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Sedibelo Resources Ltd. – IPO: ‘F-1/A’ on 9/14/22 – ‘EX-10.9’

On:  Wednesday, 9/14/22, at 4:59pm ET   ·   Accession #:  1104659-22-100069   ·   File #:  333-266426

Previous ‘F-1’:  ‘F-1’ on 7/29/22   ·   Latest ‘F-1’:  This Filing   ·   1 Reference:  To:  Sedibelo Resources Ltd. – Previous ‘F-1’ on 7/29/22

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  As Of               Filer                 Filing    For·On·As Docs:Size             Issuer                      Filing Agent

 9/14/22  Sedibelo Resources Ltd.           F-1/A                 18:24M                                    Toppan Merrill/FA

Document/Exhibit                   Description                      Pages   Size 

 1: F-1/A       Pre-Effective Amendment to Registration Statement   HTML   9.66M 
                by a Foreign Issuer                                              
 2: EX-10.1     Material Contract                                   HTML    141K 
 4: EX-10.11    Material Contract                                   HTML    513K 
 5: EX-10.15    Material Contract                                   HTML    364K 
 6: EX-10.18    Material Contract                                   HTML    110K 
 7: EX-10.21    Material Contract                                   HTML    876K 
 8: EX-10.22    Material Contract                                   HTML    916K 
 9: EX-10.23    Material Contract                                   HTML    926K 
10: EX-10.24    Material Contract                                   HTML   1.25M 
11: EX-10.25    Material Contract                                   HTML     44K 
12: EX-10.26    Material Contract                                   HTML    133K 
13: EX-10.27    Material Contract                                   HTML   1.27M 
14: EX-10.28    Material Contract                                   HTML    200K 
15: EX-10.29    Material Contract                                   HTML    224K 
16: EX-10.30    Material Contract                                   HTML     28K 
 3: EX-10.9     Material Contract                                   HTML    638K 
17: EX-23.1     Consent of Expert or Counsel                        HTML      7K 
18: EX-FILING FEES  Filing Fees                                     HTML     15K 

Exhibit 10.9

Certain information has been omitted from the exhibit because it is both (i) not material and (ii) of the type that the registrant customarily and actually treats as private or confidential. The omissions have been indicated by (“[***]”).

From:

Orkid S.à r.l. (“Orkid”)

(Luxembourg registration no. B 167 777)

Legis House

11 New Street, St Peter Port

Guernsey

GY1 3EG

To:

Legis House

11 New Street, St Peter Port

Guernsey

GY1 3EG

27 April 2022

Dear Sirs

Amendments to the KellTech Mauritius Shareholders Agreement

We refer to the KellTech Mauritius Shareholders Agreement dated 16 April 2014 between Lifezone, SPM, Orkid, KellTech and Liddell, as amended, including by the first amendment to the KellTech Shareholders Agreement by way of a letter dated 29 May 2014 and the second amendment to the Kelltech Shareholders Agreement by way of a letter dated 22 May 2020 and executed by all of the parties thereto on 12 June 2020 (the “KellTech Mauritius Shareholders Agreement”).

Further to discussions between the parties and with effect from the date of signature hereof, the parties hereto agree that the KellTech Mauritius Shareholders Agreement shall be amended and restated as shown in the form set out in Annexure A, labelled the attached Amended and Restated Kelltech Mauritius Shareholders Agreement (the A&R KTM SHA), so that the parties’ rights and obligations under it shall be read and construed for all purposes in accordance with the amended and restated terms and conditions as set out in the A&R KTM SHA. Save as amended and restated in accordance with this letter, the KellTech Mauritius Shareholders Agreement shall continue in full force and effect.

Terms defined in the A&R KTM SHA have the same meaning when used herein.

