35 Lower Long Street
Foreshore Cape Town 8001
P O Box 2293 Cape Town South Africa 8000
docex 14 Cape Town
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entered into between
THE PERSONS LISTED ON ANNEXURE A
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| || ||law | tax | forensics | IP | africa || || || ||edward nathan sonnenbergs incorporated registration number 2006/018200/21|
WHEREBY IT IS AGREED AS FOLLOWS:
|1. || |
INTERPRETATION AND PRELIMINARY
| ||1.1. || |
In this Agreement, unless clearly inconsistent with or otherwise indicated by the context -
| ||1.1.1. || |
Affiliate means, with respect to any person, any person who, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person;
| ||1.1.2. || |
Agreement means this consortium agreement, as amended from time to time;
| ||1.1.3. || |
Business Day means any day other than a Saturday, Sunday or public holiday officially recognised as such in South Africa;
| ||1.1.4. || |
Companies Act means the Companies Act, 71 of 2008;
| ||1.1.5. || |
Conditions Precedent means the conditions precedent in clause 3.1;
| ||1.1.6. || |
Distribution means the distribution in specie by MNK of its Montauk Renewables Shares to shareholders of MNK, having regard to their respective shareholding in MNK, subject to the withholding by MNK of a portion of the Montauk Renewables Shares to be distributed to certain shareholders of MNK for purposes of settling certain dividends tax obligations of those MNK shareholders which will arise pursuant to the Distribution;
| ||1.1.7. || |
Effective Date means the 1st (first) Business Day after the date on which the last of the Conditions Precedent is fulfilled, notwithstanding the Signature Date;
| ||1.1.8. || |
JSE means the exchange operated by JSE Limited (Registration No. 2005/022939/06) (or any other name by which it may be known in the future) or its successor body, including its alternative exchanges;
| ||1.1.9. || |
Listing means the listing of the Montauk Renewables Shares on the NASDAQ in connection with the Distribution and related transaction;
| ||1.1.10. || |
MNK means Montauk Holdings Limited (Registration No. 2010/017811/06), a public company duly registered and incorporated in accordance with the company laws of South Africa, the issued ordinary share capital of which is listed on the JSE;
| ||1.1.11. || |
MNK Group means MNK and each of its Affiliates;
| ||5.1. || |
The Shareholders hereby establish a voting pool (Voting Pool) in respect of the Shareholders voting rights attaching to the Pool Shares.
| ||5.2. || |
| ||5.2.1. || |
the rights of beneficial ownership in respect of the Pool Shares shall remain vested in the respective Shareholders; and
| ||5.2.2. || |
the Pool Shares shall remain registered in the names of such Shareholders or their respective nominees,
the voting rights attaching to the Pool Shares shall be exercised in the manner prescribed in this Agreement.
| ||5.3. || |
Any additional Montauk Renewables Shares in the capital of Montauk Renewables howsoever acquired by the Shareholders, including by way of a rights issue, renounceable offer or capitalisation issue, shall automatically also form part of the Voting Pool and be deemed to be Pool Shares.
| ||5.4. || |
The Parties record that, with effect from the Effective Date, Rivetprops 47 Proprietary Limited shall be the Pool Principal of the Voting Pool. Should the Pool Principal cease to be a Shareholder, or resign as Pool Principal by notice in writing to the remaining Shareholders, then the Voting Pool shall be entitled to appoint a different Shareholder to act as Pool Principal. Such appointment shall occur by the Shareholders casting votes in a Ballot in accordance with the procedures in clause 6, save that the decision on the appointment of the Pool Principal shall not require the approval of more than 66.66% (sixty six point six six percent) of the votes cast on the Ballot, but rather the Shareholder receiving the most votes on the particular Ballot shall be appointed as Pool Principal.
|6. || |
PROCEDURE PRIOR TO MEETINGS OF SHAREHOLDERS OF MONTAUK RENEWABLES
| ||6.1. || |
As soon as possible after receiving a notice from Montauk Renewables in which resolutions are proposed for consideration by Montauk Renewables shareholders, the Pool Principal shall circulate to each Shareholder a written resolution (Ballot), which shall:
| ||6.1.1. || |
require such Shareholder to cast its vote(s) on each resolution proposed in such notice; and
| ||7.6. || |
If the Remaining Shareholders fail to exercise the option within the Prescribed Period, then the Selling Shareholder shall be entitled for a period of 40 (forty) Business Days after the expiry of the Prescribed Period to sell its Equity to any bona fide third party dealing at arms-length (the Third Party), provided that:
| ||7.6.1. || |
the Selling Shareholder shall not sell its Equity at consideration less than the consideration stated in the Transfer Notice and/or on terms or conditions more favourable than the terms and conditions stated in the Transfer Notice unless it first offers the same for sale to the Remaining Shareholders for a period of 15 (fifteen) Business Days at the price and/or on the terms and conditions which he is willing to accept therefor; and
| ||7.6.2. || |
if the Selling Shareholder fails to sell its Equity within the period of 40 (forty) Business Days aforesaid, then if the Selling Shareholder still thereafter desires to sell or transfer its Equity, it shall be obliged to again comply with the provisions of this clause 7.
| ||7.7. || |
Notwithstanding the provisions of this clause 7, each Shareholder shall be entitled to transfer its Pool Shares to any of its Affiliates without having to comply with the provisions of this clause 7, provided that such Affiliate signs a deed of adherence to this Agreement thereby binding itself to the terms hereof as if it was a signatory to this Agreement, and the Pool Shares transferred shall remain Pool Shares in terms of this Agreement.
