EXHIBIT 99.2
SHARE OPTIONS AGREEMENT
Dated July 14, 2008
Between
Indian Farmers Fertiliser Cooperative Limited
("IFFCO")
And
Legend International Holdings, Inc.
("LEGEND" or the "Company")
SHARE OPTIONS AGREEMENT
This Share Options Agreement (this "Agreement") is made as of this 14th day of
July, 2008 ("Execution Date"),
Between:
Indian Farmers Fertiliser Cooperative Limited, a multi state co-operative
society duly incorporated and validly existing under the laws of India and
having its registered office at ▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ -
▇▇▇▇▇▇ (hereinafter referred to as "IFFCO", which expression shall unless
repugnant to the context or meaning thereof, include its successors and
permitted assigns);
AND
Legend International Holdings, Inc., a corporation incorporated in the State of
Delaware under the Delaware General Corporation Law and having its principal
office at ▇▇▇▇▇ ▇, ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
(hereinafter referred as the "LEGEND" or the "Company", which expression shall
unless repugnant to the context or meaning thereof, include its successors and
permitted assigns).
(IFFCO, Legend are hereinafter collectively referred to as "Parties" and
individually as a "Party")
WHEREAS:
A. IFFCO is involved, interalia, in the business of production and
distribution of fertilizers and other agri-related products and services
to the farmers in India;
B. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("JG") is the Chairman of the Board, President and Chief
Executive Officer of the Company and his Affiliates, ▇▇▇▇▇▇ Pty Ltd.
("▇▇▇▇▇▇") and Chabad House of Caulfield Pty Ltd. ("Caulfield"), are
substantial shareholders of the Company;
C. The Company is a corporation engaged in the business of mineral
exploration and development and wishes to enter into the area of
production and marketing of minerals;
D. Pursuant to the signing of a Heads of Agreement between IFFCO and Legend
on April 9, 2008, Legend and IFFCO have decided that IFFCO shall enter
into a long term rock phosphate off take agreement and shall have the
option to participate in the equity of the Company;
E. The Parties have now agreed that IFFCO will have the option to purchase
30 million shares of the Company at a future date ("IFFCO Options").
F. The Parties are entering into this Agreement in order to record the
terms and conditions for the IFFCO Options in the Company by IFFCO and
to exercise their mutual rights and obligations.
NOW THEREFORE, in consideration of the mutual covenants, terms and conditions
and understandings set forth in this Agreement and other good and valuable
consideration (the receipt and adequacy of which are hereby mutually
acknowledged), the Parties with the intent to be legally bound hereby agree as
follows:
ARTICLE 1
DEFINITION AND INTERPRETATIONS
1.1 Definitions:
-----------
In this Agreement, the following words and expressions unless
inconsistent with the context, shall bear the meanings assigned hereto:
"Act" shall mean the Delaware General Corporation Law, and any rules or
regulations framed there under and any subsequent re-enactment thereof
for the time being in force;
"Affiliate" shall mean any company, partnership, association,
foundation, trust, co-operative society or other legal entity, which
through ownership of voting stock or otherwise, directly or indirectly,
is controlled by, under common control with, or in control of such
company, partnership, association, foundation, co-operative society,
natural person or other legal entity and in relation to a natural
person, any Relative of such natural person. For the purpose of this
definition the term "control" means ownership of more than fifty percent
(50%) of the voting stock of a company, or the power to appoint or elect
a majority of the directors of a company, or the power to direct the
management of a company.
"Agency Agreement" shall mean the agreement between Legend and BMO
▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc., Wellington West Capital Markets Inc and BBY Limited,
dated as of June 3, 2008.
"Agreement" shall mean this Share Options Agreement and includes any
recitals and annexures to this Agreement, and any amendments to this
Agreement effected in accordance with the terms of this Agreement;
"Benchmark Price" shall have the meaning ascribed to it in Article
5.1.3.6 hereto;
"Board" or "Board of Directors" shall mean the board of directors of the
Company;
"Business" shall mean mineral exploration and development and related
activities, as the same may be modified from time to time by the Board ;
"Business Day" shall mean a day which is not a Saturday or Sunday or a
bank or other public holiday in Australia, India or the United States;
"Chairman" shall mean the chairperson of the Board;
"Closing" shall mean completion of the issue of the IFFCO Options and
other allied actions required to be completed by the Closing Date;
"Closing Date" shall mean the date on which the Closing takes place;
"Common Stock" shall mean the common stock of the Company.
"Confidential Information" shall have the meaning ascribed to it in
Article 9.1 hereto;
"Director" shall mean a director of the Company;
"Execution Date" shall have the meaning ascribed to it in the preamble;
"Effective Date" shall have the meaning ascribed to it in Article 3.1
hereto;
"Exempt Securities" shall mean shares of Common Stock issued after the
Execution Date (other than shares issued as a result of the exercise of
options on issue as on the Execution Date) to employees, officers,
directors, consultants, other persons performing services for the
Company pursuant to any stock option plan, or similar equity based
compensatory arrangement approved by a majority of the Board of
Directors not exceeding 6.5 million shares;
"General Meeting" shall mean the duly convened annual or special meeting
of the Shareholders of the Company;
"Governing Documents" shall mean the By-Laws or Certificate of
Incorporation or any other document that lays down the object and the
rules of operations of the Company, as amended from time to time in
accordance with the Act;
"IFFCO Options" shall have the meaning ascribed to it in Recital E of
this Agreement;
"Indemnifying Party" shall have the meaning ascribed to it in Article
8.1 hereto;
"Indemnified Parties" shall have the meaning ascribed to it in Article
8.1 hereto;
"Law" shall mean any law, statute, ordinance, rule, regulation,
guideline, policy or other pronouncement having the effect of law of any
governmental authority, as currently interpreted and administered;
"Loss" shall have the meaning ascribed to it in Article 8.1 hereto;
"Owner" shall have the meaning ascribed to it in Article 9.1 hereto;
"Preemptive Securities" shall have the meaning ascribed to it in Article
4.3 hereto;
"Pre-issuance Offer Notice" shall have the meaning ascribed to it in
Article 4.3 hereto
"Party" shall mean either IFFCO or Legend, as the case may be;
"Parties" shall mean IFFCO and Legend collectively;
"Person" shall mean any natural person, limited or unlimited liability
company, corporation, partnership, proprietorship, Hindu undivided
family, trust, union, association, government or any agency or political
subdivision thereof of any other entity that may be treated as a person
under applicable Law;
"Project" shall have the meaning ascribed to it in Article 5.2.4 hereto
"Recipient" shall have the meaning ascribed to it in Article 9.1 hereto;
"Relative" of a natural person shall mean the person's child, stepchild,
parent, stepparent, spouse, sibling, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, sister-in-law and any other
person (other than a tenant or employee) sharing the household of the
specified person;
"ROTA" shall have the meaning ascribed to it in Article 5.1.3 hereto
"Share" shall mean a share in the authorized, issued and subscribed
equity share capital of the Company;
"Share Capital" shall mean the paid-up equity/voting share capital of
the Company;
"Shareholder(s)" shall mean any person holding Shares of the Company;
"Shareholders Agreement" shall mean the shareholders' agreement between
IFFCO and JG entered into as of the date hereof;
"The 1933 Act" shall have the meaning ascribed to it in Article
7.3(f)(i) hereto; and
"USD" shall mean United States dollars.
1.2 Interpretations:
---------------
Except where the context requires otherwise, this Agreement will be
interpreted as follows:
(a) The definitions in Article 1.1 shall apply equally to both the
singular and plural form of the terms defined.
(b) Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter form.
(c) The words "include," "includes" and "including" shall be deemed
to be followed by the phrase "without limitation."
(d) Unless the context otherwise requires, (i) all references to
Articles annexures are to Articles and Annexures to, this
Agreement; and (ii) the terms "herein," "hereof," "hereto",
"hereunder" and words of similar import refer to this Agreement
as a whole.
(e) Where any act, matter or thing is required by this Agreement to
be performed or carried out on a certain day and that day is not
a business day then that act, matter or thing shall be carried
out or performed on the next following business day.
1.3 Any reference in this Agreement to an obligation to be performed by a
Party shall be construed so as to include an obligation of such Party to
procure that its Affiliates perform and/or comply with such obligation.
1.4 Unless defined in this Agreement capitalised terms used in this
Agreement shall have the meaning as provided in the Share Purchase
Agreement.
ARTICLE 2
IFFCO Options
2.1 IFFCO shall have the option to subscribe for, at any time before the
last date of exercise of options (the "Last Option Exercise Date"), with
a suitable discount for early exercise, and the Company shall be obliged
to issue at the date of exercise of options not being later than the
Last Option Exercise Date, clear of all Encumbrances, Shares as follows:
------------------------------------------------------------------------------------------------------
Name of the Party Number of Shares Purchase Price Per Last Option Exercise
Share (USD) Date
------------------------------------------------------------------------------------------------------
IFFCO 5 million USD 2.5 60 days from the
Closing Date
------------------------------------------------------------------------------------------------------
IFFCO 8 million USD 3.0 12 months from the
Closing Date
------------------------------------------------------------------------------------------------------
IFFCO 8 million USD 3.5 18 months from the
Closing Date
------------------------------------------------------------------------------------------------------
IFFCO 9 million USD 4.0 24 months from the
Closing Date
------------------------------------------------------------------------------------------------------
2.2 On the Closing Date the Company shall complete all documentation so as
to vest the IFFCO Options with IFFCO.
2.3 Upon the issue of the IFFCO Options on the Closing Date, the capital
structure and the shareholding and outstanding options and warrants of
the Company shall be as listed in Annexure 1.
ARTICLE 3
EFFECTIVE DATE, CLOSING, TRANSFER OF SHARES AND DELIVERIES
3.1 Effective Date:
--------------
Save and except Article 9 (Confidentiality), Article 10.6 (Governing
Law) and Article 10.7 (Dispute Resolution) which shall take effect from
the date hereof, this Agreement shall come into force and effect from
the Closing Date under this Agreement (the "Effective Date").
3.2 Closing Date:
------------
The Parties agree that the Closing Date shall be within fifteen (15)
Business Days of the Execution Date.
ARTICLE 4
POST CLOSING COVENANTS
4.1 Management:
----------
Unless otherwise agreed between the Parties, the Board and the
management team shall be constituted as provided in the Shareholders
Agreement.
4.2 Rights and obligations of the Parties:
-------------------------------------
All the rights and obligations of the Parties shall be governed by this
Agreement as amended from time to time. In case of contradiction or
inconsistency between the provisions of the Governing Documents and the
provisions of this Agreement, the provisions of this Agreement shall
override as far as the Parties are concerned.
4.3 Future Issue of Shares:
----------------------
Prior to any issuance of any additional shares of Common Stock other
than Exempt Securities (the "Preemptive Securities"), the Company shall
send to IFFCO a written notice of any proposed or intended issuance of
Preemptive Securities (the "Pre-issuance Offer Notice"), which
Pre-Issuance Offer Notice shall (a) identify and describe the Preemptive
Securities proposed or intended to be issued, (b) disclose the number,
price and other terms upon which they are to be issued, (c) indicate the
procedure by which IFFCO may offer to purchase its pro rata portion of
such Preemptive Securities and (d) include a deadline for IFFCO to
deliver a Notice of Acceptance and payment of the purchase price for its
pro rata portion of Preemptive Securities to the Company, which deadline
shall in no event be later than sixty (60) calendar days or earlier than
thirty (30) calendar days after the date of the Pre-Issuance Offer
Notice. For purposes of this Section 4.3, IFFCO's pro rata portion of
Preemptive Securities shall be determined by multiplying (x) the number
of Preemptive Securities proposed to be issued by (y) a fraction, the
numerator of which is the aggregate number of issued and outstanding
Shares then beneficially owned by IFFCO, and the denominator of which is
the aggregate number of all issued and outstanding Shares. Nothing
contained in this Article shall prohibit the Company from going ahead
with the issue of the Preemptive Securities other than the IFFCO pro
rata portion of the Preemptive Securities before the expiry of the
deadline above.
ARTICLE 5
COMMITMENTS
5.1 Commitments of the Parties:
--------------------------
5.1.1 The Parties hereby agree and undertake towards each other to perform and
observe all of the provisions of this Agreement, and all other
agreements governing their relationship.
5.1.2 IFFCO shall off-take on a long term and the Company shall deliver to
IFFCO to off-take directly or through its Affiliates 4 million tonnes of
concentrated rock phosphate produced by the Company every year.
5.1.3 For the purpose of the offtake in Article 5.1.2 above, IFFCO shall enter
into a long term rock off-take agreement (the "ROTA") with the Company,
the terms of which shall be separately negotiated but shall be based on
the following principles.
5.1.3.1 The concentrated rock phosphate should shall conform to
specifications reasonably acceptable to IFFCO, such
specifications shall be agreed to between the Company and IFFCO
in the ROTA.
5.1.3.2 The supplies are FOB at one or more agreed ports in Australia.
5.1.3.3 The Price of the concentrate rock phosphate shall be at a
discount of at least 5% of the Benchmark Price of rock. IFFCO
shall provide no other support to the Company under the ROTA.
5.1.3.4 At the Company's option however,
a) The ROTA can have provisions for compensation to the
Company in case IFFCO does not lift the contracted
quantities and to IFFCO if the Company is unable to
supply the contracted quantities.
b) In case the Benchmark Price falls below a value that
reduces the return on investment of the project below an
agreed amount, IFFCO can convert the entire discount
into a subordinated loan at a nominal interest to be
repaid in years when the market price is good. The
details of this mechanism shall be agreed in the ROTA.
c) The minimum quantity supplied below which compensation
claims can arise shall be 90% of the guaranteed
quantities. Quantities below such minimum but not below
70% of the contracted quantity, shall be rolled over to
the following two years without any compensation,
provided the Company does not sell the deficient
quantity in the spot market.
d) In case the Benchmark Price becomes such as it
materially adversely affects the financial viability of
either Party, the Parties will work together to mitigate
the situation.
5.1.3.5 In case the Company exercises the option of entering into ROTA
based on Article 5.1.3.4 above, the discount in Article 5.1.3.3
shall be read as 10%.
5.1.3.6 The benchmark price (the "Benchmark Price") shall be derived
based on the price of equivalent quality of rock imported into
India by IFFCO and other large importers. For this purpose only
those buyers who import more than 350,000 tonnes per year will
be considered. The Parties shall mutually decide transparent
indicies and adjustment formula for different rock
specifications for this purpose.
5.1.3.7 In case the agreed indicies mentioned in Article 5.1.3.6 are
not available, the Benchmark Price shall be derived based on
the international market price of phosphoric acid delivered in
India less cost of sulphur, fixed costs and other variable
costs of phosphoric acid production, cost of transportation of
rock from Australia to India and reasonable return on the
production of phosphoric acid, divided by the specific
consumption of rock of the specifications agreed in the ROTA.
The details of this pricing structure would be agreed in the
ROTA.
5.1.4 IFFCO shall be the marketing agent of the Company and act on the
instructions of the Company for the remaining rock phosphate produced,
to be sold in the spot market on an arm's length basis.
5.1.5 During the validity of this Agreement, either Party shall have a right
of first refusal to participate with the other Party in the production,
sale, marketing, distribution or in any other manner making available
any fertilizer or related product in Australia (e.g., urea plant or
triple super phosphate) on terms that shall be agreed to between the
Company and IFFCO.
5.1.6 IFFCO shall facilitate the Company in procuring financing for the
development and construction of the Company's phosphate mines and
related infrastructure (the "Project"), including by introducing the
Company to sources of project financing for the Project.
5.1.7 IFFCO shall also assist the Company by providing technical and personnel
assistance on an arm's length basis.
5.1.8 The Parties agree to use their reasonable best efforts to enter into a
ROTA in accordance with this Article 5 within 6 months following the
Closing Date. Unless mutually agreed, neither Party shall be obliged to
enter into a ROTA if the Parties have not been able to execute a ROTA
within 24 months of the Closing Date and the Party seeking not to enter
into the ROTA is not in breach of this Agreement. IFFCO shall also not
be obliged to off-take rock if the deliveries of the contracted
quantities for the first year of operations, agreed in the ROTA, do not
commence within 5 years of the Closing Date.
ARTICLE 6
MANAGEMENT OF THE COMPANY
6.1 Management of the Company with the Board of Directors:
-----------------------------------------------------
Subject to the rights of the Shareholders' contained in the Governing
Documents and this Agreement, the management of the Company shall vest
with the Board of Directors, and the Board shall be responsible for the
overall direction and supervision of the management of the Company as
mandated under the Act, and the Governing Documents. The officers of the
Company shall have the authority and responsibilities delegated by the
Board of Directors.
6.2 Indemnification of Directors:
----------------------------
The Company shall indemnify the Directors to the maximum extent
permissible under Law, including against:
6.2.1 Any act, omission or conduct of or by the Company or their employees or
agents as a result of which, in whole or in part, any Director is made a
party to, or otherwise incurs any loss pursuant to any action, suit,
claim or proceeding arising out of or relating to any such conduct; or
6.2.2 Any action or failure to act undertaken by a Director at the request of
or with the consent of the Company; or
6.2.3 Contravention of any Law including without the generality of the
foregoing, laws relating to the provident fund, gratuity, environment
and pollution; and any action or proceedings taken against a Director in
connection with any such contravention or alleged contravention.
ARTICLE 7
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PARTIES
7.1 Representations, Warranties and Covenants of the Company:
--------------------------------------------------------
The Company represents warrants and covenants to the Parties as follows:
(a) The Company is a company duly organized, validly existing under
the laws of Delaware and has the corporate power and authority
to enter into this Agreement and to perform its obligations
hereunder.
(b) All corporate actions on the part of officers and directors of
the Company necessary for the authorisation, execution and
delivery of this Agreement by the Company and for the
performance of all of its obligations hereunder have been taken.
(c) This Agreement constitutes valid, legally binding and
enforceable obligations of the Company.
(d) The Company has done all acts, executed and delivered all
instruments and documents, and done all things as may be
reasonably necessary to accomplish the transactions contemplated
in this Agreement.
(e) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby shall
violate, result in the breach of any material terms or provision
of, or constitute a default under its statutes or regulations or
any material agreement, indenture, instrument or order, law or
regulation to which it is a party or by which it is bound.
(f) The representations and warranties of the Company contained in
Section 8 of the Agency Agreement are true and correct in all
material respects, except as set forth on Annexure 2 annexed
hereto.
7.2 Representations, Warranties and Covenants of IFFCO:
--------------------------------------------------
IFFCO represents warrants and covenants to the Parties as follows:
(a) IFFCO is a multi-state co-operative society duly organized,
validly existing and in good standing under the laws of India
and has the power and authority to enter into this Agreement and
to perform its obligations hereunder.
(b) All actions on the part of officers and directors of IFFCO
necessary for the authorisation, execution and delivery of this
Agreement by IFFCO and for the performance of all of its
obligations hereunder have been taken.
(c) This Agreement constitutes valid, legally binding and
enforceable obligations of IFFCO.
(d) IFFCO has done all acts, executed and delivered all instruments
and documents, and done all things as may be reasonably
necessary to accomplish the transactions contemplated in this
Agreement.
(e) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby shall
violate, result in the breach of any material terms or provision
of, or constitute a default under its statutes or regulations or
any material agreement, indenture, instrument or order, law or
regulation to which it is a party or by which it is bound.
ARTICLE 8
INDEMNITY
8.1 Indemnification:
---------------
Each Party ("Indemnifying Party") hereby irrevocably and unconditionally
agrees to indemnify and hold the other Parties ("Indemnified Parties")
harmless from and against any and all liabilities, losses, damages,
costs, claims, actions, proceedings, judgements, settlements, expenses
or the like (collectively ("Loss") which may be suffered or incurred
directly, but not consequentially, by the Indemnified Parties as a
result of any misrepresentation or breach of any representation or
warranty made by the Indemnifying Party in this Agreement or
non-fulfillment of or failure to perform any covenant or obligation or
agreement or undertaking contained in this Agreement by the Indemnifying
Party.
8.2 Notice of Claim:
---------------
Any indemnifiable claim under this Agreement must, in order to be valid
and effective hereunder, be asserted by the Indemnified Party by prompt
delivery of written notice thereof to the Indemnifying Party delivered
within 60 (sixty) Business Days of discovery by the Indemnified Party of
the breach of the breach of the pertinent covenant or obligation.
8.3 Limitation of Liability:
-----------------------
The Parties (including for this purpose, their Affiliates) shall not be
liable for each others indirect, special or consequential damages
(including lost profits or lost revenues) under this Agreement,
regardless of whether such liability arises in tort, contract, breach of
warranty, indemnification or otherwise.
ARTICLE 9
CONFIDENTIALITY
9.1 Confidential Information:
------------------------
For purposes of this Agreement, "Confidential Information" shall mean
all written and/or tangible information created by the Company or
disclosed by a Party (in either case "Owner") to the receiving Party
("Recipient") which is marked confidential or proprietary and/or not
generally available to the public, including, but not limited to
information relating to this Agreement, in whole or in part to present
and future products, services, business plans and strategies, marketing
ideas and concepts, present and future product plans, financial data and
business plans. Notwithstanding the foregoing, information shall not be
deemed confidential and the Recipient shall have no obligation with
respect to any such information which:
(a) is already known to the Recipient; or
(b) is or becomes publicly known through no negligence or other
wrongful act of the Recipient; or
(c) is received by the Recipient from a third party without similar
restriction and without breach of this Agreement; or
(d) is independently developed by the Recipient.
Notwithstanding the foregoing, each Party acknowledges and agrees that
as a public company registered under Section 12(g) of the Securities
Exchange Act of 1934, as amended, the Company shall be required to make
public disclosure of the terms of this Agreement and the Shareholders
Agreement and to file copies of such Agreements with the Securities and
Exchange Commission.
9.2 Treatment of Confidential Information:
-------------------------------------
From the execution of this Agreement and after the Recipient ceases to
be a shareholder in the Company, the Recipient shall, and shall cause
its Affiliates to, keep confidential and will not disclose, and will
cause its Affiliates not to disclose, to Third Parties, the Confidential
Information received from, or made available by the Owner and will use
and cause its Affiliates to use the same level of care with respect to
the Confidential Information as Recipient employs with respect to its
own proprietary and confidential information of like importance, and
will not use and will cause Affiliates not to use such Confidential
Information for any purpose other than the performance of its
obligations under this Agreement.
9.3 Notice Prior to Disclosure:
--------------------------
If the Recipient (or its Affiliates) is required by Law (including by
oral questions, interrogatories, requests for information or documents,
subpoena, civil investigative demand or similar process) to disclose any
Confidential Information, the Recipient will promptly notify the Owner
of such request or requirement. If the Recipient (or any of its
Affiliates) is compelled to disclose the Confidential Information or
else stand liable for contempt or suffer other censure or significant
legal penalty, the Recipient (or its Affiliate) may disclose only so
much of the Confidential Information to the Party compelling disclosure
as is required by Law.
9.4 Exercise of Due Diligence:
-------------------------
Each Party shall ensure that any of its employees involved in or
otherwise having knowledge of any Confidential Information shall comply
with the obligations set forth in this Article 9.
9.5 Disclosure of Confidential Information:
--------------------------------------
All Directors shall be entitled to be informed by the Party appointing
such Director of all matters concerning the Company's affairs. Each
Director and each Recipient undertakes to keep such information
confidential and shall not use or disclose any Confidential Information
to any third party for any unauthorized purpose and shall take all
reasonable precautions for the safe custody of such Confidential
Information for so long as it shall remain confidential or proprietary.
The Parties shall however be permitted to disclose Confidential
Information only to their directors, investors, investment advisors,
lenders, employees and employees of investment advisors, other advisors,
including financial and legal advisors, and agents or pursuant to any
legally mandated reporting requirements, or as required pursuant to the
constitutional documents of the Parties or the Affiliates of the
Parties.
ARTICLE 10
MISCELLANEOUS
10.1 Notices:
-------
Any notices, requests, demands or other communication required or
permitted to be given under this Agreement shall be written in English
and shall be delivered in person, or sent by courier or by certified or
registered mail, postage prepaid or transmitted by facsimile and
properly addressed as follows:
If to IFFCO:
-----------
Name: Indian Farmers Fertiliser Cooperative Limited
Address: IFFCO Sadan, ▇-▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: Managing Director
Fax: ▇▇▇-▇▇-▇▇▇▇▇▇▇▇
If to the Company by international courier:
------------------------------------------
Name: Legend International Holdings, Inc.
Address: ▇▇▇▇▇ ▇, ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇▇-▇▇▇▇-▇▇▇▇
If to the Company by post:
-------------------------
Name: Legend International Holdings, Inc.
Address: ▇.▇. ▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇▇-▇▇▇▇-▇▇▇▇
or at such other address as the Party to whom such notices, requests,
demands or other communication is to be given shall have last notified
the Party giving the same in the manner provided in this Article 10.1,
but no such change of address shall be deemed to have been given until
it is actually received by the Party sought to be charged with the
knowledge of its contents. Any notice, request, demand or other
communication delivered to the Party to whom it is addressed as provided
in this Article 10.1 shall be deemed (unless there is evidence that it
has been received earlier) to have been given and received if:
(a) sent by mail, except air mail, ten Business Days after posting
it;
(b) sent by air mail, six Business Days after posting it; and
(c) sent by facsimile, when confirmation of its transmission has
been recorded by the sender's facsimile machine.
10.2 Waiver of Rights:
----------------
Failure or delay on the part of either Party to exercise any right,
power or privilege under this Agreement shall not operate as a waiver
thereof; nor shall any single or partial non-exercise of any right,
power or privilege preclude any other future exercise thereof.
10.3 Severability:
------------
This Agreement is severable and if any provision hereof is determined to
be illegal or unenforceable, the offending provision shall be struck off
without affecting the remaining provisions of this Agreement, in which
case, if appropriate and necessary, the Parties shall immediately
consult with each other in order to find an equitable solution.
10.4 Surviving Provisions:
--------------------
10.4.1 The rights and obligations of the Parties in respect of Articles 5,8, 9
and 10 shall continue to have effect in accordance with their respective
terms notwithstanding the termination of this Agreement.
10.4.2 The termination of this Agreement will not in any manner affect the
rights and obligations in respect of antecedent breaches of this
Agreement.
10.5 Entire Agreement:
----------------
This Agreement and all annexures set forth the entire agreement of the
Parties with respect to the subject matter of this Agreement and
supersede all prior agreements, understandings and representations,
written and oral.
10.6 Governing Law:
-------------
The validity, interpretation, implementation and resolution of disputes
of this Agreement shall be governed by the laws of England.
10.7 Dispute Resolution:
------------------
(a) In the event any dispute arises between the Parties out of or in
relation to this Agreement, including any dispute regarding its
interpretation, breach, termination or validity, the Parties
shall attempt in the first instance to resolve such dispute
through friendly and amicable consultations.
(b) If a dispute arising between the Parties out of or in relation
to this Agreement has not been resolved through consultations
under Article 10.7(a) within thirty (30) days after the
Party(ies) has served written notice on the other Party(ies)
requesting the commencement of such consultations, then the
dispute shall be referred to an arbitral tribunal. The
arbitration shall be conducted before an arbitral tribunal
composed of 3 (three) arbitrators. The arbitration proceedings
shall take place in Singapore and be conducted in English in
accordance with the provisions of the Singapore International
Arbitration Rules as may be in force from time to time. The
arbitration award shall be final and binding on the Parties, and
the Parties shall be bound thereby and act accordingly. The
costs of arbitration shall be borne by the Parties as designated
in the arbitration award.
(c) While any dispute is under consultation or arbitration, except
for the matters under dispute, the Parties shall continue to
exercise their remaining respective rights, and fulfill their
remaining respective obligations in accordance with this
Agreement.
(d) Notwithstanding the existence of any dispute or difference
between the Parties which is referred to settlement or, as the
case may be, arbitration, all Parties shall, during the pendency
of the settlement or, as the case may be, arbitration, continue
to act on matters under this Agreement which are not the subject
matter of the dispute or differences as if no such dispute or
difference had arisen to the end and intent that the business
and operations of the Company are not affected during the
pendency of such settlement or arbitration.
(e) The arbitration panel may not limit, expand or otherwise modify
the terms of this Agreement.
10.8 Relationship:
------------
Nothing in this Agreement shall be in any way construed to constitute
either Party as the agent, employee or representative of the other.
10.9 Amendments:
----------
This Agreement may be amended only by an instrument in writing signed by
duly authorised representatives of each of the Parties.
10.10 Assignment:
----------
Except as otherwise provided in this Agreement, the rights and
obligations under this Agreement shall not be assigned by any Party to
any person.
10.11 Counterparts:
------------
This Agreement may be entered into in any number of counterparts each of
which, when executed and delivered, shall be an original, but all the
counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties by their duly authorised representatives have
executed this Agreement on the day first above written
For Indian Farmers Fertiliser Cooperative For Legend International Holdings,
Limited Inc.
s/s/ U.S. ▇▇▇▇▇▇▇ s/s/ ▇▇ ▇▇▇▇▇▇▇
--------------------- ---------------------
Name: U.S. ▇▇▇▇▇▇▇ Name: ▇▇ ▇▇▇▇▇▇▇
Designation: Managing Director Designation: President & CEO
Date: July 14, 2008 Date: July 14, 2008
Witnessed by: ▇▇▇▇▇▇ ▇▇▇▇ Witnessed by: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
Annexure 1
Capital Structure
Authorised Capital 320,000,000 shares consisting of 300,000,000 shares of
common stock having a par value of $0.001 per share and
20,000,000 preferred stock having par value of $0.001
per share.
Issued Capital 221,079,516 shares of common stock having a par value of
$0.001 per share.
Reserved for issuance 20,412,170 Options.
Annexure 2
Exceptions to Company Representations and Warranties
Other than as disclosed in Schedule 8.Q to the Agency Agreement and the Form-10
Q for the quarter ended March 31, 2008, transactions with AXIS Consultants Pty
Ltd since March 31, 2008 have been in the normal course of business.
LEGEND INTERNATIONAL HOLDINGS, INC
REGISTER OF OPTION HOLDERS AS AT JULY 13, 2008
---------------------------------------------------------------------------
Name Options
Held
---------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ 205,000
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇ 45,000
▇▇▇ ▇ ▇▇▇▇▇▇▇ 9,000
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇ 9,000
▇▇▇▇ ▇▇▇▇▇ 22,500
E*Trade Clearing LLC 109,250
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 9,000
▇▇▇▇▇▇▇ Sachs Execution & Clearing LP 2,250
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 9,000
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ 45,000
▇▇▇▇▇▇ ▇▇ & ▇▇▇▇▇ ▇▇ 9,000
▇▇▇▇ ▇ ▇▇▇▇▇ 9,000
Ms Suo Lee 22,500
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Inc 54,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Inc 2,250
National Financial Services LLC 20,250
National Investor Services Corp 9,000
▇▇▇▇▇▇ Financial Services,Inc 87,750
Preston Family Trust 18,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 9,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 54,000
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ 18,000
▇▇▇▇▇▇ ▇ ▇▇▇▇▇ 9,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ 27,000
▇▇▇▇▇ ▇ ▇▇▇▇▇ 9,000
Southwest Securities Inc 1,350
UBS Financial Services Inc CDN FBO 37,800
Union Valoren AG 67,500
▇▇▇▇▇▇ ▇▇▇▇ 18,000
CMS Capital 251,400
Ameritrade, Inc 75,870
---------------------------------------------------------------------------
1,274,670
--------------------
LEGEND INTERNATIONAL HOLDINGS INC
2006 EQUITY INCENTIVE PLAN
OPTIONS ON ISSUE
Note Exercisable Exercisable Exercisable Exercisable Exercisable Exercisable Total
@US$0.444 @US$1.00 @US$2.00 @US$4.10 @US$3.48 TBA
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1 2,250,000 5,000,000 7,250,000
▇▇▇▇▇ ▇▇▇▇▇▇▇ 2 562,500 2,562,500 3,125,000
▇▇▇▇▇ ▇▇▇ 3 787,500 1,787,500 2,575,000
▇▇▇▇▇ ▇▇▇▇▇▇▇ 4 150,000 1,400,000 1,550,000
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 5 900,000 900,000
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 6 150,000 150,000 300,000
▇▇▇ ▇▇▇▇▇ 7 56,250 56,250 112,500
Ros ▇▇▇▇▇▇ 8 56,250 56,250 112,500
▇▇▇▇ ▇▇▇▇▇▇ 9 56,250 56,250 112,500
▇▇▇ ▇▇▇▇▇▇ 10 150,000 150,000 300,000
▇▇▇▇ ▇▇▇▇▇▇▇ 11 150,000 350,000 500,000
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 12 112,500 112,500
Louisa van Bureen 13 112,500 112,500
▇▇▇▇▇ ▇▇▇ 14 400,000 400,000
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ 15 250,000 250,000
▇▇▇▇▇▇ ▇▇▇▇▇ 16 112,500 112,500
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 17 200,000 200,000
▇▇▇▇▇ Tyrwhitt 18 1,000,000 1,000,000
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 19 112,500 112,500
--------------------------------------------------------------------------------------------
2,118,750 10,706,250 5,000,000 112,500 19,137,500
--------------------------------------------------------------------------------------------
1 2,250,000 options issued September 19, 2006 vest 1/3rd after 12 months,
1/3rd after 24 months and 1/3rd after 36 months 5,000,000 options issued
February 7, 2008 vest 1/3rd after 12 months, 1/3rd after 24 months and
1/3rd after 36 months
2 562,500 options issued September 19, 2006 vest 1/3rd after 12 months,
1/3rd after 24 months and 1/3rd after 36 months with an exercise price
of US$0.444.
562,500 options issued September 19, 2006 vest 1/3rd after 12 months,
1/3rd after 24 months and 1/3rd after 36 months with an exercise price
of US$1.00.
2,000,000 options issued December 28, 2007 vest 1/3rd after 12 months,
1/3rd after 24 months and 1/3rd after 36 months with an exercise price
of US$1.00.
3 787,500 options issued September 19, 2006 vest 1/3rd after 12 months,
1/3rd after 24 months and 1/3rd after 36 months with an exercise price
of US$0.444.
787,500 options issued September 19, 2006 vest 1/3rd after 12 months,
1/3rd after 24 months and 1/3rd after 36 months with an exercise price
of US$1.00.
1,000,000 options issued December 28, 2007 vest 1/3rd after 12 months,
1/3rd after 24 months and 1/3rd after 36 months with an exercise price
of US$1.00.
4 150,000 options issued September 10, 2007 vest 1/3rd after 12 months,
1/3rd after 24 months and 1/3rd after 36 months with an exercise price
of US$0.444.
150,000 options issued September 10, 2007 vest 1/3rd after 12 months,
1/3rd after 24 months and 1/3rd after 36 months with an exercise price
of US$1.00.
1,250,000 options issued December 28, 2007 vest 1/3rd after 12 months,
1/3rd after 24 months and 1/3rd after 36 months with an exercise price
of US$1.00.
5 150,000 options issued September 19, 2006 vest 1/3rd after 12 months,
1/3rd after 24 months and 1/3rd after 36 months with an exercise price
of US$0.444.
150,000 options issued September 19, 2006 vest 1/3rd after 12 months,
1/3rd after 24 months and 1/3rd after 36 months with an exercise price
of US$1.00.
6 112,500 options issued September 19, 2006 vest 1/3rd after 12 months,
1/3rd after 24 months and 1/3rd after 36 months with an exercise price
of US$0.444.
112,500 options issued September 19, 2006 vest 1/3rd after 12 months,
1/3rd after 24 months and 1/3rd after 36 months with an exercise price
of US$1.00. 37,500 options issued May 18, 2007 vest 1/3rd after 12
months, 1/3rd after 24 months and 1/3rd after 36 months with an exercise
price of US$0.444.
37,500 options issued May 18, 2007 vest 1/3rd after 12 months, 1/3rd
after 24 months and 1/3rd after 36 months with an exercise price of
US$1.00.
7 56,250 options issued September 19, 2006 vest 1/3rd after 12 months,
1/3rd after 24 months and 1/3rd after 36 months with an exercise price
of US$0.444.
56,250 options issued September 19, 2006 vest 1/3rd after 12 months,
1/3rd after 24 months and 1/3rd after 36 months with an exercise price
of US$1.00.
8 56,250 options issued September 19, 2006 vest 1/3rd after 12 months,
1/3rd after 24 months and 1/3rd after 36 months with an exercise price
of US$0.444.
56,250 options issued September 19, 2006 vest 1/3rd after 12 months,
1/3rd after 24 months and 1/3rd after 36 months with an exercise price
of US$1.00.
9 56,250 options issued September 19, 2006 vest 1/3rd after 12 months,
1/3rd after 24 months and 1/3rd after 36 months with an exercise price
of US$0.444.
56,250 options issued September 19, 2006 vest 1/3rd after 12 months,
1/3rd after 24 months and 1/3rd after 36 months with an exercise price
of US$1.00.
10 150,000 options issued May 18, 2007 vest 1/3rd after 12 months, 1/3rd
after 24 months and 1/3rd after 36 months with an exercise price of
US$0.444.
150,000 options issued May 18, 2007 vest 1/3rd after 12 months, 1/3rd
after 24 months and 1/3rd after 36 months with an exercise price of
US$1.00.
11 150,000 options issued December 19, 2007 vest 1/3rd after 12 months,
1/3rd after 24 months and 1/3rd after 36 months with an exercise price
of US$0.444.
150,000 options issued December 19, 2007 vest 1/3rd after 12 months,
1/3rd after 24 months and 1/3rd after 36 months with an exercise price
of US$1.00.
200,000 options issued December 28, 2007 vest 1/3rd after 12 months,
1/3rd after 24 months and 1/3rd after 36 months with an exercise price
of US$1.00.
12 112,500 options issued December 28, 2007 vest 1/3rd after 12 months,
1/3rd after 24 months and 1/3rd after 36 months with an exercise price
of US$1.00.
13 112,500 options issued December 28, 2007 vest 1/3rd after 12 months,
1/3rd after 24 months and 1/3rd after 36 months with an exercise price
of US$1.00.
14 400,000 options issued February 18, 2008 vest 1/3rd after 12 months,
1/3rd after 24 months and 1/3rd after 36 months with an exercise price
of US$1.00.
15 250,000 options issued May 29, 2008 vest 1/3rd after 12 months, 1/3rd
after 24 months and 1/3rd after 36 15 months with an exercise price of
US$1.00.
16 112,500 options issued May 29, 2008 vest 1/3rd after 12 months, 1/3rd
after 24 months and 1/3rd after 36 months with an exercise price of
US$1.00.
17 200,000 options issued July 7, 2008 vest 1/3rd after 12 months, 1/3rd
after 24 months and 1/3rd after 36 months with an exercise price of
US$4.10.
18 1,000,000 options issued July 11, 2008 vest 1/3rd after 12 months, 1/3rd
after 24 months and 1/3rd after 36 18 months with an exercise price of
US$3.48.
19 Exercise price to be set at date of commencement