Additional Amendments to the A&R KTM SHA

The parties have agreed as follows:

(each event in sub-paragraph a. to c. above being a Relevant Event), then, provided that Lifezone complies with its obligations in paragraph 2 below, the deemed offer provisions of clause 17 of the A&R KTM SHA which would otherwise have been triggered by clause 17.1.1 will not apply and no party will be entitled to seek to enforce such provisions.

and Lifezone shall be obliged to settle the subscription monies in respect of the Next Rights Issue from its own resources (whether obtained by way of the issue of shares in Lifezone, by borrowing from any third party or otherwise) in cash and, for the avoidance of doubt, in the context of the Next Rights Issue, without any recourse to or borrowings under the Lifezone Loan (the Rights Issue Obligation).

General

This letter is governed by the laws of Mauritius, and all disputes of whatever nature arising out of or in connection with this letter shall be resolved in accordance with the laws of Mauritius.

The provisions of clauses 28 (Confidentiality) and 32 (Settlement of Disputes) to 39 (Execution in Counterparts) of the attached A&R KTM SHA will apply to this letter as if set out in full herein.

In the event of an inconsistency between the provisions of this letter and the provisions of the A&R KTM SHA, the provisions of this letter shall prevail.

[Amended and Restated Kelltech Mauritius Shareholders Agreement and then signature pages follow]

Annexure A

Amended and Restated Kelltech Mauritius Shareholders Agreement

By our signature hereto, we hereby confirm our agreement with the contents of this letter:

By our signature hereto, we hereby confirm our agreement with the contents of this letter:

Amended and Restated

Dated 16 April 2014

As amended by letter agreement dated 29 May 2014

As further amended by letter agreement dated 22 May 2020 but executed 12 June 2020

As further amended by letter agreement dated 27 April 2022

entered into between

LIFEZONE LIMITED

(Isle of Man Company No. 019369V)

(formerly Mauritius Company No. 081243 C2/GBL)

and

ORKID S.à r.l.

(Luxembourg Registration No. B 167 777)

and

SEDIBELO PLATINUM MINES LIMITED

(Guernsey Registration No. 54400)

and

KELLTECH LIMITED (formerly LIFEZONE SA VENTURES LIMITED)

(Mauritius Company No. 084564 C1/GBL)

and

KEITH [***] LIDDELL

([***])

PREAMBLE

WHEREBY IT IS AGREED AS FOLLOWS:

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:

and "Encumber" shall bear a corresponding meaning as the context requires;

and all patent applications and granted patents in the Licensed Territory in the same patent family as any of the aforementioned patent applications;

all of which are attached hereto as Schedule 1;

any penalties or interest on any of the aforegoing;

2.        SUSPENSIVE CONDITION

Subject to clause 3.9, which will apply in the circumstances set out in that clause to the exclusion of this clause:

The maximum aggregate liability of Lifezone with respect to all claims for breaches of the warranties and/or covenants under this Agreement and the KellTech Licence shall be limited to the aggregate of (a) US$[***] ([***]) plus (b) the aggregate of all distributions (including all dividends) paid by the Company to Lifezone up to the time that the relevant claim is determined (the sum of (a) and (b) being referred to hereinafter as the "Relevant Amount"), provided that if the Company is the Entity which pursues Lifezone then the maximum aggregate net liability of Lifezone in such circumstances shall be such amount as will result in the net adverse effect on Lifezone (after taking into account Lifezone’s interest in the Company) being an amount equal to the Relevant Amount.

For the avoidance of doubt, “distributions” will not include any payments made to Lifezone under the KellTech Licence or the Service Agreement. It being agreed that notwithstanding anything to the contrary contained in this Agreement, subject to Applicable Law, when the Company receives any funds pursuant to any claim by it against Lifezone for breaches of the warranties and/or covenants under this Agreement and/or the KellTech Licence then such funds shall immediately be distributed by the Company to the Shareholders.

then all references to Libor in this Agreement will be deemed to be references to the Successor Rate, and if there is no Successor Rate, will be deemed to be references to the Alternative Rate.

and the Shareholder which appointed such Directors hereby indemnifies the Company if the Directors are not so removed. In order to give effect to the resignation of the Director concerned, the Shareholder which appointed such Director shall procure that the Director concerned shall irrevocably authorise the Auditors as its attorney and agent to sign all such documents and do all such things as are necessary or requisite so as to give effect to and implement such resignation.

