription Agreements equals, as of the date hereof, 750,000 Newco Ordinary Shares;
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants, and subject to the conditions herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
For ease of administration, this single Subscription Agreement is being executed so as to enable each Subscriber identified on the signature page to enter into a Subscription Agreement, severally, but not jointly. The parties agree that (i) the Subscription Agreement shall be treated as if it were a separate agreement with respect to each Subscriber listed on the signature page, as if each Subscriber entity had executed a separate Subscription Agreement naming only itself as Subscriber, and (ii) no Subscriber listed on the signature page shall have any liability under the Subscription Agreement for the obligations of any other Subscriber so listed.
1. Subscription. Subject to the terms and conditions hereof, at the Closing, Subscriber hereby agrees to subscribe for and purchase, and Newco hereby agrees to issue and sell to Subscriber, upon the payment of the Purchase Price, the Shares (such subscription and issuance, the “Subscription”).
2. Representations, Warranties and Agreements.
2.1 Subscriber’s Representations, Warranties and Agreements. To induce Newco to issue the Shares to Subscriber, Subscriber hereby represents and warrants to Rigel, Target Companies, Sellers, Newco and Citigroup Global Markets Inc. (“Citi”) and H&P Advisory Ltd (“Hannam” and, together with Citi, the “Placement Agents”) and Rand Merchant Bank, a division of Firstrand Bank Limited (“RMB”) and acknowledges and agrees with Rigel, Newco, the Target Companies, the Sellers, the Placement Agents and RMB, as applicable, as follows:
2.1.1 Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement.
2.1.2 This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. Assuming that this Subscription Agreement constitutes the valid and binding agreement of Rigel and Newco, this Subscription Agreement is the valid and binding obligation of Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity.
2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect.
2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (as described in Rule 501(a)(1), (2), (3), or (7) under the Securities Act) satisfying the applicable requirements set forth on Schedule I, (ii) is acquiring the Shares only for its own account and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, warranties and agreements herein on behalf of each owner of each such account and (iii) is acquiring the Shares only for its own account and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer or institutional accredited investor, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or the laws of any other jurisdiction (and shall provide the requested information on Schedule I following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. Subscriber understands that the offering of the Shares hereunder (the “offering”) meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J).
2.1.5 Subscriber (i) is an institutional account as defined in FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Shares, in each case, satisfying the applicable requirements set forth on Schedule I, and has the ability to bear the economic risks of an investment in the Shares and can afford a complete loss of such investment, and (iii) has exercised independent judgment in evaluating its participation in the purchase of the Shares. Accordingly, Subscriber understands that the
offering meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that its purchase of the Shares and participation in the Transactions (i) are fully consistent with its financial needs, objectives and condition, (ii) comply and are fully consistent with all investment policies, guidelines and other restrictions applicable to it, (iii) have been duly authorized and approved by all necessary action and (iv) is a fit, proper and suitable investment, notwithstanding the substantial risks inherent in investing in or holding the Shares. Accordingly, Subscriber understands that the offering meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b).
2.1.6 If resident in a member state of the European Economic Area, Subscriber is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, as amended (the “EU Prospectus Regulation”) and is not (a) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or (b) a customer within the meaning of Directive (EU) 2016/97, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II.
2.1.7 If resident in the United Kingdom, Subscriber is a “qualified investor” within the meaning of the EU Prospectus Regulation as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 and an investment professional falling within Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (as amended) (the “Financial Promotion Order”) or a high net worth company or other person who falls within Article 49(2)(a) to (d) of the Financial Promotion Order, or a person to whom an invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Promotion Order) in connection with the issue or sale of any securities may otherwise lawfully be communicated or caused to be communicated.
2.1.8 If resident in South Africa, Subscriber (a) falls within the exemptions set out in section 96 (1)(a) or (b) of the South African Companies Act No 71 of 2008 (as amended) (the “South African Companies Act”) and as such, accepts that the offer by Newco does not constitute an “offer to the public” as contemplated in the South African Companies Act, (b) accepts and understands that as a result of the Shares being offered in a transaction not involving any public offering within the meaning of the South African Companies Act, no prospectus (as contemplated in the South African Companies Act) has been or will be filed with or approved by the Companies and Intellectual Property Commission in respect of the offering of the Shares and (c) to the extent required, has obtained all the necessary regulatory approvals (including, but not limited to exchange control approvals from its authorised dealer and/or from the South African Reserve Bank) to partake in the offering of the Shares.
2.1.9 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act or the laws of any other jurisdiction. Subscriber understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to Newco or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States and any other applicable jurisdictions, and that any certificates representing the Shares shall contain a legend to such effect. Subscriber acknowledges and agrees that the Shares will not immediately be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act, and that the provisions of Rule 144(i) will apply to the Shares. Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares.
2.1.10 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from Newco. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by or on behalf of Newco, Rigel, the Sellers, the Target Companies, the Placement Agents, RMB or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements of Rigel, Newco, the Sellers and Sponsor expressly set forth in this Subscription Agreement.
2.1.11 Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law.
2.1.12 No disclosure or offering document has been prepared in connection with the offer and sale of the Shares by any of the Placement Agents, RMB or their respective affiliates. In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon the representations, warranties and covenants of Rigel, Newco, the Sellers and the Sponsor set forth in this Agreement and the independent investigation made by Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information or advice provided by or on behalf of the Placement Agents, RMB, the Sellers, Sponsor or the Target Companies concerning Rigel, Newco, the Sellers, Sponsor or the Target Companies for the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber had access to, and an adequate opportunity to review, financial and other
information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to Rigel, Newco, the Target Companies and the Transactions. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, received, reviewed and understood the offering materials made available to them in connection with the Transactions, have had the full opportunity to ask such questions, including on the financial information, receive such answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber has made its own assessment, conducted and completed its own independent due diligence and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares.
2.1.13 Subscriber acknowledges and agrees that (i) it has been informed that each of the Placement Agents is acting solely as Rigel’s placement agent in connection with the Transactions and that RMB is acting as financial advisor to the Target Companies and that neither is acting as an underwriter or in any other capacity in connection with the offering and, other than RMB with respect to the Target Companies, is not and shall not be construed as a fiduciary or financial advisor for Subscriber, Rigel, the Sellers, the Target Companies or any other person in connection with the Transactions and all of the information provided to the Subscriber constitutes factual information as contemplated in section 1(3)(a) of the South African Financial Advisory and Intermediary Services Act No. 37 of 2002 (as amended) (the “FAIS Act”) and does not constitute the furnishing of, any “advice” as defined in the South African Financial Markets Act No. 19 of 2012 (as amended) and/or FAIS Act and any of the information provided in respect of the Shares should not be construed as an express or implied recommendation, guidance or proposal that any particular transaction is appropriate to the particular investment objectives, financial situations or needs of the Subscriber, and none of the information provided in respect of the offering of the Shares should be construed as constituting the canvassing for, or marketing or advertising of, financial services in the Republic of South Africa.in terms of the FAIS Act(ii) the Placement Agents and RMB have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Transactions, in each case, to Subscriber and (iii) the Placement Agents and RMB will not have any responsibility with respect to (a) any representations, warranties or agreements made by any person or entity under or in connection with the execution, delivery and performance of this Subscription Agreement, or the execution, legality, validity or enforceability (with respect to any person) thereof, (b) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning Rigel, Newco or the Target Companies, or (c) the validity, accuracy, value or genuineness of any information, certificates or documentation delivered by or on behalf of Rigel, Newco or the Target Companies pursuant to this Subscription Agreement or in connection with the Transactions. Each of the Placement Agents and RMB may rely upon these representations and warranties of Subscriber. Rigel is solely responsible for paying any fees or other commission owed to the Placement Agents in connection with the Transactions.
2.1.14 Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber and Rigel, Newco, the Sellers, the Target Companies or their respective representatives (including the Placement Agents or RMB). Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that Rigel and Newco each represent and warrant that the Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws.
2.1.15 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the SEC Documents (as defined below) and the investor presentation provided by Rigel. Subscriber is able to fend for itself in the transactions contemplated herein, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision.
2.1.16 Without limiting the representations, warranties and covenants set forth in this Agreement, alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in Newco. Subscriber acknowledges specifically that a possibility of total loss exists.
2.1.17 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares.
2.1.18 Subscriber represents and warrants that none of Subscriber or any of its officers, directors, managers, managing members, general partners or any other person acting in a similar capacity or carrying out a similar function is (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC or any similar list of sanctioned persons administered by the United Nations Security Council, the European Union, any individual European Union member state or the United Kingdom (collectively, “Sanctions Lists”) or a person or entity prohibited by any OFAC sanctions program, (ii) directly or indirectly owned or controlled by, or acting on behalf of, one or more persons on a Sanctions List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of Cuba, Iran, North Korea, Syria, Venezuela, the Crimea region
of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, any other covered region of Ukraine identified pursuant to Executive Order 14065, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, the United Nations Security Council, the European Union, any individual European Union member state or the United Kingdom; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515 or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided, that Subscriber is permitted to do so under applicable law. If Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with sanctions programs administered by OFAC, the United Nations Security Council, the European Union, any European Union member state and the United Kingdom, including for the screening of its investors against the Sanctions Lists and the OFAC sanctions programs. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived.
2.1.19 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Subscriber represents and warrants that neither Rigel, Newco, the Sellers, the Target Companies nor any of their respective affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Shares, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, continue to hold or transfer the Shares.
2.1.20 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber, or a “group” comprised solely of Subscriber and its affiliates, with the Securities and Exchange Commission (the “Commission”) with respect to the beneficial ownership of Rigel’s ordinary shares, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of equity securities of Rigel (within the meaning of Rule 13d-5(b)(1) under the Exchange Act).
2.1.21 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a substantial interest (as defined in 31 C.F.R. Part 800.244) in Rigel or Newco as a result of the purchase and sale of the Shares hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and Subscriber will not have control (as defined in 31 C.F.R. Part 800.208) over Rigel or Newco from and after the Closing as a result of the purchase and sale of the Shares hereunder.
2.1.22 Subscriber has, and on each date the Purchase Price would be required to be funded to Newco pursuant to Section 3.1 will have, sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. Subscriber is an entity having total liquid assets and net assets in excess of the Purchase Price as of the date hereof and as of each date the Purchase Price would be required to be funded to Newco pursuant to Section 3.1 and was not formed for the purpose of acquiring the Shares.
2.1.23 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on Rigel, Newco, the Sellers or the Target Companies.
2.1.24 Subscriber acknowledges that (i) Rigel, Newco, the Sellers, the Target Companies, RMB and the Placement Agents currently may have, and later may come into possession of, information regarding Rigel, Newco or the Target Companies that is not known to Subscriber and that may be material to a decision to enter into this transaction to purchase the Shares (“Excluded Information”), (ii) Subscriber has determined to enter into this transaction to purchase the Shares notwithstanding its lack of knowledge of the Excluded Information, and (iii) none of Rigel, Newco, the Sellers, the Target Companies, RMB nor the Placement Agents shall have liability to Subscriber, and Subscriber hereby, to the extent permitted by law, waives and releases any claims it may have against Rigel, Newco, the Target Companies or any Placement Agent with respect to the non-disclosure of the Excluded Information.
2.1.25 Subscriber acknowledges that certain information provided to it was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections. Subscriber acknowledges that such information and projections were prepared without the participation of the Placement Agents or RMB and neither of the Placement Agents or RMB assumes responsibility for independent verification of, or the accuracy or completeness of, such information or projections.
2.1.26 Subscriber acknowledges that the Placement Agents and RMB and their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to Rigel, Newco, the Target Companies or the Shares or the accuracy, completeness or adequacy of any information supplied to Subscriber by or on behalf of Rigel, Newco or the Target Companies. In connection with the issue and purchase of the Shares, neither of the Placement Agents or RMB have acted as Subscriber’s financial advisors or fiduciaries.
2.2 Rigel’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Shares, Rigel hereby represents and warrants to Subscriber, the Placement Agents and RMB and agrees with Subscriber, Placement Agents and RMB as follows:
2.2.1 Rigel is an exempted company duly incorporated, validly existing and in good standing under the Laws of the Cayman Islands (in each case to the extent such concepts are applicable), with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement. Newco is an exempted company duly incorporated, validly existing and in good standing under the Laws of the Cayman Islands (in each case to the extent such concepts are applicable), with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
2.2.2 The Shares will have been duly authorized prior to the Closing and, when allotted and issued to Subscriber against full payment for the Shares in accordance with the terms of this Subscription Agreement and registered with Newco’s transfer agent, the Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under Newco’s organizational documents (as in effect at the time of such issuance), under Cayman Islands law or otherwise.
2.2.3 This Subscription Agreement has been duly authorized, validly executed and delivered by Rigel and Newco and, assuming that this Subscription Agreement constitutes the valid and binding obligation of Subscriber, is the valid and binding obligation of Rigel and Newco, is enforceable against Rigel and Newco in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally and (ii) principles of equity, whether considered at law or equity.
2.2.4 The execution, delivery and performance of this Subscription Agreement (including compliance by Rigel and Newco with all of the provisions hereof), issuance and sale of the Shares and the consummation of the certain other transactions contemplated herein will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Rigel or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Rigel or any of its subsidiaries is a party or by which Rigel or any of its subsidiaries is bound or to which any of the property or assets of Rigel or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the legal authority of Rigel to enter into and timely perform its obligations under this Subscription Agreement (a “Rigel Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of Rigel or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Rigel or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Rigel Material Adverse Effect.
2.2.5 Neither Rigel nor Newco, nor any person acting on their behalf has, directly or indirectly, made any offers or sales of any Rigel or Newco security or solicited any offers to buy any security under circumstances that would adversely affect reliance by Newco on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Shares under the Securities Act.
2.2.6 Neither Rigel nor Newco nor any person acting on their behalf has conducted any general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of any of the Shares and neither Rigel nor Newco nor any person acting on their behalf offered any of the Shares in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.7 Concurrently with the execution and delivery of this Subscription Agreement, Rigel and Newco are entering into the Other Subscription Agreements providing for the sale of an aggregate of 750,000 Newco Ordinary Shares for an aggregate purchase price of $7,500,000 (including the Shares purchased and sold under this Subscription Agreement). As of the date of this Subscription Agreement, there are no Other Subscription Agreements, side letter agreements or other agreements or understandings (including written summaries of any oral understandings) with any Other Subscriber (other than Subscribers in connection with the Other Subscription Agreements) (collectively, the “PIPE Agreements”) which include terms and conditions that are materially more advantageous to any such Other Subscriber (as compared to Subscriber) other than such PIPE Agreements containing any of the following: (i) any rights or benefits granted to an Other Subscriber in connection with such Other Subscriber’s compliance with any law, regulation or policy specifically applicable to such Other Subscriber or in connection with the taxable status of an Other Subscriber, (ii) any rights or benefits which are personal to an Other Subscriber based solely on its place of organization or headquarters, organizational form of, or other particular restrictions applicable to, such Other Subscriber, (iii) any rights with respect
to the confidentiality or disclosure of an Other Subscriber’s identity, or (iv) any rights or benefits granted to Rigel and its subsidiaries, the Sellers, the Target Companies or any of their respective affiliates or any of their respective partners, members, shareholders, employees or agents.
2.2.8 As of the date of this Subscription Agreement, the authorized capital stock of Rigel consists of 555,000,000 shares of capital stock, including (a) 500,000,000 Class A ordinary shares, par value $0.0001 per share (“Class A ordinary shares”), (b) 50,000,000 Class B ordinary shares, par value $0.0001 per share (“Class B ordinary shares”); and (c) 5,000,000 undesignated preference shares, par value $0.0001 per share (“Preference Shares”). As of the date of this Subscription Agreement: (i) no Preference Shares are issued and outstanding; (ii) 24,570,033 Class A ordinary shares are issued and outstanding; (iii) 7,500,000 Class B ordinary shares are issued and outstanding; (iv) 14,000,000 warrants to purchase 14,000,000 Class A ordinary shares (the “Private Placement Warrants”) are outstanding; and (v) 15,000,000 warrants to purchase 15,000,000 Class A ordinary shares (the “Public Warrants”) are outstanding. All (i) issued and outstanding Class A ordinary shares and Class B ordinary shares have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights and (ii) outstanding Private Placement Warrants and Public Warrants have been duly authorized and validly issued, are fully paid and are not subject to preemptive rights. As of the date of this Subscription Agreement, the authorized capital stock of Newco consists of 50,000 shares of Newco Ordinary Shares, of which 1 share is issued and outstanding as of the date of this Subscription Agreement. All of the issued and outstanding Newco Ordinary Shares are (i) beneficially and of record owned by Rigel, (ii) have been duly authorized and validly issued and are fully paid and non-assessable and are not subject to preemptive rights. As of the date of this Subscription Agreement, except as set forth above and pursuant to the Other Subscription Agreements, the Orion Forward Purchase Agreement, the Business Combination Agreement and the transactions contemplated thereby, and the right to convert up to $6,000,000 in debt into Private Placement Warrants at $1.00 per warrant, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from Rigel or Newco any Class A ordinary shares, Class B ordinary shares, Newco Ordinary Shares or any other equity interests in Rigel or Newco, or securities convertible into or exchangeable or exercisable for such equity interests. There are no stockholder agreements, voting trusts or other agreements or understandings to which Rigel is a party or by which it is bound relating to the voting of any securities of Rigel, other than (A) as set forth in the SEC Documents and (B) as contemplated by the Business Combination Agreement and the Transaction Agreements.
2.2.9 Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 2.1, (x) no registration under the Securities Act is required for the offer and sale of the Shares by Newco to Subscriber and (y) no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local Governmental Authority is required on the part of Rigel or Newco in connection with the consummation of the transactions contemplated by this Subscription Agreement.
2.2.10 Rigel has made available to Subscriber (including via the Commission’s EDGAR system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by Rigel with the Commission prior to the date of this Subscription Agreement (the “SEC Documents”). None of the SEC Documents filed under the Exchange Act, contained, when filed or, if amended prior to the date of this Subscription Agreement, as of the date of such amendment with respect to those disclosures that are amended, any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Rigel has timely filed each report, statement, schedule, prospectus, and registration statement that Rigel was required to file with the Commission since its inception and through the date hereof. There are no material outstanding or unresolved comments in comment letters from the Commission staff with respect to any of the SEC Documents.
2.2.11 There are no pending or, to the knowledge of Rigel, threatened, actions, which, if determined adversely, would, individually or in the aggregate, reasonably be expected to have Rigel Material Adverse Effect. As of the date hereof, there is no unsatisfied judgment or any open injunction binding upon Rigel which would, individually or in the aggregate, reasonably be expected to have a Rigel Material Adverse Effect.
2.2.12 Neither Rigel nor Newco is required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the issuance of the Shares pursuant to this Subscription Agreement, other than (i) filings with the SEC, (ii) filings required by applicable state securities laws, (iii) those required by the New York Stock Exchange (the “NYSE”) or NASDAQ, including with respect to obtaining approval of Rigel’s shareholders, and (v) any such filing or registration the failure of which to obtain would not be reasonably be expected to have, individually or in the aggregate, a Rigel Material Adverse Effect.
2.2.13 As of the date hereof, Rigel has not received any written communication from a governmental authority that alleges that Rigel is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not reasonably be expected to have, individually or in the aggregate, a Rigel Material Adverse Effect.
2.2.14 No broker, finder or other financial consultant has acted on behalf of Rigel or Newco in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on Subscriber.
2.2.15 The Class A ordinary shares of Rigel are registered pursuant to Section 12(b) of the Exchange Act, and listed for trading on the NYSE. There is no suit, action, proceeding or investigation pending or, to the knowledge of Rigel, threatened against Rigel by the NYSE or the Commission with respect to any intention by such entity to deregister the Class A ordinary shares or prohibit or terminate the listing of the Class A ordinary shares on the NYSE. Except as contemplated by the Business Combination Agreement, Rigel has taken no action that is designed to terminate the registration of the Class A ordinary shares under the Exchange Act.
2.2.16 There are no securities or instruments issued by or to which Rigel or Newco is a party containing anti-dilution or similar provisions that will be triggered by the issuance of (i) the Shares or (ii) the Newco Ordinary Shares to be issued pursuant to any Other Subscription Agreement, in each case, that have not been or will not be validly waived on or prior to the Closing Date.
3. Settlement Date and Delivery.
3.1 Closing. The closing of the Subscription contemplated hereby (the “Closing”) shall occur on the date of, and immediately prior to, the consummation of the Transactions (the “Closing Date”). Upon written notice from (or on behalf of) Rigel to Subscriber (the “Closing Notice”) at least five (5) Business Days prior to the date that Rigel reasonably expects all conditions to the closing of the Transactions to be satisfied (the “Expected Closing Date”), Subscriber shall deliver to Newco no later than three (3) Business Days prior to the Expected Closing Date, the Purchase Price for the Shares, by wire transfer of United States dollars in immediately available funds to the account specified by Rigel in the Closing Notice, such funds to be held by Newco in escrow until the Closing. If the Transactions are not consummated on or prior to the tenth (10th) Business Day after the Expected Closing Date, Newco shall return the Purchase Price to Subscriber by wire transfer of United States dollars in immediately available funds to an account specified by Subscriber. Notwithstanding such return, (i) a failure to close on the Expected Closing Date shall not, by itself, be deemed to be a failure of any of the conditions to Closing set forth in this Section 3 to be satisfied or waived on or prior to the Closing Date, and (ii) Subscriber shall remain obligated (A) to redeliver funds to Newco following Rigel’s delivery to Subscriber of a new Closing Notice and (B) to consummate the Closing upon satisfaction of the conditions set forth in this Section 3. At the Closing, upon satisfaction (or, if applicable, waiver) of the conditions set forth in this Section 3, Newco shall deliver to Subscriber the Shares in certificated or book entry form (at Newco’s election), in the name of Subscriber (or its nominee in accordance with its delivery instructions) or to a custodian designated by Subscriber, as applicable. For purposes of this Subscription Agreement, “Business Day” means any day that, in New York, New York, is neither a legal holiday nor a day on which banking institutions are generally authorized or required by law or regulation to close.
3.2 Conditions to Closing of Newco.
Newco’s obligations to sell and issue the Shares at the Closing are subject to the fulfillment or (to the extent permitted by applicable law) written waiver by Newco, on or prior to the Closing Date, of each of the following conditions:
3.2.1 Representations and Warranties Correct. The representations and warranties made by Subscriber in Section 2.1 shall be true and correct in all material respects when made (other than representations and warranties
that are qualified as to materiality or Subscriber Material Adverse Effect, which representations and warranties shall be true and correct in all respects), and shall be true and correct in all material respects on and as of the Closing Date (unless they specifically speak as of another date in which case they shall be true and correct in all material respects as of such date) (other than representations and warranties that are qualified as to materiality or Subscriber Material Adverse Effect, which representations and warranties shall be true in all respects) with the same force and effect as if they had been made on and as of said date, but in each case without giving effect to consummation of the Transactions.
3.2.2 Compliance with Covenants. Subscriber shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by Subscriber at or prior to the Closing.
3.2.3 Closing of the Transactions. All conditions precedent to the obligations to consummate, or cause to be consummated, the Transactions set forth in the Business Combination Agreement shall have been satisfied or waived by the party entitled to the benefit thereof under the Business Combination Agreement (other than those conditions that may only be satisfied at the consummation of the Transactions, but subject to satisfaction or waiver by such party of such conditions as of the consummation of the Transactions), and the Transactions will be consummated immediately following the Closing.
3.2.4 Legality. There shall not be in force any order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by or with any Governmental Authority, statute, rule or regulation enjoining or prohibiting the consummation of the Subscription.
3.3 Conditions to Closing of Subscriber.
Subscriber’s obligation to purchase the Shares at the Closing is subject to the fulfillment or (to the extent permitted by applicable law) written waiver by Subscriber, on or prior to the Closing Date, of each of the following conditions:
3.3.1 Representations and Warranties Correct. The representations and warranties made by Rigel in Section 2.2 shall be true and correct in all material respects when made (other than representations and warranties that are qualified as to materiality or Rigel Material Adverse Effect, which representations and warranties shall be true and correct in all respects), and shall be true and correct in all material respects on and as of the Closing Date (unless they specifically speak as of another date in which case they shall be true and correct in all material respects as of such date) (other than representations and warranties that are qualified as to materiality or Rigel Material Adverse Effect, which representations and warranties shall be true and correct in all respects) with the same force and effect as if they had been made on and as of said date, but in each case without giving effect to consummation of the Transactions; provided, that in the event this condition would otherwise fail to be
satisfied as a result of a breach of one or more of the representations and warranties of Rigel contained in this Subscription Agreement and the facts underlying such breach would also cause a condition to the Target Companies’ obligations under the Business Combination Agreement to fail to be satisfied, this condition shall nevertheless be deemed satisfied in the event the Target Companies waive such condition with respect to such breach under the Business Combination Agreement.
3.3.2 Compliance with Covenants. Rigel and Newco shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by Rigel and Newco at or prior to the Closing, except where the failure of such performance or compliance would not or would not reasonably be expected to prevent, materially delay, or materially impair the ability of Rigel and Newco to consummate the Closing.
3.3.3 Closing of the Transactions. (i) All conditions precedent to the consummation of the Transactions set forth in the Business Combination Agreement shall have been satisfied or waived by the party entitled to the benefit thereof under the Business Combination Agreement (other than those conditions that may only be satisfied at the consummation of the Transactions, but subject to satisfaction or waiver by such party of such conditions as of the consummation of the Transactions), (ii) no amendment or modification of the Business Combination Agreement (as the same exists on the date hereof as provided to Subscriber) shall have occurred that would reasonably be expected to materially and adversely affect the economic benefits that Subscriber would reasonably expect to receive under this Agreement without having received Subscriber’s prior written consent and (iii) the Transactions will be consummated immediately following the Closing.
3.3.4 Legality. There shall not be in force any order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by or with any governmental authority, statute, rule or regulation enjoining or prohibiting the transactions contemplated by this Subscription Agreement.
4. Registration Statement.
4.1 Newco agrees that, within forty five (45) calendar days after the consummation of the Transactions (the “Filing Date”), Newco will file with the Commission (at Newco’s sole cost and expense) a registration statement for a shelf registration on Form F-1 (the “Registration Statement”) registering the resale of the Shares and the Sponsor Transfer Shares (as defined below) that are eligible for registration (determined as of two (2) Business Days prior to such filing) (the “Registrable Securities”), and Newco shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof, but no later than the earlier of (i) the ninetieth (90th) calendar day (or one hundred and fiftieth (150th) calendar day if the Commission notifies Newco that it will “review” the Registration Statement) following the Closing and (ii) the 10th Business Day after the date Newco is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be “reviewed” or will not be subject to further review (such earlier date, the “Effectiveness
Date”); provided, however, that Newco’s obligations to include the Registrable Securities in the Registration Statement are contingent upon Subscriber furnishing a completed and executed selling shareholders questionnaire in customary form to Newco that contains the information required by Commission rules for a Registration Statement regarding Subscriber, the securities of Newco held by Subscriber and the intended method of disposition of the Registrable Securities (which shall be limited to non-underwritten public offerings) to effect the registration of the Registrable Securities, and Subscriber shall execute such documents in connection with such registration as Newco may reasonably request that are customary of a selling stockholder in similar situations, including providing that Newco shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement during any customary blackout or similar period or as permitted hereunder. For purposes of clarification, any failure by Newco to file the Registration Statement by the Filing Date or to effect such Registration Statement by the Effectiveness Date shall not otherwise relieve Newco of its obligations to file or effect the Registration Statement as set forth above in this Section 4. Notwithstanding the foregoing, if the Commission prevents Newco from including any or all of the Shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Shares by the applicable stockholders or otherwise, such Registration Statement shall register for resale such number of Shares which is equal to the maximum number of Shares as is permitted by the Commission. In such event, the number of Shares to be registered for each selling stockholder named in the Registration Statement shall be reduced pro rata among all such selling stockholders. Unless required under applicable laws and Commission rules, in no event shall Subscriber be identified as a statutory underwriter in the Registration Statement; provided, that if Subscriber is required to be so identified as a statutory underwriter in the Registration Statement, Subscriber will have an opportunity to withdraw its Registrable Securities from the Registration Statement.
4.2 In the case of the registration effected by Newco pursuant to this Subscription Agreement, Newco shall, upon reasonable request, inform Subscriber as to the status of such registration. At its expense Newco shall:
4.2.1 except for such times as Newco is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, use its commercially reasonable efforts to keep such registration, and any qualification, exemption or compliance under state securities laws which Newco determines to obtain, continuously effective with respect to Subscriber, and to keep the applicable Registration Statement or any subsequent shelf registration statement free of any material misstatements or omissions, until the earlier of the following: (i) Subscriber ceases to hold any Registrable Securities, (ii) the date all Registrable Securities held by Subscriber may be sold without restriction under Rule 144, including without limitation, any volume and manner of sale restrictions which may be applicable to affiliates under Rule 144 and without the requirement for Newco to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable) and (iii) two years from the date of effectiveness of the Registration Statement;
4.2.2 advise Subscriber as promptly as possible:
(a) when the Registration Statement or any post-effective amendment thereto has become effective;
(b) after it shall have received notice or obtained knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness the Registration Statement or the initiation of any proceedings for such purpose;
(c) of the receipt by Newco of any notification with respect to the suspension of the qualification of the Registrable Securities included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and
(d) subject to the provisions in this Subscription Agreement, of the occurrence of any event that requires the making of any changes in the Registration Statement or any prospectus so that, as of such date, the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading.
Notwithstanding anything to the contrary set forth herein, Newco shall not, when so advising Subscriber of such events, provide Subscriber with any material, non-public information regarding Newco other than to the extent that providing notice to Subscriber of the occurrence of the events listed in (a) through (d) above constitutes material, non-public information regarding Newco;
4.2.3 use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement as soon as reasonably practicable;
4.2.4 upon the occurrence of any event contemplated in Section 4.2.2(d), except for such times as Newco is permitted hereunder to suspend, and has suspended, the use of a prospectus forming part of the Registration Statement, use its commercially reasonable efforts to as soon as reasonably practicable prepare a post-effective amendment to the Registration Statement or a supplement to the related prospectus, or file any other required document so that, as thereafter delivered to purchasers of the Registrable Securities included therein, such prospectus will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
4.2.5 use its commercially reasonable efforts to cause all Shares to be listed on each securities exchange or market, if any, on which the Newco Ordinary Shares are then listed.
4.3 Notwithstanding anything to the contrary in this Subscription Agreement, Newco shall be entitled to delay or postpone the effectiveness of the Registration Statement, and from time to time to require Subscriber not to sell under the Registration Statement or to suspend the effectiveness thereof, if the filing, effectiveness or continued use of any Registration Statement would require Newco to make any public disclosure of material non-public information, which
disclosure, in the good faith determination of the board of directors of Newco, after consultation with counsel to Newco, (a) would be required to be made in any Registration Statement in order for the applicable Registration Statement not to contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading, (b) would not be required to be made at such time if the Registration Statement were not being filed, and (c) Newco has a bona fide business purpose for not making such information public (each such circumstance, a “Suspension Event”); provided, however, that Newco may not delay or suspend the Registration Statement on more than two occasions or for more than ninety (90) consecutive calendar days, or more than one hundred and fifty (150) total calendar days, in each case during any twelve-month period. Upon receipt of any written notice from Newco during the period that the Registration Statement is effective, including during a Suspension Event, the Registration Statement or related prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made (in the case of the prospectus) not misleading, Subscriber agrees that (i) it will immediately discontinue offers and sales of the Shares under the Registration Statement until Subscriber receives copies of a supplemental or amended prospectus (which Newco agrees to promptly prepare) that corrects the misstatement(s) or omission(s) referred to above and receives notice that any post-effective amendment has become effective or unless otherwise notified by Newco that it may resume such offers and sales, and (ii) it will maintain the confidentiality of any information included in such written notice delivered by Newco except (A) for disclosure to Subscriber’s employees, agents and professional advisers who need to know such information and are obligated to keep it confidential, (B) for disclosures to the extent required in order to comply with reporting obligations to its limited partners who have agreed to keep such information confidential and (C) as required by law. If so directed by Newco, Subscriber will deliver to Newco or, in Subscriber’s sole discretion destroy, all copies of the prospectus covering the Shares in Subscriber’s possession; provided, however, that this obligation to deliver or destroy all copies of the prospectus covering the Shares shall not apply (i) to the extent Subscriber is required to retain a copy of such prospectus (a) in order to comply with applicable legal, regulatory, self-regulatory or professional requirements or (b) in accordance with a bona fide pre-existing document retention policy or (ii) to copies stored electronically on archival servers as a result of automatic data back-up.
4.4 Newco agrees to indemnify, to the extent permitted by law, Subscriber, its directors, officers, partners, managers, members, investment advisors, employees, agents and each person who controls Subscriber (within the meaning of the Securities Act), against all losses, claims, damages, liabilities and reasonable and documented out of pocket expenses (including, without limitation, reasonable and documented attorneys’ fees of one law firm and one local counsel in each applicable jurisdiction) caused by any untrue or alleged untrue statement of material fact contained in any Registration Statement, prospectus included in any Registration Statement (“Prospectus”) or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus, in the light of the circumstances under which they were made) not misleading, except insofar as the same are caused by or contained in any information or affidavit so furnished in writing to Newco by or on behalf of Subscriber expressly for use therein or such Subscriber has omitted a material fact from such information or otherwise violated the Securities Act, Exchange Act or any state securities law or any other law, rule or regulation thereunder; provided, however, that the indemnification contained
in this Section 4.4 shall not apply to amounts paid in settlement of any losses, claims, damages, liabilities and out of pocket expenses if such settlement is effected without the consent of Newco (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall Newco be liable for any losses, claims, damages, liabilities and out of pocket expenses to the extent they arise out of or are based upon a violation which occurs (A) in reliance upon and in conformity with written information furnished by Subscriber expressly for use in the Prospectus, (B) in connection with any failure of Subscriber to deliver or cause to be delivered a prospectus made available by Newco in a timely manner, (C) as a result of offers or sales effected by or on behalf of Subscriber by means of a “free writing prospectus” (as defined in Rule 405 under the Securities Act) that was not authorized in writing by Newco, or (D) in connection with any offers or sales effected by or on behalf of Subscriber in violation of Section 4.
5. Termination. This Subscription Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any party in respect thereof, upon the earlier to occur of (i) such date and time as the Business Combination Agreement is validly terminated in accordance with its terms and (ii) upon the mutual written agreement of each of the parties hereto to terminate this Subscription Agreement; provided, that nothing herein will relieve any party from liability for any willful breach hereof prior to the time of termination, and each party will be entitled to any remedies at law or in equity to recover losses, liabilities or damages arising from such breach. Rigel shall promptly notify Subscriber, the Placement Agents and RMB of the termination of the Business Combination Agreement promptly after the termination of such agreement.
6. Short Sales.
6.1 From the date of this Subscription Agreement until the earlier of (a) termination of this Subscription Agreement, and (b) the date the Registration Statement is declared effective, none of Subscriber, its controlled affiliates, or any person or entity acting on behalf of Subscriber or any of its controlled affiliates or pursuant to any understanding with Subscriber or any of its controlled affiliates shall, directly or indirectly, engage in any Short Sales with respect to securities of Rigel or Newco. For the purposes hereof, “Short Sales” shall include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, and all types of direct and indirect stock pledges (other than pledges in the ordinary course of business as part of prime brokerage arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), including through non-U.S. broker dealers or foreign regulated brokers. The foregoing restriction is expressly agreed to preclude Subscriber from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of the Shares even if such Shares would be disposed of by someone other than Subscriber. Such prohibited hedging or other transactions include any purchase, sale or grant of any right (including any put or call option) with respect to any of the Shares of Subscriber or with respect to any security that includes, relates to, or derives any significant part of its value from such Shares. Notwithstanding the foregoing, in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the limitations set forth in this Section 6 shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement.
7. Miscellaneous.
7.1 Further Assurances. At the Closing, the parties hereto shall execute and deliver such additional documents and take such additional actions as the parties reasonably may deem to be practical and necessary in order to consummate the Subscription as contemplated by this Subscription Agreement.
7.1.1 Subscriber acknowledges that Rigel, Newco, Sellers, the Placement Agents and RMB will rely on the acknowledgments, understandings, agreements, representations and warranties made by Subscriber contained in this Subscription Agreement. Prior to the Closing, Subscriber agrees to promptly notify Rigel, Newco, Sellers, the Placement Agents and RMB if any of the acknowledgments, understandings, agreements, representations and warranties set forth herein are no longer accurate in all material respects.
7.1.2 Each of Rigel, Newco, Sellers, Target Companies, Subscriber, the Placement Agents and RMB is entitled to rely upon this Subscription Agreement and is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
7.1.3 Rigel, Newco, Sellers and Sponsor may request from Subscriber such additional information as either of them may deem necessary to evaluate the eligibility of Subscriber to acquire the Shares, and Subscriber shall provide such information as may be reasonably requested, to the extent within Subscriber’s possession and control or otherwise readily available to Subscriber; provided that Rigel and Newco agrees to keep any such information confidential except to the extent required to be disclosed by applicable law.
7.1.4 Each of Subscriber, Rigel, the Sellers, Sponsor and Newco shall pay all of its own expenses in connection with this Subscription Agreement and the transactions contemplated herein.
7.1.5 Each of Subscriber, Rigel, the Sellers, Sponsor and Newco shall take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this Subscription Agreement on the terms and conditions described therein no later than immediately prior to the consummation of the Transactions.
7.2 Notices. Any notice or communication required or permitted hereunder shall be in writing and either delivered personally, emailed or sent by overnight mail via a reputable overnight carrier, or sent by certified or registered mail, postage prepaid, and shall be deemed to be given and received (i) when so delivered personally, (ii) when sent, with no mail undeliverable or other rejection notice, if sent by email, or (iii) three (3) Business Days after the date of mailing to the address below or to such other address or addresses as such person may hereafter designate by notice given hereunder:
(i) if to Subscriber, to such address or addresses set forth on the signature page hereto;
(ii) if to Rigel, to:
Rigel Resource Acquisition Corp
7 Bryant Park
1045 Avenue of the Americas, Floor 25
New York, NY 10018
Attention: Nate Abebe
E-mail: nabebe@rigelresource.com;
with a required copy (which copy shall not constitute notice) to:
Sidley Austin LLP
1000 Louisiana Street, Suite 5900
Houston, TX 77002
Attention: George J. Vlahakos & John W. Stribling
Email: gvlahakos@sidley.com; john.stribling@sidley.com
and
Sidley Austin LLP
1999 Avenue of the Stars, 17th Floor
Los Angeles, CA 90067
Attention: Joshua G. DuClos & Zachary Shub-Essig
Email: jduclos@sidley.com; zshubessig@sidley.com
(iii) if to Newco, to:
RRAC Newco
c/o Maples Corporate Services Ltd
PO Box 309
Ugland House
Grand Cayman Island
KY1-1104
Cayman Islands
Attention: Alan Smith
E-mail: alan@aurousresources.com
with a required copy (which copy shall not constitute notice) to:
Rigel Resource Acquisition Corp
7 Bryant Park
1045 Avenue of the Americas, Floor 25
New York, NY 10018
Attention: Nate Abebe
E-mail: nabebe@rigelresource.com
and
ENS
Tower 1, The Marc
129 Rivonia Road
Sandton, 2196
South Africa
Attention: Atlegang Govuza
Email: agovuza@ensafrica.com
and
Milbank LLP
100 Liverpool Street
EC2M 2AT
London, United Kingdom
Attention: David Dixter & Dimitris Krokos
Email: ddixter@milbank.com; dkrokos@milbank.com
(iv) if to Blyvoor Gold, to:
Blyvoor Gold Proprietary Limited
Upper Level Change House
8 Fir Drive
Northlcliff
Gauteng, 2915
South Africa
Attention: Alan Smith
E-mail: alan@aurousresources.com
with a required copy (which copy shall not constitute notice) to:
ENS
Tower 1, The Marc
129 Rivonia Road
Sandton, 2196
South Africa
Attention: Atlegang Govuza
Email: agovuza@ensafrica.com
and
Milbank LLP
100 Liverpool Street
EC2M 2AT
London, United Kingdom
Attention: David Dixter & Dimitris Krokos
Email: ddixter@milbank.com; dkrokos@milbank.com
(vi) if to Sponsor, to:
Rigel Resource Acquisition Holding LLC
7 Bryant Park
1045 Avenue of the Americas, Floor 25
New York, NY 10018
Attention: General Counsel
E-mail: notices@orionrp.com
with a required copy (which copy shall not constitute notice) to:
Sidley Austin LLP
1000 Louisiana Street, Suite 5900
Houston, TX 77002
Attention: George J. Vlahakos & John W. Stribling
Email: gvlahakos@sidley.com; john.stribling@sidley.com
and
Sidley Austin LLP
1999 Avenue of the Stars, 17th Floor
Los Angeles, CA 90067
Attention: Joshua G. DuClos & Zachary Shub-Essig
Email: jduclos@sidley.com; zshubessig@sidley.com
7.3 Entire Agreement. This Subscription Agreement constitutes the entire agreement, and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof, including any commitment letter entered into relating to the subject matter hereof.
7.4 Modifications and Amendments. This Subscription Agreement may not be amended, modified, supplemented or waived except by an instrument in writing, signed by the party against whom enforcement of such amendment, modification, supplement or waiver is sought; provided that any rights (but not obligations) of a party under this Agreement may be waived, in whole or in part, by such party on its own behalf without the prior consent of any other party; further provided that any rights under this Subscription Agreement, accruing to the benefit of each of the Sellers and the Target Companies, may not be amended, modified, supplemented or waived in a manner that is material and adverse to each of such parties, without their prior written consent.
7.5 Assignment. Neither this Subscription Agreement nor any rights, interests or obligations that may accrue to the parties hereunder (including Subscriber’s rights to purchase the Shares) may be transferred or assigned without the prior written consent of the other parties hereto (other than the Shares acquired hereunder, if any, and then only in accordance with this Subscription Agreement); provided, that Subscriber’s rights and obligations hereunder may be assigned to any fund or account managed by the same investment manager as Subscriber, without the prior consent of Rigel and Newco, provided, that such assignee(s) agrees in writing to be bound by the terms hereof, and upon such assignment by a Subscriber, the assignee(s) shall become Subscriber hereunder and have the rights and obligations and be deemed to make the representations and warranties of Subscriber provided for herein to the extent of such assignment; provided, further, that, no assignment shall relieve the assigning party of any of its obligations hereunder, including any assignment to any fund or account managed by the same investment manager as Subscriber.
7.6 Benefit.
7.6.1 Except as otherwise provided herein, this Subscription Agreement shall be binding upon, and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives, and permitted assigns, and the agreements, representations, warranties, covenants and acknowledgments contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators, successors, legal representatives and permitted assigns. This Subscription Agreement shall not confer rights or remedies upon any person other than the parties hereto and their respective successors and assigns; provided, however, each of the parties hereby agrees that each of the Placement Agents, RMB and the Target Companies is an intended third party beneficiary of this Subscription Agreement, including, but not limited to, the representations and warranties of the parties hereto and Section 7.14 and Section 10 of this Subscription Agreement, as applicable.
7.7 Governing Law. This Subscription Agreement, and any claim or cause of action hereunder based upon, arising out of or related to this Subscription Agreement (whether based on law, in equity, in contract, in tort or any other theory) or the negotiation, execution, performance or enforcement of this Subscription Agreement, shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to the principles of conflicts of law thereof.
7.8 Consent to Jurisdiction; Waiver of Jury Trial. Each of the parties irrevocably consents to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware, provided, that if subject matter jurisdiction over the matter that is the subject of the legal proceeding is vested exclusively in the U.S. federal courts, such legal proceeding shall be heard in the U.S. District Court for the District of Delaware (together with the Court of Chancery of the State of Delaware, “Chosen Courts”), in connection with any matter based upon or arising out of this Subscription Agreement. Each party hereby waives, and shall not assert as a defense in
any legal dispute, that (i) such person is not personally subject to the jurisdiction of the Chosen Courts for any reason, (ii) such legal proceeding may not be brought or is not maintainable in the Chosen Courts, (iii) such person’s property is exempt or immune from execution, (iv) such legal proceeding is brought in an inconvenient forum or (v) the venue of such legal proceeding is improper. Each party hereby consents to service of process in any such proceeding in any manner permitted by Delaware law, further consents to service of process by nationally recognized overnight courier service guaranteeing overnight delivery, or by registered or certified mail, return receipt requested, at its address specified pursuant to Section 7.2 and waives and covenants not to assert or plead any objection which they might otherwise have to such manner of service of process. Notwithstanding the foregoing in this Section 7.8, a party may commence any action, claim, cause of action or suit in a court other than the Chosen Courts solely for the purpose of enforcing an order or judgment issued by the Chosen Courts. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH OF THE PARTIES WAIVES ANY RIGHT TO TRIAL BY JURY ON ANY CLAIMS OR COUNTERCLAIMS ASSERTED IN ANY LEGAL DISPUTE RELATING TO THIS SUBSCRIPTION AGREEMENT WHETHER NOW EXISTING OR HEREAFTER ARISING. IF THE SUBJECT MATTER OF ANY SUCH LEGAL DISPUTE IS ONE IN WHICH THE WAIVER OF JURY TRIAL IS PROHIBITED, NO PARTY SHALL ASSERT IN SUCH LEGAL DISPUTE A NONCOMPULSORY COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT. FURTHERMORE, NO PARTY SHALL SEEK TO CONSOLIDATE ANY SUCH LEGAL DISPUTE WITH A SEPARATE ACTION OR OTHER LEGAL PROCEEDING IN WHICH A JURY TRIAL CANNOT BE WAIVED.
7.9 Severability. If any provision of this Subscription Agreement shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Subscription Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect.
7.10 No Waiver of Rights, Powers and Remedies. No failure or delay by a party hereto in exercising any right, power or remedy under this Subscription Agreement, and no course of dealing between the parties hereto, shall operate as a waiver of any such right, power or remedy of such party. No single or partial exercise of any right, power or remedy under this Subscription Agreement by a party hereto, nor any abandonment or discontinuance of steps to enforce any such right, power or remedy, shall preclude such party from any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The election of any remedy by a party hereto shall not constitute a waiver of the right of such party to pursue other available remedies. No notice to or demand on a party not expressly required under this Subscription Agreement shall entitle the party receiving such notice or demand to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the party giving such notice or demand to any other or further action in any circumstances without such notice or demand.
7.11 Remedies.
7.11.1 The parties agree that irreparable damage would occur if this Subscription Agreement was not performed or the Closing is not consummated in accordance with its specific terms or was otherwise breached and that money damages or other legal remedies would not be an adequate remedy for any such
damage. It is accordingly agreed that the parties hereto shall be entitled to equitable relief, including in the form of an injunction or injunctions, to prevent breaches or threatened breaches of this Subscription Agreement and to enforce specifically the terms and provisions of this Subscription Agreement in an appropriate court of competent jurisdiction as set forth in Section 7.8, this being in addition to any other remedy to which any party is entitled at law or in equity, including money damages. The right to specific enforcement shall include the right of the parties hereto to cause the other parties hereto to cause the transactions contemplated hereby to be consummated on the terms and subject to the conditions and limitations set forth in this Subscription Agreement. The parties hereto further agree (i) to waive any requirement for the security or posting of any bond in connection with any such equitable remedy, (ii) not to assert that a remedy of specific enforcement pursuant to this Section 7.11 is unenforceable, invalid, contrary to applicable law or inequitable for any reason and (iii) to waive any defenses in any action for specific performance, including the defense that a remedy at law would be adequate.
7.11.2 The parties acknowledge and agree that this Section 7.11 is an integral part of the transactions contemplated hereby and without that right, the parties hereto would not have entered into this Subscription Agreement.
7.11.3 In any dispute arising out of or related to this Subscription Agreement, or any other agreement, document, instrument or certificate contemplated hereby, or any transactions contemplated hereby or thereby, the applicable adjudicating body shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the dispute and the enforcement of its rights under this Subscription Agreement or any other agreement, document, instrument or certificate contemplated hereby and, if the adjudicating body determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the adjudicating body may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the adjudication and the enforcement of its rights under this Subscription Agreement or any other agreement, document, instrument or certificate contemplated hereby or thereby.
7.12 Survival of Representations and Warranties. All representations and warranties made by the parties hereto in this Subscription Agreement shall survive the Closing. For the avoidance of doubt, if for any reason the Closing does not occur prior to the consummation of the Transactions, all representations, warranties, covenants and agreements of the parties hereunder shall survive the consummation of the Transactions and remain in full force and effect.
7.13 No Broker or Finder. Each of Rigel and Newco, on the one hand, and Subscriber, on the other hand, agrees to indemnify and hold the other parties hereto harmless from any claim or demand for commission or other compensation by any broker, finder, financial consultant or similar agent claiming to have been employed by or on behalf of such party and to bear the cost of legal expenses incurred in defending against any such claim.
7.14 No Liability. Subscriber agrees that none of the Placement Agents or RMB shall be liable to it, or to any person claiming through it, (including in contract, tort, under federal or state securities laws or otherwise) for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the offering. On behalf of Subscriber and its affiliates, Subscriber releases the Placement Agents and RMB in respect of any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements related to the offering. Subscriber agrees not to commence any litigation or bring any claim against any of the Placement Agents and RMB in any court or any other forum which relates to, may arise out of, or is in connection with, the offering. This undertaking is given freely and after obtaining independent legal advice.
7.15 Headings and Captions. The headings and captions of the various subdivisions of this Subscription Agreement are for convenience of reference only and shall in no way modify or affect the meaning or construction of any of the terms or provisions hereof.
7.16 Counterparts. This Subscription Agreement may be executed in one or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or any other form of electronic delivery, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such signature page were an original thereof.
7.17 Construction. The words “include,” “includes,” and “including” will be deemed to be followed by “without limitation.” Pronouns in masculine, feminine, and neuter genders will be construed to include any other gender, and words in the singular form will be construed to include the plural and vice versa, unless the context otherwise requires. The words “this Subscription Agreement,” “herein,” “hereof,” “hereby,” “hereunder,” and words of similar import refer to this Subscription Agreement as a whole and not to any particular subdivision unless expressly so limited. The parties hereto intend that each representation, warranty, and covenant contained herein will have independent significance. If any party hereto has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) which such party hereto has not breached will not detract from or mitigate the fact that such party hereto is in breach of the first representation, warranty, or covenant. All references in this Subscription Agreement to numbers of shares, per share amounts and purchase prices shall be appropriately adjusted to reflect any stock split, stock dividend, stock combination, recapitalization or the like occurring after the date hereof.
7.18 Mutual Drafting. This Subscription Agreement is the joint product of the parties hereto and each provision hereof has been subject to the mutual consultation, negotiation and agreement of the parties and shall not be construed for or against any party hereto.
8. Cleansing Statement; Disclosure.
8.1 Rigel shall, by 9:00 a.m., New York City time, on the first (1st) Business Day immediately following the date of this Subscription Agreement, issue one or more press releases or file with the Commission a Current Report on Form 8-K disclosing all material terms of the transactions contemplated hereby and by the Other Subscription Agreements and the Transactions.
8.2 Subscriber hereby consents to the publication and disclosure in (x) any Form 8-K filed by Rigel with the Commission in connection with the execution and delivery of the Business Combination Agreement, the Proxy Statement or any other filing with the Commission pursuant to applicable securities laws, in each case, as and to the extent required by the federal securities laws or the Commission or any other securities authorities, and (y) any other documents or communications provided by Rigel, Newco, the Sellers, Sponsor or the Target Companies to any Governmental Authority or to securityholders of Rigel, Newco, the Sellers, Sponsor or the Target Companies, in each case, as and to the extent required by applicable law or the Commission or any other Governmental Authority, of Subscriber’s name and identity and the nature of Subscriber’s commitments, arrangements and understandings under and relating to this Subscription Agreement and, if deemed required or appropriate by Rigel, Newco, the Sellers, Sponsor or the Target Companies, a copy of this Subscription Agreement. Other than as set forth in the immediately preceding sentence, without Subscriber’s prior written consent, Rigel and Newco will not use or disclose the name of Subscriber or its affiliates or advisors or any information relating to Subscriber or this Subscription Agreement, other than to their lawyers, independent accountants and to other advisors and service providers who reasonably require such information in connection with the provision of services to such person, are advised of the confidential nature of such information and are obligated to keep such information confidential. Without Subscriber’s prior written consent, Rigel and Newco shall not use the name of Subscriber or any of its affiliates or advisors in any press release issued in connection with the Transactions. Subscriber will promptly provide any information reasonably requested by Rigel, Newco or the Target Companies for any regulatory application or filing made or approval sought in connection with the Transactions (including filings with the Commission).
9. Trust Account Waiver. Notwithstanding anything to the contrary set forth herein, Subscriber acknowledges that Rigel has established a trust account containing the proceeds of its initial public offering and from certain private placements (collectively, with interest accrued from time to time thereon, the “Trust Account”). Subscriber agrees that (i) it has no right, title, interest or claim of any kind in or to any monies held in the Trust Account, and (ii) it shall have no right of set-off or any right, title, interest or claim of any kind (“Claim”) to, or to any monies in, the Trust Account, in each case in connection with this Subscription Agreement, and hereby irrevocably waives any Claim to, or to any monies in, the Trust Account that it may have in connection with this Subscription Agreement; provided, however, that nothing in this Section 9 shall be deemed to limit Subscriber’s right, title, interest or claim to the Trust Account by virtue of such Subscriber’s record or beneficial ownership of securities of Rigel acquired by any means other than pursuant to this Subscription Agreement, including, but not limited to, any redemption right with respect to any such securities of Rigel. In the event Subscriber has any Claim against Rigel or Newco under this Subscription Agreement, Subscriber shall pursue such Claim solely against Rigel and Newco and their assets outside the Trust Account and not against the property or any monies in the Trust Account. Subscriber agrees and acknowledges that such waiver is material to this Subscription Agreement and has been specifically relied upon by Rigel, Newco and Sellers to induce Rigel, Newco and Sellers to enter into this Subscription Agreement and Subscriber further intends and understands such waiver to be valid, binding and enforceable under applicable law. In the event Subscriber, in connection with this Subscription Agreement,
commences any action or proceeding which seeks, in whole or in part, relief against the funds held in the Trust Account or distributions therefrom or any of Rigel’s stockholders, whether in the form of monetary damages or injunctive relief, Subscriber, as applicable, shall be obligated to pay to Rigel all of its legal fees and costs in connection with any such action in the event that Rigel prevails in such action or proceeding.
10. Non-Reliance. Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, the Target Companies, the Sellers, the Placement Agents, RMB, any of their respective affiliates or any of their respective control persons, officers, directors or employees), other than the representations and warranties of Rigel expressly set forth in this Subscription Agreement, in making its investment or decision to invest in Newco. Subscriber agrees that neither (i) any other Subscriber pursuant to this Subscription Agreement or any other agreement related to the offering of the Shares (including the controlling persons, officers, directors, partners, agents or employees of any such Subscriber) nor (ii) the Target Companies, the Sellers, the Placement Agents, RMB, their respective affiliates or any of their respective control persons, officers, directors, partners, agents or employees shall be liable to any other Subscriber pursuant to this Subscription Agreement or any other agreement related to the offering of the Shares for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Shares hereunder.
11. Rule 144. From and after such time as the benefits of Rule 144 promulgated under the Securities Act or any other similar rule or regulation of the Commission that may allow Subscriber to sell securities of Newco to the public without registration are available to holders of Newco Ordinary Shares and until the third anniversary of the Closing Date, Newco agrees to:
11.1 make and keep public information available, as those terms are understood and defined in Rule 144;
11.2 file with the Commission in a timely manner all reports and other documents required of Newco under the Securities Act and the Exchange Act so long as Newco remains subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144; and
11.3 furnish to Subscriber, promptly upon request, (x) a written statement by Newco, if true, that it has complied with the reporting requirements of Rule 144, the Securities Act and the Exchange Act, (y) a copy of the most recent annual or quarterly report of Newco and such other reports and documents so filed by Newco and (z) such other information as may be reasonably requested to permit Subscriber to sell such securities pursuant to Rule 144 without registration.
If the Shares are eligible to be sold without restriction under, and without Newco being in compliance with the current public information requirements of, Rule 144 under the Securities Act, then at Subscriber’s request, Newco will cause its transfer agent to remove the legend set forth in Section 2.1.5. In connection therewith, if required by Newco’s transfer agent, Newco will promptly cause an opinion of counsel to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent
that authorize and direct the transfer agent to issue such Shares without any such legend; provided, that, notwithstanding the foregoing, Newco will not be required to deliver any such opinion, authorization, certificate or direction if it reasonably believes that removal of the legend could result in or facilitate transfers of securities in violation of applicable law.
12. Open Market Purchases.
12.1 In the event Subscriber elects to purchase Class A Ordinary Shares for its own account pursuant to open-market transactions at a price no higher than the amount equal to the sum (i) of $10 plus (ii) the Cash Consideration (as defined in the Business Combination Agreement) (the “Redemption Price”) with third parties (the “Open-Market Purchase Shares”) after the date hereof and prior to the record date (the “Record Date”) established for voting at the extraordinary general meeting of shareholder of Rigel held to approve the Transactions (the “Shareholder Meeting”), and/or (ii) to the extent Subscriber elects to apply any Class A Ordinary Shares it beneficially owns as of the date of this Subscription Agreement (the “Currently Owned Shares”, with such number of Currently Owned Shares not to exceed the amount listed on the signature page hereto), the number of Shares that Subscriber shall be obligated to purchase pursuant to this Subscription Agreement may be reduced on a one-for-one basis, at Subscriber’s election, by up to the total number of Open-Market Purchase Shares and Currently Owned Shares beneficially owned by such Subscriber (the “Reduction Right”); in each case, subject to Subscriber agreeing, (i) with respect to the Open-Market Purchase Shares, to (A) not sell or otherwise transfer such Open-Market Purchase Shares prior to the consummation of the Transactions, (B) not vote any Open-Market Purchase Shares in favor of approving the Transactions and instead submit a proxy abstaining from voting thereon, and (C) to the extent it has the right to have any of its Open-Market Purchase Shares redeemed for cash in connection with the consummation of the Transactions, not exercise any such redemption rights (collectively, the “Open-Market Purchase Reduction Conditions”), and (ii) with respect to the Currently Owned Shares, to (A) not sell or otherwise transfer such Currently Owned Shares prior to the consummation of the Transactions, (B) vote all of its Currently Owned Shares in favor of approving the Transactions at the Shareholder Meeting, and (C) to the extent it has the right to have any of its Currently Owned Shares redeemed for cash in connection with the consummation of the Transactions, not exercise any such redemption rights (the “Currently Owned Shares Reduction Conditions”).
12.2 Subscriber shall, no later than one (1) Business Day after the Record Date, deliver a certificate (the “Certificate”) to Rigel, signed by Subscriber, certifying: (i) the number of Shares for which Subscriber has elected to exercise its Reduction Right, including the number of Open-Market Purchase Shares and Currently Owned Shares so elected, and (ii)(x) with respect to any such Open-Market Purchase Shares, (1) the date of such Open-Market Purchase, (2) confirmation that the price per share at which such Open-Market Purchase Shares were purchased by Subscriber was no higher than the Redemption Price, and (3) an affirmation that Subscriber has and will comply with the Open-Market Purchase Reduction Conditions, and (y) with respect to any such Currently Owned Shares, an affirmation that Subscriber has and will comply with the Currently Owned Shares Reduction Conditions. In the event that subsequent to exercising its Reduction Right, Subscriber desires to lower the number of Shares subject to such reduction (i.e., increase the number of Shares to be purchased pursuant to this Subscription Agreement), Subscriber may so amend the Certificate with the consent of Rigel. Notwithstanding anything to
the contrary in the foregoing, no later than three (3) Business Days prior to the Closing Date as set forth in the Closing Notice, Subscriber shall reaffirm to Rigel in writing that the certifications included in the Certificate are true and correct, and shall provide Rigel with such other information as it may reasonably request in order for Rigel to issue the Sponsor Transfer Shares to Subscriber prior to the consummation of the Transactions including, without limitation, the legal name of the person in whose name the Sponsor Transfer Shares are to be issued and a duly completed and executed Internal Revenue Service Form W-9 or appropriate Form W-8.
12.3 In support of the financial condition of Rigel and Newco in order to attract additional sources of capital for and preservation of its business, Sponsor shall surrender an aggregate number of the Class B ordinary shares, par value $0.0001, it holds to Rigel in an amount equal to the number of Sponsor Forfeit Shares (as defined below), which Sponsor Forfeit Shares will be surrendered to Rigel prior to the consummation of the Transactions. As soon as reasonably practicable thereafter, Rigel shall transfer the Sponsor Forfeit Shares to Newco and Newco shall subsequently transfer such Sponsor Forfeit Shares to the Subscriber immediately prior to Closing. For this purpose, “Sponsor Forfeit Shares” for any Subscriber means a number of Class B ordinary shares equal to the sum of (i) (a) (I) 4, multiplied by (II) the aggregate number of Open-Market Shares and Currently Owned Shares for which Subscriber exercises its Reduction Right, divided by (b) 10, plus (ii) (a) (I) 4, multiplied by (II) the aggregate number of Shares subscribed for hereunder (after giving effect to any exercised Reduction Right), divided by (b) 10. No fractional Sponsor Forfeit Shares will be surrendered by Rigel and transferred to Subscriber in connection with the foregoing, but rather the aggregate number of Sponsor Forfeit Shares to be surrendered and transferred hereunder will be rounded down to the nearest whole number. Any Sponsor Forfeit Shares transferred to Subscriber pursuant to this Subscription Agreement will (x) be considered “Shares” for purposes of Section 4 hereof, (y) be free from any contractual restrictions on transfer and (z) contain restrictive legends similar to the Shares. Rigel, Newco, Blyvoor Resources and Subscriber intend and agree that, for U.S. federal income tax purposes, the transactions pursuant to this Section 12.3 shall be treated as (A) a non-taxable contribution by Sponsor of the Sponsor Forfeit Shares to the capital of Rigel for no consideration and (B) an issuance by Newco of an amount of Newco Ordinary Shares equal to the number Sponsor Forfeit Shares to Subscriber in connection with its acquisition of Shares pursuant to this Subscription Agreement. Each party shall, and shall cause its controlled affiliates to, file all tax returns and other reports consistent with the foregoing.
12.4 In support of the financial condition of Newco in order to attract additional sources of capital for and preservation of its business, Blyvoor Gold shall surrender an aggregate number of the Newco Ordinary Shares it receives as consideration for the Exchanges in an amount equal to the number of Blyvoor Forfeit Subscriber Shares (as defined below), which Blyvoor Forfeit Subscriber Shares will be surrendered to Newco promptly following the consummation of the Transactions. As soon as reasonably practicable thereafter, Newco shall transfer to Subscriber Newco Ordinary Shares in an amount equal to the Blyvoor Forfeit Subscriber Shares in connection with its acquisition of Shares pursuant to this Subscription Agreement. For this purpose, “Blyvoor Forfeit Subscriber Shares” for any Subscriber means a number of Newco Ordinary Shares equal to the sum of (i) (a) (I) 1, multiplied by (II) the aggregate number of Open-Market Shares and Currently Owned Shares for which Subscriber exercises its Reduction Right, divided by (b) 10, plus (ii) (a) (I) 1, multiplied by (II) the aggregate number of Shares subscribed for hereunder (after giving effect to any exercised Reduction Right), divided by (b) 10. No fractional Blyvoor Forfeit
Subscriber Shares will be surrendered by Blyvoor Gold and transferred in connection with the foregoing, but rather the aggregate number of Blyvoor Forfeit Subscriber Shares to be surrendered and transferred hereunder will be rounded down to the nearest whole number. Any Blyvoor Forfeit Subscriber Shares transferred to Subscriber pursuant to this Subscription Agreement will (x) be considered “Shares” for purposes of Section 4 hereof, (y) be free from any contractual restrictions on transfer and (z) contain restrictive legends similar to the Shares. Rigel, Newco, Blyvoor Gold and Subscriber intend and agree that, for U.S. federal income tax purposes, the transactions pursuant to this Section 12.4 shall be treated as (A) a non-taxable contribution by Blyvoor Gold of the Blyvoor Forfeit Subscriber Shares to the capital of Newco for no consideration and (B) an issuance of Newco Ordinary Shares in an amount equal to the Blyvoor Forfeit Subscriber Shares to Subscriber in connection with its acquisition of Shares pursuant to this Subscription Agreement. Each party shall, and shall cause its controlled affiliates to, file all tax returns and other reports consistent with the foregoing.
12.5 If Subscriber has exercised its Reduction Right pursuant to this Article 12 with respect to any Open-Market Purchase Shares and/or Currently Owned Shares beneficially owned by Subscriber and the Transactions are expected by Rigel to be consummated without satisfaction of the conditions set forth in Section 3.3, then Rigel shall use its commercially reasonable efforts to reopen the window in which Class A ordinary shares of Rigel may be redeemed by Subscriber and other holders thereof in connection with closing of the Transactions as set forth in Article 49 of Rigel’s Amended and Restated Memorandum and Articles of Association.
[Signature Page Follows]
IN WITNESS WHEREOF, each of Rigel, Newco, Subscriber, the Sponsor and Blyvoor Investors has executed or caused this Subscription Agreement to be executed by its duly authorized representative as of the date set forth below.
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RIgel Resource Acquisition Corp |
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SPONSOR: |
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RIGEL RESOURCE ACQUISITION HOLDING LLC |
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NEWCO: |
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RRAC NEWCO |
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BLYVOOR INVESTORS: |
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BLYVOOR GOLD PROPRIETARY LIMITED |
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Accepted and agreed this ______ day of ________, 2024.
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(Please Print. Please indicate name and capacity of person signing above) |
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If there are joint investors, please check one:
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Joint Tenants with Rights of Survivorship |
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Aggregate Purchase Price: $_______________.
You must pay the Purchase Price by wire transfer of U.S. dollars in immediately available funds, to be held in escrow until the Closing, to the account specified by Rigel in the Closing Notice.
You must also complete the Eligibility Representations of Subscriber on Schedule 1 below.
SCHEDULE I
ELIGIBILITY REPRESENTATIONS OF SUBSCRIBER
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QUALIFIED INSTITUTIONAL BUYER STATUS
(Please check the applicable subparagraphs): |
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We are a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”) (a “QIB”)). |
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We are subscribing for the Shares as a fiduciary or agent for one or more investor accounts, and each owner of such account is a QIB. |
*** OR ***
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INSTITUTIONAL ACCREDITED INVESTOR STATUS (Please check the applicable subparagraphs): |
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We are an institutional “accredited investor” (as described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and have marked and initialed the appropriate box on the following page indicating the provision under which we qualify as an “accredited investor.” |
*** IF APPLICABLE ***
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IF SUBSCRIBER IS LOCATED IN THE EUROPEAN ECONOMIC AREA (Please check the applicable subparagraphs): |
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We are a “qualified investor” within the meaning of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, as amended (the “EU Prospectus Regulation”) and are not (a) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or (b) a customer within the meaning of Directive (EU) 2016/97, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II |
*** IF APPLICABLE ***
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IF SUBSCRIBER IS LOCATED IN THE UNITED KINGDOM (Please check the applicable subparagraphs): |
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We are a “qualified investor” within the meaning of the EU Prospectus Regulation as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 and an investment professional falling within Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (as amended) (the “Financial Promotion Order”) or a high net worth company or other person who falls within Article 49(2)(a) to (d) of the Financial Promotion Order, or a person to whom an invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Promotion Order) in connection with the issue or sale of any securities may otherwise lawfully be communicated or caused to be communicated. |
*** IF APPLICABLE ***
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IF SUBSCRIBER IS LOCATED IN SOUTH AFRICA (Only for those Subscribers who are resident or have a place of business in South Africa or who are otherwise subject to the South African Companies Act - please check the applicable subparagraphs): |
In South Africa, the Shares will only be offered to (i) to selected institutional investors in South Africa falling within one of the specified categories listed in section 96(1)(a) of the South African Companies Act or; (ii) to selected persons in South Africa, acting as principal, applying to acquire Shares for a total acquisition cost of ZAR1 000 000 (one million Rand) or more, as contemplated in section 96(1)(b) of the Companies Act. To the extent Subscriber is resident and/or has a place of business in South Africa, Subscriber has indicated, by marking and initialing the appropriate box below, the provision(s) below which apply to Subscriber and under which Subscriber accordingly qualifies to fall within one of the categories listed in section 96(1)(a) or (b) of the South African Companies Act:
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a person whose ordinary business, or part of whose ordinary business, is to deal in securities, whether as principal or agent; |
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the Public Investment Corporation as defined in the Public Investment Corporation Act, 2004 (Act No. 23 of 2004); |
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a person or entity regulated by the Reserve Bank of South Africa; |
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an authorised financial services provider, as defined in the Financial Advisory and Intermediary Services Act, 2002 (Act No. 37 of 2002); |
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a financial institution, as defined in the Financial Services Board Act, 1990 (Act No. 97 of 1990); |
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a wholly-owned subsidiary of a person contemplated in subparagraph (iii), (iv) or (v), acting as agent in the capacity of an authorised portfolio manager for a pension fund registered in terms of the Pension Funds Act, 1956 (Act No. 24 of 1956), or as manager for a collective investment scheme registered in terms of the Collective Investment Schemes Control Act, 2002 (Act No. 45 of 2002); or |
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a person in South Africa, acting as principal, applying to acquire Shares for a total acquisition cost of ZAR1 000 000 (one million Rand) or more. |
*** AND ***
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AFFILIATE STATUS
(Please check the applicable box) SUBSCRIBER: |
an “affiliate” (as defined in Rule 144 under the Securities Act) of Rigel or acting on behalf of an affiliate of Rigel.
This page should be completed by Subscriber
and constitutes a part of the Subscription Agreement.
Rule 501(a) under the Securities Act, in relevant part, states that an “accredited investor” shall mean any person who comes within any of the below listed categories, or who Rigel reasonably believes comes within any of the below listed categories, at the time of the sale of the securities to that person. Subscriber has indicated, by marking and initialing the appropriate box below, the provision(s) below which apply to Subscriber and under which Subscriber accordingly qualifies as an “accredited investor.”
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Any bank as defined in section 3(a)(2) of the Securities Act, or any savings and loan association or other institution as defined in section 3(a)(5)(A) of the Securities Act whether acting in its individual or fiduciary capacity; |
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Any broker or dealer registered pursuant to section 15 of the Securities Exchange Act of 1934, as amended; |
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Any investment adviser registered pursuant to section 203 of the Investment Advisers Act of 1940 or registered pursuant to the laws of a state; |
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Any investment adviser relying on the exemption from registering with the Commission under section 203(l) or (m) of the Investment Advisers Act of 1940; |
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Any insurance company as defined in section 2(a)(13) of the Securities Act; |
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Any investment company registered under the Investment Company Act of 1940, as amended (the “Investment Company Act”) or a business development company as defined in section 2(a)(48) of the Investment Company Act; |
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Any Small Business Investment Company licensed by the U.S. Small Business Administration under section 301(c) or (d) of the Small Business Investment Act of 1958, as amended; |
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Any Rural Business Investment Company as defined in section 384A of the Consolidated Farm and Rural Development Act; |
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Any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, if such plan has total assets in excess of $5,000,000; |
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Any employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), if (i) the investment decision is made by a plan fiduciary, as defined in section 3(21) of ERISA, which is either a bank, a savings and loan association, an insurance company, or a registered investment adviser, (ii) the employee benefit plan has total assets in excess of $5,000,000 or, (iii) such plan is a self-directed plan, with investment decisions made solely by persons that are “accredited investors”; |
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Any private business development company as defined in section 202(a)(22) of the Investment Advisers Act of 1940, as amended; |
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Any organization described in section 501(c)(3) of the Internal Revenue Code, corporation, Massachusetts or similar business trust, partnership, or limited liability company, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000; or |
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Any trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) of Regulation D. |
Exhibit 99.1
Aurous
to go Public via Business Combination with Rigel Resource Acquisition Corp
| ● | Aurous
is a cash-generating, gold producer in South Africa, with industry-leading, mid-term production
growth and a first quartile production-cost position. |
| ● | Aurous
intends to ramp up Blyvoor Mine gold production to average ~150koz per year at an all-in-sustaining-cost
of ~$815/oz with further upside from Gauta Tailings. |
| ● | The
Transaction values Aurous at a pre-money equity value of $362 million, implying a Price /
Net Asset Value transaction multiple of 0.3x. |
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resulting company is expected to be particularly debt-light, with anticipated debt levels
of approximately $6 million at Transaction close. |
| ● | Proceeds
of the Transaction will help fund organic production growth at Aurous Blyvoor Mine, optimisation
projects and the build-out of the Gauta Tailings project. |
JOHANNESBURG
and NEW YORK – March 11th, 2024 – Blyvoor Gold Resources Proprietary Limited and Blyvoor Gold Operations Proprietary
Limited (together, “Aurous” or the “Target Companies”), a producing mining group which owns the Blyvoor gold
mine (“Blyvoor Mine”) and the Gauta tailings retreatment project (“Gauta Tailings”), and Rigel Resource Acquisition
Corp (“Rigel”) (NYSE: RRAC), a special purpose acquisition company, sponsored by a fund managed by Orion Resource Partners
(“Orion”), one of the world’s foremost, mining-focused alternative investment firms, have entered, among others, into
a definitive business combination agreement that will result in Aurous becoming publicly traded.
The
Transaction values Aurous at a pre-money equity value of approximately $362 million. Upon completion of the proposed business combination,
which is subject to customary closing conditions and regulatory approvals, the resulting company is expected to be named “Aurous
Resources” and is to ultimately list on NASDAQ. Aurous and Rigel, among others, have entered into PIPE financing agreements (together
with the above, the “Transaction”).
As
a result of the Transaction, Aurous expects to benefit from strong gold prices, organic production growth, optimisation projects and
the build-out of the Gauta Tailings project. Aurous further expects to benefit from M&A optionality and a debt-light balance sheet.
Aurous’
existing management team, led by Chief Executive Officer, Richard Floyd and Executive Chairman, Alan Smith, will continue to lead the
business. Aurous’ principal asset, the Blyvoor Mine, is a producing, high-grade, long-life underground gold mine in the Witwatersrand
region near Johannesburg, South Africa, one of the most prolific regions for gold production in the world.
Aurous’
Chief Executive Officer, Richard Floyd says: “This Transaction represents one of the first significant gold industry deals in South
Africa in some time and is expected to enable Blyvoor to expand its underground infrastructure, enhance surface infrastructure and optimize
operations by achieving economies of scale. With the support of our investors and banking partners, we expect to reach our operational
targets and unlock the next stage of growth for Aurous. Since the restart of production from the Blyvoor Mine in 2022, Aurous has been
able to re-employ approximately 1,500 workers who had been unemployed following closure of the mine in 2013. This Transaction and associated
influx of foreign investment into South Africa has the potential to enable further meaningful job creation, continued revitalisation
of the local community and recapitalization of Africa’s precious metals industry, all of which we expect will be well-received
by the relevant South African authorities.”
Rigel’s
Chief Executive Officer, Jon Lamb, says: “We are thrilled to combine with a cash-positive, debt-light target such as Aurous that
has already achieved impressive operational milestones and is expected to deliver market-leading growth.”
Rigel’s
President, Nate Abebe, notes: “Aurous offers significant long-term investment value thanks to its high-margin, high-growth and
expected fully-funded mine life. We have worked diligently over a few years to find a quality business to combine with and are pleased
to have arrived at this merger agreement which is expected to deliver a value-accretive transaction to all stakeholders.”
Summary
of the Transaction
The
Transaction values Aurous at a pre-money equity value of $362 million, implying a Price / Net Asset Value transaction multiple of 0.3x,
thereby providing an attractive entry point for Rigel shareholders at a discount to other leading public gold producers. The transaction
is expected to provide Aurous with no less than $50 million of capital, before payment of transaction expenses and other payments, drawn
from $7.5 million of committed PIPE financing from leading institutional and strategic investors and approximately $278 million of cash
in Rigel’s trust account (estimated at Transaction close and subject to redemptions by Rigel shareholders). At Transaction close,
debt levels of the resulting company are expected at approximately $6 million. Net proceeds from the transaction will enable Aurous to
continue to invest in improvements designed to accelerate production growth and to lower operating costs at the Blyvoor Mine, which already
benefits from a first quartile production-cost position amongst comparable gold mines.
Upon
closing of the transaction, Rigel’s non-redeeming shareholders are expected to receive a combination of shares in the resulting
company, RRAC Newco (“NewCo”), and cash to the extent the cash in Rigel’s trust account at transaction close exceeds
$10.00 per share.
The
transaction, which has been unanimously approved by the boards of directors of Aurous and Rigel, is expected to close in the second half
of 2024, subject to approval by Rigel shareholders, by the Financial Surveillance Department of the South African Reserve Bank and other
customary closing conditions.
Advisors
Citigroup
Global Markets Inc. (“Citi”) is acting as capital markets advisor to Rigel. Citi and Hannam & Partners (“Hannam”)
are acting as co-placement agents in connection with the PIPE. Rand Merchant Bank is acting as financial advisor to Aurous. Sidley Austin
LLP and Bowmans are acting as legal counsel to Rigel. Milbank LLP and ENS are acting as legal counsel to Aurous. Davis Polk & Wardwell
LLP is acting as legal counsel to Citi and Hannam.
Investor
Conference Call Information
Aurous
and Rigel will host a joint investor conference call to discuss the proposed transaction at 10:30 am EST / 4:30 pm SAST on Tuesday,
March 12, 2024. A webcast of the prepared remarks, as well as an associated investor presentation, can be accessed on
www.netroadshow.com/nrs/home/#!/?show=ac9743fe.
About
Aurous
Aurous
is a South African gold mining company operating the Blyvoor Mine on Johannesburg’s West Rand. The company is led by an agile leadership
team and strong investors, who have built a quality, long-term, profitable mining asset offering steady growth and low costs.
About
Rigel Resource Acquisition Corp
Rigel
Resource Acquisition Corp is a blank check company formed for the purpose of effecting a merger, share exchange, asset acquisition, share
purchase, reorganization or similar business combination with one or more businesses. Rigel Resource Acquisition Corp aims to identify
and transact with a prospective target business in the global metals sector.
About
Orion Resource Partners
Orion
is an ~$8 billion alternative investment firm that specializes in institutional investment strategies in precious and base metals and
minerals, many of which are currently leveraged to stimulus and infrastructure spend and the push to decarbonize. Headquartered in NYC
and with offices in Denver, London, and Sydney, Orion includes a team of 80 professionals with backgrounds in metals finance, physical
metals logistics and sales, and in-house technical professionals responsible for risk assessment and portfolio management.
Additional
Information About the Transaction and Where to Find It
In
connection with the transaction, NewCo, a wholly-owned subsidiary of Rigel, intends to file with the U.S. Securities and Exchange Commission
(the “SEC”) a registration statement on Form F-4 (the “Registration Statement”), which will include a preliminary
proxy statement of Rigel and a preliminary prospectus of NewCo, and after the Registration Statement is declared effective, Rigel will
mail the definitive proxy statement/prospectus relating to the transaction to its shareholders and public warrant holders as of the respective
record date to be established for voting at the meeting of its shareholders (the “Rigel Shareholders Meeting”) to be held
in connection with the transaction. The Registration Statement, including the definitive proxy statement/prospectus contained therein,
will contain important information about the transaction and the other matters to be voted upon at the Rigel Shareholders Meeting. This
communication does not contain all the information that should be considered concerning the transaction and other matters and is not
intended to provide the basis for any investment decision or any other decision in respect of such matters. Rigel, NewCo and Aurous may
also file other documents with the SEC regarding the transaction. Rigel’s shareholders, public warrant holders and other interested
persons are advised to read, when available, the Registration Statement, including the preliminary proxy statement/prospectus contained
therein, the amendments thereto and the definitive proxy statement/prospectus and other documents filed in connection with the transaction,
as these materials will contain important information about Rigel, NewCo, Aurous and the transaction.
Forward-Looking
Statements
Certain
statements in this press release may be considered “forward-looking statements” within the meaning of the “safe harbor”
provisions of the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements generally relate to future
events or Rigel’s or the Target Companies’ future financial or operating performance. In some cases, you can identify forward-looking
statements by terminology such as “may,” “should,” “expect,” “intend,” “will,”
“estimate,” “anticipate,” “believe,” “predict,” “potential” or “continue,”
or the negatives of these terms or variations of them or similar terminology. Such forward-looking statements are subject to risks, uncertainties,
and other factors, which could cause actual results to differ materially from those expressed or implied by such forward looking statements.
These statements are based on various assumptions and on the current expectations of Rigel or the Target Companies, as applicable, and
are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended
to serve as, and must not be relied on by any investor or other person as, a guarantee, an assurance, a prediction or a definitive statement
of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions.
These
forward-looking statements are based upon estimates and assumptions that, while considered reasonable by Rigel and its management, and
the Target Companies and their management, as the case may be, are inherently uncertain. Factors that may cause actual results to differ
materially from current expectations include, but are not limited to: (1) the occurrence of any event, change or other circumstances
that could give rise to the termination of the proposed business combination; (2) the outcome of any legal proceedings that may be instituted
against Rigel, the Target Companies or others following the announcement of the proposed business combination and any definitive agreements
with respect thereto; (3) the inability to complete the proposed business combination due to the failure to obtain approval of the shareholders
of Rigel or the Target Companies, to obtain financing to complete the proposed business combination or to satisfy other conditions to
closing; (4) changes to the proposed structure of the proposed business combination that may be required or appropriate as a result of
applicable laws or regulations or as a condition to obtaining regulatory approval of the proposed business combination; (5) the ability
to meet the listing standards of NASDAQ or any other stock exchange following the consummation of the proposed business combination;
(6) the risk that the proposed business combination disrupts current plans and operations of the Target Companies as a result of the
announcement and consummation of the proposed business combination; (7) the ability to recognize the anticipated benefits of the proposed
business combination, which may be affected by, among other things, competition, the ability of the Target Companies to grow and manage
growth profitably, maintain relationships with customers and suppliers and retain their management and key employees; (8) costs related
to the proposed business combination; (9) changes in applicable laws or regulations; (10) the possibility that the Target Companies may
be adversely affected by other economic, business and/or competitive factors; (11) the Target Companies estimates of their financial
performance; (12) the possibility that the assumptions and estimates used in the S-K 1300 Technical Reports, prepared for the Target
Companies and informing certain estimates herein, may be different than the actual results; and (13) other risks and uncertainties set
forth in the sections entitled “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements and Risk Factor
Summary” in Rigel’s Prospectus dated November 4, 2021 filed with the Securities and Exchange Commission on November 8, 2021,
the section entitled “Risk Factors” in Rigel’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021,
for the fiscal year ended December 31, 2022, and in Rigel’s Quarterly Report on Form 10-Q for the quarterly period ended November
30, 2023 as well as any further risks and uncertainties to be contained in the Registration Statement filed after the date hereof. In
addition, forward-looking statements reflect the Target Companies’ and Rigel’s expectations, plans or forecasts of future
events and views as of the date of this press release. The Target Companies and Rigel anticipate that subsequent events and developments
will cause these assessments to change. However, while the Target Companies and/or Rigel may elect to update these forward-looking statements
at some point in the future, each of the Target Companies and Rigel specifically disclaim any obligation to do so. These forward-looking
statements should not be relied upon as representing the Target Companies’ nor Rigel’s assessments as of any date subsequent
to the date of this press release.
Participants
in the Solicitation
Rigel,
NewCo, Aurous and their respective directors and officers may be deemed participants in the solicitation of proxies of Rigel shareholders
in connection with the transaction. More detailed information regarding the directors and officers of Rigel, and a description of their
interests in Rigel, is contained in Rigel’s filings with the SEC, including its Annual Report on Form 10-K for the fiscal year
ended December 31, 2022, which was filed with the SEC on March 27, 2023, and is available free of charge at the SEC’s website at
www.sec.gov. Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of proxies of Rigel’s
shareholders in connection with the transaction and other matters to be voted upon at the Rigel Shareholders Meeting will be set forth
in the Registration Statement for the transaction when available.
No
Offer or Solicitation
This
communication does not constitute (i) a solicitation of a proxy, consent or authorization with respect to any securities or in respect
of the transaction or (ii) an offer to sell, a solicitation of an offer to buy, or a recommendation to purchase, any securities of the
Target Companies, Rigel, NewCo or any of their respective affiliates (the “Securities”). No offering of Securities shall
be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended, or an exemption
therefrom, nor shall any sale of Securities in any states or jurisdictions in which such offer, solicitation or sale would be unlawful
prior to registration or qualification under the securities laws of any such jurisdiction be affected. No securities commission or securities
regulatory authority in the United States, South Africa or any other jurisdiction has in any way passed upon the merits of the transaction
or the accuracy or adequacy of this communication. In South Africa, no Securities will be offered to any person other than selected investors
falling within one of the specified categories listed in section 96(1)(a) or (b) of the Companies Act, 2008 (as amended, “South
African Companies Act”) to whom the offer will be specifically addressed and as such there will not be any “offer to the
public”, as envisaged in Chapter 4 of the South African Companies Act. Accordingly, no prospectus has been filed or will be filed
with the South African Companies and Intellectual Property Commission in respect of the transactions contemplated in this press release.
This
communication does not constitute nor form a part of any offer or an invitation or solicitation or advertisement to purchase and/or subscribe
for Securities in South Africa, including an offer to the public for the sale of, or subscription for, or an invitation or the solicitation
of an offer to buy and/or subscribe for any Securities (whether pursuant to this announcement or otherwise) in South Africa, including
an offer to the public or section of the public in South Africa securities as defined in the South African Companies Act, 2008.
The
communication constitutes factual, objective information about the Target Companies, Rigel, and NewCo and nothing contained herein should
be construed as constituting any form of investments advice or recommendation, guidance or proposal of a financial nature as contemplated
in the South African Financial Advisory and Intermediary Services Act, 2002 as amended in respect of the Target Companies, Rigel, and
NewCo or any transaction in relation thereto. The contents of this communication must not be construed as constituting the canvassing
for, or marketing or advertising of, financial services by the Target Companies, Rigel, and NewCo and/or their representatives and advisors
in South Africa.
ENDS
Exhibit 99.2
Gold Produ c er with Ind u str y - L e a d ing Growth Tran s forming into a Mult i - Ass e t Operati o n M arch 2024
D i scla i mer 1 Info rma ti o n Subj ec t to C h a nge T h e i n f o r m a t i o n , i n c l u d i n g f i na n c i a l i n f o r m a t i on , c on t a i n e d h e r e i n ha s n o t bee n f i n a l i z e d an d i s s ub j e c t to c ha n g e (t og e t h e r w i th o r a l s t a t e m e n ts m ad e i n c onne c t i o n t he r e w i t h , t h i s “P r e s en t a t i on ” ) . T h i s Pr e s en t a t i o n i s p r o v i de d f o r i n f o r m a t i ona l p u r po s e s onl y an d ha s bee n p r e p a r e d to a ss i s t i n t e r e s t e d pa r t ie s i n m a k i n g t hei r o w n e v a l ua t i o n w i th r e s pe ct to a bu s i ne s s c o m b i na t i o n (t h e "B u s i ne s s C o m b i n a t i on " ) be t w een , a m on g o t he r s , R i g e l Re s ou rce Ac qu i s i t i o n Co rp (" R i g e l " ) , RR AC Ne w co (" Ne w c o ", e x pe ct e d to b e r e na m e d to "A u r ou s Re s ou rc e s " ) , B l y v o o r G ol d Re s ou rc e s Pr o p r i e t a r y Li m i t e d (" B l y v o o r Re s ou rc e s ") an d B l y v o o r G o l d O p e r a t i on s P r op r i e t a ry L i m i t e d (" T a i l i ng s" , t oge t h e r w i th B l y v oo r Re s ou rc e s , t h e " T a r g e t C o m pa n ie s ") . A n y f u rt h e r d i s t r i b u t i o n o r r e p r odu c t i o n o f t h i s p r e s en t a t i o n , i n w ho l e o r i n pa r t, o r t h e d i v u l gen ce o f an y o f i ts c o n t en t s , i s u nau t h o r i z ed . B y a c c ep t i n g t h e p r e s en t a t i o n , ea ch r e c i p i e n t a g r ee s to m a i n t a i n t h e c o n f i d e n t i a l i ty o f t h e i n f o r m a t i o n c o n t a i n e d he r e i n . To t h e f u l l e s t e x t e n t pe r m i t t e d b y l a w , i n n o c i rc u m s t an c e s w il l t h e T a r g e t C o m pan i e s , Ne w co o r Rige l o r an y o f t h e i r r e s pe c t i v e s ub s i d i a r ie s , s t o ck h o l de r s , a ff i l ia t e s , r ep r e s en t a t i v e s , pa rt n e r s , d i r e c t o r s , o ff i c e r s , e m p l o y ee s , a d v i s e rs o r a g en ts b e r e s pon s i b l e o r li a b l e f o r an y d i r e c t, indi r e c t o r c on s equen t i a l l o s s o r l o s s o f p r o f i t a r i s i n g fr o m t h e u s e o f t h i s p r e s en t a t i on , i ts c on t e n t s , i ts o m i ss i on s , r e l ian ce o n t h e i n f o r m a t i o n c on t a i ne d w i t h i n i t o r o n o p i n i o n s c o m m u n i c a t e d i n r e l a t i o n t h e r e to o r o t h e r w i s e a r i s i n g i n c onn e ct i o n t h e r e w i t h . T h e i n f o r m a t i o n c o n t a i ne d h e r e i n i s o n l y p r e l i m ina ry an d i ndi c a t i v e a n d doe s no t p u r po r t to c o n t a i n an y i n f o r m a t i o n t ha t w ou l d b e r eq u i r e d to e v a l ua t e R i g e l , Ne w c o , an d t h e T a r ge t C o m pa n i e s , t h e i r r e s pe ct i v e f i n an c i a l po s i t i on , t h e B u s i ne s s C o m b i n a t i o n an d / o r an y i n v e s t m en t d e c i s i o n . In f u r n i s h i n g t h i s p r e s en t a t i o n , ea ch o f t h e T a r ge t C o m pa n i e s , Ne w c o , an d R i g e l e x p r e ss l y d i s c l ai m s an y o b l i ga t i o n to upda t e a n y i n f o r m a t i o n c on t a i ne d he r e i n o r to c o rr e c t an y o m i ss i on s , i na cc u r a c i e s o r e r r o r s . In a ddi t ion , t h i s p r e s en t a t i o n doe s n o t p u r p o rt t o b e a l l - i n c l u s i v e o r to c o n t a i n al l o f t h e i n f o r m a t i o n t ha t m a y b e r e q ui r e d to m a ke a f u l l an a l y s i s o f t h e T a r g e t C o m p a n i e s o r t h e B u s i ne s s C o m b i na t i o n , an d non e o f R i g e l , Ne w c o , t h e T a r g e t C o m pa n i e s o r t hei r r e s pe c t i v e a ff ilia t e s o r r e p r e s en t a t i v e s m a k e s an y r ep r e s en t a t io n o r wa rr a n t y , e x p r e s s o r i m p li e d , a s to t h e a cc u r a c y , c o m p l e t e n e s s o r r el i a b i l i t y o f t h e i n f o r m a t i o n c o n t a i n e d i n t h i s p r e s en t a t i on , an d t h e r e c i p i e n t d i s c l ai m s an y s u ch r e p r e s en t a t i o n o r w a rr an t y . V i e w e rs o f t h i s p r e s en t a t i o n s hou l d ea ch m a ke t hei r o w n e v a l ua t i o n o f t h e T a r g e t C o m pa n i e s a n d o f t h e r e l e v a n ce an d adequ a cy o f t h e i n f o r m a t i o n a n d s hou l d m a ke s u ch o t he r i n v e s t iga t ion s a s t he y dee m ne c e ss a r y . B y r e v i e w i n g o r r ead i n g t h i s Pr e s en t a t i on , y o u w il l b e dee m e d to ha v e ag r ee d to t h e ob li ga t i on s an d r e s tr i ct i on s s e t ou t be l o w . N o Off e r or S oli c it a t io n T h i s p r e s en t a t i o n doe s no t c on s t i t u t e a s o l i c i t a t i o n o f a p r o x y , c on s en t o r au t ho r i z a t i o n w i t h r e s pe ct to a n y s e c u r i t i e s o r i n r e s pe ct o f t h e B u s i ne s s Co m b i n a t i on , an d a n y s u ch s o li c i t a t i o n w i l l b e c ondu c t e d o n l y p u r s uan t to a p r o x y s t a t e m e n t o r r e g i s tr a t i o n s t a t e m en t f i l e d b y R i g el , Ne w c o , t h e T a r g e t C o m pan i e s and / o r t hei r r e s pe ct i v e a ff i l i a t e s w i th t h e S e c u r i t i e s an d E x c han g e C o mm i ss i on , a s r e q u i r e d b y l a w . In addi t ion , t h i s p r e s en t a t i o n d oe s no t c o n s t i t u te a n o ff e r to s el l , a s ol i c i t a t i o n o f a n o ff e r t o bu y , o r a r e c o mm e nda t i o n to p u rc ha s e an y s e c u r i t y o f R i g e l , Ne w c o , t h e T a r ge t C o m pa n i e s o r a n y o f t h ei r r e s p e ct i v e a ff il i a t e s , no r s hal l t he r e b e a n y s a l e o f s e c u r i t i e s i n a n y j u r i s d i c t i o n i n w h i ch s u ch o ff e r, s o li c i t a t i o n o r s a l e w oul d b e un l a w f u l p r i o r to r e g i s tr a t i o n o r quali f i c a t i o n unde r t h e s e c u r i t i e s l a w s o f an y s u ch ju r i s d i c t i o n . Y o u s hou l d no t c on s tr u e t h e c o n t e n ts o f t h i s p r e s en t a t i o n a s l eg a l , t a x, a cc ou n t i n g o r i n v e s t m en t a d v i ce o r a r e c o mm end a t ion . Y o u s hou l d c on s ul t y o u r o w n c oun s e l an d t a x an d f inan c i a l ad v i s o rs a s to l ega l an d r e l a t e d m a tt e rs c on c e r n i n g t h e m a tt e r s de s cr i be d he r e i n , and , b y a cc ep t i n g t h i s p r e s en t a t i on , y o u c on f i rm t ha t y o u a re no t r e l y i n g upo n t h e i n f o rm a t i o n c on t a i ne d he r e i n to m a ke an y de c i s i on . T h i s p r e s en t a t i o n i s no t a p r o s pe ct u s an d i n v e s t o r s s hou l d no t s ub s cr i b e f o r o r pu rc ha s e an y s e c u r i t i e s s o l e l y o n t h e ba s i s o f t h i s p r e s en t a t i o n an d be f o re y o u i n v e s t y o u s hou l d unde rt a ke y ou r o w n d ili gen ce r ega r d i n g R i ge l , Ne w c o , t h e T a r ge t Co m pan i e s an d t h e B u s i ne s s Co m b i na t ion . T h i s p r e s en t a t i o n doe s n o t c on s t i t u te o r f o r m p a rt o f a n d s hou l d n o t b e c on s tr ue d a s an y o ff e r o r i n v i t a t i o n to s e l l o r i ss ue , o r an y s ol i c i t a t i o n o f a n y o ff e r to pu rc h a s e o r s ub s cr i b e f o r , a n y s ha r e s , n o r s ha l l an y pa r t o f i t n o r t h e f a c t o f i ts d i s t r i bu t i o n f o r m pa r t o f o r b e r el i e d o n i n c onne c t i o n w i th an y c on t r a c t o r i n v e s t m en t de c i s i o n r e l a t i n g t he r e t o , no r doe s i t c on s t i t u te a r e c o m m enda t i o n r ega r d i n g t h e s e c u r i t i e s . T h i s p r e s en t a t i o n i s s upp li e d to y o u s o l e l y f o r y ou r i n f o rm a t ion . No t h i n g c on t a i ne d i n t h e p r e s en t a t i on , no r t h e f a ct o f i ts d i s tr i bu t i on , s ha l l f o rm t h e ba s i s o f an y c on tr a ct o r c o m m i t m en t w ha t s oe v e r . In p a r t i c u l a r , i n S o u th A f r i c a , t h i s p r e s en t a t i o n i s o n l y f o r d i s tr i b u t i o n to p e r s on s f a l l i n g w i t h i n t h e e x e m p t i on s s e t ou t i n s e c t i o n 9 6 ( 1 ) ( a ) o r ( b ) o f t h e S ou th A f r i c a n Co m pa n i e s Ac t No . 7 1 o f 200 8 ( a s a m ended ) ( t h e "S o u t h A f r i c a n C o m pa n i e s Act " ) an d to w ho m t h i s p r e s en t a t io n w il l b e s pe c i f i c a l l y ad d r e ss e d (t h e "S ou th A f r i c a n Q ua l i f y i n g I n v e s t o r s " ) . A s s u c h , i n S ou t h A f r i c a , t h i s Pr e s en t a t i o n doe s n o t c on s t i t u t e a n o f f e r f o r t h e s a l e o f o r s ub s cr i p t i o n f o r , o r t h e s o li c i t a t i o n o f a n o ff e r to bu y a n d / o r to s ub s cr i b e f o r t h e s ha r e s t o t h e pu b l i c a s d e f i ne d i n t h e S ou th A f r i c a n C o m pa n i e s Ac t an d w i l l no t b e d i s t r i bu t e d t o a n y pe r s o n i n S ou th A f r i ca i n a n y m ann e r w h i ch c ou l d be c on s tr ue d a s a n o ff e r to t h e pub li c i n t e r m s o f t h e S ou th A f r i c a n Co m pan i e s Ac t . S hou l d an y pe r s o n i n S o u th A f r i ca w h o i s no t a S o u th A f r i c a n Q u a l i f y i n g I n v e s t o r r e c e i v e t h i s p r e s en t a t i o n , t he y s hou l d no t an d w i l l no t b e e n t i t l e d to a c qui re an y s ha r e s o r o t he r w i s e a ct t h e r eo n . T h i s p r e s en t a t i o n do e s no t, no r i s i t i n t ende d t o , c on s t i t u te a p r o s pe ct u s p r e pa r e d an d r e g i s t e r e d und e r t h e S ou th A f r i c a n C o m pa n i e s Ac t . A c c o r d i ng l y , t h i s p r e s en t a t i o n d o e s no t c o m p l y w i th t h e s ub s t an ce an d f o r m r eq u i r e m e n ts f o r p r o s pe ct u s e s s e t ou t i n t h e S ou th A f r i c a n C o m pa n i e s Ac t an d t h e S o u th A fr i c a n C o m pa n i e s A c t Regu l a t i on s o f 201 1 ( a s a m ende d ) an d ha s n o t bee n ap p r o v e d b y , an d / o r r eg i s te r e d w i t h , t h e S out h A f r i c a n C o m pa n i e s an d I n t e l l e ct u a l P r op e r t y Co mm i ss i on , o r an y o t he r S ou th A f r i c a n au t ho r i ty . A n y o ff e r o r s a l e o f t h e an y s e c u r i t i e s s ha l l b e s ub j e ct to c o m p li an ce w i th S ou th A f r i c a n e x c hang e c on tr o l r egu l a t i on s a s m a y b e app li c ab l e to t h e r e l e v an t S ou th A f r i c a n Q ua li fy in g I n v e s t o r s . T h e i n f o r m a t i o n c o n t a i ne d i n t h i s p r e s en t a t i o n c on s t i t u t e s f a c t u a l i n f o r m a t i o n a s c on t e m pla t e d i n s e ct i o n 1 ( 3 ) ( a ) o f t h e S o u th A f r i c a n F i nan c i a l A d v i s o ry an d I n t e r m e d ia ry S e r v i c e s Ac t N o . 3 7 o f 200 2 ( a s a m en d ed ) ( t h e " FA I S Act " ) an d doe s no t c on s t i t u te t h e f u r n i s h i n g o f, an y " ad v i c e " a s d e f i ne d i n s e ct i o n 1 ( 1 ) o f t h e FAIS A c t . T h e p r e s en t e rs an d t h e i r r e s pe c t i v e e n t i t i e s w h i ch t he y r e p r e s en t a re n o t F inan c ia l S e r v i c e s Pr o v i d e rs ( a s d e f i ne d i n t h e FAIS Act) a n d a re nei t h e r l i c en s e d no r r e g i s t e r e d a s s u ch unde r t h e FAIS A c t . T h e i n f o r m a t i o n c o n t aine d i n t h i s p r e s en t a t i o n s hou l d no t b e c on s tr u e d a s a n e x p r e s s o r i m pl i e d r e c o mm e n da t i o n , guidan ce o r p r o p o s a l t h a t an y pa r t i c u l a r tr an s a c t i o n i s app r o p r i a te to t h e pa r t i c u l a r i n v e s t m e n t o b j e c t i v e s , f i na n c i a l s i t u a t i on s o r n eed s o f a p r o s pe c t i v e i n v e s t o r, an d n o t h i n g i n t h i s p r e s en t a t i o n s hou l d b e c o n s tr ue d a s c on s t i t u t i n g t h e c a n v a ss i n g f o r, o r m a rk e t i n g o r a d v e r t i s i n g o f, f i nan c i a l s e r v i c e s i n S o u th A fr i c a . I f y o u r equi re f i nan c i a l an d / o r i n v e s t m e n t a d v i c e , p l e a s e e n gag e t h e s e r v i c e s o f a n i ndependen t f i nan c i a l ad v i s e r . Fo r w ar d - Loo k in g St a t eme nts Ce rt a i n s t a t e m en ts i n t h i s p r e s en t a t i o n m a y b e c on s i d e r e d " f o r w a r d - l oo k i n g s t a t e m en t s " w i t h i n t h e m ea n i n g o f t h e " s a f e h a r b o r " p r o v i s i on s o f t h e Uni t e d St a t e s P r i v a te S e c u r i t i e s Li t i g a t i o n R e f o r m A c t o f 1 9 95 . F o r w a r d - l oo k i n g s t a t e m e n ts gen e r al l y r e l a te to f u t u re e v e n ts o r R i g e l ' s , Ne w c o’ s o r t h e T a r ge t C o m panie s ’ f u t u re f i n a n c i a l or ope r a t i n g pe r f o r m an c e . In s o m e c a s e s , y o u c a n i de n t i f y f o r w a r d - l o o k i n g s t a t e m e n ts b y t e r m i n o l og y s u ch a s “m a y,” “ s hould , ” “ e x pe c t , ” “ i n t en d ,” “ w il l ,” “ e s t i m a t e ,” “ a n t i c ipa t e , ” “ b e li e v e , ” “ p r e d i c t , ” “ p o t en t i a l ” o r “ c on t i nu e ,” o r t h e neg a t i v e s o f t he s e t e r m s o r v a r i a t i o n s o f t h e m o r s i m i la r t e r m ino l o g y . S u ch f o r w a r d - l o o k i n g s t a t e m e n ts a re s ub j e c t to r i s k s , un c e r t a i n t i e s , an d o t he r f a c t o r s , w h i ch c o u l d c a u s e a ct ua l r e s ul ts to di ff e r m a t e r i al l y fr o m t ho s e e x p r e s s e d o r i m p li e d b y s u ch f o r w a rd l oo k i n g s t a t e m en t s . T h e s e s t a t e m en ts a re ba s e d o n v a r i ou s a ss u m p t i on s an d o n t h e c u r r e n t e x p e ct a t i o n s o f R i gel , Ne w c o , o r t h e T a r ge t C o m pa n i e s , a s appl i c a b l e , an d a re no t p r e d i c t i o n s o f a c t u a l pe r f o r m a n c e . T he s e f o r w a r d - l oo k i n g s t a t e m en ts a re p r o v ide d f o r il l u s tr a t i v e pu r p o s e s on l y an d a re n o t i n t ende d to s e r v e a s , an d m u s t n o t b e r e li e d o n b y an y i n v e s t o r o r o t he r p e r s o n a s , a gu a r a n t ee , a n a ss u r an c e , a p r e d i c t i o n o r a d e f i n i t i v e s t a t e m en t o f f a c t o r p r oba b i l i t y . A c t u a l e v e n ts an d c i rc u m s t an c e s a re di ff i c u l t o r i m po ss i b l e t o p r e d i ct an d w il l d i f f e r f r o m a ss u m p t i on s . T he s e f o r w a r d - l oo k i n g s t a t e m en ts a re ba s e d upo n e s t im a t e s a n d a ss u m pt i on s t h at , w h i l e c on s i de r e d r ea s onab l e b y R i g e l an d i ts m anag e m ent , an d t h e T a r ge t C o m p an i e s an d the i r m ana ge m e n t, a s t h e c a s e m a y be , a re i nhe r ent l y un c e r ta i n . F a ct o rs t h a t m a y c au s e a c t u a l r e s u l ts to d i ff e r m a t e r i a l l y fr o m c u rr e n t e x pe c t at i on s i n c lude , bu t a re no t l i m i t e d t o : ( 1 ) t h e o cc u rr e n ce o f a n y e v e n t, c hang e o r o t he r c i rc u m s t a n c e s t h a t c o u l d g i v e r i s e to t h e t e r m i n a t i o n o f t h e B u s i ne s s Co m b i na t i o n ; ( 2 ) t h e ou tc o me o f a n y l eg a l p r o c ee d i ng s t h a t m a y b e i n s t i t u t e d ag a i n s t Rigel , Ne w c o , t h e T a r g e t C o m pa n i e s o r o t h e rs f ol l o w i n g t h e announ c e m e n t o f t h e B u s i ne s s Co m b i n a t i o n a n d an y de f i n i t i v e ag r e e m en ts w i th r e s pe ct t h e r e t o ; ( 3 ) t h e inabil i ty to c o m p l e te t h e B u s i ne s s C o m bina t i o n du e to t h e f a il u re to ob t a i n app r o v a l o f t h e s ha r eho l d e rs o f R i g e l , Ne w c o , o r t h e T a r ge t C o m pa n i e s , to o b t a i n f inan c i n g to c o m p l e t e t h e B u s i ne s s C o m b i n a t i o n o r to s a t i s f y o t he r c o ndi t i o n s t o c l o s i ng ; ( 4 ) c h ange s t o t h e p r opo s e d s tr u ct u re o f t h e B u s i ne ss C o m b i n a t i o n t h a t m a y b e r eq u i r e d o r ap p r op r i a te a s a r e s u l t o f a p pl i c a b l e l a w s o r r egu l a t i on s o r a s a c ondi t i o n to ob t a i n i n g r egula t o ry ap p r o v a l o f t h e B u s i ne s s Co m b ina t i o n ; ( 5 ) t h e a b i li ty to m e e t t h e l i s t i n g s t anda r d s o f t h e Ne w Y o rk St o ck Exc hang e o r N AS D AQ f o l l o w i n g t h e c on s u mm a t i o n o f t h e B u s i ne s s Co m b i n a t i on ; ( 6 ) t h e r i s k t ha t t h e B u s i ne ss Co m b i n a t i o n d i s r up ts c u rr e n t p l an s an d ope r a t i on s o f t h e T a r g e t C o m pa n i e s a s a r e s ul t o f t h e an n oun c e m e n t a n d c on s u mm a t i o n o f t h e B u s i ne s s Co m bina t i o n ; ( 7 ) t h e a b i l i ty to r e c o gn i ze t h e a n t i c i p a t e d ben e f i ts o f t h e B u s i ne s s Co m b i na t i o n , w h i ch m a y b e a ff e c t e d b y, a m on g o t h e r t hing s , c o m pe t i t i o n , t h e abil i ty o f t h e T a r g e t C o m pan i e s to g r o w an d m anag e g r o w th p r o f i t a b l y , m a in t a i n r e l a t i on s h i p s w i th c u s t o m e rs an d s upp l ie rs an d r e t a i n t h e i r m anag e m e n t a n d k e y e m p l o y ee s ; ( 8 ) c o s ts r e la t e d to t h e B u s i ne s s C o m b i na t i o n ; ( 9 ) c h a nge s i n ap p li c ab l e law s o r r eg u l a t i on s ; ( 1 0 ) t h e po ss i b i li ty t h a t t h e T a r ge t C o m pan i e s m a y b e a d v e r s e l y a ff e c t e d b y o t h e r e c on o m i c, bu s i ne ss and / o r c o m pe t i t i v e f a c t o r s ; ( 1 1 ) t h e T a r g e t Co m pa n i e s ’ e s t i m a t e s o f t h e i r f inan c i a l pe r f o r m an c e ; ( 1 2 ) t h e po ss i bi l i ty t h a t t h e a ss u m p t ion s an d e s t i m a t e s u s e d i n t h e S - K 130 0 T e c hni c a l Repo r ts m a y b e d i ff e r en t t ha n t h e a ct u a l r e s u l t s ; a n d ( 13 ) o t h e r r i s ks an d u n c e rt a i n t i e s s e t f o r th i n t h e s e c t i on s en t i t l e d " R i s k F a c t o r s " a n d " Cau t i ona ry No te Reg a r d i n g F o r w a r d - Loo k i n g St a t e m e n ts an d R i s k F a ct o r S u mm a ry" i n R i g e l 's Pr o s pe ct u s da t e d N o v e m be r 4 , 202 1 f i l e d w i th t h e S e c u r i t i e s an d E x c hang e C o mm i ss i o n o n N o v e m b e r 8 , 202 1 , t h e s e ct i o n e n t i t le d " R i s k F a ct o r s " i n R i g e l 's A nnua l Repo r t o n F o r m 10 - K f o r t h e f i s c a l y ea r ende d De c e m b e r 31 , 202 1 , f o r t h e f i s c a l y ea r ende d De c e m be r 3 1 , 202 2 , a n d i n R i g e l 's Q ua r t e r l y Repo r t o n F o r m 10 - Q f o r t h e qu a rt e r l y pe r i o d ende d N o v e m be r 3 0 , 202 3 a s w e l l a s an y f u r t he r r i s ks an d un c e rt a i n t i e s to b e c o n t a i ne d i n t h e Re g i s tr a t i o n S t a t e m e n t ( a s d e f i n e d b e l o w ) f i l e d a ft e r t h e d a te he r e o f . In ad d i t i o n , f o r w a r d - l o o k i n g s t a t e m e n ts r e f le ct t h e T a r g e t C o m pan i e s ', R i ge l ’ s , o r Ne w c o ’ s e x pe c t a t i on s , p l an s o r f o r e c a s ts o f f u t u re e v e n ts an d v ie w s a s o f t h e d a te o f t h i s p r e s en t a t ion . T h e T a r g e t C o m p a n i e s , Ne w co an d R i g e l a n t i c i p a t e t h a t s ub s equen t e v en ts an d d e v e l o p m e n ts w il l c au s e t he s e a ss e s s m e n ts to c hang e . Ho we v e r, w h i l e t h e T a r ge t C o m pan i e s an d / o r R i g e l an d / o r Ne w co m a y e l e c t t o upda te t he s e f o r w a r d - l o o k i n g s t a t e m e n ts a t s o m e p o i n t i n t h e f u t u r e , ea ch o f t h e T a r g e t C o m p a n i e s , Ne w c o , an d Ri g e l s pe c i f i c a ll y d i s c l a i m an y o b l i ga t i o n t o d o s o . T he s e f o r w a r d - l oo k i n g s t a t e m e n ts s hou l d no t b e r el i e d upo n a s r ep r e s en t i n g t h e T a r ge t C o m pa n i e s ', Ne w c o ’ s , no r R ige l 's a ss e s s m e n ts a s o f an y d a te s ub s equen t to t h e d a te o f t h i s p r e s en t a t i on .
D i scla i mer 2 No t h i n g i n t h i s p r e s en t a t i o n s hou l d b e r e ga r de d a s a r e p r e s en t a t i o n b y an y pe r s o n t h a t t h e f o r w a r d - l o o k i n g s t a t e m e n ts s e t f o r th he r e i n w i l l b e a c h i e v e d o r t h a t a n y o f t h e c o n t e m p l a t e d r e s ul ts o f s u ch f o r w a r d - loo k i n g s t a t e m en ts w il l b e a c h i e v e d . Y o u s hou l d n o t p l a ce undu e r el i a n ce o n f o r w a r d - loo k i n g s t a t e m e n t s , w h i ch s pea k o n l y a s o f t h e da te t he y a re m ade . Ne i t he r R i ge l , Ne w c o , no r t h e T a r ge t Co m pan i e s unde rt a ke an y du ty to upda te t he s e f o r w a r d - l oo k in g s t a t e m en t s . Us e of P r oj ec tions T h i s p r e s en t a t i o n c on t a i n s p r o j e c t e d f inan c i a l i n f o r m a t i o n w i th r e s pe ct to t h e T a r ge t C o m pa n i e s o r R i g e l . S u ch p r o j e ct e d f i nan c i a l i n f o r m a t i o n c on s t i t u t e s f o r w a r d - l oo k in g i n f o r m a t i o n , a n d i s f o r i l lu s tr a t i v e pu r po s e s on l y an d s hou l d no t b e r el i e d upo n a s ne c e ss a r i l y b e i n g i n d i c a t i ve o f f u t u re r e s ul t s . T h e T a r ge t C o m p an i e s ' i nde p enden t aud i t o rs h a v e n o t au d i t ed , r e v ie w ed , c o m p il e d o r pe r f o r m e d a n y p r o c ed u r e s w i th r e s pe ct to t h e p r o j e c t i on s f o r t h e p u r p o s e o f t h e i r i n c l u s i o n i n t h i s p r e s en t a t i on , an d a cc o r d i n g l y, t h e y d i d n o t e x p r e s s a n o p i nio n o r p r o v id e an y o t h e r f o r m o f a ss u r an ce w i t h r e s pe ct t he r e to f o r t h e p u r po s e o f t h i s p r e s en t a t i on . T h e a ss u m p t i on s an d e s t i m a t e s u n de r l y i n g s u ch f i nan c i a l f o r e c a s t i n f o r m a t i o n a re inhe r e n t l y un c e rt a i n an d a re s ub j e c t to a w i d e v a r i e ty o f s i g n i f i c a n t b u s i ne s s , e c on o m i c , c o m pe t i t i v e an d o t he r r i s ks an d u n c e rt a i n t i e s . A c t u a l r e s ul ts m a y d i ff e r m a t e r i a ll y fr o m t h e r e s u l ts c on t e m p l a t e d b y t h e f i nan c i a l f o r e c a s t i n f o rm a t i o n c on t a i ne d i n t h i s p r e s en t a t i on , an d t h e i n c l u s i o n o f s u ch i n f o rm a t io n i n t h i s p r e s en t a t i o n i s no t i n t ended , an d s hou l d no t b e r ega r ded , a s a r ep r e s en t a t i o n b y an y pe r s o n t ha t t h e r e s u l ts r e f l e ct e d i n s u ch f o r e c a s ts w il l b e a c h i e v ed . S e e "F o r w a r d - Loo k i n g St a t e m en t s " abo v e . H i s to r i ca l Fin a n c i a l Info rma ti on ; N on - G AA P or non - I F R S Fin a n c i a l M eas u res ; P C A OB A udit In c o nne c t i o n w i th t h e p r e p a r a t i o n o f t h e Re g i s tr a t i o n S t a t e m en t ( a s d e f i ne d be l o w ) r e l a t e d to t h e B u s i ne s s C o m b i n a t i on , t h e T a r ge t C o m p an i e s w i l l r e - au d i t t h e i r f i nan c i a l s t a t e m e n ts f o r t h e t w o y ea rs ende d F eb r u a ry 28 , 2 0 2 3 an d 202 4 i n a c c o r dan c e w i th t h e s t anda r d s e s t ab li s he d b y th e P u b l i c C o m pan y A c c ou n t i n g O v e r s i g h t B o a rd ("P C AOB " ) an d t h e I n t e r n a t i o n a l F i nan c i a l Repo r t in g S t anda r d s ( " I F R S" ) , a s r eq u i r e d b y t h e r u l e s an d r eg u l a t ion s o f t h e SEC . S u ch r e - a udi t m a y r e s ul t i n r e v i s i on s and / o r c hange s to t h e T a r g e t C o m pan i e s ’ f i nan c i a l s t a t e m en t s , a s c o m p a r e d to t h e T a r g e t C o m panie s ’ c u rr en t f i nan c i a l s t a t e m en ts p r e s en t e d h e r e i n w h i ch h a v e bee n aud i t e d pu r s uan t to c o m p l ian ce w i th t h e app li c ab l e r equ i r e m en t s o f t h e Co m pan i e s Ac t o f S ou th A f r i c a , w h i ch c hange s an d r e v i s i on s c anno t b e quan t i f ie d a t t h i s t i m e an d w h i ch m a y b e m a t e r i al . Acc o r d i ng l y, y o u s hou l d no t p l a ce undu e r e li an ce o n t h e h i s t o r i c a l f i nan c i a l i n f o r m a t io n c on t a i ne d i n t h i s p r e s en t a t i on . T h i s p r e s en t a t i o n i n c l ude s c e rt a i n h i s t o r i c a l an d f o r e c a s t e d non - GAAP a n d n o n - I F R S f i na n c i a l m ea s u r e s , i n c lud i n g , i n t e r al i a , E B I T D A, E B I T, L OM EB I T D A . R i ge l an d t h e T a r g e t C o m pa n i e s bel i e v e t ha t t h e s e non - G A AP an d n on - I F R S m ea s u r e s p r o v id e u s e f u l i n f o r m a t i o n to m anag e m en t an d i n v e s t o rs r ega r d i n g c e r t a i n f in a n c i a l a n d bu s i ne ss tr e nd s r e l a t i n g to R i g e l an d t h e T a r g e t C o m p a n i e s ' f i nan c i a l c ondi t i o n an d r e s ul ts o f op e r a t i on s . T he s e no n - GAAP o r n o n - I F R S f i n a n c i a l m ea s u r e s a re s ub j e ct to i nhe r en t l i m i t a t i on s a s t he y r e f l e c t t h e e x e r c i s e o f jud g m e n ts b y m a n ag e m e n t abo u t w h i ch e x pen s e an d i n c o m e a re e xc l u d e d o r in c l u de d i n d e t e r m in i n g t he s e n o n - GAAP o r no n - I F R S f inan c i a l m ea s u r e s . R i g e l an d T a r g e t C o m pan i e s ' m anag e m e n t d o no t c on s i de r t h e s e non - GAAP an d non - I F R S m ea s u r e s i n i s o l a t i o n o r a s a n al t e r n a t i ve to f inan c i a l m e a s u r e s de t e r m i n e d i n a c c o r dan c e w i th GAAP o r I F R S . O t h e r c o m pa n i e s m a y c a l c u l a te non - G AAP an d non - I F R S m ea s u r e s di ff e r e n t l y, an d t h e r e f o re t h e non GAAP an d no n - I F R S m ea s u r e s o f t h e T a r ge t C o m pa n ie s i n c l ude d i n t h i s p r e s en t a t i o n m a y no t b e d i r e c t l y c o m pa r a b l e to s i m i l a r l y t i t l e d m ea s u r e s o f o t he r c o m panie s . R i ge l an d t h e T a r ge t C o m pa n i e s a re un a b l e to q u a n t i fy c e r t a i n a m ou n ts t h a t w ou l d b e r eq u i r e d to b e i n c lude d i n t h e m o s t d i r e c t l y c o m p a r abl e GAAP o r I F R S f inan c i a l m ea s u r e s w i t hou t u n r ea s onab l e e ff o r t . Con s equen t l y, n o d i s c l o s u re o f e s t i m a t e d c o m pa r a b l e GAAP o r I F R S m ea s u r e s i s i n c l ude d an d n o r e c on c i l i a t i o n o f f o r w a r d - loo k i n g no n - GAAP o r n on - I F R S f i n a n c i a l m ea s u r e s i s in c l ude d . Ce r t a i n m on e t a ry a m ou n t s , p e rc e n t age s an d o t he r f i g u r e s i n c l ude d i n t h i s p r e s en t a t i o n h a v e bee n s ub j e c t to r ound i n g ad j u s t m en t s . Ce rt a i n o t he r a m oun ts t ha t appea r i n t h i s p r e s en t a t i o n m a y no t s u m du e to r ound i ng . Ca utio n ar y N ote Re g ar ding Min era l Res ou rce s a nd Reser v es E s t i m a t e s o f " m ea s u r ed " , " i ndi c a t e d " an d " i n f e rr e d " m i n e r a l r e s ou rc e s s ho w n i n t h i s p r e s en t a t i o n w i th r eg a rd to t h e p r ope r t i e s o f t h e T a r g e t C o m pa n i e s a re d e f ine d i n S ubpa rt 130 0 o f Reg u l a t i o n S - K p r o m u l g a t e d b y t h e U . S . S e c u r i t i e s an d E x c hang e C o mm i ss i o n ( "S - K 1300 " ) . T h e e s t i m a t i o n o f m ea s u r e d r e s ou r c e s an d i n d i c a t e d r e s ou rc e s i n v o l v e s g r e a t e r un c e rt a i n ty a s to t hei r e x i s t en ce an d e c on o m i c f ea s i b i l i t y t ha n t h e e s t i m a t i o n o f p r o v e n an d p r obab l e m i ne r a l r e s e r v e s . T h e e s t i m a t i o n o f i n f e rr e d r e s ou rc e s i n v o l v e s f a r g r e a t e r un c e rt a i n ty a s to t h e i r e x i s t e n ce an d e c on o m i c v ia b i l i t y t ha n t h e e s t i m a t i o n o f o t h e r c a t eg o r i e s o f r e s ou rc e s . I n v e s t o rs a re c a u t i on e d n o t to a s s u me t ha t an y o r a l l o f t h e m i ne r a l r e s ou rc e s a re e c ono m i c a l l y o r l ega ll y m i neabl e o r t ha t t he s e m i ne r a l r e s ou rc e s w il l e v e r b e c on v e r t e d i n to m i ne r a l r e s e r v e s . Ind us t r y a nd M a r ke t Da t a ; T r a d ema r k s a nd T r a de Names I ndu s try an d m a r k e t da t a u s e d i n t h i s p r e s en t a t i o n h a ve bee n o b t a i ne d f r o m t h i r d - p a rty i n d u s try p ubl i c a t i on s a n d s ou rc e s a s w e l l a s f r o m r e s ea rch r ep o rts p r e pa r e d f o r o t he r pu r p o s e s . Ne i t h e r t h e T a r ge t C o m pan i e s n o r R i ge l h a v e i n depende n t l y v e r i f ie d t h e d a ta ob t a i ne d fr o m t he s e s ou rc e s an d c ann o t a ss u re y o u o f t h e d a t a 's a cc u r a cy or c o m p l e t ene ss . T h i s da ta i s s ub j e ct to c hang e . T h i s p r e s en t a t i o n c on t a i n s tr ade m a r k s , s e r v i ce m a rk s , tr ad e na m e s an d c op yr i gh ts o f R i ge l , t h e T a r ge t Co m pan i e s an d o t he r c o m pan i e s w h i ch a re t h e p r ope rty o f t he i r r e s pe ct i v e o w ne r s . A dditio n a l Info rma tion a bout the B u s in es s C o m bin a t i o n a nd W h er e to Find It In c onn e c t i o n w i th t h e B u s i ne s s Co m b i na t i o n , Ne w c o , a w ho ll y - o w ne d s ub s i d i a ry o f R i g e l , i n t end s to f il e w i th t h e U . S . S e c u r i t i e s an d E x c h a ng e C o mm i ss i o n (t h e "S E C ") a r e g i s tr a t i o n s t a t e m en t o n F o r m F - 4 (t h e " Re g i s tr a t i o n S t a t e m e n t" ) , w h i ch w i l l i n c l ud e a p r e li m i na r y p r o x y s t a t e m e n t o f R i g e l an d a p r e l i m ina ry p r o s pe ct u s o f N ew co a n d t h e T a r ge t C o m pa n i e s , an d a ft e r t h e Reg i s t r a t i o n S t a t e m en t i s de c l a r e d e ff e c t i v e , R i g e l w i l l m ai l t h e de f i ni t i v e p r o x y s t a t e m e n t / p r o s pe ct u s r e l a t i n g to t h e B u s i ne s s C o m b i n a t i o n to i ts s ha r eho l d e rs an d pu b l i c w a rr an t h o l de r s a s o f t h e r e s pe c t i v e r e c o rd d a te to b e e s t abl i s he d f o r v o t in g a t t h e m ee t i n g o f i ts s ha r eholde rs ( t h e " R i g e l S h a r eho l d e rs M ee t i n g ") t o b e he l d i n c onn e c t i o n w i th t h e B u s i ne s s C o m bina t i on . T h e Re g i s tr a t io n S t a t e m e n t, i n c l u d i n g t h e d e f i n i t i v e p r o x y s t a t e m e n t / p r o s pe ct u s c on t a i ne d t he r e i n , w i l l c o n t a i n i m po r t a n t i n f o r m a t i o n ab o u t t h e B u s i ne s s C o m b i n a t i o n an d t h e o t h e r m a tt e rs to b e v o t e d up o n a t t h e R i g e l S ha r eh o l d e rs M e e t i ng . T h i s c o mm u n i c a t i o n doe s not c on t a i n a l l t h e i n f o r m a t i o n t h a t s hou l d b e c on s i d e r e d c on c e r n i n g t h e B u s i ne s s Co m b i n a t i o n a n d o t he r m a t t e rs an d i s n o t i n t ende d to p r o v id e t h e ba s i s f o r an y i n v e s tm en t de c i s i o n o r an y o t he r de c i s i o n i n r e s pe ct o f s u ch m a t t e r s . R i g e l , Ne w co an d t h e T a r ge t C o m pa n i e s m a y a l s o f i l e o t he r do c u m e n ts w i th t h e SE C r ega r d i n g t h e B u s i ne ss C o m b i n a t i on . R i g e l ’ s s ha r eho l de r s , publ i c w a rr an t ho l d e rs an d o t he r i n t e r e s t e d pe r s on s a re a d v i s e d t o r ead , whe n a v a il a b l e , t h e Re g i s tr a t i o n St a t e m en t , i n c l u d i n g t h e p r e l i m ina ry p r o xy s t a t e m e n t / p r o s pe ct u s c o n t a i n e d t he r e i n , t h e a m en d m en ts t h e r e to an d t h e d e f i n i t i v e p r o xy s t a t e m e n t / p r o s pe ct u s an d o t h e r d o c u m e n ts f il e d i n c onn e ct i o n w i t h t h e B u s i ne s s Co m b i n a t i o n , a s t he s e m a t e r i a l s w i l l c o n t a i n i m p o r t an t i n f o r m a t i o n abo u t Rigel , Ne w c o , t h e T a r ge t C o m pa n i e s an d t h e B u s i ne s s Co m b i na t i o n . S t o ck h o l d e rs w il l a l s o b e a b l e to o b t a i n c o p i e s o f t h e p r e l i m ina ry p r o x y s t a t e m e n t, t h e d e f i ni t i v e p r o x y s t a t e m en t an d o t he r do c u m e n ts f i l e d w i th t h e SE C , w i t h ou t c ha r g e , o n ce a v a il a b l e , a t t h e SE C 's w eb s i te a t www . s e c . go v . T h i r d P ar ty Da ta R i ge l ha s c o mm i ss i one d AM E M i n e r a l E c on o m i cs P ty L td ( AME ) to p r o v i d e c e r t a i n i n f o r m a t i o n f o r i n c l u s i o n i n t h i s do c u m e n t . I n f o r m a t i o n p r o v i de d b y A ME i s r e f e r r e d to i n t h i s do c u m e n t a s ' AME' . T h i s do c u m en t u s e s m a r k e t d a t a , s t at i s t i cs an d t h i r d - pa r ty e s t i m a t e s , p r o j e c t i on s an d f o r e c a s ts r e l a t i n g to t h e i n du s tr i e s , s e g m en ts an d e n d m a rk e ts i n w h i ch R i g e l an d t h e T a r ge t C o m p an i e s op e r a t e . S u ch i n f o r m a t i o n i n c l ude s , b u t i s n o t l i m i t e d to s t a t e m e n t s , s t a t i s t i cs an d d a ta r e l a t i n g to p r o du ct s e g m e n t an d m a rk e t s ha r e , e s t i m a t e d h i s t o r i c a l an d f o r e c a s t m a rk e t g r o w t h , m a rk e t s i z e s an d tr end s , an d R i g e l an d t h e T a r g e t C o m pa n i e s ' e s t i m a t e d m a rk e t s ha re an d i ts indu s try po s i t i o n . R i g e l an d t h e T a r ge t C o m pan i e s h a v e o b t a i n e d s i gni f i c an t po r t i on s o f t h e m a rk e t d a t a , s t a t i s t i cs an d o t he r i n f o r m a t io n fr o m da t aba s e s an d r e s ea rch p r ep a r e d b y t h i rd pa r t i e s , in c l u d i n g r e p o r ts an d i n f o r m a t i o n p r e pa r e d b y t h e A ME an d o t he r t h i rd p a r t i e s , an d o t h e r s ou rc e s . A ME ha s a d v i s e d t h a t ( i ) i n f o r m a t i o n i n t h ei r d a t aba s e s is de r i v e d fr o m t hei r e s t i m a t e s , s ub j e c t i v e j udg e m en t s , a n d t h i r d - pa r ty s ou rc e s , ( i i ) t h e i n f o r m a t i o n i n t h e da t ab a s e s o f o t he r c oa l indu s try da ta c ol l e c t i o n age n c i e s w i l l d i ff e r fr o m t h e i n f o r m a t i o n i n t hei r d a t aba s e s , ( i i i ) t h a t f o r e c a s t i n f o r m a t io n i s h i g h l y s pe c u l a t i v e an d n o r el i a n ce m a y b e p l a c e d o n t h i s da t a . In t h e c o m pi l a t i o n o f t h e AME s t a t i s t i c a l an d g r ap h i c a l i n f o r m a t i o n w il l b e u n r e li a b l e , i n a cc u r a te an d w i l l c o n t a i n e rr o rs o f f a c t an d j udg e m en t . I t i s s ub j e ct to f u l l v a l i da t i o n an d t h e p r o v i s i o n o f s u ch i n f o r m a t io n r equi r e s i n v e s t o rs to m a ke ap p r op r i a te f u r t h e r enqu i r i e s . I n v e s t o rs s hou l d no t e t ha t m a rk e t d a ta an d s t a t i s t i cs a re i nh e r e n t l y p r ed i c t i v e , s ub j e c t to u n c e r t a i n ty an d not ne c e ss a r il y r e f l e c t i v e o f a c t ua l m a rk e t c o n di t i o n s . T he re i s n o a ss u r an ce t h a t an y o f t h e t h i r d - pa r ty e s t i m a t e s o r p r o j e c t i on s c on t a i ne d i n t h i s i n f o r m a t i o n , i n c l ud i n g i n f o r m a t i o n p r o v ide d b y AM E , w i l l b e a c h i e v e d . R i g e l an d t h e T a r g e t C o m pan i e s h a v e no t i n depende n t l y v e r i f i e d a n d c anno t g i v e an y a ss u r an c e s to t h e a cc u r a cy o r c o m p le t ene s s o f , t he s e m a rk e t an d t h i r d - pa rty e s t i m a t e s an d p r o j e ct i on s . E s t i m a t e s i n v ol ve r i s ks an d un c e rt a i n t ie s an d a re s ub j e ct to c hang e ba s e d o n v a r i ou s k no w n an d un k no w n r i s k s , un c e rt a i n t ie s , an d o t he r f a ct o r s . T h e d a ta an d i n f o r m a t i o n p r o v ide d b y W oo d M a c k en z i e s hou l d no t b e i n t e r p r e t e d a s a d v i ce an d y o u s hou l d no t r e l y o n i t f o r a n y pu r po s e . Y o u m a y no t c op y o r u s e t h i s da ta an d i n f o r m a t i o n e x c e p t a s e x p r e ss l y pe r m i tt e d b y W oo d M a ck en z i e i n w r i t i n g . To t h e f ul l e s t e x t en t p e r m i t t e d b y l a w , W oo d M a ck e n z i e a cc ep ts n o r e s pon s i b i l i ty f o r y ou r u s e o f t h i s da ta an d i n f o r m a t io n e x c ep t a s s pe c i f i e d i n a w r i tt e n ag r ee m en t y o u m a y ha v e en t e r e d i n to w i th W oo d M a ck en z i e f o r t h e p r o v i s i o n o f s u ch da ta an d i n f o rm a t i o n .
A u rous R e sources & R i gel Te a ms Iz a k M arais Chief O perations O ffi c er • Previously se r ved as COO at Gold One for 9+ years and as C E O at fluorspar m iner S all i es for 5+ years • Also se r ved as M anager Bench m a r king for Goldfields, and as Oper ations M anager for the ult r a - deep Kloof Gold M ine Jon Lamb Chief Executive O ffi c er • Cu rr en t Po r tf o li o M anage r a t Or i on , w i t h ex t ens i v e i nves t m en t e x per i en c e a c ro s s pre ci ou s / ba s e m eta l s • P r ev i ous l y wo r ke d a s a n I nves t m en t M anage r a t Re d K i t e an d a t Deu t sch e Ban k i n m e t a l s & m i n i n g adv i so r y A l a n Smith Executive Chairman • 27 + yea r s w i t h Ang l o / DeBee r s , i nc l ud i n g se r v i n g a s G ene r a l M anage r a t th e F i n sc h d i a m on d m i n e i n S out h A fr ic a • T he r ea ft e r , j o i ne d Ang l o G o l d S A a s CE O , l ead i n g t h e en t i t y du r i n g i t s t i m e a s t h e l a r ges t p r oduc t i o n un i t o f Ang l o G o l d R ichard Flo y d Founder and Chief Executive O ffi c er • Prior to Au r ous, spent 6+ years at gold m ining ope r ations associated with East Daggafo n t e in and Galaxy Gold • Also se r ved as Director at Raven M ining and Galaxy Gold S t r at ocorp Inv e st m e n t s Nate A bebe President • F ounde d i ndus t r i a l s - f ocuse d i nves t m en t f i r m Rockpo i n t C ap i t a l i n 2018 , s er vi n g a s M anag i n g Partne r • P r ev i ous l y wo r ke d a s a n I nves t m en t M anage r a t Or i o n Resou r c e Pa r t ne r s an d i n co m m od i t i e s t r ad i n g a t Leh m a n an d Ba r c l ay s Osk a r Le w n o w s ki Chairman • F ounde r an d Ch i e f I nves t m en t O ff i ce r o f Or i o n R esou r c e Pa r t ne r s , a n $8bn + AU M m e t a l s an d m i n i n g p r i va t e equ i t y f i r m • P r ev i ous l y f ounde d Re d K i t e Gr oup , on e o f t h e wo r l d ’ s l ead i n g hedg e f und s i n t h e m e t a l s spac e 3
A u rous R e sources S n aps h ot P ro v e n , lo w - co st go ld p ro du cer in the fir s t qu ar t ile o f the c o st c u r v e (1) w ith a st r on g t r ac k - r e c o rd T op - t i er p ro du ct i o n g ro w th a n d a g o ld r e s ou r c e that r a n ks in the top - 20 g lo b all y (2) A pp roxim a t e l y U S $1. 0 b n r e p l a ceme n t v alue for the exi s t i n g mine a n d inf r ast r u cture to d ay ES G a n d H S E - foc u sed m a n a g eme n t t e am U p side thr oug h cl e ar o rga n ic g ro w t h a n d po t e n t i al r e g io n al c on s o li d at i o n S our c e s: C ap it a lI Q , W oo d M a c ken z ie No te s: (1 ) T h e f orego ing in for m a ti o n w a s ob t a in e d f r o m Me t a ls Cost Cu r v e s , a produ ct o f W oo d Ma ck en z ie. (2 ) B a s e d o n c on t a in e d re s er ve an d re s our ce ( incl u sive) si z e . E x clu de s m in e s w ith <2 5 k o z p a produ cti o n be t w ee n 202 3 - 2025. 4
Ga u ta G o ld Pr o ject ( D e v el o p m e n t) – 10 0 % O w n ed ( 2 , 3 ) A u rous is a Proven Gold Produc e r Transfor m i n g into a M u l t i - Ass e t Operati o n B l y v oo r G o ld M i n e (P r odu ci ng ) – 74% O w n ed ( 1 , 2 ) S our c e s: S - K 130 0 T e c h n ic a l R eport s o n th e Blyv o o r Go ld M i n e an d Gaut a T a ili ng s, date d S epte m be r 2023 . No te s: (1 ) A urou s o w n s 74 % o f t h e Blyvo o r G o ld M in e ; ho w e v er , fi gure s s ho w n o n a 100 % ba sis. (2 ) Lon g t er m Z AR/USD o f 17 . 6 5 p e r S - K 130 0 repor ts. Ass u m e d lo n g t er m go ld pr ice o f $1 , 750 / o z . (3 ) BEE par t ner s h ip no t requ i re d f o r G au ta G o ld P ro jec t . ( 4 ) S ho w n o n a 100 % ba sis. M in era l re s our c e s incl u sive o f m in era l re s er v e s. (5 ) Calc u la te d a s t h e o v era ll re s our ce grad e f o r t o t a l m in era l re s our c e s ( m ea s ure d , in d ica te d an d in ferred ) incl u sive o f m in era l re s er v e s. (6 ) Co n sists o f ~US $80 m p la n t in fra st r u ct ur e c o s t s, ~US $17 m m ini n g c o sts an d ~US $2 m s pen t o n o t he r in fra st r u ct u r e Lo w - c o st, pro d u c ing m i ne with s u b s ta n tial n e a r - term grow t h A h e a v ily d e - r i s k ed s o urce of in c remental org a nic pro d u c tion N PV 5 % of U S $1 , 310 m ~ 150k oz ave r a ge a nnual go l d produc t ion ~ U S $140 m ave r a ge a nnual E B I T D A >30 - yea r r e m a ining mine l i f e 5 . 3 M o z (4) of c ont a ined go l d r ese r ve s ( @ 5 . 5 g/t A u) a nd 22 . 6 M o z (4) of c ont a ined go l d r es ource ( @ 5 . 4 g/t A u (5) ) ~ U S $621 m of LOM t o ta l ca pex ~ U S $815 /oz ave r a ge a nnual a ll - in - s us t a ining c ost N PV 5 % of U S $80 m ~ 30k oz ave r a ge a nnual go l d produc t ion ~ U S $22 m ave r a ge a nnual E B I T D A 15 - yea r mine l i f e ~ U S $99 m (6) of pr e - produc t ion ca pex ~ 1 . 3 M oz of c ont a ined go l d r ese r ve s a nd r es ourc e s ( @ 0 . 3 g/t A u) ~ U S $1 , 000 /oz ave r a ge a nnual a ll - in - s us t a ining c ost ~ U S $85 m ave r a ge a nnual f r e e cas h f l ow ~ U S $10 m ave r a ge a nnual f r e e cas h f l ow 5 s pend .
2 . 0 4 . 0 6 . 0 8 . 0 1 0 .0 0 50 1 0 0 1 5 0 2 0 0 2 5 0 Y1 Y 4 Y 7 Y 1 0 G o ld P rodu cti o n ( k o z ) Y 1 3 Y 1 6 Y 1 9 Y 2 2 Rec o v ere d G r ad e (g / t ) Y 2 5 Y 2 8 Y 3 1 Y 3 4 Av erag e G r ad e (g / t ) 4 , 00 0 3 , 50 0 3 , 00 0 2 , 50 0 2 , 00 0 1 , 50 0 1 , 00 0 500 0 ▪ Es t ab li she d unde r g r o u nd mine w it h a p r o v en ope r a ti ng tr ack r eco r d − Pr odu ce d f i r st gold in 1942 and has a 75+ y ear ope r a t i n g his t o r y w i t h >50 mil l ion ounc e s of his t o r ic a l gold p r od u c t i o n − Res t a rt ed p r od u c t i o n in f is c al y ear 2022 ▪ Pl ann e d cap it a l spen d i n g ( ~US$6 21 m o v er LO M ) i s f ocus e d and l e v e r ag e s ex i s ti n g i n fr as tr uc t u r e − Rece n t in v es tm e nt t o r e - op e n t he Pe t er Skeat Sha f t ( p r e v io u s l y kno w n as t he No. 5 Sha ft ) − PIPE p r oce ed s and cash r emaini n g in t he SPAC tr ust accou n t e x pec t ed t o be used t o r e f u r bish und e r g r oun d and su r f ace in f r as tr u c t u r e as w ell as in c r ease mill t h r ou ghou t ▪ Benc h m a r ks ex trem e l y w e l l v e r sus o t her go l d p r odu ce r s − Plots in t he f i r st qua rt i l e of t he glo b a l gold cost cu r v e − Pr odu c t i o n g r o w t h t h r ou g h nea r - t e rm ram p - u p e x ceed s nea r ly a ll pee r s ▪ Exc e p ti ona ll y h i g h - g r a d e r esou r c e base of 5 . 4g / t A u ( 1) o ff e r s m a t e ri al ups i d e − Curr ent mine plan assum e s ju s t 24 % ( 2) of t o t al con t a i ne d r ese r v es and r esou r c e s is r eco v e r ed o v er t he l i f e of mine O v er v iew B l yvoor is a Wel l - Invested Produci n g Gold Mine w i th a F i rst Qua r tile Cost Position G o ld Pr odu cti o n Co st Cu r v e b y Co m p a n y ( 3 ) ( AISC U S$/oz Au) (4) Bl y v oo r G o ld M ine (U S $815 / o z ) (5) Spot G old Price: US$2,087 / oz A u 18 , 00 0 36 , 00 0 P a id Go ld ( k o z A u ) 54 , 00 0 72 , 00 0 S our c e s: S - K 130 0 T e c h n ic a l R eport s o n th e Blyv o o r Go ld M i n e an d Gaut a T a ili ng s, date d S epte m be r 2023 . F a c t S et . M ar k e t dat a a s o f 1 st M ar ch 2024 . No te s: A urou s’ fisc a l y ea r end s o n 2 8 F eb . (1 ) S ho w n o n a 100 % ba sis. Calc u la te d o n 22 . 6Mo z o f c on t a in e d go ld re s our c e . M in era l re s our c e s incl u sive o f m in era l re s er v e s. (2 ) B a s e d o n m in era l re s er v e s a s a propor ti o n o f t o t a l incl u sive m in era l re s our c e s. B a s e d o n a 5 km rad ius m ini n g area . (3 ) T h e f orego ing c har t w a s ob t a in e d f r o m Me t a ls Cost Cu r v e s , a produ ct o f W oo d M a ck en z ie. (4 ) Net o f b y - produ ct c red its. (5 ) L OM All in S u st a ini n g Cos t . Total go ld re c o v ere d > 5 .0 m illi o n oun c e s P rodu cti o n ( k o z ) Rec o v ere d G r ad e (g / t ) S - K 13 0 0 L if e - o f - M in e Pr o du cti o n Pr o file A I SC ( US$ / o z A u ) A v erage Reco v ered G rade: 5.2 g/t 6
0 10 20 30 40 50 60 1937 1946 1951 1956 1961 1966 1971 1976 1981 1986 1991 1996 2001 2006 2011 2016 2021 P a id G o ld ( m illi o n oun c e s) Bl y v oo r an d G au ta T a ilin g s P ro ject S - K 130 0 repor ts c o m p le te d Un dergroun d m ini n g opera ti on s re st ar t e d f r o m th e P ete r S k ea t S ha ft c o mm en c e d ra m p ing u p Up da t e d t e c hn ical repor t o n Bl y v oo r an d t h e G au ta T a ilin g s P ro ject E n vi ron m en t a l au t hor isa t ion gran t e d f o r bo th Bl y v o o r an d th e G au ta T a ilin g s P ro ject A urou s Res our c e s pur c ha s e d Bl y v o o r an d th e G au ta T a ilin g s P ro ject V M R w en t in t o ban k rup tcy du e to broade r fi nan cial d iffic u lty – Bl y v oo r m o t hba ll e d Bl y v oo r s o ld to Villa g e M a in R ee f L i m it e d (“ V M R ” ) P ur c ha se o f Bl y v oo r b y DRDGO L D F i r st produ cti o n a t Bl y v ooru it z icht G o ld M ine (“ Bl y v oor ” ) C u m u lati v e H ist o r ical P r odu cti o n E x t en s i v e O pe r a t i ona l T r a c k Re c o r d 194 2 199 7 20 1 1 201 3 2014 - 201 6 2020 S our c e s: S - K 130 0 T e c h n ic a l R eport s o n th e Blyv o o r Go ld M i n e an d Gaut a T a ili ng s, date d S epte m be r 2023 . Blyv o o r C orporat e P re s e n t at i o n Q 1 2023 . 2022 2021 2023 ✓ T he Bl y v o o r Go l d Mi ne h a s b e en h i s tor i c a l l y pro f i ta bl e ✓ Ho w e v er, Vill a g e M ai n Ree f ’ s ( V MR ’ s ) m arg i n a l m i n e s d i d n ot f are w e l l d u r i ng t h e g o l d p r i c e d o w nt u rn i n 2 0 1 2 a nd resu l ted i n the s to p p a ge of a l l i ts m i n e s , i nc l u di ng Bl y v o o r ✓ T h i s pro vi d e d a u n i q u e o p p o rtu ni ty f or A urous Reso u r c es to acq ui re t he Bl y v o o r Go l d Mi ne a n d Gauta Go l d P roject a n d prepare a hi g hl y - eco n o m i c , l o n g - term b u s i n e s s p l a n , w i th o ut as s u m i ng c erta i n l e g acy li a bili t i es ✓ T he cur r ent A u r ous management te a m has succ e s s fully r epositioned the mine in t o a to p - tier a s s e t and has e s tablished a s t r ong o p e r ational t r a c k r e c o r d o v er the past few y e ar s The B l y v oor G old M i ne has produced o v er 50 M oz of go l d his t or i ca l l y 7
11 1 10 1 9 8 5 4 4 6 4 4 3 6 3 4 N a v a c h a b ( K u lczyk) O b usi ( A G A ) V a a l Riv e r ( H ar m o n y ) C a m & M o t o r ( R ioZi m ) B u c k r e e f ( TRX) B u r n s t o n e ( Si b a n y e ) O b u a si ( A G A) Kib a li (A G A ) Sy a m a ( R es o lut e ) L o u lo ( B a r r ick) F r e e St a te ( H ar m o n y) 3 4 (8) 3 4 K o u r o u s s a ( H u m m i n g b i r d ) E v a nd e r ( P a n A f r ic a n ) S o u th De e p ( G o ld F i e ld s ) F a r West ( D RD G O L D) B u c k r e e f ( T RX) T r a n sv a a l ( Th e t a ) 2022 - 2 0 2 6 Production C A GR ( % , Capital IQ) (5) 67% 5 2 % 43 % 23 % 19 % 19 % 18 % 15 % 11 % 11 % B o m b o re ( O r e z o n e ) Bibi a n i ( A s an t e ) T wa n giza (B a iyin) K lo o f ( S i b a n ye) D r ie f o n t e in ( Si b a n y e ) 6 1 3 4 2 6 2 6 25 2 3 1 8 1 4 1 4 1 4 S o u th De e p ( G o ld F i e ld s ) Ev a nd e r (P a n A f ric a n) Klo o f ( Si b a n y e ) M p o ne n g ( H ar m o n y) O b u a si ( H ar m o n y) 1 , 32 1 1 , 10 2 1 , 27 0 1,562 1 , 11 5 81 5 (6) 1 , 05 1 1 , 23 5 1 , 10 3 1 , 19 2 Large, Hig h - G r ade R e source B a se & S u peri o r G r o w th vs. P e ers Th e B l y v oo r G o ld M i n e ( 1 ) R a n ks in t h e To p 5 A cr o ss A ll G o ld M i n e s in A frica w i t h Fu rt h er Up si d e fr o m Ga u ta S ources: S - K 1300 T echn i cal Reports on the B lyvoor Gold M i ne and Gauta Ta i l i ngs, dated S eptember 2023, Cap i talIQ, W ood Macken z i e (Q4, 2023). S creen based on Cap i talIQ database (cr i ter i a pr i mary commod i ty gold assets, act i ve status, preproduct i on / operat i ng / e x pans i on stage). Notes: (1) B lyvoor Gold M i ne standalone f i gures based on S - K 1300 report. (2) E x cludes m i nes w i th < 25ko z pa product i on between 202 3 - 2025. (3) Calculated as conta i ned gold reserves d i v i ded by 2023E gold p roduct i on. (4) A I S C for peers based on W ood Macken z i e def i ned TC P S (Total Cash + S usta i n i ng Cost), used as a pro x y for A I S C. T he forego i ng i nformat i o n was obta i ned from Metals Cost Curve s , a product of W ood Macken z i e. (5) A urous product i on f i gures based on f i scal years end i ng 28 F eb. F i scal year 2022 product i on has been annual i sed, based on 9 months of product i on. 2026 p roduct i on f i gure from S - K 1300. (6) LOM A ll i n S usta i n i ng Costs. (7) Inclus i ve reserve and resource for B lyvoor Gold M i ne on 100% bas i s. (8) A urous m i ne l i fe based on S - K 1300 report. C o n t ained Gold Re s er v e & Re s ource Ba s e (2 ) ( M oz A u, Capital IQ) 2023 E A ISC (4) Re s er v e Lif e (2)(3 ) ( Y ears, Capital IQ) 1 s t i n A f r i ca 1 s t Gl oba l l y 6 t h i n A f r i ca 17 t h Gl oba l l y 9 t h i n A f r i ca (2) 22 n d Gl oba l l y (2) (1) (1) (1) ( US $ / o z) (7) 8
Heavi ly - Invested Infrastructure A l ready in P l ace B r o w n f i e l d S i t e E n a b l e s Q u i c k P r odu c t i o n R am p U p ▪ Past - p r o duc i n g ope r a t i o n o ff e r ed sig n i f ic an t i n - p l a c e in f r as tr u c t u r e upon Au r ous Reso u r c e s’ acqu i si t i o n of t he Bl y v oor G o ld M ine in c lu d i n g t he Pe t er Skeat Sha f t ( f o rm e r ly No. 5 Sha ft ) and Gau t a T ai l i ng s Proje c t - Ov er ~US$1 35 m has been in v es t ed by cu rr ent o w ne r s ( in c lu d i n g Or i on) into su r f ace and und e r g r o un d in f r a s tr u c t u r e o v er t he past 4 y ea r s - M ost sig n i f ic an t in v es tm e n t s sin c e 2015 ha v e been on t he tr ea tm e n t pla n t , Eskom y a r d, r e f u r b i s h me n t of No . 5 Sha f t in f r as tr u c t u r e , and f i v e v e rt ical sha f t w inde r s ▪ Rem a i n i n g in f r as tr u c t u r e t o be bui l t in c lu d e s v a r io u s und e r g r oun d w o r kin g s and mill and p r ocessi n g upg r ade s ▪ Si t e is f ed by t w o in d e penden t 132 kV o v e r he a d l i nes ( Eskom) and 40 M VA subs t a t i o n w i t h f ull r edun danc y ( e . g. s t and b y die s el gen e r a t i o n capa b i l i t y und e r cons tr uc t i on ) ▪ A 3 r d pa rt y , w i t h w hich Au r ous has en t e r e d into a lo n g - t e rm po w er pu r ch a se ag r e e me n t , has sig n e d an ag reeme n t w i t h Au r ous t o bui l d a 40 M W solar gen e r a t i o n p r oje c t on Au r ous la n d - O n ce bui lt , t his is e x pec t ed t o r educe ene r g y cos t s f or t he Au r ous ope r a t i on s by ~9% or ~US$1 1 / o z ( 1) O v er v iew o f Und er g r oun d M i n e I n frastr u c t u re 1 OF 4 UNDERGROUND W I NDER CHA M BERS CL O SE UP V I EW OF 1 OF 4 UNDERGROUND W I NDERS I NS T A LL ED NEW M AN AND M A T ER I A L S CAGE BE I NG I NS T A LL ED I N T HE PE T ER SKEAT SU B - VER T I CAL SHA F T $ 2 $ 1 $ 2 $1 4 $4 9 $3 2 $2 8 $ 4 $ 4 $ 3 201 5 201 6 201 7 201 8 201 9 202 0 202 1 202 2 202 3 2024 I n v estme n t T imeli n e o f Cu rre n t O w n e rs ( U S$m ) ( 2 ) Total in v ested: ~U S $140 m (3) S our c e s: C o m pan y i nfor m at i on , C o m pan y C orporat e P re s e ntat i o n Q 1 202 3, C o m pan y A ud it e d F i nan ci a l S tate m ent s . No te : (1) Usi n g Blyvo or ’ s a ct ua l e lec tr icity c on s u m p ti o n f o r Oc tobe r 202 2 to S ep t e m be r 2023 , an d a ss u m ing a n e x c hang e ra te o f ZAR1 8 /US $ , annua lis e d produ cti o n o f 30 k o z an d 25 % da yli gh t hour s. (2) F iscal y ea r ba sis, fisc a l y ear s end ing 2 8 F eb . 202 3 an d 202 4 fi nan cials no t aud it e d y e t. (3 ) I n clu de s c ap it a lis e d e x pen s e s. 9
D etails o f N ear T erm C a p ital R e qu ireme n ts at B l y v oo r G o ld M i n e ( 1 ) C l ear Cap i tal Dep l oy m ent P l an to En a ble Produc t ion G r owth S our c e s: C o m pan y i nfor m at i o n an d S - K 130 0 T e c h n ic a l R epor t o n th e Blyv o o r Go ld M i ne , date d S epte m be r 2023 . No te s: F in an cials s ho w n o n fisc a l y ea r ba sis. F iscal y ea r end ing 2 8 F eb . (1 ) T o t a l c ape x in li n e w ith c ape x ou tlin e d in S - K 130 0 T e c hn ical Re por ts o n t h e Blyvo o r G o ld M in e . Ca tegor isa t ion v ar ies a s c o m pare d to t h e S - K 130 0 repor t, an d is pur s uan t to t h e Co m pan y ’ s in terna l a cc oun ti ng . (2 ) P ea k c ape x o f US $27 m to b e f unde d f r o m PIPE pro c eed s an d re m a in de r to b e f unde d via opera ti n g c a sh fl o w s. (3 ) Co n sists o f ~US $80 m p la n t in fra st r u ct u r e c o sts, ~US $17 m m ini n g c o sts an d ~US $2 m s pen t o n o t he r in f r a st r u ct u r e s pend . (4 ) T o t a l G au ta c ap it a l s pen d in Y2 ▪ Actual re s ults m ay differ ba s ed on a c tual a m ounts of funding re c ei v ed, as w ell as t im ing of c on s u mm at i on of de - SPAC tran s a c t i ons ▪ PIPE pro c eeds are e x pe c ted to be u s ed to fund the e x pan s ion of the Bl yv oor M ine and a s so c iated pro c e ss ing plant ▪ A port i on of the funding for this e x pan s ion is e x pe c ted to al s o c o m e from e x i s t i ng operat i ons ▪ Aurous is al s o in ad v an c ed di sc u ss i o ns regarding a debt fa c ility w hi c h it e x pe c ts to be able to draw on, as needed ▪ O CF of US$11.6m and US$44.3m e x pe c ted to be generated in Y 1 and Y 2, re s pe c t i v ely (per SK1300 te c hni c al report s ) - As s u m es gold pri c es of US$1,839/oz and $1,851/o z , re s pe c t i v ely ▪ P re - produ c t i on c apex of US$99 m (3) required (~ $ 73 m (4) to be s pent in Y 2) - Debt f i nan c ing ant ic ipated for G auta 10 o f ~US $88 m , incl ude s ~US $15 m o f c on ti ngen cy c ap it a l. (5 ) E x pan sio n , st a y in bu sin e ss an d c on ti ngen cy c ap it a l. (6 ) E x clu d ing H ist or ical Ca pe x S pen t To t al LO M (6) ( US$m) To t al Y 1 & Y 2 ( US$m) Y 2 as per S - K 1300 ( US$m) Y 1 as per S - K 1300 ( US $ m ) H i stor i cal Capex Spent ( F Y 15 - F Y 24) Pro j ect 177.6 50 . 8 20 . 0 30 . 8 1 2 4.8 Undergro un d Expans i on 27 . 8 13 . 8 5 . 1 8 . 7 3 1 .6 O pen i ng - Up and Deve l op m ent 28 . 6 10 . 7 5 . 5 5 . 2 2 4 .5 Es t ab l ish i ng P r oduction Faces 24 . 4 5 . 9 2 . 5 3 . 4 2 3 .6 Eng i neering and Equ i pp i ng 44 . 8 7 . 0 0 . 9 6 . 0 18.7 Sha f t I n fr as tr uc t ure 19 . 1 7 . 6 3 . 7 3 . 9 1 1 .1 Technical Ser v ices -- -- -- -- 1 5 .3 Sur f ace Asse t s 32 . 9 5 . 9 2 . 3 3 . 6 -- Con t ingency 377.6 6 . 1 4 . 5 1 . 6 -- Undergro un d “S t ay i n Bus i ness” 65 . 9 9 . 1 7 . 0 2 . 1 1 5 .1 Process i ng P l ant Cape x (5) ( expansion + con t ingenc y ) 621.1 66 . 0 31 . 5 34 . 5 (2) 139 .9 To t al Cap i t al Requi r ement
$35 $31 $28 $41 $35 $33 $20 $15 $9 $5 $14 $14 St r ong Resulting Nea r - Term C a sh F l ow Profile f r om A ssets EB I T D A (2) ( US $m) Y 2 Y3 P a y a b l e Go l d P ro d u c t i on ( k oz A u) S our c e s: No te s: S - K 130 0 T e c h n ic a l R eport s o n th e Blyv o o r Go ld M i n e an d Gaut a T a ili ng s, date d S epte m be r 2023 . F in an cials s ho w n o n fisc a l y ea r ba sis. F iscal y ea r end ing 2 8 F eb . (1 ) Blyvo o r M ine s ho w n o n 100 % ba sis. (2 ) T h is is a non - I F RS m ea s ure . B l y v oo r M i ne ( 1 ) Fu ll Year F Y2024 – F Y2035 ( U S$m) U n l e v ered F C F (2) ( US $m) 11 C a p ex ( US $m) $10 $44 $93 $152 $162 $180 $154 $131 $144 $136 $164 $150 ($23) $13 $64 $105 $89 $102 $93 $81 $93 $91 $103 $95 29koz 57koz 96koz 144koz 163koz 181koz 164koz 149koz 158koz 154koz 171koz 163koz Y1 Y4 Y5 Y6 Y7 Y8 Y9 Y10 Y11 Y12
B l yvoor Maintains St r ong Re l ationsh i ps w i th Key S t akeholders B l ack E c onomic E m p o w e rme n t ( BEE) • U n i q ue o w n e rsh i p opp o rtu n i ty f or com m u n i ty a n d emp l o y e e s to be d i rect e q u i ty p a rt i c i p a nts throu g h the bro a d - b a s e d BE E st r u c tu r e • E mp l o y ee a n d com m u n i ty trusts set up to d i rectly b e n e f i t the l oc a l com m u n i t i es a n d emp l o y e e s throu g h the BE E structu r e • BE E 2 6 % o w n e rsh i p of the B l yv o o r Go l d M i ne i s sp li t as f o ll o w s: - 2 0 % Bl yv o o r W o r k e r s T ru s t ( 1) - 3% B l yv o o r C om m u n i ty T rust - 3% SPV - f oc u sed on b l ack e n tre p re n e u rs Union R e latio ns hi p s • E mp l o y e e s f or m ed a n e w u n i on i n 2018 ca ll ed the B l yv o o r W o r ke r s U n i on ( B W U ) ( 2) • T h i s u n i on i s n o t a f f ili ated w i th l ar g er u n i o n s such as N ati o n a l U n i on of M i n e w or k ers ( NU M ) or A ssoc i ati o n of M i n e w or k ers a n d C o n structi o n U n i on ( A M CU ), n o r i s i t a f f ili ated w i th a n y tra d e u n i on f e d era ti on • Hi g h l y co ll a b orat i v e ma n a g emen t/ u n i on re l ati o ns h i p, w i th w a g e i n cre a ses a n d other matte r s of mutu a l i nterest n e g ot i ated a n n u a ll y • U n i on members b e n e f i t f rom B l yv o o r W o r ke r s T rust d i str i b u t i o n s • A ntic i p a te n e w ta ili n g s emp l o y e e s to be h i red u n d e r s i m il ar u n i o n i sed w or k f orce structu r e S our c e s: C o m pan y M anage m e nt . No te s: (1 ) In A pr il 202 3 , Blyvo o r m ad e a fi r st pa y m en t to t h e w or kf or ce a s par t o f pro fi t - s har ing arrange m e n t . (2 ) Labou r re la t io n s a ct a ll o w s f o r a clos e d s ho p agree m en t – in e f fe ct t h e Cl o s e d S ho p A gree m en t a t t h e Blyvo o r G o ld M ine pro vid e s f o r a ll e m p loy ee s to b e par t o f t h e Blyvo o r W or k er s Uni o n an d c o m pe ls a ll ne w e m p lo yee s joi n ing t h e c o m pan y to join t h is un io n . T h e un ion repre s en t a ll e m p loy ee s a t Blyvo o r e x c ep t s en ior m anag e m e nt . 12
S our c e s: C o m pan y M anage m en t . A urou s R e s o ur c e s C ap it a l E n vi ron m enta l P o licy. No te s: (1 ) E n vi ron m en t a l A u t hor isa t ion w a s ob t a in e d f o ll o w ing s ub m issi o n o f t h e E M PR an d t h e EIA b y t h e Co m pan y. B o th t h e undergroun d o p era ti o n an d its t r ea t m e n t p la n t ar e f u lly per m itt e d , an d t h e t a ilin g s opera ti o n ha s en vi ron m en t a l au t hor isa t ion to bu ild th e t a ilin g s t r ea t m e n t p la n t, m ine T SF no .7 an d depo sit re si d ue s on to T SF No. 6 . T h e t a ilin g s opera ti o n w ill requ i r e add itio na l per m itti n g to a ll o w fo r depo sition o n t h e f oo t pr int o f T SF No . 7 . T h is au t hor isa t ion pro c e ss w ill c o mm en ce on ce t h e pro ject i m p le m en t a ti o n pha se c o mm en c e s . (2 ) A urou s w or ks clos e ly w ith Aurous has an ES G - Foc u sed Management Te a m En v i r on m en t al Assess m ent gran t ed in Februa r y 2020 f or Bl yv oor G o l d Mine and for G au t a Tailings P r o j ect (1) E n v ir on m en t a l C o m p li anc e Water Qu a li t y O ngoing m oni t o r ing of su r face and g r ound w a t e r (2 ) as w e l l as an ons i t e p l ant t o t r eat se w age R e n e w a b le E n e rgy Agree m ent signed w i t h 3 rd par t y t o bu i ld a 40 M W so l ar gene r a t ion p l ant on Aurous land and en t er in t o a lon g - t erm po w er purchase agree m ent L o c a l E mplo y ment US$26m in v es t ed v ia e m p l o y m ent in t he local econo m y o v er t he 5 - y ear period end i ng Februa r y 2023 S trong Go v ern a n c e Ma j ority independent board p l anned; s t r ingent co m p l iance con tr o l s in p l ace across t he organisa t ion Mining R e h a b ilita ti on Cos t s assessed and insurance in p l ace; 10 y ear period t o i m p l e m ent f u l l closure cost f und i ng 13 Ha r m on y G o ld o n w a t e r issu e s; t h e s ur f a ce an d ground w a t e r m on it or ing progra m s ar e c urren tly m anage d b y Ha r m on y G o ld.
S our c e s : C o m pan y i nfor m at i o n . No te s : ( 1 ) Calc u la te d a s : nu m be r o f L T I ’ s / t o t a l hour s w or k e d x 1 , 000 , 00 0 hour s . A Lo st T i m e I n ju r y (“L T I ” ) is a n inj ur y to a n e m p loy e e w h ich c au s e s t h e e m p loy e e no t to b e ab le to repor t to w or k o n t h e da y f o ll o w ing t h e inj ur y . T h e c a lcul a ti o n f o r t h e st a tistic d ivi de s t h e nu m be r o f L T Is w h ich o cc u r in on e m on th b y t h e nu m be r o f m anhour s w or k e d in t ha t m on th an d t he n m u ltiplies t h e re s u lt b y 1 , 000 , 00 0 m a n hour s . I n itia t i v es to Im p r o v e Safety ✓ Leadin g b y e x a m pl e i n c o m m i t m en t t o heal t h an d s a f e t y an d pu rs uin g ha r m - f r e e m inin g ✓ I m p l e m e n ta ti on of I S O 4 5 0 0 1 (O cc u p at i o n al Hea l th a n d S a f et y ) i s u n d e r w ay to c o n t i n u a l l y i m p r o v e hea l th an d s a f e ty a t t h e m i n e ✓ A djust m e n ts to m i n i ng se q u e nce a n d s u p p o rt c h a racter i s t i c s to re d uce the p o te n c y of s e i s m i c i nc i d e nts ✓ Focus on i m pro vi ng pr e - c o n d i t i o ni ng of m i n i ng f aces a n d f ace s h a p e s to re d uce s e i s m i c i ty ✓ C l o s e r scr u t i n y an d m o re vi go r ou s i n v e st i ga t i o n i n to s e i s m i c i n c i den ts ✓ E s ta bli s h e d a m es s a gi ng li ne f or re p ort i ng i nc i d e nts a n d a t - r i s k s i tu a t i o n s Lo s t T i m e I n j ur y F r e qu e n c y R at e p e r 1 M i lli o n Hou r s ( LT I FR ) ( 1 ) T ot a l Injuri e s Deep Com m it m ent t o I m proving Sa f ety Track Record 12 - Mont h Movin g A v e r age 3 14 2 3 0 5 1 4 8 0 1 3 3 5 6 1 1 5 7 .3 7.0 6.3 5.9 6.6 6.6 7 .0 8.5 8.1 8.2 8.3 8.5 8.9 9.8 9 .2 9 .4 9.5 Se p - 22 O c t - 2 2 No v - 22 De c - 22 J a n - 23 Fe b - 23 M ar - 23 Apr - 2 3 M a y - 2 3 J u n - 23 J u l - 23 Au g - 23 Se p - 23 Oct - 2 3 No v - 23 De c - 23 J a n - 24
Ta ili n g s Off e r a H eav i l y D e - r i sk e d Sou r c e o f Or gani c P r odu c t io n Lo ca t ed in C l o se Pr o ximity to t h e B l y v oo r G o ld M i n e S - K 1300 L ife - o f - M in e Pr odu cti o n Pr o file S our c e s: S - K 130 0 T e c h n ic a l R eport s o n th e Blyv o o r Go ld M i n e an d Gaut a T a ili ng s, date d S epte m be r 2023 . No te s: (1 ) Lega cy en tity G o ld f iel d s S ou th Af r ica ( G F SA ) . (2 ) Cu m u la t ive Res er v e s an d Res our c e s fi gur e f o r a ll T S F s. 100 % ba s is. (3 ) W a t e r u se lic en se ha s e x p i red ; t h e Co m pan y is rene w ing t h e lic en s e . (4 ) Lon g t er m Z AR/USD e x c hang e ra te o f 17 . 6 5 pe r S - K 130 0 repor ts. (5 ) Co n sists o f ~US $80 m p la n t in fra st r u ct u r e c o sts, ~US $17 m m ini n g c o sts an d ~US $2 m s pen t o n o t he r in fra st r u ct u r e s pend . O v er v iew ▪ G au t a represen t s a na t ura l , nearby source of go l d f or re t rea t ment − Aurous w ho l l y - o w ns G au t a w h i ch o w ns t he six t a i lings deposi t s c r ea t ed f r om his t o r ical Bl yv oo r ui t z icht ( Rand M ines L t d) and Doo r nfon t ein ( G o l d f ie l ds L t d (1) ) m ine produc t ion ( T S F 6 is cur r en t ly in use) − I ncre m en t al ~ 30 k oz of a v erage annual go l d produc t ion at an es t i m a t ed a ll - i n - sus t a i n i n g - cost of ~ US$1 , 000/oz Au o v er t he li f e - o f - m i n e − 1 . 3Moz of con t a i ned r eser v es and r esources (2) − Ad j acent t o f ur t her t a i lings deposi t s f r om t he Sa v u k a m ine ( Harmon y ) and Drie f on t e i n m ine ( Siban y e) ▪ D e - r i sked pa t h t o prod u ct i on pro vi des l o w - c o st organic gro w t h − Key per m i tt ing in p l ace f or p l ant cons tr uc t ion and subsequent r e - m in i n g / processin g (3) − F i r st produc t ion expected in 3 y ears, w i t h t a i lings con v er t ed in t o slur r y t hrough h i g h - pressu r e w a t er m on i t oring be f ore be i ng t r anspo r t ed v ia p i pe l ine t o a new processing p l ant − T y pical plant flo w sheet w i t h t hic k ening, leaching and ca r bon t r ea t m ent ▪ H i gh l y econom i c project w i t h an NPV5% of US$80m − P r e - produc t ion capex is ~ US$99 m (4)(5 ) and t here is po t en t ial f or ups i de f r om bo t h in f er r ed r esource con v ersion, if pro v en t o be econo m ica l ly v iab l e, and acquisi t ion of ad j acent T S Fs − F l ex i b i li t y in m ine p l an a l lo w s f or t a i lings t o be processed in a m anner such t hat economics a r e m axi m ised P rodu cti o n ( k o z ) Recove r ed G r ade ( g/ t ) B l y v oor T SF 1 D o o r n f on te in T SF 1 D o o r n f on te in T SF 2 D o o r n f on te in T SF 3 B l y v oor T SF 6 B l y v oor T SF 7 B l y v oor Gold Pl a nt 5 k m P ete r S kea t Sha f t 0 . 0 0 . 1 0 . 2 0 . 3 0 . 4 50 40 30 20 10 0 Y3 Y5 Y 7 Y9 G old Prod u c t i on ( k o z ) Y 1 1 Y13 Y15 Re c o v e red Gra d e 15 Y17
25 6 18 8 15 7 12 2 10 5 6 1 45 4 3 4 2 3 8 A u s t r a lia S o u th A frica C a n a d a R u ssia USA I n d o n e sia B r a zil M e xico PNG C h ile Pr o lific G o ld Pr odu cti o n R e g i o n ▪ S ou t h A fr ic a con t ain s t h e 2 n d la r ges t gol d r esou r c e bas e i n t h e w o r l d an d t h e Wi t w a t e r s r an d i s on e o f t h e mos t p r oli f i c r egion s − Aurous is lo c ated w ithin the Car l eton v ille G oldf i eld, one of the m o s t s ignif ic ant hi s tori c al gold depo s its that c ontains s o m e of the large s t underground m ines in the w orld − W i th an i m pro v ed gold pri c e out l oo k , s o m e of the region’s hi s tori c al underground operat i ons ha v e re c ei v ed a new lea s e on life − W i t w ater s ra n d has produ c ed ~ 5 0m oun c es of gold s in c e 1995 and repre s ents ~ 2 - 3% of global gold produ c t i on today ▪ Plenty of hig h - quality assets indicati v e of consolidation potential − Notable gold m ines lo c ated in c lo s e pro x i m ity i n c lude Ku s a s alethu and M poneng (Har m on y ) and Driefontein (Siban y e) S our c e s: S - K 130 0 T e c h n ic a l R eport s o n th e Blyv o o r Go ld M i n e an d Gaut a T a ili ng s, date d S epte m be r 2023 . A M E. W oo d M a c ken z i e . No te s: (1 ) T h e f orego ing c har t w a s ob t a in e d f r o m Gl oba l G o ld M ine S upp ly S u mm ar y , a produ ct o f W oo d M a ck en z ie. (2 ) B a s e d o n la te st W oo d Ma ck en z ie da ta f o r y ea r en d 2021 . Aurous S i ts i n One of the Most Prol i fic Gold Min i ng Ju r isd i c t ions To p Coun t ri e s b y Con ta i n e d G o l d R es ou r ce s ( 1 ) Con t a i n e d go l d r e s ou rc e b y c oun t r y t oda y (2) , Mo z A u N W e s t Ran d T a ili ng s W i l w a t e r s r an d B a s i n Joha n nesb u r g Coo ke Dr i e font e in C on s ol id a t e d W e s t W i ts S u r f a ce Leeudoor n South Dee p Bl y v oo r K l oo f Con s o li da t e d Mpo n e n g K u sasa l e thu Deve lop m e nt S ta ge Operat i ng Deve l op i ng / E x p l orat i on A u r ou s Lo cated am ong st Wo rld - C lass G o ld M i n e s 16
Tra n saction Det a ils
7% 10% 48% 34% 1% E xisti n g B l y vo o r S h a r eh o ld e rs E xisti n g Ga u ta S h a re h ol d e r s RR A C P u blic S ha r e h ol d e r s RR A C F o u n der S h a r e s ( Ori o n) P I P E I n ve s to r s Ill u st r ative Transaction Overvi e w Pro Fo rma Val u ati o n & O w n e rs h ip at C l o s e ( 3 )( 4 ) Ill u str a t i v e S ou rces & U ses Redemptions ( % ) (6) Total Sources $683 $544 $433 N otes: (1) E q uates to A urous R esources’ e xi st i ng 74% ownersh i p of the B l y voor M i ne. (2) Includes A urous R esources’ e xi st i ng net debt as at end of F i s c al Y ear 2023 (end i ng 28 Feb 2023), adju s ted for transact i on i mpact s . P r o - forma debt i s U S $5.5m. (3) A ssumes no redempt i ons by RR A C publ i c shareholders. (4) P ro forma valuat i on and pro forma ownersh i p at $10.00 per share. E x c l udes the d i lut i ve i mpact of SPA C publ i c warrants and S ponsor warrants w i th an $11.50 e x erc i se pr i ce. E x cludes the i mpact of the new, t o - be - establ i shed e q u i ty i ncent i ve plan, sel l er and management e a rnout, and deferred share cons i derat i on. (5) Represents an effect i ve net purchase pr i ce of $6.67 per share. (6) A ssumed redempt i ons for i l l ustrat i ve purposes. (7) E x cludes appro xi mately U S $1m of shares transferred to comm i tted P I P E i nvestors. (8) A ssumes a redempt i on pr i ce of $11.30 per share at close. No n - redeem i ng publ i c shareholders to rece i ve a cash cons i derat i on to the e x tent cash i n trust at close e x ceeds $10.00 per share. K ey Eleme n ts o f t h e Pr opo sed Co m b i n ati o n ✓ The tr an s a c t ion v alu e s Au r ous Res ou r c es at a p r e - money equi t y v alue of US$362m ( US$350 m (1) for Au r ou s ’ owne r s hip in t he Bl y v oor Mine and US$12m for G a u t a Tai l in gs ) ✓ The tr an s a c t ion c on t emplates r aising a m ini m um US$50m P I PE of which US$7 . 5m has al r eady been c omm i t t ed f r om le a ding in s t i t u t io n al and s tr a t egic in v e s t o r s ✓ Net p r o c eeds wi l l be u s ed t o a cc elera t e p r odu c t ion g r ow t h ✓ E x is t ing t a r get s ha r ehold e r s en t i t led t o a p r odu c t io n - l i n k ed ea r n - out o v er t he 2 y ea r s po s t tr an s a c t ion c lo s e ✓ Or i on c u rr en t ly owns ~20% of Au r ous Res ou r c e s ’ 74% owne r s hip of t he Bl y v oor Mine (5) 90% 50% 0% Sources (US$m) $28 $139 $278 R R AC Ca s h in T ru s t 50 50 50 T hird Party PIPE Pro c eeds 349 349 349 Bl yv oor Equity Ro l lo v e r (7) 6 6 6 G auta Equity Ro l lo v er U ses ( U S$m) $52 $150 $273 Ca s h to Balan c e Sheet 6 6 6 Ca s h Pro c eeds to G auta 3 16 32 Ca s h Pro c eeds to No n - Redee m ing Shareholder s (8) 349 349 349 Bl yv oor Equity Ro l lo v er 6 6 6 G auta Equity Ro l lo v er 17 17 17 I l lu s trat i v e Fees & E x pen s es $433 $544 $683 Total Uses (US$m) $10.00 I l lu s trat i v e Share Pri c e 72.7 ( x ) Pro For m a Shares O ut s tanding $727 Pro Forma Equity Value (273) ( - ) Pro For m a Ca s h (2) 6 (+) Pro For m a Deb t (2) $460 Pro Forma Enterprise Value
7 9 26 3 25 9 25 7 25 6 25 1 21 8 20 8 16 8 16 3 13 2 12 4 10 5 10 2 10 0 9 3 7 9 7 6 7 5 7 2 5 5 52 1 38 9 36 4 36 3 34 1 31 1 31 1 29 2 2 , 62 0 1 , 24 9 1 , 02 1 1 , 01 8 -- -- We s t go ld Ra mel i u s We s d o m e K a ror a Ca li br e E n dea v ou r B 2 G o l d Tie t to Ne w G o ld S h an t a G o ld S il v e r La ke I A M G O L D Hu m m in gb ird G Mi n ing G o ld Fields P e r s eu s Cen t a m in A s an te G o ld A u r a Mi nera ls A s c o t O r e z on e H ar mony Re s o l u t e Ca le don ia G a li an o O s ino Re s ou r c e s We s t A f r i c a n A r gonau t DR D G o ld O r e C o r p A r i s Mi n ing P a n A f r i c a n M c E w e n S t B arba r a Har mo n y G o ld Fields Ti e t to G a li an o O r eCo r p We s d o m e Cen t a m in We s t go ld Ra mel i u s G Mi n ing P a n A f r i c a n S il v e r La ke Ne w G o ld P e r s eu s E n dea v ou r Ca li br e K a ror a I A M G OL D B 2 G o l d Re s o l u t e S h an t a G o ld O s ino Re s ou r c e s We s t A f r i c a n Ca le don ia A s c o t Hu m m in gb ird A s an te G o ld M c E w e n A u r a Mi nera ls S t B arba r a O r e z on e A r i s Mi n ing A r gonau t DR D Go ld (1) 0 . 3 x 1 . 7 x 1 . 6 x 1 . 0 x 1 . 0 x 1 . 0 x 0 . 9 x 0 . 9 x 0 . 9 x 0 . 8 x 0 . 8 x 0 . 0 x 0 . 8 x 0 . 7 x 0 . 7 x 0 . 7 x 0 . 7 x 0 . 6 x 0 . 6 x 0 . 6 x 0 . 6 x 0 . 6 x 0 . 6 x 0 . 5 x 0 . 5 x 0 . 4 x 0 . 4 x 0 . 3 x 0 . 3 x 0 . 3 x 1 . 4 x 1 . 1 x 1 . 1 x 0 . 2 x 0 . 2 x EV / A tt r i bu ta b le R eser v es ($ / o z) Att r active l y Priced Transacti o n vs. P ub l ic Gold Produc e rs Price / N A V ( B r o ker Con se n s u s) (x) S our c e s: F a c t S et , SNL C ap it a lI Q , c o m pan y f ili ng s, SK 130 0 T e c h n ic a l R eport s o n th e Blyv o o r Go ld M i n e an d Gaut a T a ili ng s P ro j e c t , date d S epte m be r 202 3 . M ar k e t dat a a s o f 1 M ar ch 2024 . R e s e r v e s an d Res our c e s da ta f o r Blyvo o r G o ld M ine an d G au ta T a ilin g s P ro ject a s o f 2 8 F ebruar y 2023 , f o r o t he r c o m pan ies in c o m po site Res er v e s an d Res our c e s da ta a s o f Nov e m be r 2023 . No te s: Re pre s en ts s e lect Af r ican an d Gl oba l produ c er s on ly. (1 ) B a s e d o n NAV a t 5 % d isco un t ra t e . Calc u la te d a s US $362 m pr e - m one y equ ity v a lue d ivi de d b y a t tr ib u t ab le NAV o f US $1 , 038 m ( s u m o f 74 % o f US $1 , 310 m in Blyvo o r an d 100 % o f US $80 m in G au ta ad jus te d f o r ne t deb t a t Blyvo o r G o ld M ine ( US $5 . 5 m ) an d G au ta T a ilin g s ( US $6 m ) . Net deb t a s a t en d o f F iscal Y ea r 202 3 (end ing 2 8 F e b 2023 ). S ou t h A f ri ca n M e d i a n : $104 / o z A f ri ca n M u l t i - A sse t M e d i a n : $263 / o z A f ri ca n Si ng l e - A sse t M e d i a n : $134 / o z Gl ob a l M u lti - A ss e t M e d ia n : $311/ o z S ou t h A f ri ca n M e d i a n : 1 . 3 x A f ri ca n M u l t i - A sse t M e d i a n : 0 . 6 x A f ri ca n Si ng l e - A sse t M e d i a n : 0 . 8 x G l ob a l M u l t i - A ss e t M e d i a n : 0 . 7 x G l ob a l G o ld De v e l op e rs M e d i a n : 0 . 7 x G l ob a l G o ld De v e l op e rs M e d i a n : $134 / o z
P o s t - D eal Or g a n iza t i o n al Str u ct u re Pr e - & Pos t - Transacti o n O r ga n iz a tional Structures Pre - D eal Or g a n izat ion a l Str u ct u re N ote s: (1 ) Ri ge l w ill b e rena m e d a s A urou s R e s o ur c e s po st tran s a c t i on . O r i on M i ne Fi nan c e F und I I L.P. ( Be r muda) Av a y a ( Mauriti u s ) St r ato c o r p B l y v oor G o l d Bl y v oo r Res ou r c e s Bl y v oo r Ope r ati on s ( T a il i ng s ) B l a c k Econom i c Empo w e r ment Pa r tne r s Bl y v oo r Go l d Cap ita l & S ubsid i a ri e s Mi n i n g R ight s SPAC Shareho l ders SPAC ( Ca y man I sland s ) 40% 60% 19.95% 80.05% 100% 100% 74% 26% PIPE In v estors SP A C Shareholders SP A C Sponsor ( O rion) A urous Shareholders G auta Shareholders Au r ous Resou r ces (1) G aut a T a ili ng s ( Bl y v oo r Ope r ati on s ( T a il i ng s P r o j e c t ) B l a c k Econom i c Empo w e r ment Pa r tne r s Bl y v oo r Go l d Cap ita l & S ubsid i a r i e s Mi n i n g R ight s 26% 74% 100% A u r ou s Go l d
C o mbinati o n B e nefits f or Investors U S - listed v ehicle H i ghly attractive l i sting jur i sdiction enabl i n g f u t u re consol i d a ti o n and gro w th Ba c ked by Orion, a l e ading, global metals & mining alternati v e in v estment f irm Or i on m anages over US$8bn and has ext e nsive South Afr i can and precious m et a ls exper i e n ce A t t racti v e v aluati o n T ransaction i m pl i es an Aurous P/N A V of 0. 3 x Low cost, high margin operations 1 s t quart i le cost positio n (2 ) w ith Blyvoor m ine al l - i n - sust a ini n g cost of ~ US$815/ o z $ ESG - f o cused management Zero w orkforce str i kes in t h e last year & m anage m ent t e am lase r - f o cused on i m proving saf e ty T op prod u ction gro w th 67 % producti o n gro w th bet w e e n FY 2 02 2 - FY 2 02 6 ( 1 ) ( i nclu d ing est a bl i sh m e n t of G a ut a ) He a v ily d e - ri s ked Si m ple operatio n s & ful l y per m itt e d, w ith a p proxi m ately US$1. 0 b n w orth of infrastructure in place t o day ( i n t e r m s of replac e m ent valu e ) S our c e s: S - K 130 0 T e c h n ic a l R eport s o n th e Blyv o o r Go ld M i n e an d Gaut a T a ili ng s, date d S epte m be r 2023 . C ap it a lI Q . W oo d M a c ken z i e . No te s: (1 ) As pe r S - K 1300 . F iscal y ea r end ing 2 8 F eb . F iscal y ea r 202 2 produ cti o n ha s bee n annua lis ed , ba s e d o n 9 m on t h s o f produ cti on . 202 6 produ cti o n fi gur e f r o m S - K 1300 . (2 ) T h e f orego ing in for m a ti o n w a s ob t a in e d f r o m Me t a ls Cost Cu r v e s , a produ ct o f W oo d Ma ck en z ie.
Ap p e n dix 1 – Rig e l I n for m at i on
O r i o n & R i gel R e source Ac q u i sition C o rp N ote : (1 ) T ota l pro c e ed s o f $306 m ra is e d i n cl ud i n g Green s h o e an d pr iv at e p l a c e m ent . (2 ) As o f M ar ch 2024. (Platreef) R i g el M a n a g eme n t T eam K ey Fo c u s A reas & Select Ori o n I n v estme n ts P r ec i ou s M e t a ls “ G r ee n ” M e t a ls • “ G reen” ba s e m etals ( c opper, ni ck el, z in c ) • O ther battery m etals (lithiu m , c obalt, v anadiu m ) • “ G reen” pre c ious / P G M s Oskar Le w no w sk i Cha i rm an ▪ F ounder and CEO of O r i on Res our c e Pa r tne r s ▪ F ound i ng Pa r tner of the Red K ite G r oup and the Ch ief I n v e s tme n t O ff i c er o f the Mine Finance busin e s s ▪ P r e v i o u s l y Di r e c t o r for Co r porate Dev e l o pm en t at Va r omet, a meta l s p r o c e ss or and me r c ha nt f i r m of >$1bn r e v enu e s ▪ Po r tfol i o Manager at O r i on ▪ P r ior to O r ion, I n v e s tm e nt Manager for Red K ite’ s M i ne Fi nan c e bu s i n e s s ▪ P r e v i o u s l y w o r k ed i n Deut s c he Ban k 's Meta l s & M i n i ng I n v e s tme n t Ban k i n g g r oup ▪ F ounder and Manag i ng Pa r tner of Rock p o i nt Cap ital ▪ P r e v i o u s l y w o r k ed as an I n v e s tme n t Manager at O r i on ▪ P r e v i o u s l y a commod i t i e s tr ad i ng ana l y s t at Lehman B r o s , Ba r c l a y s Cap ital and LAMCO J o n L amb CEO Na t e A b e b e P r esid en t • “High v alue” m etals in c luding gold, s il v er, palladiu m , rhodiu m , etc. Sou th A fri c a E x po s u re O v er v iew ▪ Rigel Resou r ce Acquisi t ion Co r p is a SPAC spon s o r ed by Or ion Resou r ce Par t ners (“ O r ion” ) , t hat lis t ed on t he N Y SE in a $300 m m I PO in Nov 202 1 (1) ▪ The SPAC r ece i v ed shareho l der appro v al f or an ex t ens i on t o i t ’s bus i ness co m b i na t ion deadline in August 2023, r esu l t ing in an ex t ens i on t o August 2024 and is t r ans i t ion i ng t o a lis t ing on t he NASDAQ ▪ O r ion w as f ounded in 2012 and is a g l oba l , asset m anage m ent f i r m w i t h an AUM of o v er $8b n (2 ) t hat f ocuses on in v es t m en t s in and financ i al so l u t ions f or m e t a l s and mineral co m pan i es ▪ O r ion opera t es f i v e co m p l e m en t ary bus i ness lines: ❖ O r i on M i ne Finance: La t e - s t age p r i v a t e equ i t y pro v id i ng cap i t al t o base and p r ec i ous m e t a m in i ng co m pan i es ❖ O r i on M i neral Roya lt y Fund: Ro y a l t ies on lo w e r - cost m ines in geopo l i t ica l ly s t ab l e r eg i ons ❖ O r i on Commodi ti es Fun d : Sec t o r - spec if ic hedge f und e m p l o y ing a disc r e t iona r y in v es t m ent s t y le ❖ O r i on Merchant Serv i ces: Trad i ng, hedging, insuring and deli v ering ph y sical m e t a l s w orld w ide ❖ O r i on I ndus t r i al Ven t ures: Ven t ure cap i t al f ocused on t echnology co m pan i es t hat a im t o decarbon i z e indust r y and enable t he econo m ic supp l y of t he m inerals and ene r gy r equ i r ed f or sus t a i nab l e gro wt h ▪ Por tf ol i o Companies / I nvestmen t s: 60+ ▪ Emp l o y ees: 70 ▪ O ff i ces: New Y ork ( H Q ) , Den v er, London & S y dney
O r i o n ’ s E x pertise in Gold & S o uth Af r ica Co mmitme n t to A u r ou s ▪ O r ion holds a 19.95 % s ta k e in th e Bl y v oor G o ld Mi n e th r oug h i ts Mi n e Finan c e Fu n d II L P ▪ O r ion ha s bee n a c o mm i t te d pa r tner to A u r ou s s ince A ugu s t 201 8 a s th e p r incip al inve s tor in re s ta r ting th e Bl y v oor Mi ne, whe n O r ion a c quir e d a pa r ti c ip a tion th r oug h a s t r ea m an d a n offta k e ( for U S $37 m ) an d a n equ i ty s ta k e ( for a s ub sc r iptio n p ri c e of U S $23 m ) ▪ A dd i t io n a ll y , O r ion ha s de m on s t r ate d c ontin u e d s uppo r t of A u r ou s du r ing th e r a m p - u p of th e Bl y v oor Mi n e b y inve s ting a fu r ther U S $5 m in Q4 202 1 to e x pan d p r odu c tion at th e m ine ▪ O r ion ha s s ig ni f i c ant e x pe r ie n c e pa r tne r ing w i t h, inve s ting in an d s uppo r ting m inin g ope r atio n s in S outh Af ri c a ▪ In J uly 2022, O r io n in v este d U S$ 1 00 m in Se d ibelo Re s ou r c e s to e x pan d produ c tion at S edibelo’s Pilan s ber g Platinu m Mi ne s locate d in S outh Af ri c a ▪ In De c e m ber 2020, O r ion inve s te d U S $65 m in B u s h v eld Mi ne r als to e x pan d p r odu c tion of B u s h v eld’s V a m et c o Mi n e locate d in S outh Af ri c a ▪ In Oct ober 2019 , O r ion inve s te d in A llied G o ld Co r p ( TS X : AA UC) to s uppo r t Allie d ’s a c qu i s i t ion of th e A gbao u G old Mi n e locate d in C ote d’Ivoi r e f r o m En d ea v our Mi nin g ▪ In De c e m ber 2016 , O r ion inve s te d in Alufer Mi ning to s uppo r t th e c on s t r u c tion an d c o mm en c e p r odu c tion of th e B e l Air Mine in G u in e a US $153 m Loan , E qu it y , W arran ts an d O f f ta k e Vic tor ia Go ld C or p Apr i l 2018 Loan , S trea m , E qu ity an d O f f ta k e Allied G o ld M ini n g p lc Octobe r 2019 US $225 m P repa y , St r ea m , E qu ity an d O f f ta k e Lund in G o ld I n c. May 2 0 17 Select Ot h er Preci ou s M et a ls I n v estme n ts b y Ori o n US $268 m E qu ity No m a d Ro y a lty Co m pan y May 2 0 20 ▪ P u bli c l y - l i s ted pre c i o u s m et al s ro y a l t y c o m p a ny f or m erly li s ted on t h e T S X (b e f ore S a n dstorm acq ui s i t i o n ) ▪ O w ne d 1 2 p r e c i ou s m e t a l s r o y a l t i e s, i nc l u di ng o n e on t h e Bl y v o o r M i ne Prec i ous M eta l s Ro y a lt i es ▪ P r i v at el y o w n e d g o l d p ro d ucer go i ng throu g h gro w th p h ase ▪ O w ns a n u m b e r of produc i ng a n d d e v e l o p m e n t as s ets i n W est A f r i c a A f r i can G old Producer ▪ P ub li c l y - l i st e d go l d e x p l o r a t i o n an d product i on c o m p a ny ▪ O w ns t h e E a gl e Go l d Mi ne i n Can a da th a t Or i on h el p e d f i n a nce i nto product i on G old Producer ▪ O w ns t h e Fruta d e l Norte g ol d m i ne i n E c u a d o r ▪ C o mm en c e d ope r a t i on s i n 201 9 a s o n e of the h i g h est - grade g ol d m i n e s i n t he w orld G old Producer
R i gel R e source Ac q u i sition C o rp Management & B o ard of D irectors S our c e s: Ri ge l co m pan y w eb si t e - http s :// w ww .r i g e l re s o u r c e . c om/ te am . Timothy Keating Independent Dire c tor Kel v in Dushnisky Independent Dire c tor Christine Coignard Independent Dire c tor Peter O ’Hagan Independent Dire c tor Jeff Feeley Ch i ef F i nan c ial Off ic er Nathaneal A bebe Pre s ident Jonath a n Lamb Ch i ef Exe c ut iv e O ffi c er O skar Le w no w s k i Chair m an • M o st re c en tly s er v e d a s t h e Hea d o f M ini n g I n v e st m en t P r i va te E qu ity a t t h e O m a n I n v e st m en t A u t hor ity • E x t en si v e m e t a ls an d m ini n g e x per ie n ce ga in e d a t Af r i c a n N i c k e l L t d , A ng lo A m er i c a n an d I n v e st e c B an k • M o st re c en tly s er v e d a s Ch ief E x e c u ti v e Offi c e r an d a n E x e c u ti v e D ir e ct o r o f A ng lo Go ld As han ti • P r ior to A ng lo Go ld As han ti, ha d a 1 6 - y ea r c aree r w ith B arr i c k G o ld, u lti m a t e ly s er v ing a s P re sid en t an d a m e m be r o f its B oar d o f D ir e ct or s • Se n i o r Ad v is o r in m e t a ls an d m ini n g s e ct o r • E x t en si v e ban kin g , in v e stin g , m anage m en t an d boar d e x per ie n ce bu ilt dur ing a c aree r a t t h e Ro y a l B an k o f Canada , S o ciété G énéra le, an d C iti • P re v io u sly w or k e d f o r Nor ilsk N i c k e l, on e o f t h e w or ld’s la r ge st produ c er s o f pa ll ad ium • 3 0 y ear s e x per ie n ce in c o m m od ities an d na t ura l re s our c e s in v e sting an d opera tio n s • Fo r m e r hea d o f Gol d m a n S a c h s’ Glo ba l C o mm od ities bu sin e ss • Fo u nd ing CEO o f GS B an k USA • Fo r m e r M D at C ar l y le G rou p • Fo r m e r Op era ting A d v i s o r a t KKR • C h i e f Fi nan ci a l Offi c e r a t O r ion Re s our ce P ar t ner s • Fo r m e r D ir e ct o r o f Fin an ce f o r t h e Gl oba l E qu ities d i v i s ion o f C it ade l LLC • P r ior to C it ade l, s pen t o v e r 1 3 y ear s a s a Con t ro ll e r a t G o ld m a n S a c h s • F ounde r an d M anag ing P ar t ne r o f Ro ck po int Cap it a l, a n in v e st m en t v eh i c le v ia t h e s ear ch f un d m ode l • Fo r m er ly a n I n v e st m en t M anage r a t O r ion Re s our ce P ar t ner s • S pen t ti m e a s a Co mm od ities ana l y st a t Leh m a n B ro t her s, B ar cla y s Cap it a l, an d L A M C O • Po r tf o lio M anage r a t O r ion Re s our ce P ar t ner s • Fo r m er ly a n I n v e st m en t M anage r f o r t h e Re d Kite G r oup ’s M ine Fin an ce bu sin e ss • Al s o w or k e d f o r Deu tsc h e B an k in t he ir M e t a ls & M ini n g grou p • F ounde r an d C h i e f I n v e st m en t Offi c e r o f O r ion Re s our ce P ar t ner s, a pr i va te equ ity firm w it h in t h e m e t a ls an d m ini n g s e ct o r w ith o v e r $8b n in A U M • Fo u nd ing P ar t ne r o f t h e Re d Kite G r oup , on e o f t h e w or ld’s le ad ing hedg e f und s in t h e m e t a ls s pa ce • S pen t ti m e a t Cred it S u i s se an d V aro m e t
Ap p e n dix 2 – Furt h er Aur o us Det a il
A u rous R e sources Management Te a m S our c e s: Blyv o o r C orporat e P re s e ntat i o n Q 1 2023 , C o m pan y M anage m e n t . S t r atoco r p I nv est m e n ts M otsu m i Tl h api Chief Safety Off ic er João M ahumana M ine M anager Pieter du Preez Ch i ef F i nan c ial O ffi c er I z ak M arais Ch i ef O perat i ng O ffi c er A lan Smith Exe c ut iv e Chair m an Ri c hard Fl o y d Ch i ef Exe c ut iv e O ffi c er • S a f e ty P ra ctitio ne r w ith o v e r 2 8 y ear s e x per ie n ce • P r ior e x per ie n ce inclu de s: C SO o f Lan x e ss Chro m e M ine Ru st enburg , M a s e v e Platin u m M ine Ru st enbur g an d S a m an c o r L i m pop o • M e m be r o f t h e S ou th Af r i c a n I n stit u te o f Occ upa tio na l S a f e ty A n d Hea lth ( SAIOSH) • M ini n g E ng in ee r w ith o v e r 3 5 y ear s e x per ie n ce • P r ior e x per ie n ce inclu de s opera tio n s m anage r a t B ea t r i x , B urn st on e t ra ckless m ini n g an d Bl y v ooru it z i c h t M in e , pro jects m anage r f o r DRD G OL D c orpora te o ffi c e , Undergroun d M anage r a t Dr ief on t e in, Ela nd s ran d an d Na t a l s pru it in t h e F r e e St a te • Corpora te fin an ce e x e c u ti v e w ith o v e r 2 5 y ear s o f e x per i en ce • P r ior e x per ie n ce inclu de s be ing C FO o f Ta u n g G o ld, G r ou p Ec ono m i s t a t G o ld Fields an d Corpora te Fin an ce E x e c u ti v e a t To u c h st on e Cap it a l an d S a sfin Cap it a l w her e h e w or k e d o n c ap it a l ra i s in g s, m erger s an d a c qu i s itio n s an d dea l or i g i na ti o n • C FA Char t erho ld e r • M ini n g eng in ee r w ith o v e r 3 0 y ear s o f e x per ie n ce • P r ior e x per ie n ce inclu de s be ing C EO o f flu or s pa r - m in e r S a llies ( JSE ) , C OO o f G o ld O n e G r ou p ( AS X /JSE ) , B en c h m ar king M anage r f o r G o ld Fields an d O pera tio n s M anage r f o r t h e u lt r a - dee p Klo o f G o ld M ine • M ini n g eng in ee r w ith o v e r 4 5 y ear s e x per ie n ce • P r ior e x per ie n ce inclu de s be ing C EO o f A ng lo Go ld As han ti S ou th Af r i c a , C EO o f F ree G o ld L td an d GM o f D e B eer s’ Cen t ra l M in e s ( Ki m ber le y , Finsch an d K o ffief on t e in) • M e m be r o f t h e Ass o ciation o f M ine M anager s S ou th Af r i c a • Co f ounde r an d s hareho ld e r re s pon sible f o r A urou s’ re v i v a l • S u cc e ssf u lly ra i s e d c. $100 m to bu ild ne w inf ra st ru ct ur e an d ra m p ing u p produ ction • P r ior de c ad e a s go ld m ini n g e x e c a t G a la x y /G a la n e G o ld ( TS X ) , E a st Dagga f on t e in M in e s L td (e x A ng lo ) , Ra v e n M ini n g Zi m bab w e • M e m be r o f t h e Ass o ciation o f M ine M anager s S ou th Af r i c a
Total Res er v es 28% Total M &I Res our ce ( E x clusive) 14% I n ferre d Res our ce 58% B l y v oo r G o ld M i n e M i n er a l R& R (100 % ) P l a n M a p o f Und e r g r oun d B l y v oo r G o l d M i n e O r e bod y Large, Hi g h - G r ade Mine R e source to R eserve C o nversion P o tential Ga u ta G o ld Pr o ject M i n er a l R& R (100 % ) R eser v e & R es ou rce B ase Co m po siti o n B l y v o o r Gold Mine Ga u ta Gold P ro j e c t Total R e s er v es 61% I n f erre d Res our ce 39% S our c e s: S - K 130 0 T e c h n ic a l R eport s o n th e Blyv o o r Go ld M i n e an d Gaut a T a ili ng s, date d S epte m be r 2023 . Contained G old ( M oz A u) G r ade (g/t A u) T onnes ( M t) Classification 1.6 5.6 9.0 Pro v en 3.7 5.5 21.0 Probable 5.3 5.5 30.1 Total Reser v es 2.2 4.8 14.6 M ea s ured (e x c lu s i v e) 0.4 3.5 3.6 Indi c ated (e x c lu s i v e) 2.6 4.5 18.2 Total M &I (exclusi v e) 11.2 4.4 79.5 Total Infer r ed Contained G old ( M oz A u) G r ade (g/t A u) T onnes ( M t) Cla s sification 0.8 0.3 84.3 Probable ( T SF 6 & 7) 0.8 0.3 84.3 Total Reser v es 0.5 0.3 58.3 Total Infer r ed
B l yvoor Gold Mine Empl o ys a S i mple & H i gh l y Effective Mini n g Method M i nin g M et ho d Em p l o y ed ▪ M i n i ng s trat e gy i s to extract b o th the q u art z - p e b bl e M i d d e lv l ei Reef (M V ) a n d the c arbon a c e o us, g ol d - r i c h Carb o n L e a d e r Reef (CL) ore u tili z i ng the P et e r S k e a t S h a f t (1) - Con v e n t i o n al s to pi ng m et h od i m p l e m e n ted at No.5 sh a f t us i ng h a n d - h el d h y dro - p o w ered dri l l s to c l e a r ore to ex i s t i ng ore p a ss es ▪ No d e w at e r i ng re q u i red at pre s e n t as a l l m i n i ng w il l ta k e p l ace a b o v e w at e r l e v e l o v e r th e ne xt f iv e y ea r s (2) - Pl a n n e d d e w at e r i ng e f f orts w il l a l l ow f or i ncre m e n tal m i n i ng i n y e a rs b e y o n d ▪ Si g ni f i c a n t p ot e nt i al e f f i c i e n c y u p s i de sh o u l d se l ect iv e b l ast m i n i ng be e m p l o y ed - Ha lv es the ore h a u l ed f or s a m e g ol d p ro d uct i on a n d i ncre a s es f e e d grade K ey A d v a n ta g es o f Selecti v e B last M i nin g S our c e s: Blyv o o r C orporat e P re s e ntat i o n Q 1 2023 , C o m pan y i nfor m at i on . No te s: (1 ) T h e Ca r bo n Leade r Re e f is loc a t e d abo ve t h e M id de lvl e i ree f, loc a t e d ~8 0 m apar t v er tic a lly. (2 ) T h e w a t e r lev e l is ~2 ,370 m b e low s ur f a c e . T h e lo w e st opera ti n g lev e l c urren tly is loc a t e d 2 , 291 m be low s ur f a c e . P o te n tial Up si d e Th r oug h Selecti v e B last M i nin g ✓ Re d uced di l ution of reef ض ض ض ض Bett e r w ork i ng con d it i o ns I m pro v ed v entilation controls and lo w er v entilation costs Re d uced seismic i ty I m pro v ed m et a l reco v ery v s. m ine pla n ni n g esti m ate (mine call f actor)
Mine Ass u mes a C o nvent i on a l Process i ng F l o w sheet Pr o cessing O v er v iew ▪ T he p l a n t h a s a cur r e n t ru n - o f - mi ne ( R O M ) f e e d ca p ac i ty of 40 k tpm a n d an e x p a n s i on to 80 k tpm i s in pro c e s s to a ll ow f or the p l a n n e d i ncrease i n pro d ucti o n ▪ T he p l a n t emp l o y s a co n v e n t i o n al f l o w sh e et, co n s i st i ng o f : - C rus h ed ore f rom the m i ne p a sses i nto e i th e r of t w o m ill s, to a carbon i n pu l p ( C I P ) c i rcu i t w i th t he o p t i on of g ra v i ty co n ce n trati o n pri o r to the l e a ch circu i t - L o a d ed carbon f rom the C IP c i rcu i t i s f ed i nto the e l uti o n circu i t to str i p the g o l d o f f the carbon - O n - s i te sme l t i ng to produce d o re b a rs of a p pro x i mate l y 8 5 % p u r i ty on a v era g e f or d e li v ery to R a n d R e f i n e ry (the w orl d ’ s l ar g est g o l d re f i n e r y ) f or f ur t h e r re f i n i ng ▪ T he m i ne p l an co n temp l ates a process i ng p l a n t f e e d g ra d e of b e t w e e n 4 g /t A u and 7 g /t A u d e p e n d i ng on the m i n i ng m i x ▪ T a ili n g s are d e p o s i ted o n to the e x i st i ng N o. 6 ta ili n g s stora g e f ac ili ty ( T S F) - W il l p o te n t i a ll y f orm p a rt of ta ili n g s ret r e a tm e n t f e e dstock as p a rt of Gauta T a ili ngs Proje c t Pr o cess F l o w S h eet S our c e s: Blyv o o r C orporat e P re s e ntat i o n Q 1 2023 . F i n e S u r f a ce S ou rce RoM Coa r s e S u r f a ce S ou rce Ro M S il o C r u s he d Ore S il o Ore M illi n g Ore C r u s h i n g C l a ss i f i c a t i o n Gr a v i t y Con c en tr a t i o n I n t en s i v e C IL Cond i t i on i n g an d Lea ch C IP E l u t i o n an d EW S m e l t i n g De t o x T h i ck en i n g TSF Do re
C u r r ent & F uture U n derground Infrastructure 31 Le v el 3 3 M id Sha f t Loading 33 Le v el 256 6 t o Sur fac e 3 3 Le v e l Da ms No. 1A Sub - v ertical Shaft O repass S y stem 3 O r epasses (17 to 33 L e v el) 43 Le v el 1 x Operational Loading Station 2 x Non operational 47 Le v el Shaft Bottom - 3462.8 2 9 Le v e l D a m s s No. 2A Sub - v ertical Shaft – Not to be used Le v el Closed - FOG Surface 15 Le v el 17 Le v el 19 Le v el 21 Le v el 25 Le v el 27 Le v el 29 Le v el No. 5 A Sub - ve r t i ca l Sh af t 1677 m t o Sur fac e 1 4 Le v e l Da ms New De w atering Column 889m No. 5 Shaft N o . 1 A Sub - v ertical Shaft – Emergency Secondary Escape 15 Le v el 9 Le v el Old Bl y v oo r uit z icht Sect. 1 Le v el 6 Le v el 12 Le v el A 5 Incline 16 Le v el 19 Le v el 24 Le v el B5 Incline ry a B5 Incline ound B B5A Incline 34 Le v el D oo r n f on tein Sect. Ne w Or e pa s s S y ste m 27 .5 M id Sha f t Loading 23 Le v el Ne w De w ate ring C olumn S our c e s: S - K 130 0 T e c h n ic a l R eport s o n th e Blyv o o r Go ld M i n e an d Gaut a T a ili ng s, date d S epte m be r 2023 . E x isting Dev e lo p m en t an d I n f r a st r u c tu r e New Dev e lo p m en t E x isting T ra v e li n g W a y s N e w D e w ater i n g Col u m n E x isting O r e pa ss e s L egend: C urr e nt M ining A r e a
V i ew of P e ter Skeat S haft S urface I nfrastructure S our c e s: S - K 130 0 T e c h n ic a l R eport s o n th e Blyv o o r Go ld M i n e an d Gaut a T a ili ng s, date d S epte m be r 2023 . L e g e n d P e t e r S k ea t S ha ft La m proo m an d C ru sh P e t e r S k ea t S ha ft O f fic e s an d A d m in Block P e t e r S k ea t S ha ft S ur f a ce W i nderhou se P e t e r S k ea t S ha ft Dist r ib u ti o n S ub st a ti o n P e t e r S k ea t S ha ft E ng in eer ing an d I n f r a st r u c t u r e B a t ter y L i m it P e t e r S k ea t S ha ft He adgea r an d S ha ft Bl y v oo r I n t a k e Y ard , S u b an d P F C E qu ip m en t Es k o m S ub st a ti o n E x p losiv e s B a y P ro c e ss Pla n t B a t ter y L i m it S e w ag e Pla n t S ha ft P ar k ing A re a S ha ft Silo F ee d Co n v e y o r S ur f a ce Co m pre ss o r an d Co o li n g T o w er s S ur f a ce St or e S ur f a ce V en tila t ion F an s S ur f a ce W or k s ho p
Proven Gauta T a i l i n gs R e t r eatment Process Ga u ta M i n i n g & Pr o cessing O v er v i e w ▪ T he mi ni ng meth o d p l a n n e d to be u s ed f or the re c l am a t i on of the T S F N o . 6 a n d T S F N o . 7 i s h y dro - m i n i n g , w h i ch us e s h i g h - pressure w ater mo n i tors ( w ater j ets) to erode the T S F - M i n i ng w il l com m e n ce w i th t ar g eti n g the h i g h - g ra d e areas l oc a ted at the u p p e r p o rt i on of T S F N o. 6 a n d t h e n mo v e to T S F N o. 7 - A urous w il l se e k to su b se q u e ntly m i ne the other T S Fs ▪ T he p l a n n e d m i n i ng st r ate g y i n v o l v es a 12 - mo n th ramp up to 5 0 0 k tpm ste a dy state - p r o d uc ti on o v er a p e r i od of 15 y e a rs ▪ Ore s l ur r y w il l th e n be tra n sp o rted to the process i ng p l a n t v i a p i p e li n e , w h e re 500 k tpm w il l be tre a ted throu g h t w o i d e n t i cal c i rcu i ts - S u b se q u e ntl y , a w e l l - tested a n d w i d e l y us e d C arbon - I n - L e ach ( C IL) process w il l be us e d to rec o v er the g o l d - A n o x i d a t i on step w il l be uti li sed b e f ore c y a n i d a t i on to i mpro v e l e a ch i ng k i n e t i cs a n d l o w er the c y a n i de co n sumpt i on - A v era g e producti o n of ~30 k o z pa A u i s e x p e cted f rom the ta ili n g s ret r e a t m e n t pro j ect ▪ Oth e r o p erat i o n s th a t tre a t s i m il ar sur f ace stoc k p il es i nc o rp o rate a g r i n d i ng step pri o r to pr e - o x i d a t i on a n d l e a ch i ng - L o w er g ra d e d o es n o t w ar r a n t the a d d i t i o n al e x p e ns i v e g r i n d i ng step i mpro v i ng cost e f f i c i e n c i es a n d e x p e cted pro f i ta b ili ty Pla nn ed Ga u ta Pr o cessing F l o w S h eet S our c e s: S - K 130 0 T e c h n ic a l R eport s o n th e Blyv o o r Go ld M i n e an d Gaut a T a ili ng s, date d S epte m be r 2023 . SMBS C y an i d e O x y ge n L i m e Tr a s h Re m o v a l F ee d T h i ck en i n g Pre - O x i d a t io n Ca r bon - i n - Lea ch De t o x T a ili ng s T h i c k en i n g Pr o c e s s W a t e r St o r ag e Ac i d W a s h E l u t i o n E l e ctr o w i nn i n g S m e l t i n g Ca r bo n Regene r a t i o n W a t e r HCI Fr e s h Ca r bo n Cau s t i c Do ré O l d TSF Ne w TSF Re c l a i m e d T a ili ng s Str i ppe d Ca r bo n Loaded Ca r bo n
Gauta T a i l i n gs R e t r eatment P l ant and M ethod S our c e s: C o m pan y i nfor m at i o n No te s: (1 ) Illus tra ti on s f r o m o t he r si m il a r e x isting t a ilin g s re t r ea t m e n t opera ti on s o n t h e W it w a t er s ran d B a sin. Ga u ta T aili ng s R etreatme n t Pla n t T hree Di me n s i o n al O v er vi ew H i g h Press u re W ater M on i t o r in g A ntic i p a ted M ethod on T S F s ( 1)
S - K 1300 Pr o ject Ec ono mics H i gh l y Att r active Ec o nomic Profile for B lyvo o r & Gauta S our c e s: S - K 130 0 T e c h n ic a l R eport s o n th e Blyv o o r Go ld M i n e an d Gaut a T a ili ng s, date d S epte m be r 2023 . No te s: F in an cials s ho w n o n fisc a l y ea r ba sis. F iscal y ea r end ing 2 8 F eb . (1 ) Long - t e r m go ld pr ice o f US $1 , 750 / o z . (2 ) Hist or ic T S F ’ s ar e no t de fi ne d a s a m in era l re s our ce in t h e M PRDA an d hen ce t h e go ld produ c e d f r o m t he se is no t s ub ject to t h e pro visi on s o f t h e Roy a lty Act. Bl y v oor Gold M ine C as h F l o w P r o j ect i on s a s p e r S - K 130 0 T ec hn ica l R e po r t s ▪ NPV der i ve d f ro m po st go v ern m en t ro y a lties an d t a x , pr e - deb t rea l c a sh flo w s, an d m a c r o - e c ono m ic pro jectio n s ▪ I n c orpora t e s go ld ro y a lty he ld b y S and st or m ▪ C orpora te t a x ~ 2 9 - 31 % w ith c ap it a l e x pend it ur e re li e f ▪ I n clu de s go v ern m en t ro y a lty G a u t a Gold Pro j ect ▪ NPV der i ve d f ro m po st t a x , pre - deb t rea l c a sh flo w s, an d m a c r o - e c ono m ic pro jectio n s ▪ A v erag e t a x ra te ~ 2 9 - 31 % w ith c ap it a l e x pend it ur e re li e f ▪ E x clu de s go v ern m en t ro y a lt y (2) US $ m T a i l i ng s p re - p r odu ct i o n ca p i t a l o f ~US $99 m c on sist s o f ~US $80 m p la n t i n f r ast r u ct u r e c o sts , ~US $17 m mi n i n g c o st s a n d ~US $2 m s p e n t o n o t h e r i n f r ast r u ct u re s p e n d US $ m 1 4 0 1 2 0 1 0 0 80 60 40 20 0 - 2 0 - 4 0 Y1 Y4 Y7 Y 1 0 Y 1 3 FCF (US$ m ) Y 1 6 Y 1 9 Y 2 2 Y 2 5 Y 2 8 Cap e x (US m ) Y 3 1 Y 3 4 1 5 0 1 2 5 1 0 0 75 50 25 0 ( 2 5 ) ( 5 0 ) ( 7 5 ) ( 1 0 0 ) Y2 Y 4 Y6 FCF (US$ m ) Y 8 Y 1 0 Y 1 2 Y 1 4 Y 1 6 Y 1 8 Cu m ul a t i v e FCF (US$ m ) Cap e x (US m ) M ine Valu e (1) N PV ( U S$m, 100 % B as i s ) D i sc ount R at e 1 , 31 0 5% Tailings Valu e (1) N PV (U S $ m ) D i sc ount Rat e 80 5%
B l yvoor Gold Mine Model ( F i rst 15 Ye a r s ) (Per S - K 130 0 ) S our c e s: S - K 130 0 T e c h n ic a l R eport s o n th e Blyv o o r Go ld M i n e an d Gaut a T a ili ng s, date d S epte m be r 2023 . No te s: F in an cials s ho w n o n fisc a l y ea r ba sis. F iscal y ea r end ing 2 8 F eb . (1 ) Net re v enu e c a lcul a ti o n incl ude s do w n w ar d ad jus t m en t o f st r ea m agree m en t w ith S and st or m G o ld Roy a lties. A verage Y 16 - Y 34 Y 15 Y 14 Y 13 Y 12 Y 11 Y 10 Y9 Y8 Y7 Y6 Y5 Y4 Y3 Y2 Y1 LOM U N I T S IN P UT C A S H FLOW S U MM A RY 156.6 137.8 124.1 152.4 163.4 170.7 153.8 158.3 149.1 164.5 180.9 163.1 144.0 96.2 57.4 29.2 5,020 koz P A Y A BLE GOLD 1,750 1,750 1,750 1,750 1,750 1,750 1,750 1,750 1,750 1,750 1,750 1,750 1,750 1,750 1,851 1,839 1,756 U S $/oz GOLD P RICE ( A T M A R K E T) 268.8 224.4 202.2 248.2 266.3 278.6 250.5 257.9 242.9 268.2 295.9 265.9 234.6 156.7 98.8 49.8 8,448 U S $m N E T R E VE N UE ( 1 ) (101.9) (101.4) (100.5) (101.9) (102.1) (99.5) (101.1) (100.2) (99.6) (100.3) (100.9) (90.2) (76.4) (62.4) (53.3) (38.9) (3,265) U S $m DIR E CT C AS H CO S TS (13.8) (10.6) (8.8) (12.6) (14.1) (14.8) (13.4) (13.7) (12.3) (13.9) (15.3) (13.4) (6.7) (1.6) (1.2) (0.6) (415) U S $m G & A / O T H E R A LLOC A T E D CO S TS 153.1 112.4 92.9 133.7 150.1 164.4 136.0 143.9 131.1 154.0 179.8 162.3 151.5 92.7 44.3 10.3 4,768 U S $m E B I T DA (42.2) (29.4) (23.3) (36.4) (41.6) (46.4) (40.3) (41.4) (35.3) (40.9) (45.0) (38.9) (4.7) - - - (1,225) U S $m T AXA TION (0.1) (0.3) 0.8 0.3 0.4 (0.7) 0.2 (0.2) 0.4 0.5 0.3 0.5 (0.4) (0.5) 0.1 1.2 1 U S $m W O R K ING C A P I T A L C HA NG E S (15.7) (14.6) (14.2) (14.2) (14.3) (14.1) (4.9) (9.3) (15.1) (20.4) (32.5) (34.6) (41.1) (27.8) (31.5) (34.5) (621) U S $m C A PE X 95.2 68.0 56.1 83.4 94.6 103.3 91.0 93.0 81.1 93.2 102.5 89.3 105.3 64.4 12.9 (22.9) 2,924 U S $m U N L EVE R E D FR E E C A S H FLOWS 5.0% % D I S COU N T R A T E 1,310 U S $m P O S T - T A X N P V (100% Basis)
Gauta Gold Pro j ect L if e - o f - Mine Model (Per S - K 130 0 ) S our c e s: S - K 130 0 T e c h n ic a l R eport s o n th e Blyv o o r Go ld M i n e an d Gaut a T a ili ng s, date d S epte m be r 202 3 . No te s: F in an cials s ho w n o n fisc a l y ea r ba sis. F iscal y ea r end ing 2 8 F eb . Y 17 Y 16 Y 15 Y 14 Y 13 Y 12 Y 11 Y 10 Y9 Y8 Y7 Y6 Y5 Y4 Y3 Y2 Y1 LOM U N I T S IN P UT C A S H FLOW S U MM A RY 10.5 18.3 23.0 18.8 38.3 29.7 27.2 34.0 31.7 32.2 33.4 38.9 40.5 38.1 22.2 - - 437 koz P A Y A BLE GOLD 1,750 1,750 1,750 1,750 1,750 1,750 1,750 1,750 1,750 1,750 1,750 1,750 1,750 1,750 1,750 1,750 U S $/oz GOLD P RICE ( A T M A R K E T) 18.5 32.1 40.2 32.8 67.0 52.0 47.6 59.5 55.5 56.3 58.5 68.1 70.9 66.7 38.8 - - 764 U S $m N E T R EVE NU E (17.8) (29.0) (28.9) (28.9) (27.7) (29.4) (29.5) (29.6) (29.7) (29.8) (30.9) (30.1) (30.1) (30.4) (20.0) (0.6) - (422) U S $m DIR E CT C AS H CO S TS (0.6) (0.9) (0.9) (0.9) (0.9) (0.9) (0.9) (0.9) (0.9) (0.9) (0.9) (0.9) (0.9) (0.9) (0.9) - - (13) U S $m G & A / O T H E R A LLOC A T E D CO S TS 0.0 2.2 10.4 3.0 38.4 21.7 17.3 29.0 24.9 25.6 26.7 37.1 39.9 35.4 18.0 (0.6) - 329 U S $m E B I T DA - - (2.6) (0.2) (11.7) (6.2) (4.8) (8.6) (7.3) (7.5) (7.6) (2.6) - - - - - (59) U S $m T AXA TION (0.4) 0.2 (0.1) 0.8 (0.4) (0.1) 0.2 (0.1) 0.0 (0.0) 0.2 0.1 (0.1) 0.2 0.2 - - (0) U S $m W O R K I N G C AP IT A L C HA NG E S (0.5) (0.8) (0.8) (0.8) (0.7) (0.8) (0.8) (0.8) (0.8) (0.8) (1.4) (7.1) (9.1) (9.6) (5.0) (87.8) - (128) U S $m C A PE X (0.8) 1.6 6.9 2.8 25.6 14.6 11.9 19.6 16.9 17.3 18.0 27.4 30.7 26.0 13.2 (88.4) - 143 U S $m U N L EVE R E D FR E E C A S H FLOWS 5.0% % D I S COU N T R A T E 80 U S $m P O S T - T A X N P V
Ap p e n dix 3 – Risk Factors
R i sk Factors FOR W A R D - LOOK I NG S T A T E M E N T S C erta i n s tate m ents conta i ned i n th i s docu m e nt, other than s tate m ents of h i st o r i cal fac t , i n c l ud i ng, w i thout l i m i tat i on, those concern i ng t he P roposed C o m b i nat i on, R i gel R esource A cqu i s i t i on C orp . ’ s ( “ R i ge l ” ) and the Target C o m pan i es’ ab il ity to consu mm ate the transac t ion, the benef i ts of the transac t i on and the Target C o m pan i es’ future f i nan c i al perf o r m ance fo ll o w i ng the t ransact i on, as w e l l as the econo m i c ou t l ook for the go l d m i n i ng i ndus t ry, e x pe c tat i ons regar d i ng g o l d p r i ces, produc t i on, t o t al cash cost s , a l l - i n sust a i n i ng cost s , a l l - i n c osts, cost sav i ngs and o ther operat i ng res u l t s , return o n equ i t y , product i v i ty i m prov e m ents, gro w th prospects and o u t l ook of the opera t i ons of t he T a rget Co m pan i es, i nd i v i dual l y o r i n the aggregate, i nc l ud i ng the ach i eve m ent of pro j ect m il estones, co mm enc e m ent and co m p l e ti on of c o mm erc i al oper a t i ons of cert a i n o f the Tar g et Co m p a n i es’ e x p l orat i on and produc t i on pr o j ects and the co m p l et i on o f acqu i s i t i ons, d i s pos i t i ons or j o i nt venture transac t i ons, the T arget Co m p a n i es’ li qu i d i ty and capital resou r ces and capital e x pend i tures, and the outc om e and consequences of any poten t i al o r pend i ng l i t i ga t i on or regu l a tory procee d i ngs or en v i r o n m enta l , hea l th and saf e ty i ssues, a re f o rward - l ook i ng state m ents regard i ng the Target C o m pan i es’ operat i ons, econo m i c perfor m a nce and f i nan c i al con d i t i o n . These for w ard - l ook i ng state m ents, i nc l ud i ng state m ents that descr i b e the Target Co m pan i es’ and R i ge l ’s o b j ect i ves, p l ans, goa l s , or foreca s ts i nvo l ve kno w n and unkn o w n r i sks, uncerta i n t i es and other fa c tors that m ay cause the Target C o m pan i es’ a ctual resu l t s , pe r for m ance or ach i ev e m ents t o d i f fer m ater i a ll y f rom the ant i c i pated resu l t s , perfo rm ance or ach i eve m e nts e x pressed or i m p li ed i n these for w ard - l ook i ng s tate m ents . A l though the Target Co m p a n i es and R i gel be li eve t h at the e x pectat i ons r e f l e c ted i n such for w ard - l ook i ng state m ents and foreca s ts are reasonab l e, no assurance can be g i ven that such e x pectat i ons w il l prove to have been correc t . A ccord i ng l y , resu l ts co u l d differ m ater i al l y f rom those set out i n the for w ard - l ook i ng state m ents as a resu l t o f , a m ong other factors, changes i n econo m i c, soc i a l , pol i t i cal and m arket cond i t i ons, i n c l ud i ng re l ated to i nf l a t i on o r i nterna t i onal confl i ct s , the success of bu s i ness and opera t i ng i n i t i a t i ves, changes i n the reg u l atory env i ron m ent and other govern m ent act i ons, i n c l ud i ng environ m ental approva l s, f l uctua t i ons i n go l d p r i ces a nd e x chan g e rates, the outco m e of pend i ng or f u tu r e l it i ga t i on proceed i ngs, any supp l y cha i n d i sr u pt i ons, any pu b li c he a l th c r i ses, pand e m i cs or ep i de m i cs, and other bus i ness and opera t ional r i sks and other factor s , i n c l ud i ng m i n i ng acc i dents . For a su mm ary of such r i sk fact o rs, r e fer to the Target C o m pan i es’ and R i ge l’ s R i sk Factors p a ragraph be l o w . These factors are not necessar il y a l l o f the i m portant factors t h at cou l d cause the T a rget Co m p an i es’ actual resu l ts to differ m ater i al l y f rom those e x pre s sed i n any for w ar d - l ook i ng state m ents . Other unkn o w n or unpred i ctab l e factors co u l d a l so have m ater i al adverse e f fects on future res u l t s . Consequent l y, readers are ca u t i oned not to p l a c e undue re li ance on for w ard - l ook i ng state m e nt s . The T a rget Co m pan i es or R i gel underta k e no ob li gat i on to update pub li c l y or re l ease any rev i s i ons to these for w ard - l ook i ng st a te m ents to ref l ect events or c i rcu m stances after the date hereof or to ref l ect the occurrence of unant i c i pated events, e x cept to the e x tent requ i red by app li cab l e l a w . R I S K F A C T O R S Th i s sect i on su m m ar i ses m any of the r i sks t h at cou l d a f fect the opera t i ons of the Target C o m pan i es or R i ge l . There m ay, h o w ever, be add i t i onal r i sks unkno w n to the Target Co m p an i es or R i gel and other r i sks, curren t l y bel i e ved to be i m m ater i a l , th a t cou l d turn out to be m ater i al . A dd i t i onal r i sks m ay ar i se or beco m e m ater i al subsequent to the date of th i s docu m ent . These r i sks, e i ther i nd i v i dua ll y or s i m u l taneous l y, cou l d s i gn i f i cant l y affect the Target Co m pan i es’ or R i ge l ’s bus i ness, operat i onal and f i nanc i al resu l ts and the pr i ce of the i r secur i t i e s . 1. Risks Related to t h e T a r get Co m pa n ies’ I n d u st r y M i n i ng co m pan i es are i ncreas i ng l y e x pected to operate i n a susta i na b l e m an n er and to p r ov i de benef i ts and m i t i gate adverse i m pacts to affe c ted co mm un i t i es. Fai l ure to do so can resu l t i n l egal suits, add i t i onal costs to add r ess soc i al or env i ron m ental i m pacts of operat i ons, i nvestor d i vest m ent, adverse reputat i onal i m pacts and l oss of “soc i al li cence to operate”, and cou l d adverse l y i m pact the Target Co m pan i es’ f i nanc i al cond i t i o n . M i n i ng c o m pan i es are su b j ect to m any r i sks re l ated to the deve l op m ent of e x i st i ng and n e w m i n i ng pr o j ects that m ay adverse l y affect the i r res u l ts o f operat i ons and pro f i ta b i l i t y . Resource e x p l orat i on and deve l o p m ent i s a s p ecu l at i ve bus i ness and i nv o l ves a h i gh degree of r i sk. M i n i ng c o m pan i es are su b j ect to e x tens i ve and rap i d l y chang i ng environ m enta l , hea l th and safety l a w s and regu l at i on s . F a il ure to co m p l y w i th these requ i re m ents cou l d resu l t i n enforce m ent proceed i ngs, c l a i m s, suspens i on o f operat i on s , co mm un i ty protest and / o r add i t i onal cap i tal or operat i ng e x pend i tures that cou l d adverse l y i m pact the Target Co m pan i es’ f i nanc i al cond i t i on or reputat i o n . C o m p li ance w i th t a i l i ngs m anag e m ent requ i r e m ents and standards, and pote n t i a l li abi l it i e s i n the event of a f a il ure to t i m e l y co m p l y w i th these requ i re m ents or an i n c i dent i nvo l v i n g a t a i l i ngs storage faci l ity, cou l d advers e l y i m pact the T a rget Co m pan i es’ f i nanc i al cond i t i on, resu l ts of operat i ons and reputat i o n . The Target C o m pan i es’ ab ili ty to re p l ace th e ir m i neral resources and reserves i s sub j ect to uncerta i nty and r i sks i nherent i n e x p l orat i o n, techn i c a l and econo m i c pre - feas i bi l ity and feas i bi l ity s tud i es and other pro j ect eva l uat i o n act i v i t i es, as w e l l as co m pet i t i on w i th i n the i ndustry for attract i ve m i n i ng propert i es. M i n i ng i s i nherent l y hazardous and the r e l at e d r i sks o f events that cause d i s rupt i ons to the Target Co m pan i es’ m i n i ng operat i ons m ay a d verse l y i m pact the env i ron m ent or the hea l t h , safety or secu r i ty of the co m pan y ’s w orkers or the l oc a l co mm un i ty, produc t i on, cash f l o w s and overa l l prof i tab ili t y . M i n i ng operat i ons and pro j ects are vu l nerable to supp l y cha i n d i s rup t i ons such that opera t i ons and deve l o p m ent pr o j ects cou l d be adverse l y a f fected by shortages o f, as w e l l as e x tended l ead t i m es to de li ver, s trate g i c spares, c r i t i cal consu m ab l es, m i n i ng equ i p m ent or m eta ll urg i cal p l ant. M i n i ng operat i ons and pro j ects are vu l nerab l e to i nfrastructure constra i nts, as w e l l as m i n i ng, geotechn i cal and process i ng r i sks. M i neral reserve and resource est i m ates are e x press i ons of j udg e m ent based on kno w l edge, e x per i ence and i ndus t ry prac t i ce. E s t i m a t es m ay change or beco m e uncerta i n w hen n e w i nfor m at i on beco m es ava il ab l e on the te n e m ents through ad d i t i onal e x p l orat i on, i nvest i gat i ons, research, test i ng or eng i neer i ng over the li fe of a pro j ect. M i n i ng co m pan i es face strong co m pet i t i on and i ndustry conso li dat i o n . 2. Risks Related to t h e T a r get Co m pa n ies’ O p e r ati o n s a n d B u si n ess The T a rget C o m pan i es’ operat i ons are vu l nerab l e to i n f rastru c ture constr a i nt s , i n c l ud i ng i n cage ho i st i ng and p l ant capac i ty. D e l ays or fa i l ures i n de w ater i ng of f l ooded underground w ork i ng areas w il l i m pact negat i ve l y on the acces s i b i l i t y , as w e l l as the re - equ i pp i n g and re - estab li sh m ent of the w ork i ngs. The t i m e and costs assoc i ated w i th access i ng w ork i ng p l aces i s based on assu m pt i ons and cou l d have been under - est i m ated. The Target C o m pan i es’ operat i ons are vu l n e rab l e to m i n i ng r i sk, i n c l ud i ng not ach i ev i ng p l anned face advance, de l ays i n produ c t i on as a result of se i s m i c i ty, under - perf o r m i ng a ga i nst the m i ne p l an, not ach i e v i ng p l anned se l ect i ve b l ast m i n i ng eff i c i enc i es w i th regards to face advance, go l d l oss and d il ut i on, and not ach i ev i ng p l anned product i on ra m p - up and not m a i nta i n i ng steady - state product i o n . The Target Co m pan i es’ operat i ons are vu l nerab l e to process i ng r i sk, i nc l ud i ng not ach i ev i ng p l anned product i on throughput and recover i es, as w e l l as i nsuff i c i ent ta ili ngs storage fac ili ty capac i ty. The Target Co m pan i es’ operat i ons are v u l ne r ab l e to f i nanc i al and l egal r i sks, w h i ch m ay l ead to d i srup t i on or suspens i on of the Target C o m p a n i es’ operat i ons and / or i m pos i t i on of f i nes. There can be no assurance that there w il l be su f f i c i ent ca p i t a l pro v i s i on o r that operat i ng costs w il l not e x ceed budgeted costs. The Target Co m pan i es’ i nab ili ty to reta i n i ts sen i or m anage m ent m ay have an adverse effect on the i r bus i ness.
R i sk Factors C ont’d The Target Co m pan i es c o m p ete w i th m i n i ng and other co m p a n i es for key hu m an resources w i th cr i t i cal ski l l s and i ts i nabi l i ty to r e ta i n k e y personnel or s u f f i c i ent “H i st o r i c a ll y D i sadvantaged S outh A fr i cans” (H DSA ) representat i o n i n m anag e m ent pos i t i ons cou l d have an adverse effect on the i r bus i ness. Increased l abour costs cou l d have a m ater i al adverse effect on the Target Co m pan i es’ resu l ts of operat i ons and f i nanc i al cond i t i o n . The use of contractors at certa i n of the Target Co m pan i es’ operat i ons m ay e x pose the Target Co m pan i es to de l ays or suspens i ons i n m i n i ng act i v i t i es and i ncreased m i n i ng costs. A rt i sanal and ill egal m i n i ng m ay occur on the Target Co m pan i es’ propert i es, w h i ch can d i srupt the Target Co m pan i es’ bus i ness, have adverse env i ron m enta l , hea l th, safety and secur i ty i m pacts, and e x pose the Target Co m pan i es to li ab ili t y . The T a rget Co m p a n i es have been e x posed t o secur i ty r i sks, i n c l ud i ng the f t of g o l d and gold - bear i ng m ater i a l , and m ay cont i nue to be e x posed i n the future. Increased secu r i ty - re l a t ed e x p end i tures or m ater i a li za t i on of secu r i ty r i sks m ay l ead to i ncreased operat i onal e x penses and have a m ater i al adverse effect on the Target Co m pan i es’ resu l ts of operat i ons and f i nanc i al cond i t i o n . G i ven the nature of m i n i ng and the type of m i nes w e operate, w e face a m ater i al r i sk of li ab ili ty, de l ays and i ncreased cash costs of product i on from env i ron m ental and i ndustr i al acc i dents and po ll ut i on co m p li ance breaches. Fa il ure to m odern i se operat i ons m ay have a m ater i al adverse effect on the Target Co m pan i es’ bus i ness. T i t l e to the Target Co m pan i es’ propert i es, w h il st current l y secured i n l a w , m ay be sub j ect to cha ll eng e . The out b reak of the CO V ID - 19 pande m i c and the preva l ence o f HI V / A IDS has had and m ay cont i nue to have a m ater i al adverse effe c t on the Target Co m p a n i es’ bus i ness, f i nanc i a l cond i t i on, and res u l ts of operat i on s . A ny fut u re ep i de m i cs m ay a l so have s i m il ar, or m ore severe, effects on g l obal econo m i c act i v i ty and on the i r bus i ness, resu l ts of operat i ons or f i nanc i al cond i t i o n . The Target Co m pan i es’ operat i ons are sub j ect to var i ous c li m ate change - re l ated phys i cal r i sks w h i ch m ay adverse l y i m pact i ts product i on act i v i t i es, m i ne s i tes and personnel and/or resu l t i n resource shortages or env i ron m ental da m ages. The Target Co m pan i es’ operat i ons are reg i ona ll y concentrated, d i srupt i ons i n these reg i ons cou l d have a m ater i al adverse i m pact on the operat i ons and f i nanc i al cond i t i on of the bus i nes s . M any of the f i nanc i a l and operat i onal f i gures i nc l uded i n th i s present a t i on re l ate s o l e l y to t he ta i l i ngs bus i ness of Gauta Tai l i ngs and t h e m i n i ng bus i ness of B l yvoor Go l d and m ay not be ref l e c t i ve o f the f i nanc i al and operat i o nal pro j ect i ons of the Targ e t C o m pan i es overa ll . 3. Risks Related to t h e T a r get Co m pa n ies’ O p e r ati o n s a n d B u si n ess The Target Co m pan i es have at present and e x pect to have s i gn i f i cant f i nanc i ng requ i re m ents from t i m e to t i m e and m ay i ncur substant i al add i t i onal i ndebtedness i n the future, w h i ch cou l d adverse l y i m pact the i r bus i ness. S a l es of l arge quantit i es of the Targ e t Co m p an i es ord i n a ry shares or s i m il ar secu r i t i es, o r the percep t i on th a t these sa l es m ay occur or other di l u t i on of the Target C o m pan i es’ equ i ty, cou l d adverse l y affe c t the prev a i l i ng m arket p r i ce o f the Target Co m pan i es’ secur i t i es. The Target Co m pan i es m ay not pay d i v i dends or m ake s i m il ar pay m ents to shareho l ders i n the future. There can be no assurance that the Target C o m p a n i es w il l be ab l e to support the carr y ing a m ount of the i r prope r ty, p l ant and equ i pm ent, i ntang i b l e assets and good w il l on the ba l ance sheet. I f the ca r ry i ng a m ount of their assets i s n o t recoverab l e , the Targ e t Co m pan i es m ay be requ i red to recogn i se an i m pa i r m ent charge, w h i ch cou l d be m ater i a l . W e are sub j ect to the i m pos i t i on of var i ous regu l atory costs, such as m i n i ng ta x es and roya l t i es, changes to w h i ch m ay have a m ater i al adverse effect on our operat i ons and prof i ts. A ny do w ngrade of cred i t rat i ngs ass i gned to the Target Co m pan i es’ debt secur i t i es cou l d i ncrease future i nterest costs and adverse l y affect the ava il ab ili ty of new debt f i nanc i n g . A ny acqu i s i t i on or acqu i s i t i ons that the Target Co m pan i es m ay co m p l ete m ay e x pose them to new geograph i c, po li t i ca l , l ega l , soc i a l , operat i ng, f i nanc i al and geo l og i cal r i sks. The occu r rence o f events for w h i ch the Targ e t Co m pan i es are not i nsured or f o r w h i ch th e ir i nsurance i s i nadequate m ay adverse l y a ff e ct cash f l o w s and overa l l pr o fitabi l ity. There c an be no assurance that the T a rget C o m pan i es’ i nsurance coverage w il l adequately sat i sfy a l l potent i al c l a i m s i n the future. 4. M a r ket Risks The pr i ce of go l d, the Target Co m pan i es’ pr i nc i pal product, and other co mm od i ty m arket pr i ce f l uctuat i ons cou l d adverse l y affect the prof i tab ili t y of operat i ons. The prof i tab ili ty of m i n i ng co m pan i es’ operat i ons and the cash f l o w s generated by these operat i ons are s i gn i f i cant l y affected by f l uctuat i ons i n i nput product i on pr i ces, so m e of w h i ch are li nked to the pr i ces of o i l and stee l . G l obal po li t i cal and econo m i c cond i t i ons cou l d adverse l y affect the Target Co m pan i es’ prof i tab ili ty of operat i ons. Inf l at i on m ay have a m ater i al adverse effect on resu l ts of operat i ons. 5. Ot h er Re g u lato r y a n d Legal Risks Fai l ure to co m p l y w i th l a w s, regu l a t i ons, s t a ndards and contractual ob li g a t i ons, breaches i n governance processes or fraud, b r i bery a nd corrupt i on m ay l ead to regu l atory pena l t ie s , l oss o f li cences or per m i ts, negat i ve e ff e cts on the Targ e t C o m pan i es’ reported f i nanc i al resu l ts, and adverse l y affect the i r reputat i o n . The m i neral r i ghts are sub j ect to l eg i s l a t i on, wh i ch cou l d i m pose s i gn i f i ca n t costs and bu r dens and w h i ch i m pose certa i n o w n ersh i p r e qu i re m ents, the i nter p reta t i on of w h i ch i s the sub j ect of d i sput e . Changes to th i s l eg i s l a t ion cou l d adverse l y i m pact the Target Co m pan i es’ resu l ts of operat i ons and f i nanc i al cond i t i o n . The Target Co m pan i es have been, are curr e nt l y, and m ay fr o m t i m e to t i m e be i nvo l ved i n l ega l , tax or regu l a tory proceed i ngs o r d i s p utes and to he i g h tened r i sk of c l a i m s aga i nst the m , w h i ch cou l d have an adverse i m pact on the T a rget Co m p a n i es’ reputat i on, prof i tab ili ty and conso li dated f i nanc i al pos i t i on and l ead to i ncreased l egal e x penses and a w ards aga i nst the Target Co m pan i e s . Co m p li ance w i th e m erg i ng c li m ate change - re l ated requ i re m ents cou l d resu l t i n add i t i onal costs and e x pose the Target Co m pan i es to add i t i onal li ab ili ties. Increas i ng s c rut i ny and chang i ng e x pectat i o n s from the Target C o m pan i es’ stakeho l ders, inc l ud i ng co mm un i t i es, govern m ents and NGOs as w e l l as i nvest o rs, l enders and other m arket pa r t i c i pants, w i th respect to the Target C o m p a n i es’ E nv i ro n m enta l , S oc i al and Governance perfor m ance and po li c i es m ay i m pact the Target Co m pan i es’ reputat i on, resu l t i n add i t i onal costs to m eet the e x pectat i ons of stakeho l ders, h i nder access to cap i tal or e x pose the Target Co m pan i es to add i t i onal r i sks, i nc l ud i ng d i s i nvest m ent and li t i gat i o n .
R i sk Factors C ont’d B reaches i n cybersecur i ty and v i o l at i ons of data protect i on l a w s m ay adverse l y i m pact or d i srupt the Target Co m pan i es’ bus i ness . U . S . secur i t i es l a w s do not requ i re the Tar g et C o m pan i es to d i s c l ose as m uch i nfor m at i on to i nvestors as a U . S . i s s u e r i s req u i red to d i s c l os e , and i nvestors m ay rece i ve l ess infor m at i on about the Target C o m p an i es than they m i ght other w i se rece i ve from a co m parab l e U . S . co m pany . The scope of due d i l i gence R i gel has cond u cted i n con j unct i on w i th the P roposed C o m b i nat i on m ay be d i fferent than w ou l d typ i ca ll y be conducted i n the event the Target Co m p a n i es pursued an under w r i tten pub li c off e r i ng, and you m ay be l ess protected as an i nvestor from any m ater i al i ssues w i th respect to the Target Co m pan i es’ bus i ness. 6. Risks Related to S o u th A f r ica The Target Co m pan i es’ m i neral depos i ts, m i neral resources and reserve s , and m i n i ng operat i ons are l ocated i n a country w here po li t i cal, tax and econ o m i c la w s and po li c i es m ay ch a nge rap i d l y and unpred i c tab l y and such changes and po li c i es, i n c l ud i ng w i th respect to f i nanc i al prov i s i on i ng for rehab ili tat i on, m ay adverse l y affect both the ter m s of the i r m i n i ng r i ghts and concess i ons, as w e l l as the i r ab ili ty to conduct operat i ons. The T a rget Co m pan i es’ operat i ons are su b j e ct to w ater use li cences . A lthough the Target C o m p a n i es are operat i ng i n accordance w i th gover n m ent depar t m ental rec o mm endat i ons and has app li ed for a new water use li cense, they are curren t l y operat i ng w i thout a va li d w ater use l i cense, w h i ch cou l d res u l t i n f i nes, sanct i ons and penalt i es f rom the co m petent autho r i t i es or suspen s i on of the Targ e t Co m pan i es’ operat i ons and have a m ater i al adverse e ffect on the Targ e t Co m pan i es’ b u s i ness, oper a t i ng results and f i nanc i al cond i t i o n . The Target C o m pan i es’ m i neral resources a n d reserves, depo s i ts and m i n i ng opera t i ons a r e l ocated i n a coun t ry that faces i n s tabi l ity, p u b li c he a l th and secu r i ty r i sks that m ay adverse l y a f fect b o th the ter m s of their m i n i ng r i ghts and concess i ons, as w e l l as the i r abi l ity to conduct operat i ons. The preva l ence of occupat i onal hea l th d i seases and other d i seases and the potent i al costs and li ab ili t i es re l ated thereto m ay have an adverse effect on the bus i ness and resu l ts of operat i ons of the Target C o m pan i es . S i nce the Target Co m pan i es’ l abour force h a s substan t i al t rade un i on pa r t i c i pat i o n , they f a ce i ncreased r i sk o f d i srup t i on from l abour d i s putes and a m en d m ents to S outh A f r i can l ab o ur l a w s. Labour unrest, u n i on ac t i vity, ac t i v i s m and d i srupt i ons ( i n c l ud i ng protra c ted stoppages) have had and cou l d have a m ater i al adverse effect on the Target Co m pan i es’ resu l ts of operat i ons and f i nanc i al cond i t i o n . The Target Co m pan i es’ m i neral r i ghts i n S outh A fr i ca cou l d be a l tered, suspended or cance ll ed for a var i ety of reasons, i nc l ud i ng breaches i n the i r ob li gat i ons i n respect of such m i n i ng r i ghts . Fore i gn e x change f l uctuat i ons and S outh A fr i can control e x change regu l at i ons m ay constra i n the Target Co m pan i es’ f i nanc i al f l e x i b ili ty, w h i ch cou l d have a m ater i al adverse effect on the Target Co m pan i es’ resu l ts of operat i ons and f i nanc i al cond i t i o n . Fa il ure to co m p l y w i th the requ i re m ents of the B roa d - based S oc i o - econo m i c E m po w er m e nt Charter 2018 cou l d have an adverse effect on the Target Co m pan i es’ bus i ness, operat i ng resu l ts and f i nanc i al cond i t i on of the i r operat i ons. The tax fra m e work i n S outh A fr i ca i s co m p le x w i th respect to m i neral a c t i v i t i es, i n c l ud i ng i n w i th reference to m i n i ng royalt i es, r i ng - fen c i n g of unredee m ed cap i tal e x pend i ture, re - ass e s s m ent of unredee m ed cap i tal e x pend i ture by the SA R S , and poten t i al tax ref o rm or draft a m end m ents to the I T A , w h i ch cou l d have an adverse effect on the bus i ness, operat i ng resu l ts and f i nanc i al cond i t i on of the Target Co m pan i es’ operat i ons. F l uctuat i ons i n the e x change rate of the S outh A fr i can currency m ay reduce the m arket va l ue of the Target Co m pan i es’ secur i t i es, as w e l l as the m arket va l ue of any d i v i dends or d i str i but i ons pa i d by the Target Co m pan i es. E nergy cost i ncreases, and po w er f l uctuat i ons and stoppages cou l d adverse l y i m pact the Target Co m pan i es’ resu l ts of operat i ons and f i nanc i al cond i t i o n . A further do w ngrade of S outh A fr i ca’s cred i t rat i ng m ay have an adverse effect on the Target Co m pan i es’ ab ili ty to secure f i nanc i n g . 7. R isks R elated to t h e Pr oposed C o m bi n ation E vents, changes and c i rcu m stances w h i ch are or m ay be beyond the control of the Target Co m pan i es’ and R i gel Resource A cqu i s i t i on Corp m ay g i ve r i se to the ter m i nat i on of negot i at i ons and subsequent def i n i t i ve agree m ents re l ated to the P roposed Co m b i nat i o n . The consu mm at i on of the P roposed Co m b in at i on i s e x pected to be sub j ect to a nu m ber of cond i t i ons, so m e of wh i ch w il l beyond the control of the Targ e t Co m p a n i es and R i gel Resource A cqu i s i t i on Corp, i nc l ud i ng the a p proval of the sh a reho l ders and v a r i ous regu l atory author i t i es. If those cond i t i ons are not m et or w a i ved, the P roposed Co m b i nat i on m ay not occu r . The Target Co m pan i es’ operat i ons m ay be restr i cted dur i ng the pendency of the P roposed Co m b i nat i on pursuant to ter m s of the B us i ness Co m b i nat i on A gree m ent . A n aff i l i ate of R i g e l ’s sponsor m a i nta i ns i nte r ests re l ated to a subs i d i ary of A urous Resources, i n c l ud i ng a non - control l i ng shareho l d i n g i nteres t . In case of a con f li c t of i n terest be t ween the sponsor and A urous Res o urces, the sponsor m ay g i ve pr i or i ty to i ts o w n i nterests, w h i ch m ay i n turn i m pact the f i nanc i al cond i t i on, operat i ons and prof i tab ili t y of A urous Resources and i ts subs i d i ar i e s . S o m e of R i ge l ’s e x ecut i ve o f f i cers and direc t ors m ay have conf li c ts of i n terest that m ay i n f l uence or have i n f l uenced them to support o r approve the P roposed Co m b i nat i on w i thout regard to i nvestors’ i n terests or i n deter m i n i ng w hether the Target C o m pan i es are appropr i ate targets for R i ge l ’s i n i t i al bus i ness co m b i nat i o n . B oth R i gel and the Target Co m pan i es w il l i ncur s i gn i f i cant transact i on costs i n connect i on w i th the P roposed Co m b i nat i o n . There can be no assurance as to the t i m i ng of the co mm ence m ent or co m p l et i on of the SE C rev i ew of the pro x y state m ent/prospectus re l at i ng to the P roposed Co m b i nat i on, w h i ch i n turn w il l deter m i ne the t i m i ng of the c l os i ng of the P roposed Co m b i nat i o n . The l egal arch i tecture of the P roposed C o m b i nat i on m ay g i ve r i se to unant i c i pated or adverse tax consequences, i nc l ud i ng to R i gel R esource A cqu i s i t i on C orp’s shareho l ders . The ab ili ty of R i ge l ’s pub li c shareho l ders to e x erc i se rede m pt i on r i ghts w i th respect to a s i gn i f i cant port i on of i ts C l ass A shares cou l d i ncrease the probab ili ty that the P roposed Co m b i nat i on w il l be unsuccessfu l . B ecause R i gel i s, and the resu l t i ng pub li c ent i ty w il l be, i ncorporated under the l a w s of the Cay m an Is l ands i nvestors m ay face d i ff i cu l ties i n protect i ng the i r i nterests, and the i r ab ili ty to protect the i r r i ghts through the U . S . federal courts m ay be li m i ted. S ecur i t i es of co m pan i es for m ed through bus i ness co m b i nat i ons such as the resu l t i ng pub li c ent i ty m ay e x per i ence a m ater i al dec li ne i n pr i ce re l at i ve to the share pr i ce of the i r pub li c shares pr i or to the bus i ness co m b i nat i o n . If R i gel i s dee m ed to be an i nve s t m ent c o m p any for p u rposes of the Invest m ent C o m p any A ct, i t w ou l d be requ i red to i n s titute burdens om e c o m p li ance requ i re m ents and i ts a c t i v i t i es w ou l d be severe l y res t r i c ted and, as a resu l t , i t m ay be requ i red to w i nd up, redeem and li qu i dat e .
R i sk Factors C ont’d 8. Risks Related to Bei n g a P u blic Co m pa n y The T a rget C o m pan i es’ appo i n t m ent of a n e w reg i stered i ndependent account i ng firm cou l d resu l t i n add i t i onal costs and dif f i cu l t i es i n co m p l y i ng w i th regu l at i ons govern i ng pub l i c c o m pany corporate governance i nc l ud i ng repor t i ng de l ays i n the fi li ng of i ts reports w i th the SE C, and the Target Co m pan i es’ reg i stered i ndependent account i ng f i rm m ay i nterpret account i ng ru l es d i fferent l y from i ts for m er f i r m , w h i ch cou l d adverse l y i m pact i ts bus i ness. Fai l ure to co m p l y w i th requ i re m ents to des i gn, i m p le m ent and m a i nta i n effe c t i ve i ntern a l control over f i nan c i al repo r t i n g , i n c l ud i ng S ect i o n 404(a) of the S arbanes - O x l ey A ct, cou l d h a ve a m ater i al adverse effe c t on the result i ng pub li c en t i ty’s bus i ness and stock pri c e and i nvestors’ conf i dence on the re li ab ili ty of i ts f i nanc i al state m ents. N Y S E m ay de li st R i ge l ’s o r the resu l t i ng pub l ic en t i ty’s sec u rit i es f rom trad i ng on its e x cha n ge, w h i ch cou l d l i m i t i nve s tors’ abi l i ty to m ake t ransact i ons i n R i ge l ’s or the result i ng publ i c ent i ty’s securit i es and sub j ect R i gel or the re s u l t i ng publ i c e n tity to add i t i onal t rad i n g restr i ct i ons. A n act i ve trad i ng m arket for the equ i ty secur i t i es m ay not deve l op or m ay not be susta i ned to prov i de adequate li qu i d i t y . The resu l t i ng pub li c ent i ty cou l d be the sub j ect of secur i t i es c l ass act i on li t i gat i on due to future stock pr i ce vo l at ili ty, w h i ch cou l d d i vert m anage m ent’s attent i on and m ater i a ll y and adverse l y affect our bus i ness, f i nanc i al pos i t i on, resu l ts of operat i ons and cash f l o w s. Future sa l es of equ i ty secur i t i es by e x i st i ng shareho l ders or by the resu l t i ng pub li c ent i ty, or future d il ut i ve i ssuances of equ i ty secur i t i es by the group, cou l d adverse l y affect preva ili ng m arket pr i ces for the equ i ty secur i t i es. The quarter l y resu l ts of operat i ons m ay f l uctuate and as a resu l t, the group m ay fa i l to m eet or e x ceed the e x pectat i ons of i nvestors or secur i t i es ana l ysts, w h i ch cou l d cause the share pr i ce to dec li n e . Fol l o w i ng the cons u m m at i on of the P ropos e d C o m b i nat i on, the resu l t i ng publ i c en t i ty w il l i ncur s i gnif i cant i n c reased e x penses and a d m i n i strat i ve burdens as a publ i c co m pany, wh i ch cou l d have an adverse e ffe c t on its bu s iness, f i nanc i al con d i t i on and results of operat i ons. Concentrat i on of o w nersh i p of the result i ng pub li c entity a m ong m e m bers of the Target C o m pan i es’ and R i ge l ’s sen i or m a n ag e m ent, e x i st i ng directors and p r i nc i p a l s tockho l ders m ay prevent new i nvestors from i nf l uenc i ng s i gn i f i cant corporate dec i s i ons and their i nterests m ay be d i fferent fro m , or i n add i t i on to, i nvestors’ i nterests. R i gel i s , and the result i ng publ i c en t i ty w i ll be, an “e m erg i ng gro w th c o m pany” and a “fore i gn pr i vate i ssuer” and, as a resu l t of the reduced d i sc l osure and governance requ i re m ents app li cab l e to such co m pan i es, i ts secu r i t i es m ay be l ess attrac t i ve to i nvestors and it m ay be m ore d i ff i cu l t to co m pare the resu l t i ng pub li c ent i ty’s perfor m ance to the perfor m ance of other pub li c co m pan i e s . T h e r isks desc r i b e d ab o v e a r e n ot t h e o n ly r isks fac e d by t h e Ta r get Co m pa n ies a n d Rige l . Y ou s h o u l d al s o ca r ef u lly r e v iew t h e sect i o n s e n ti t l e d “Ris k F a c t o r s ” a n d “Ca u t i o n a r y Note Re g a r di n g F o r wa r d - L oo k i n g S t a t e m e n t s ” in t h e f i li n gs t h at Rig e l h as m ade a n d will m ake a n d ot h er fili n gs t h at will be m ade with t h e U . S . S ec ur ities a n d E xc h a n ge Co mm issi o n .
Rigel Resource Acquisition (NYSE:RRAC)
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Rigel Resource Acquisition (NYSE:RRAC)
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