Save as expressly provided otherwise in this Agreement, if any Party commits a breach of this Agreement and/or fails to comply with any of the provisions hereof (the Defaulting Party), then any other Party (the Innocent Party) shall be entitled to give the Defaulting Party 14 (fourteen) days notice in writing to remedy such breach and/or failure and if the Defaulting Party fails to comply with such notice, then the Innocent Party shall forthwith be entitled but not obliged, without prejudice to any other rights or remedies which the Innocent Party may have in law, including the right to claim damages, to claim specific performance from the Defaulting Partys obligations in terms hereof, provided that no Party may cancel this Agreement at any time after the Signature Date.
|9. || |
DISPUTE RESOLUTION: NEGOTIATION AND ARBITRATION
| ||9.1. || |
In the absence of any specific provision to the contrary, should any dispute, disagreement or claim arise between the Parties (the dispute) concerning this Agreement, the Parties shall endeavour to resolve the dispute by negotiation.
| ||9.2. || |
This entails one of the Parties inviting the others in writing to meet and to attempt to resolve the dispute within 14 (fourteen) days from date of written invitation. If the dispute has not been resolved by such negotiation within 14 (fourteen) days of the commencement thereof by
| || in clause 9.3 if the other Parties have failed to comply with clause 9.2 in good faith. In such event, the other Party may commence and prosecute such arbitration unilaterally in accordance with the CPR Arbitration Procedure. |
|10. || |
NOMINATION BY A SHAREHOLDER
| ||10.1. || |
Each Shareholder shall be entitled, but not obliged, to nominate any of its Affiliates, or any other person who is not an Affiliate but who has been approved by the Shareholder to exercise any or all of its rights and fulfil its obligations in terms of this Agreement:
| ||10.1.1. || |
at any time during the currency of this Agreement; and
| ||10.1.2. || |
by notice in writing to the other Parties to that effect.
| ||10.2. || |
Notwithstanding the provisions of clause 10.1, no nomination in terms of this clause 10 shall take effect until the nominee has signed this Agreement as a party thereto or has confirmed in writing that it shall be bound by all the provisions of this Agreement. With effect from the date of its nomination, the nominee shall be bound to all the terms and conditions herein contained as a Shareholder.
| ||10.3. || |
By its signature hereto, the nominating Shareholder binds itself as surety to the other Parties for due performance by its nominees of all obligations which may apply to such nominee in terms of this Agreement.
Save as otherwise provided in this Agreement, no Party shall be entitled to:
| ||11.2. || |
delegate its obligations; or
| ||11.3. || |
assign its rights and obligations,
under this Agreement unless the other Parties have consented thereto in writing, which consent shall not be unreasonably withheld.
Each of the Parties acknowledges and agrees that it has sought independent legal, financial and other relevant expert advice relating to this Agreement, and that it has agreed to enter into this Agreement as a result of its own investigations and enquiries.
No alteration, cancellation, variation of, or addition hereto (including this clause ) shall be of any force or effect unless reduced to writing and signed by all Parties to this Agreement or their duly authorised representatives.
This document contains the entire Agreement between the Parties and no Party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein.
| ||15.1. || |
This Agreement supersedes and cancels all previous negotiations and/or agreements between the Parties relating to the matters recorded herein.
| ||15.2. || |
Insofar as the provisions of this Agreement may conflict with the provisions of any other agreement or document, the provisions of this Agreement shall prevail and be carried into effect.
No indulgence, leniency or extension of time which any Party (the Grantor) may grant or show to another Party, shall in any way prejudice the Grantor or preclude the Grantor from exercising any of its rights in the future.
|17. || |
NOTICES AND DOMICILIA
| ||17.1. || |
Each of the Parties chooses their domicilium citandi et executandi (domicilium) for the purposes of the giving of any notice, the payment of any sum, the serving of any process and for any other purposes arising from this Agreement at their respective addresses set forth on the signature page.
| ||17.2. || |
Each of the Parties shall be entitled from time to time, by written notice to the other Parties to vary its domicilium to any other physical address.
| ||17.3. || |
Any notice given and any payment made by a Party to another Party (the addressee) which:
| ||17.3.1. || |
is delivered by hand during the normal business hours of the addressee at the addressees domicilium for the time being shall be presumed, until the contrary is proved by the addressee to have been received by the addressee at the time of delivery;
| ||17.3.2. || |
is posted by prepaid registered post to the addressee at the addressees domicilium for the time being shall be presumed, until the contrary is proved by the addressee, to have been received by the addressee on the seventh day after the date of posting.
| ||17.4. || |
Where, in terms of this Agreement any communication is required to be in writing, the term writing shall include communications by facsimile or electronic mail. Communications by facsimile shall, unless the contrary is proved by the addressee, be deemed to have been received by the addressee 24 (twenty-four) hours after the time of transmission. Communications by way of electronic mail shall, unless the contrary is proved by the addressee, be deemed to have been received by the addressee 12 (twelve) hours after the time of transmission.
| ||17.5. || |
Notwithstanding anything to the contrary herein contained in a written notice or communication 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.
| ||18.1. || |
This Agreement may be executed in a number of counterparts and by the same Parties in different counterparts but shall only be deemed to have been concluded when each Party has executed at least one counterpart.
| ||18.2. || |
Each counterpart, when executed, shall be an original, but all counterparts together constitute the same document.
Each Party shall bear its own costs in relation to the drafting and finalisation of this Agreement and attendances incidental thereto.