The Parties record and agree that it is the intention that, as soon as is reasonably possible after the Effective Date, the Company should obtain and maintain in full force and effect, for the exclusive benefit of the Company, key man insurance policies in respect of each of the Individuals of so much cover as the Board may from time to time decide is necessary and appropriate.

The Company hereby agrees with each of the Shareholders that it shall:

or any of the aforegoing insofar as it concerns a member of the Group.

Each Party undertakes to use all reasonable efforts:

and the Company may require any Shareholder seeking to Transfer its Shares, at such Shareholder’s own cost, to provide a legal opinion addressed to the Company confirming that such Transfer will not cause any of the results described above.

then the Surplus Shares shall be deemed, on the expiry of the Offer Period, to have been offered to the Surplus Offeree/s, with the proportion of Surplus Shares deemed to have been offered to each Surplus Offeree being the same proportion as exists between the number of Shares held by each Surplus Offeree and the total number of Shares held by all such Surplus Offerees, as at the First Shareholder Offer and shall (subject to there being Surplus Shares available following the application of clause 16.4) to the extent of their Additional Acceptances be deemed to have been accepted by the Surplus Offeree/s. If, after the deemed offer and acceptance, there remain any Surplus Shares in respect of which the First Shareholder Offer has not been deemed to be accepted, then the deemed offer and acceptance provided for in this clause 16.4 shall be repeated as many times as is necessary to ensure that either there are no Surplus Shares in respect of which the First Shareholder Offer has not been accepted (in which case all of the Shares contemplated in the First Shareholder Offer will be Transferred to the relevant Other Shareholder/s) or there is no remaining Additional Acceptance which could (in terms of this clause 16.4) result in Surplus Shares being sold to a Surplus Offeree, and, at this juncture, there are Surplus Shares, whichever occurs sooner. The Disposer shall give written notice of the circumstances referred to in clauses 16.4.1 and 16.4.2 to all the Other Shareholders.

(together, each an "Approved Person");

each of the Shareholders will:

in the Licensed Territory, any activity of whatsoever nature carried on in competition with ("Competitive Activity") each and every business undertaking carried on by each of the members of the Group at the commencement of and from time to time during the Restraint Period, in the conduct of its business in the normal, ordinary and regular course, save that in respect of Orkid, SPM, any of Orkid's Transferee Affiliates and/or any member of the SPM Group that becomes bound by the provisions of this Agreement (the "Relevant SPM Entities") the business conducted by the Relevant SPM Entities as at the Effective Date shall not constitute Competitive Activity and the aforesaid definition of "Competitive Activity" shall, in respect of the Relevant SPM Entities, be limited to the Relevant SPM Entities licensing as licensor, having an equity interest in and/or owing any intellectual property which competes with Kelltechnology in the Licensed Territory during the Restraint Period (the "Protected Business").

or attempt to do so.

and are acknowledged to be reasonably required for the protection of the Group and are generally fair and reasonable.

22.          REGULATORY AUTHORITY

Notwithstanding anything to contrary herein contained, if the approval of any regulatory authority ("Regulatory Authority") is required to any transaction contemplated in this Agreement (including under the pre-emption clauses), the Parties shall co-operate with each other in order to present the necessary documentation to the relevant Regulatory Authority as soon as reasonably possible and to the extent that any time periods have been imposed in this Agreement for the completion of the particular transaction, which are inappropriate having regard to the time period permitted to the relevant Regulatory Authority to consider the matter, the time periods in question in this Agreement shall be extended sufficiently so as to enable the relevant Parties to be afforded a reasonable opportunity to obtain the necessary approval/s.

24.          COME ALONG AND TAG ALONG

wish to accept such offer in respect of their Shares (after first having complied with the relevant provisions of clause 16 and yet no sale between the Shareholders takes place in terms of clause 16) then the remaining Shareholders in the Company shall be obliged to accept the offer of the Potential Acquirer in respect of all their Shares.

Notwithstanding any other provisions of this Agreement, should any Shareholder deem it necessary that the Company institute or defend any action or legal proceedings or enforce any of the rights which the Company may have ("Action") against any Shareholder or any member of a Shareholder Group or any Controller of any Shareholder or any member of a Shareholder Group, any of the Individuals or any Entity Controlled by any of the Individuals; any of the Directors; any member of the Group; and/or any director of any member of the Group (the "Defendant Group") then such Shareholder shall refer the matter to a meeting of the Board. If the Board does not take such Action within 30 (thirty) days (or such shorter period as may be reasonable and necessitated by the circumstances) after the matter has been referred to it, then such Shareholder (the “Proposer”) shall, provided that the holders of a majority of the Shares (excluding those held by the Defendant Group) agree in writing, be authorised to take all such steps and sign all such documents as may be necessary to take such Action, and shall be authorised to determine and control the manner in which such Action is taken, on behalf of the Company; provided that -

27.          REPRESENTATIONS AND WARRANTIES

Each of the Parties represents and warrants as at the Signature Date, as at the Effective Date and as at the date upon which it becomes a Party to this Agreement:

28.          CONFIDENTIALITY

This clause is subject to the provisions of clause 3.8.

For the attention of: [***]

With copies to each of the Shareholders at their addresses specified pursuant to this clause 30.

With a copy to: [***]

For the attention of: [***]

With a copy to: [***]

For the attention of: [***]

For the attention of: [***]

If any Dispute arises between any of the Parties, they shall use all reasonable endeavours to resolve the matter amicably and in good faith. If one Party gives any other Party notice that a Dispute has arisen and the Parties are unable to resolve such Dispute within 30 (thirty) days of service of such notice, then such Dispute shall be referred to the respective chairmen or chief executives or other nominated senior representative of the Parties in dispute. No Party shall resort to arbitration against any other Party under this Agreement until at least 30 (thirty) days after such referral. This shall not affect a Party’s right to seek interim relief.

and which is not resolved in accordance with clause 32.1, shall be submitted to and decided by arbitration under the rules of the London Court of International Arbitration (the "LCIA Rules"), and such rules are deemed to be incorporated by reference into this clause.

Each Party shall, at the reasonable request of any other Party, perform (or procure the performance of) all further acts and things, and execute and deliver (or procure the execution and delivery of) such further documents, as may be required by any statute, ordinance, judicial decision, executive order, regulation, common law, rule, or by-law of any jurisdictions that is applicable to such Party in order to completely and punctually implement and/or give effect to this Agreement.

Each of the Parties shall bear its own legal, accountancy and other costs, charges and expenses in connection with the negotiation and execution of this Agreement.

Any provision in this Agreement which is or may become illegal, invalid or unenforceable in any jurisdiction affected by this Agreement shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be treated pro non scripto and severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.

No part of this Agreement shall constitute an offer in favour of any person who is not a party to the Agreement capable of acceptance by any person who is not a party to the Agreement.

Except as expressly provided in this Agreement which expressly states that cession, delegation or assignment may take place, no Party shall be entitled to cede, assign, transfer or delegate all or any of its rights, obligations and/or interest in, under or in terms of this Agreement to any third party without the prior written consent of the other Parties (which consent shall not be unreasonably withheld).

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.

Nothing in this Agreement shall be construed so as to render the Parties or any of them a partnership, association or joint venture or as creating a partnership, association or joint venture.

Signed by the Parties on the following dates and at the following places respectively: