AA Alcoa Corporation

 

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): February 26, 2024

 

Alcoa Corporation

(Exact name of Registrant as Specified in Its Charter)

 

Delaware	1-37816	81-1789115
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification No.)
201 Isabella Street, Suite 500
Pittsburgh, Pennsylvania		15212-5858
(Address of Principal Executive Offices)		(Zip Code)

 

 Registrant’s Telephone Number, Including Area Code: (412) 315-2900

 

 

(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:

 

☐		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))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
Common stock, par value $0.01 per share		AA		New York Stock Exchange

 

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).

 

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 Definitive Agreement.

 

Transaction Process and Exclusivity Deed

 

On February 26, 2024 (AEDT), Alcoa Corporation (“Alcoa”) entered into a Transaction Process and Exclusivity Deed (the “Transaction Process and Exclusivity Deed”) with Alumina Limited (“Alumina”) and AAC Investments Australia Pty Ltd, a wholly owned subsidiary of Alcoa (“Bidder”). Alumina owns 40% of Alcoa World Alumina and Chemicals (“AWAC”), a joint venture between Alcoa and Alumina, and Alcoa owns the remaining 60% of AWAC.

 

Upon the terms and subject to the conditions set forth in the Transaction Process and Exclusivity Deed, Alcoa, Bidder and Alumina have agreed, during the Exclusivity Period (as defined below), to negotiate in good faith to seek to agree on a scheme implementation agreement (“SIA”) as expeditiously as possible, for a transaction (the “Proposed Transaction”) in which Bidder would acquire all of the shares of Alumina and each Alumina shareholder would receive 0.02854 CHESS Depositary Interests (“CDI”) for each Alumina share (the “Offer Price”), with each CDI representing beneficial ownership in one share of common stock of Alcoa (“Alcoa Share”). Subject to the entry into an SIA, Alumina’s independent non-executive directors, Managing Director and Chief Executive Officer have agreed to recommend the Proposed Transaction to Alumina’s shareholders at the Offer Price, in the absence of a superior proposal and subject to an independent expert concluding (and continuing to conclude) that the Proposed Transaction is in the best interests of Alumina shareholders.

 

During the period from the signing of the Transaction Process and Exclusivity Deed until the date that is 20 business days thereafter (the “Exclusivity Period”), Alumina agreed that Alumina and its representatives will not solicit any competing proposals and will notify Alcoa in the event that it receives any competing proposal.

 

Upon closing of the Proposed Transaction (the “Closing”), two mutually agreed upon existing directors from Alumina’s Board of Directors would be appointed to Alcoa’s Board of Directors.

 

The foregoing description of the Transaction Process and Exclusivity Deed does not purport to be complete, and is qualified in its entirety by reference to the full text of the Transaction Process and Exclusivity Deed, which is attached hereto as Exhibit 2.1 and is incorporated herein by reference.

 

 

Share Sale Agreement

 

On February 26, 2024 (AEDT), Alcoa also entered into a Conditional Share Sale Agreement with Allan Gray Australia Pty Ltd (“Allan Gray Australia”) and Bidder (the “Share Sale Agreement”).

 

Upon the terms and subject to the conditions set forth in the Share Sale Agreement, Allan Gray Australia agreed to give Alcoa (via the Bidder) the right to acquire up to 577,434,602 shares of Alumina held by Allan Gray Australia at the Offer Price (reduced by the value of any dividends paid on Alumina shares prior to the Closing). Alcoa’s right to acquire such Alumina shares is subject to conditions and terminates three months after the date of the Share Sale Agreement if Alumina has not announced that an SIA has been entered into by such date.

 

The foregoing description of the Share Sale Agreement does not purport to be complete, and is qualified in its entirety by reference to the full text of the Share Sale Agreement, which is attached hereto as Exhibit 2.2 and is incorporated herein by reference.

 

ITEM 9.01. Financial Statements and Exhibits

 

(d)	Exhibits
Exhibit No.		Description
2.1		Transaction Process and Exclusivity Deed, by and among Alumina Limited, AAC Investments Australia Pty Ltd and Alcoa Corporation, dated as of February 26, 2024
2.2		Share Sale Agreement, by and among Allan Gray Australia Pty Ltd, AAC Investments Australia Pty Ltd and Alcoa Corporation, dated as of February 26, 2024
104		Cover Page Interactive Date File - the cover page XBRL tags are embedded within the Inline XBRL document

 

Forward-Looking Statements

 

This communication contains statements that relate to future events and expectations and as such constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements include those containing such words as “aims,” “ambition,” “anticipates,” “believes,” “could,” “develop,” “endeavors,” “estimates,” “expects,” “forecasts,” “goal,” “intends,” “may,” “outlook,” “potential,” “plans,” “projects,” “reach,” “seeks,” “sees,” “should,” “strive,” “targets,” “will,” “working,” “would,” or other words of similar meaning. All statements by Alcoa Corporation (“Alcoa”) that reflect expectations, assumptions or projections about the future, other than statements of historical fact, are forward-looking statements, including, without limitation, statements regarding the proposed transaction; the ability of the parties to negotiate, enter into and complete the proposed transaction; the expected benefits of the proposed transaction, the competitive ability and position following completion of the proposed transaction; forecasts concerning global demand growth for bauxite, alumina, and aluminum, and supply/demand balances; statements, projections or forecasts of future or targeted financial results, or operating performance (including our ability to execute on strategies related to environmental, social and governance matters); statements about strategies, outlook, and business and financial prospects; and statements about capital allocation and return of capital. These statements reflect beliefs and assumptions that are based on Alcoa’s perception of historical trends, current conditions, and expected future developments, as well as other factors that management believes are appropriate in the circumstances. Forward-looking statements are not guarantees of future performance and are subject to known and unknown risks, uncertainties, and changes in circumstances that are difficult to predict. Although Alcoa believes that the expectations reflected in any forward-looking statements are based on reasonable assumptions, it can give no assurance that these expectations will be attained and it is possible

 

that actual results may differ materially from those indicated by these forward-looking statements due to a variety of risks and uncertainties. Such risks and uncertainties include, but are not limited to: (1) the outcome of any discussions between Alcoa and Alumina Limited with respect to the proposed transaction, including the possibility that the parties will not agree to pursue a transaction or that the terms of any such transaction will be materially different from those described herein, (2) the non-satisfaction or non-waiver, on a timely basis or otherwise, of one or more closing conditions to the proposed transaction; (3) the prohibition or delay of the consummation of the proposed transaction by a governmental entity; (4) the risk that the proposed transaction may not be completed in the expected time frame or at all; (5) unexpected costs, charges or expenses resulting from the proposed transaction; (6) uncertainty of the expected financial performance following completion of the proposed transaction; (7) failure to realize the anticipated benefits of the proposed transaction; (8) the occurrence of any event that could give rise to termination of the proposed transaction; (9) potential litigation in connection with the proposed transaction or other settlements or investigations that may affect the timing or occurrence of the contemplated transaction or result in significant costs of defense, indemnification and liability; (10) the impact of global economic conditions on the aluminum industry and aluminum end-use markets; (11) volatility and declines in aluminum and alumina demand and pricing, including global, regional, and product-specific prices, or significant changes in production costs which are linked to LME or other commodities; (12) the disruption of market-driven balancing of global aluminum supply and demand by non-market forces; (13) competitive and complex conditions in global markets; (14) our ability to obtain, maintain, or renew permits or approvals necessary for our mining operations; (15) rising energy costs and interruptions or uncertainty in energy supplies; (16) unfavorable changes in the cost, quality, or availability of raw materials or other key inputs, or by disruptions in the supply chain; (17) our ability to execute on our strategy to be a lower cost, competitive, and integrated aluminum production business and to realize the anticipated benefits from announced plans, programs, initiatives relating to our portfolio, capital investments, and developing technologies; (18) our ability to integrate and achieve intended results from joint ventures, other strategic alliances, and strategic business transactions; (19) economic, political, and social conditions, including the impact of trade policies and adverse industry publicity; (20) fluctuations in foreign currency exchange rates and interest rates, inflation and other economic factors in the countries in which we operate; (21) changes in tax laws or exposure to additional tax liabilities; (22) global competition within and beyond the aluminum industry; (23) our ability to obtain or maintain adequate insurance coverage; (24) disruptions in the global economy caused by ongoing regional conflicts; (25) legal proceedings, investigations, or changes in foreign and/or U.S. federal, state, or local laws, regulations, or policies; (26) climate change, climate change legislation or regulations, and efforts to reduce emissions and build operational resilience to extreme weather conditions; (27) our ability to achieve our strategies or expectations relating to environmental, social, and governance considerations; (28) claims, costs and liabilities related to health, safety, and environmental laws, regulations, and other requirements, in the jurisdictions in which we operate; (29) liabilities resulting from impoundment structures, which could impact the environment or cause exposure to hazardous substances or other damage; (30) our ability to fund capital expenditures; (31) deterioration in our credit profile or increases in interest rates; (32) restrictions on our current and future operations due to our indebtedness; (33) our ability to continue to return capital to our stockholders through the payment of cash dividends and/or the repurchase of our common stock; (34) cyber attacks, security breaches, system failures, software or application vulnerabilities, or other cyber incidents; (35) labor market conditions, union disputes and other employee relations issues; (36) a decline in the liability discount rate or lower-than-expected investment returns on pension assets; and (37) the other risk factors discussed in Part I Item 1A of Alcoa’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023 and other reports filed by Alcoa with the SEC. These risks, as well as other risks associated with the proposed transaction, will be more fully discussed in the proxy statement. Alcoa cautions readers not to place undue reliance upon any such forward-looking statements, which speak only as of the date they are made. Alcoa disclaims any obligation to update publicly any forward-looking statements, whether in response to new information, future events or otherwise, except as required by applicable law. Market projections are subject to the risks described above and other risks in the market. Neither Alcoa nor any other person assumes responsibility

 

for the accuracy and completeness of any of these forward-looking statements and none of the information contained herein should be regarded as a representation that the forward-looking statements contained herein will be achieved.

 

Additional Information and Where to Find It

 

This communication does not constitute an offer to buy or sell or the solicitation of an offer to buy or sell any securities. This communication relates to the proposed transaction. In connection with the proposed transaction, Alcoa plans to file with the SEC a proxy statement on Schedule 14A (the “Proxy Statement”). This communication is not a substitute for the Proxy Statement or any other document that Alcoa may file with the SEC and send to its shareholders in connection with the proposed transaction. The issuance of the stock consideration in the proposed transaction will be submitted to Alcoa’s stockholders for their consideration. The Proxy Statement will contain important information about Alcoa, the proposed transaction and related matters. Before making any voting decision, Alcoa’s stockholders should read all relevant documents filed or to be filed with the SEC completely and in their entirety, including the Proxy Statement, as well as any amendments or supplements to those documents, when they become available, because they will contain important information about Alcoa and the proposed transaction.

 

Alcoa’s stockholders will be able to obtain a free copy of the Proxy Statement, as well as other filings containing information about Alcoa, free of charge, at the SEC’s website (www.sec.gov). Copies of the Proxy Statement and other documents filed by Alcoa with the SEC may be obtained, without charge, by contacting Alcoa through its website at https://investors.alcoa.com/.

 

Participants in the Solicitation

 

Alcoa, its directors, executive officers and other persons related to Alcoa may be deemed to be participants in the solicitation of proxies from Alcoa’s stockholders in connection with the proposed transaction. Information about the directors and executive officers of Alcoa and their ownership of common stock of Alcoa is set forth in the section entitled “Information about our Executive Officers” included in Alcoa’s annual report on Form 10-K for the fiscal year ended December 31, 2023, which was filed with the SEC on February 21, 2024 (and which is available at https://www.sec.gov/ixviewer/ix.html?doc=/Archives/edgar/data/1675149/000095017024018069/aa-20231231.htm), and in the sections entitled “Director Nominees” and “Stock Ownership of Directors and Executive Officers” included in its proxy statement for its 2023 annual meeting of stockholders, which was filed with the SEC on March 16, 2023 (and which is available at https://www.sec.gov/Archives/edgar/data/1675149/000119312523072587/d427643ddef14a.htm). Additional information regarding the persons who may, under the rules of the SEC, be deemed participants in the proxy solicitation and a description of their direct and indirect interests, by security holdings or otherwise, will be included in the Proxy Statement and other relevant materials to be filed with the SEC in connection with the proposed transaction when they become available. Free copies of these documents may be obtained as described in the preceding paragraph.

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

			ALCOA CORPORATION
Date:	February 26, 2024	By:	/s/ Marissa P. Earnest
			Name: Marissa P. Earnest Title: Senior Vice President, Chief Governance Counsel and Secretary

 

 

Exhibit 2.1

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Transaction Process and Exclusivity Deed

 

 

Alumina Limited

Alumina

 

AAC Investments Australia Pty Ltd
Bidder

 

Alcoa Corporation

Alcoa

 

 

 

 

 

26 February 2024

  

 

 

Contents

 

1.   Defined terms and interpretation	1
2.   Implementation Agreement and intention to recommend	1
3.   Exclusivity	3
4.   General	5

 

 

 

THIS deed is made on 26 February 2024

 

 

BETWEEN:

 

(1)

Alumina Limited (ACN 004 820 419) of Level 36, 2 Southbank Boulevard, Southbank, Victoria 3006 Australia (Alumina)

 

(2)

AAC Investments Australia Pty Ltd (ACN 673 884 207) of c/- Ashurst Level 16, 80 Collins Street, South Tower, Melbourne Victoria 3000 Australia (Bidder)

 

(3)

Alcoa Corporation, a company incorporated in the State of Delaware, United States of America of 201 Isabella Street, Suite 500, Pittsburgh, PA 15212-5858 United States of America (Alcoa)

 

Recitals:

 

(A)

Alcoa provided to Alumina a non-binding proposal dated 23 February 2024 in respect of the Transaction (the Proposal).

 

(B)

The parties have agreed to progress the Transaction on the terms of this document.

 

The Parties agree as follows:

 

1.

Defined terms and interpretation

 

1.1

Definitions in the Dictionary

 

A term or expression starting with a capital letter:

 

(a)

which is defined in the Dictionary in ‎Schedule 1 has the meaning given to it in the Dictionary; and

 

(b)

which is defined in the Corporations Act, but is not defined in the Dictionary, has the meaning given to it in the Corporations Act.

 

1.2

Interpretation

 

The interpretation clause in ‎Schedule 1 sets out rules of interpretation for this document.

 

2.

Implementation Agreement and intention to recommend

 

2.1

Announcement

 

Each of Alumina, Bidder and Alcoa acknowledges and agrees that upon the signing of this document by each party:

 

(a)

Alumina will make an announcement to the Australian Securities Exchange (ASX); and

 

(b)

Alcoa will make an announcement within one Business Day to the Securities Exchange Commission (SEC),

 

in an agreed form with respect to the status of the Transaction and setting out the material terms of the Proposal and attaching this document.

 

2.2

Intention to recommend

 

(a)

Alumina represents and warrants that each of its independent Non-Executive Directors and its Managing Director and Chief Executive Officer intends, subject to entry into the Implementation Agreement, to:

 

(i)

recommend to Alumina Shareholders to vote; and

 

(ii)

vote, cause or procure that any ordinary shares in Alumina in which they have a relevant interest are voted,

 

in favour of the Transaction at the Offer Price, in the absence of a superior proposal and subject to an independent expert concluding (and continuing to conclude) that the Transaction is in the best interests of Alumina Shareholders.

 

For the avoidance of doubt and despite anything to the contrary in this document, a statement made by Alumina, the Alumina Board or any Alumina Director, to the effect that no action should be taken by Alumina Shareholders pending the agreement of the Implementation Agreement by Alumina, Alcoa and Bidder will not, in and of itself, contravene this clause  ‎2.2(a).

 

(b)

Alcoa represents and warrants that each of its Directors intends, subject to entry into the Implementation Agreement, to unanimously recommend to Alcoa Shareholders to vote in favour of issue of the New Alcoa Shares and New Alcoa CDIs under the Transaction, unless Alcoa receives a superior proposal (with "superior proposal" to be defined in an Implementation Agreement and, when used prior to the Implementation Agreement being entered into, as such terms are customarily used in transactions of this nature).

 

(c)

Notwithstanding clauses ‎2.2(a) and 2.2(b), the parties acknowledge and agree that the Implementation Agreement may set out other customary terms and certain customary specified events relating to the recommendations of the Alumina Board and Alcoa Board.

 

2.3

Good faith negotiation of an Implementation Agreement

 

(a)

During the Exclusivity Period, Alumina, Alcoa and Bidder must negotiate in good faith to seek to agree an Implementation Agreement and any other transaction documentation required to implement the Transaction, in each case as expeditiously as possible.

 

(b)

Alumina agrees that, during the Exclusivity Period, it will not:

 

(i)

issue, or agree to issue, any Alumina Shares, performance rights, conditional share rights, or any other securities convertible into, or linked to, Alumina Shares; and/or

 

(ii)

announce, declare or pay any dividend or other distribution.

 

(c)

Each party acknowledges and agrees that the Proposal and Transaction remain incomplete and non-binding and will not become binding unless and until an Implementation Agreement (and each other transaction document required to implement the Transaction) is agreed and duly executed by the parties.

 

(d)

Alcoa acknowledges and agrees that, subject to entry into the Implementation Agreement, it will invite two existing members of the Alumina Board, whose identity will be mutually agreed by Alcoa and Alumina, to join the board of Directors of Alcoa with effect from implementation of the Transaction.

 

2.4

Commitment of necessary resources

 

During the Exclusivity Period, Alumina, Alcoa and Bidder will use their respective reasonable best efforts and commit all reasonably necessary resources (including management and financial, legal and other professional advisory resources, at their own cost) to enable an Implementation Agreement and any other transaction documentation required to implement the Transaction to be prepared, negotiated, finalised and (if agreed by the parties) entered into, as expeditiously as possible.

 

3.

Exclusivity

 

3.1

No existing discussions

 

Alumina represents and warrants to Alcoa and Bidder that, as at the date of this document, neither Alumina nor any of Alumina’s Representatives is in any negotiations or discussions, and Alumina and Alumina’s Representatives have ceased any existing negotiations or discussions, with any person in relation to, or which could reasonably be expected to lead to, an actual, proposed or potential Competing Proposal (other than, for the avoidance of doubt, the discussions with Alcoa, Bidder and each of their Representatives in respect of the Transaction).

 

3.2

No shop

 

During the Exclusivity Period, Alumina must not, and must ensure that its Representatives do not, directly or indirectly:

 

(a)

solicit, encourage, initiate, continue or invite any enquiries, expressions of interest, offers, discussions, negotiations or proposals in relation to, or which may reasonably be expected to encourage or lead to, an actual, proposed or potential Competing Proposal; or

 

(b)

solicit, initiate or invite approaches, enquiries, expressions of interests, offers, discussions or proposals with a view to obtaining any offer, proposal or expression of interest from any person in relation to an actual, proposed or potential Competing Proposal,

 

or communicate to any person any intention to do any of the things referred to in clause ‎3.2(a) and/or ‎3.2(b).

 

3.3

No talk

 

During the Exclusivity Period, Alumina must not, and must ensure that its Representatives do not, directly or indirectly:

 

(a)

negotiate or enter into or participate in or continue any negotiations or discussions with any other person regarding an actual, proposed or potential Competing Proposal or any agreement, understanding or arrangement that may be reasonably expected to encourage or lead to a Competing Proposal, even if that person’s Competing Proposal was not directly or indirectly solicited, invited, encouraged or initiated by Alumina or any of its Representatives or the person has publicly announced the Competing Proposal; or

 

(b)

communicate to any person any intention to do any of the things referred to in clause ‎3.3(a).

 

3.4

No due diligence

 

(a)

During the Exclusivity Period, Alumina must not, and must ensure that none of its Representatives, directly or indirectly:

 

(i)

solicit, invite, initiate, or encourage or facilitate or permit, any person (other than Alcoa or any of its Representatives) to undertake due diligence investigations in respect of Alumina, its Related Entities, or any of their business and operations, in connection with or with a view to obtaining or which would reasonably be expected to lead to such person formulating, developing or finalising, or assisting in the formulation, development or finalisation of, a Competing Proposal; or

 

(ii)

make available to any person (other than Alcoa or any of its Representatives) or permit any such person to receive any non-public information relating to Alumina, its Related Entities, or any of their businesses and/or operations, in connection with or with a view to obtaining or which may reasonably be expected to encourage or lead to such person formulating, developing or finalising, or assisting in the formulation, development or finalisation of, a Competing Proposal.

 

(b)

Alumina agrees not to waive, and to enforce, any standstill obligations with third parties in relation to a Competing Proposal and any confidentiality obligations owed by third parties to Alumina in relation to a Competing Proposal.

 

3.5

Notice of Competing Proposals

 

(a)

During the Exclusivity Period, Alumina must promptly (and, in any event, within 24 hours) notify Alcoa and Bidder in writing of any:

 

(i)

approach, inquiry or proposal made by any person to it or any of its Representatives in relation to an actual, proposed or potential Competing Proposal (including, for the avoidance of doubt, any request or proposal to which clauses ‎3.3 and/or ‎3.4 may apply), and as part of that notification will provide all material details of the approach (including the price (or if not cash, implied value), form of consideration, conditions, timing, break fee provisions, financing commitments and other key terms of any Competing Proposal and the identity of the proponent(s) of any such proposal); and

 

(ii)

request for information relating to Alumina, its Related Entities or its businesses or operations, in connection with the formulation, development or finalisation of, or assisting in the formulation, development or finalisation of, an actual, proposed or potential Competing Proposal, or which Alumina has reasonable grounds to suspect may relate to an actual, proposed or potential Competing Proposal, and must disclose to Alcoa the identity of the party making the request and the details of the request.

 

(b)

During the Exclusivity Period, Alumina must also notify Alcoa and Bidder in writing as soon as possible (and in any case, within 24 hours) after becoming aware of any material developments in relation to any of the information previously notified to Alcoa and Bidder under clause ‎3.5(a).

 

3.6

Non-public information

 

(a)

If, despite the restriction in clause ‎3.4, any non-public information about the business or affairs of the Alumina Group is provided or made available to any person in connection with an actual, proposed or potential Competing Proposal

 

which has not previously been provided or made available to Alcoa or Bidder, Alumina must promptly, and in any case within 24 hours, provide to Alcoa and Bidder:

 

(i)

in the case of written materials, a copy of; and

 

(ii)

in any other case, a written statement of,

 

that non-public information.

 

(b)

Nothing in this document permits the disclosure of any information in breach of clause ‎3.4, nor the disclosure of AWAC JV Information to third parties.

 

3.7

Acknowledgements

 

(a)

Each of Alcoa and Bidder acknowledges that nothing in this clause prevents Alumina from continuing to make normal presentations to, and to respond to enquiries from, brokers, portfolio investors and analysts in the ordinary course in relation to its business generally or fulfilling its continuous disclosure obligations.

 

(b)

Each of Alcoa and Bidder represent and warrant to Alumina that it would not have entered into this document without the benefit of this clause ‎3.

 

(c)

Alumina represents and warrants to Alcoa and Bidder that it has received legal advice on this document and the operation of this clause ‎3.

 

(d)

The parties must not make or cause or permit to be made on their behalf, any application to a court or the Takeovers Panel for or in relation to a determination in relation to clause ‎3. However, if on application by a person other than the parties to this document, it is determined by the Takeovers Panel or a Court that all or any part of this clause ‎3 is, or would be if performed, unlawful or constitutes ‘unacceptable circumstances’ within the meaning of the Corporations Act or a breach of the fiduciary or statutory duties of the Alumina Board, then Alumina’s obligations do not apply to that extent.

 

4.

General

 

4.1

Termination

 

(a)

This document terminates on the earlier of:

 

(i)

the expiry of the Exclusivity Period; and

 

(ii)

the execution of an Implementation Agreement.

 

(b)

Upon termination of this document, each party is released from its obligations under this document, except that:

 

(i)

the rights and claims of the parties that accrued before termination; and

 

(ii)

clauses ‎1 and ‎4,

 

survive the termination of this document.

 

4.2

Other

 

(a)

Each party acknowledges entering into this document and incurring obligations and giving rights under this document for valuable consideration received from each other party.

 

(b)

Each party agrees that:

 

(i)

this document is not intended to constitute, and does not constitute, an offer capable of acceptance or to otherwise give rise to a binding contract to proceed with the Proposal or the Transaction;

 

(ii)

there is no certainty that the Transaction will proceed; and

 

(iii)

this document does not constitute a proposal to make a takeover bid for the purposes of section 631 of the Corporations Act.

 

(c)

This document is governed by the laws of Victoria, Australia. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Victoria, Australia and agrees that a final judgment in any legal proceedings in a court exercising jurisdiction in Victoria, Australia, will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law. Without limiting the foregoing and without preventing any method of service allowed under any relevant law, Alcoa irrevocably appoints Ashurst as its process agent to receive any notice or document in an action in connection with this document and agrees that any document may be served on Alcoa by delivering to or leaving it for Alcoa at Ashurst’s offices at Level 16, 80 Collins Street, South Tower, Melbourne Victoria 3000. If for any reason Ashurst ceases to be able to act as process agent, Alcoa must promptly appoint another person in Victoria, Australia as its process agent in Victoria, Australia and ensure that the replacement process agent accepts its appointment and confirms its appointment to Alumina.

 

(d)

This document may only be varied if the parties agree in writing.

 

(e)

Subject to clause ‎2.1, each party agrees that, to the extent practicable and permitted by law or the rules of any stock exchange, it will consult with the other party as to the form of any public announcement about this document, the Transaction or the content or existence of negotiations between the parties prior to making any such announcement.

 

(f)

Unless expressly stated otherwise in this document, all amounts payable or consideration to be provided under this document are exclusive of GST. If GST is payable on any supply made under this document, for which the consideration is not expressly stated to include GST, then subject to receiving a valid tax invoice Alumina agrees to pay to Alcoa an additional amount equal to the GST payable at the same time that the consideration for the supply is to be provided.

 

(g)

Waiver of any right under or arising from this document must be in writing and signed by the party giving the waiver, and will not be a waiver of any other right or the same or a similar right where such right arises from another breach. A failure or delay in exercising, or a partial exercise of, a right under or arising from this document does not result in a waiver of that right (or any part thereof).

 

(h)

This document and the Confidentiality Agreement contain the entire agreement of the parties in respect of its subject matter. It sets out the only conduct relied on by the parties and supersedes all earlier conduct by the parties in respect of its subject matter. This document applies to the extent of any inconsistency between this document and the Confidentiality Agreement.

 

(i)

Costs and duty

 

(i)

Each party must bear its own costs arising out of the negotiation, preparation and execution of this document.

 

(ii)

Unless expressly stated otherwise in this document, all amounts payable or consideration to be provided under this document are exclusive of GST.

 

(j)

This document may be executed in any number of counterparts. All counterparts, when taken together, constitute one instrument.

 

(k)

Any notice, demand, consent, approval or communication under this document (Notice) must be:

 

(i)

in writing, in English and signed by a person duly authorised by the sender; and

 

(ii)

hand delivered or sent by prepaid post or email to the recipient’s address for Notices specified below, as varied by any Notice given by the recipient to the sender:

 

For Alumina:

 

Post:	Level 36, 2 Southbank Boulevard, Southbank, Victoria 3006 Australia
Email:	[***********]
Attention:	Katherine Kloeden, General Counsel and Company Secretary

With a copy (for information purposes only) to Will Heath and Stephen Minns, King & Wood Mallesons by email at will.heath@au.kwm.com and stephen.minns@au.kwm.com

 

For Alcoa and Bidder:

 

Post:	201 Isabella Street, Suite 500, Pittsburgh, PA 15212-5858 United States of America
Email:	[***********]
Attention:	Andrew Hastings

With a copy (for information purposes only) to Kylie Lane /Susannah Macknay, Ashurst by email at kylie.lane@ashurst.com / susannah.macknay@ashurst.com

 

(l)

A Notice given in accordance with clause ‎4.2(k) takes effect when taken to be (or at a later time specified in it), and is taken to be received:

 

(i)

if hand delivered, on delivery;

 

(ii)

if sent by prepaid post, on the second Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted to or from a place outside Australia); and

 

(iii)

if sent by email, immediately unless the sender receives a message indicating that the email has not been received by the intended recipient,

 

but if the delivery, receipt or transmission is not on a Business Day or is after 5.00 pm on a Business Day, the Notice is taken to be received at 9.00 am on the next Business Day.

 

Schedule 1 Dictionary

 

1.1

Dictionary

 

In this document:

 

Adviser means, in relation to a party, its legal, financial, taxation or other expert adviser or agent.

 

Alcoa Board means the board of directors of Alcoa.

 

Alcoa Group means Alcoa and its Subsidiaries.

 

Alcoa Share means a share of Alcoa common stock, par value US $0.01 per share.

 

Alcoa Shareholder means each holder of Alcoa common stock.

 

Alumina Board means the board of Directors of Alumina from time to time and Alumina Director means any one of them.

 

Alumina Group means Alumina and its Subsidiaries.

 

Alumina Share means a fully paid ordinary share in the capital of Alumina.

 

Alumina Shareholder means a person shown in the register of members of Alumina as the holder of one or more Alumina Shares.

 

AWAC JV Information means:

 

(a)

all information produced or held by the “Enterprise”, any “Enterprise Company”, and all information produced or held by Alcoa or “Affiliates of Alcoa” acting in the capacity of “Manager” of the “Enterprise” and any “Enterprise Company”; and

 

(b)

all information received by a party pursuant to its “General Information Rights”,

 

(with each quoted and capitalised term having the same meaning as used for that term in section 7 of the Charter of the Strategic Council).

 

Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in Melbourne and Sydney are open for general banking business.

 

Charter of the Strategic Council means the document titled “Amended and Restated Charter of the Strategic Council” between Alcoa and Alumina dated 1 November 2016.

 

Competing Proposal means any expression of interest, proposal, offer or transaction which, if entered into or completed in accordance with its terms, would result in any third party (either alone or together with one or more third parties):

 

(a)

acquiring Voting Power in Alumina of 20% or more or otherwise acquiring a legal or economic interest in 20% or more of the Alumina Shares (including through one or more derivative contracts), other than in the circumstances of an acquisition in accordance with item 9 of section 611 of the Corporations Act by any person or their Associate that is an Alumina Shareholder at the date of this document;

 

(b)

acquiring Control of or merging with Alumina or a material member of the Alumina Group; or

 

(c)

acquiring, becoming the holder of or having a right to acquire all or part of, or any material asset of, the Alumina Group, or otherwise acquiring a legal or economic interest in all or part of, or any material asset of, the Alumina Group; or

 

(d)

entering into any agreement, arrangement or understanding requiring Alumina to abandon, or otherwise fail to proceed with, the Transaction,

 

whether by way of a takeover bid, scheme of arrangement, shareholder approved acquisition, capital reduction, buy back, sale, lease or purchase of shares, other securities or assets, assignment of assets or liabilities, joint venture, dual listed company (or other synthetic merger), deed of company arrangements, any debt for equity arrangement or other transaction or arrangement.

 

Confidentiality Agreement means the confidentiality agreement between Alcoa and Alumina dated on or about 30 November 2023.

 

Control has the meaning given in section 50AA of the Corporations Act.

 

Corporations Act means the Corporations Act 2001 (Cth).

 

Exclusivity Period means the period starting on the date of this document and ending on the earlier of:

 

(a)

11:59pm on the date that is 20 Business Days after the date of this document; and

 

(b)

the termination of this document.

 

GST means a goods and services tax, or similar value added tax, levied or imposed in Australia under the GST Law.

 

Implementation Agreement means an agreement (if agreed by Alumina, Alcoa and Bidder) between Alumina, Alcoa and Bidder in relation to the implementation of a Transaction under which Bidder would acquire Alumina for the Offer Price.

 

New Alcoa CDI means each CHESS Depositary Interest (CDI), being a unit of beneficial ownership in a New Alcoa Share (in the form of a CDI) registered in the name of CHESS Depositary Nominees Pty Limited (ACN 071 346 506).

 

New Alcoa Shares means the Alcoa Shares to be issued by Alcoa as part of the Transaction.

 

Notice has the meaning set out in clause ‎4.2(k).

 

Offer Price means 0.02854 New Alcoa CDIs per Alumina Share.

 

Officer means, in relation to a party, its and its Related Entities’ officers and employees.

 

Proposal has the meaning given to it in recital (A).

 

Related Entity means any entity which is related to that party within the meaning of section 50 of the Corporations Act.

 

Representative of a party includes that party’s Related Entities and an Officer, employee, Adviser, consultant, partner, affiliate or agent of that party or of a Related Entity of that party.

 

Subsidiary of an entity means another entity which is a subsidiary of the first entity within the meaning of the Corporations Act.

 

Transaction means the acquisition by Bidder of 100% of the Alumina Shares which it does not own by an Alumina Board recommended scheme of arrangement on the terms of the Proposal.

 

Voting Power has the meaning given in section 610 of the Corporations Act.

 

1.2

Interpretation

 

(a)

Headings are for convenience only and do not affect interpretation.

 

(b)

In this document, unless the context otherwise requires:

 

(i)

words importing the singular include the plural and vice versa;

 

(ii)

a reference to any thing (including any right) includes a part of that thing but nothing in this clause ‎1.2(b)(ii) implies that performance of part of an obligation constitutes performance of that obligation;

 

(iii)

a reference to a right includes a remedy, power, authority, discretion or benefit;

 

(iv)

a reference to an agreement or document is to the agreement or document as amended, varied, supplemented, novated or replaced from time to time, except to the extent prohibited by this document;

 

(v)

a reference to a person includes any company, partnership, joint venture, association, corporation or other body corporate or entity and includes any government agency;

 

(vi)

the expressions "include", "including", "to avoid doubt", "having regard to" and similar expressions are not words of limitation and do not limit what else might be included;

 

(vii)

a reference to a clause or a party is a reference to a clause of, or a party to, this document (as applicable);

 

(viii)

a reference to a party to this document or another agreement or document includes the party's successors and permitted substitutes and assigns (and, if applicable, the party's legal personal representatives);

 

(ix)

a reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;

 

(x)

a reference to conduct includes an omission, statement and undertaking, whether or not in writing;

 

(xi)

a reference to an agreement includes any undertaking, deed, agreement and legally enforceable arrangement whether or not in writing; and

 

(xii)

a reference to time is to time in Melbourne, Australia.

 

EXECUTED as a deed.

 

Each person who executes this document on behalf of a party under a power of attorney declares that he or she is not aware of any fact or circumstance that might affect his or her authority to do so under that power of attorney.

 

Signed sealed and delivered by ALUMINA LIMITED in accordance with section 127 of the Corporations Act:
/s/ Michael Ferraro		/s/ Katherine Kloeden
Signature of director		Signature of director/secretary
Michael Ferraro		Katherine Kloeden
Name		Name

 

 

Signed sealed and delivered by AAC INVESTMENTS AUSTRALIA PTY LTD in accordance with section 127 of the Corporations Act:
		/s/ Matthew Shane Zauner
		Signature of sole director
		Matthew Shane Zauner
		Name

 

 

signed, SEALed and delivered by ALCOA CORPORATION by its authorised representative:		Seal
		/s/ Andrew Hastings
		Signature of authorised signatory
		Andrew Hastings
		Name of authorised signatory

 

 

 

 

Exhibit 2.2

 

 

 

 

 

Share Sale Agreement

 

 

 

 

 

 

 

Allan Gray Australia Pty Ltd

ACN 112 316 168

 

 

 

and

 

 

 

AAC Investments Australia Pty Ltd

ACN 673 884 207

 

 

 

and

 

 

 

Alcoa Corporation

 

 

 

 

 

 

 

 

 

 

26 February 2024

 

 

 

Contents

 

1.   Interpretation	1
1.1   Definitions	1
1.2   Rules for interpreting this document	6
1.3   Non Business Days	7
2.   Sale of Relevant Shares	7
2.1   Sale and purchase	7
3.   Completion	7
3.1   Conditions precedent to Completion	7
3.2   Notice to Complete	8
3.3   Steps to occur at Completion	8
3.4   Issue of Consideration CDIs	9
3.5   Deferred consideration	9
3.6   Subsequent Third Party Transaction	10
4.   Post-Completion	10
4.1   Undertaking to maintain ASX foreign exempting listing	10
5.   Warranties	11
5.1   Warranties	11
5.2   Repetition	11
5.3   Reliance	12
5.4   Indemnity	12
6.   Warranties by Alcoa and the Bidder	12
6.1   Warranties by Alcoa	12
6.2   Warranties by Alcoa and the Bidder	12
7.   Voting of and dealing in Relevant Shares	13
7.1   Voting of Relevant Shares	13
7.2   No Dealing	13
7.3   No relevant interest in Excess Shares	13
8.   Confidentiality	13
8.1   Confidentiality of this document	13
8.2   Survival of obligations	14
9.   General	14
9.1   Notices	14
9.2   Termination	15
9.3   Assignment	16
9.4   Entire agreement	16
9.5   Waiver	16
9.6   Exercise of rights	17
9.7   Cumulative rights	17
9.8   Further assurances	17
9.9   Variation	17
9.10   Severability	17
9.11   Counterparts	17
9.12   Governing law	17

 

9.13   Scheme	17
9.14   Damages	17
9.15   Costs and expenses	18

 

Schedule

 

1.

Notice to Complete 18

18

 

 

THIS AGREEMENT is made on 26 February 2024

 

 

BETWEEN:

 

(1)

Allan Gray Australia Pty Ltd ACN 112 316 168 of Level 2, Challis House, 4 Martin Place, Sydney NSW 2000 (Shareholder);

 

(2)

AAC Investments Australia Pty Ltd ACN 673 884 207 whose registered office is at c/- Ashurst Level 16, 80 Collins Street, South Tower, Melbourne VIC 3000 (Bidder); and

 

(3)

Alcoa Corporation, a corporation incorporated in Delaware, United States of America, whose registered office is at 201 Isabella Street, Suite 500, Pittsburgh, PA 15212-5858, United States of America (Alcoa).

 

Recitals:

 

(A)

The Shareholder is the manager in respect of the Relevant Shares.

 

(B)

Alcoa has submitted a non-binding, indicative, conditional proposal to the board of the Target for the Bidder to acquire all of the Shares in the Target by way of a Scheme.

 

(C)

The Shareholder has agreed to sell to the Bidder, and the Bidder has agreed to buy, the Relevant Shares on the terms and conditions contained in this document.

 

(D)

The Shareholder has agreed not to dispose of or otherwise encumber the Relevant Shares other than in accordance with this document.

 

The Parties agree as follows:

 

1.

Interpretation

 

1.1

Definitions

 

The following definitions apply in this document.

 

Alcoa CDI means a CHESS Depositary Interest (CDI), being a unit of beneficial ownership in one Alcoa Share (in the form of a CDI) registered in the name of CDN.

 

Alcoa Shares means a share of Alcoa common stock, par value US$0.01 per share.

 

Business Day means a day that is a "business day" within the meaning of the ASX Listing Rules and is not a Saturday, Sunday or public holiday in Melbourne, Victoria, Australia.

 

Capital Distributions means any capital distributions made or dividends paid to the ordinary shareholders of the Target after the date of this document and on or before the Completion Date.

 

CDN means CHESS Depositary Nominees Pty Limited ACN 071 346 506.

 

Competing Proposal means any proposal, offer, agreement, arrangement (including a scheme of arrangement) or transaction (or expression of interest therefor), which, if

 

entered into or completed substantially in accordance with its terms, would result in a Third Party (either alone or together with one or more associates of it):

 

(a)

acquiring Control of the Target;

 

(b)

directly or indirectly acquiring or become the holder of, or otherwise acquiring or having a right to acquire, legal, beneficial or economic interest in, or control of, all or a substantial part of the Target's business or assets or the business or assets of any material Target Group Member;

 

(c)

acquiring voting power in the Target, or acquiring an interest (including an economic interest by way of an equity swap, contract for difference or similar transaction or arrangement) in the Shares, in circumstances where post-acquisition a Third Party would hold an interest in voting power in the Target or in the Shares of 10% or more;

 

(d)

otherwise directly or indirectly acquiring or merging with the Target; or

 

(e)

requiring the Target to abandon, or otherwise fail to proceed with, the Scheme,

 

whether by takeover bid, members' or creditors' scheme of arrangement, shareholder approved acquisition, reorganisation, capital reduction, buy-back, sale or purchase of shares, other securities or assets, assignment of assets and liabilities, incorporated or unincorporated joint venture, dual-listed company (or other synthetic merger), deed of company arrangement, any debt for equity arrangement or other transaction or arrangement.

 

Completion means completion of the Sale.

 

Completion Date has the meaning given in clause ‎3.3(a).

 

Consequential Loss means, in respect of a breach of this document or an event, fact, matter or circumstance giving rise to a claim:

 

(a)

any loss or liability suffered by a party that cannot reasonably be considered to arise naturally from that breach or event, fact, matter or circumstance;

 

(b)

any and all special, indirect, exemplary or punitive loss or liability arising from or incurred in connection with that breach or event, fact, matter or circumstance; or

 

(c)

any and all loss of profit, loss of revenue, loss of goodwill, loss of opportunity, and loss of savings, even if such loss could reasonably be considered to arise naturally from that breach or event, fact, matter or circumstance;

 

whether arising in contract, tort (including negligence) or equity or under statute.

 

Consideration CDIs means such number of Alcoa CDIs determined by multiplying the Purchase Price by the number of Relevant Shares (rounded to the nearest whole number).

 

Control has the meaning given in section 50AA of the Corporations Act.

 

Corporations Act means the Corporations Act 2001 (Cth).

 

Deal means, when used with respect to any Relevant Shares, to:

 

(a)

sell, offer for sale, transfer, assign or otherwise part with possession or deal with; or

 

(b)

grant or allow to exist any new Third Party Interest or other right (including via any synthetic arrangement) in relation to,

 

the Relevant Shares or any of them or any interest therein, or to agree to do any of those things.

 

Effective means, when used in relation to the Scheme, the coming into effect, pursuant to section 411(10) of the Corporations Act, of the order of the Court made under section 411(4)(b) of the Corporations Act in relation to the Scheme.

 

Encumbrance means any mortgage, lien, charge, pledge, assignment by way of security, security interest, title retention, preferential right or trust arrangement, claim, covenant or any other security arrangement or any other arrangement having the same effect.

 

End Date means the date that is three months after the date of this document if the Target has not announced that an SIA has been entered into on or before that date.

 

Excess Shares means any Shares (other than the Relevant Shares) managed or held by or on behalf of the Shareholder.

 

Insolvency Event means, in respect of a person:

 

(a)

an administrator being appointed to the person;

 

(i)

a controller or analogous person being appointed to the person or any of the person's property;

 

(ii)

an application being made to a court for an order to appoint a controller, provisional liquidator, trustee for creditors or in bankruptcy or analogous person to the person or any of the person's property; or

 

(iii)

an appointment of the kind referred to in subparagraph ‎(ii) being made (whether or not following a resolution or application);

 

(b)

the person is the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act (or makes a statement from which another party to this document reasonably deduces it is so subject);

 

(c)

an application being made to a court for an order for its winding up;

 

(d)

an order being made, or the person passing a resolution, for its winding up;

 

(e)

the person:

 

(i)

suspending payment of its debts, ceasing (or threatening to cease) to carry on all or a material part of its business, stating that it is unable to pay its debts or being or becoming otherwise insolvent; or

 

(ii)

being unable to pay its debts as and when they fall due or otherwise insolvent;

 

(f)

the person taking any step (other than a step required or authorised under this document) toward entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors;

 

(g)

a court or other authority enforcing any judgment or order against the person for the payment of money or the recovery of any property; or

 

(h)

any analogous event under the laws of any applicable jurisdiction.

 

New Alcoa Shares means the Alcoa Shares to be issued by Alcoa to pay the Purchase Price.

 

Notice to Complete means a notice from the Bidder to the Shareholder substantially in the form set out in Schedule 1.

 

PPSA means the Personal Property Securities Act 2009 (Cth).

 

PPS Register means the register established under the PPSA.

 

Purchase Price means, in relation to each Relevant Share:

 

(a)

0.02854 Alcoa CDIs; less

 

(b)

if there are any Capital Distributions received by the Shareholder in respect of the Relevant Shares after the date of this document, the number of Alcoa CDIs by which Alcoa and Bidder's proposed consideration for the Transaction is reduced as a result of such Capital Distribution,

 

rounded to the nearest whole number of Alcoa CDIs.

 

Relevant Shares means 577,434,602 Shares.

 

Sale means the sale and transfer of all of the Relevant Shares to the Bidder as contemplated by this document.

 

Scheme means any proposal whereby Shares are to be acquired by the Bidder (or one of its related bodies corporate) or Shares are subject to a capital reconstruction such that the Target becomes a subsidiary of the Bidder (or one of its related bodies corporate), including by way of a scheme of arrangement between the Target and its shareholders pursuant to Part 5.1 of the Corporations Act in the form agreed between the Target and Alcoa, subject to any alterations or conditions made or required by the Court under section 411(6) of the Corporations Act and approved by the Target and Alcoa.

 

Shares means ordinary shares in the capital of Target.

 

SIA means a scheme implementation agreement between the Target and the Bidder (or one of its related bodies corporate).

 

SLAP Authorisation has the meaning given to that term in clause ‎3.1(a)(iii).

 

Subsequent Third Party Transaction has the meaning given to that term in clause ‎‎‎3.6.

 

Subsequent Third Party Transaction Amount means, in respect of a Subsequent Third Party Transaction, the amount determined by the following formula:

 

(Subsequent Third Party Transaction Value – Purchase Price) x Relevant Sale Shares

 

where:

 

(a)

Relevant Sale Shares means the number of Relevant Shares actually disposed of by the Bidder pursuant to that Subsequent Third Party Transaction;

 

(b)

Subsequent Third Party Transaction Value means, in respect of each Relevant Sale Share, the aggregate of:

 

(i)

the Value of the consideration per Share that is payable under a Subsequent Third Party Transaction (however, and notwithstanding paragraph (c) of the definition of “Value”, to the extent that the consideration that the Bidder receives for Relevant Sale Shares is in the form of securities in an entity listed on any securities exchange that the Bidder then sells on-market to fund payment of the Subsequent Third Party Transaction Amount, the Subsequent Third Party Transaction Value is, to the extent of such sell-down, to be based on the average gross value per Relevant Sale Shares ultimately realised by the Bidder (before selling costs) in relation to the relevant securities sold); and

 

(ii)

the amount of any dividends or distributions declared by the Target and to the extent actually paid to the Bidder in respect of Relevant Sale Shares, after deducting any tax payable by the Bidder in respect of such dividends or distributions as applicable.

 

Target means Alumina Limited ACN 004 820 419.

 

Target Group means the Target and its related bodies corporate and a reference to a Target Group Member is to the Target and any of its related bodies corporate.

 

Third Party means a person other than the Target, the Bidder or their respective related bodies corporate or associates.

 

Third Party Interest means, in respect of Relevant Shares, any:

 

(a)

Encumbrance;

 

(b)

lease, licence, option, voting arrangement, notation or restriction;

 

(c)

interest under any agreement, equity or trust;

 

(d)

easement, restrictive covenant, caveat or similar restriction over property; or

 

(e)

other right, entitlement or interest of any nature,

 

in favour of or held by a Third Party over or directly or indirectly affecting those Relevant Shares.

 

Transaction means any proposal relating to the acquisition by the Bidder of at least 50.1% of the ordinary shares on issue in the Target.

 

Value means, in relation to any consideration:

 

(a)

if the consideration is a cash sum in A$, that A$ value;

 

(b)

if the consideration is a cash sum denominated in a currency other than A$, the value of the consideration will be based on its A$ equivalent published on the Reserve Bank of Australia website (www.rba.gov.au) in respect of the relevant date;

 

(c)

if the consideration is in a form of securities in an entity listed on any securities exchange, the consideration will be valued based on the volume weighted average price (excluding all off-market transactions) of the relevant securities over the 5 trading days ending on the trading day prior to the relevant date of payment of the consideration on the primary exchange on which the relevant

 

(d)

securities are quoted (unless the Value is stated to be as at another time, in which case it will be the 5 trading days ending on the trading day prior to the time stated). If that price is quoted in a currency other than A$ that price must be converted into A$ published on the Reserve Bank of Australia website (www.rba.gov.au) in respect of the relevant date;

 

(e)

in any other case, the value in A$:

 

(i)

as agreed by the Shareholder and the Bidder (acting reasonably); or

 

(ii)

in the absence of agreement, as determined by an independent expert (acting as expert and not arbitrator and on behalf of the Shareholder and the Bidder whose decision will be, in the absence of manifest error, final and binding on the Shareholder and the Bidder) the identity of which is agreed by the Shareholder and the Bidder (or in the absence of agreement, such person as nominated by the Chair of the Resolution Institute).

 

1.2

Rules for interpreting this document

 

Headings, labels and catchwords are for convenience only, and do not affect interpretation. The following rules also apply in interpreting this document, except where the context makes it clear that a rule is not intended to apply.

 

(a)

A reference to:

 

(i)

a legislative provision or legislation (including subordinate legislation) is to that provision or legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;

 

(ii)

a document (including this document) or agreement, or a provision of a document (including this document) or agreement, is to that document, agreement or provision as amended, supplemented, replaced or novated;

 

(iii)

a party to this document or to any other document or agreement includes a successor in title, permitted substitute or a permitted assign of that party;

 

(iv)

a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator or successor in law of the person; and

 

(v)

anything (including a right, obligation or concept) includes each part of it.

 

(b)

A singular word includes the plural, and vice versa.

 

(c)

The meaning of general words is not limited by specific examples introduced by "including", "for example", "such as" or similar expressions.

 

(d)

A word which suggests one gender includes the other genders.

 

(e)

If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.

 

(f)

If an example is given of anything (including a right, obligation or concept), such as by saying it includes something else, the example does not limit the scope of that thing.

 

(g)

A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.

 

(h)

The expression this document includes the agreement, arrangement, understanding or transaction recorded in this document.

 

(i)

The expressions associate, controller, entity, officer, relevant interest, subsidiary, holding company, related body corporate, voting power, security, security interest and related entity have the same meanings as in the Corporations Act.

 

(j)

A reference to dollars or $ is to the currency of Australia, and a reference to US$ or US dollar is to the currency of the United States of America.

 

(k)

Terms defined in the GST Law have the same meaning in this documents unless the context otherwise requires.

 

(l)

A reference to time is a reference to time in Melbourne, Australia.

 

1.3

Non Business Days

 

If the day on or by which a person must do something under this document is not a Business Day:

 

(a)

if the act involves a payment that is due on demand, the person must do it on or by the next Business Day; and

 

(b)

in any other case, the person must do it on or by the previous Business Day.

 

2.

Sale of Relevant Shares

 

2.1

Sale and purchase

 

Subject to clause ‎3.1(a), the Shareholder agrees to sell the Relevant Shares to the Bidder and the Bidder agrees to buy the Relevant Shares from the Shareholder:

 

(a)

for the Purchase Price;

 

(b)

on the Completion Date;

 

(c)

free from any Third Party Interests; and

 

(d)

on the terms and conditions of this document.

 

3.

Completion

 

3.1

Conditions precedent to Completion

 

(a)

Subject to clause ‎9.2(c), the Bidder and the Shareholder are only obliged to perform their obligations in relation to Completion if:

 

(i)

the Bidder has given the Shareholder a Notice to Complete in accordance with clause ‎3.2(a);

 

(ii)

(ASX quotation) the Alcoa CDIs have been approved for official quotation on ASX either unconditionally or subject only to conditions customarily imposed by ASX;

 

(iii)

(SLAP Authorisation) NYSE have authorised a supplemental listing application in respect of the New Alcoa Shares (SLAP Authorisation); and

 

(iv)

no termination event listed in clause ‎9.2(a) has occurred.

 

(b)

If the conditions in clauses ‎3.1(a)(ii) and ‎3.1(a)(iii) have not been satisfied by the earlier of (i) the date which is two months after the date of the Notice to Complete and (ii) the End Date, the parties will not be obliged to proceed with Completion and this document will be terminated.

 

3.2

Notice to Complete

 

(a)

The Bidder may give the Shareholder a Notice to Complete requiring the Shareholder to Complete at any time before the End Date.

 

(b)

The Notice to Complete can only be withdrawn by the Bidder:

 

(i)

at any time before the Completion Date, with the consent of the Shareholder; or

 

(ii)

by written notice to the Shareholder without the consent of the Shareholder, at any time before the Completion Date following the execution by the Target, the Bidder and Alcoa of a binding transaction document to give effect to the Transaction (by way of Scheme, takeover or otherwise).

 

If the Notice to Complete is so withdrawn, the parties will not be obliged to proceed with Completion and this document will be terminated.

 

(c)

The conditions in clauses ‎3.1(a)(ii) and ‎3.1(a)(iii) are not conditions to the Bidder giving a Notice to Complete.

 

3.3

Steps to occur at Completion

 

(a)

Following satisfaction of the conditions in clause ‎3.1, the Bidder must notify the Shareholder of a date within 15 Business Days of when the last condition was satisfied on which Completion will occur (Completion Date).

 

(b)

On the Completion Date the Shareholder must:

 

(i)

do all acts and things and execute and deliver to the Bidder all documents (including, if required to enable a transfer of legal title, documents which constitute a sufficient transfer of the applicable Relevant Shares under Part 7.11 of the Corporations Act and the Corporations Regulations 2001 (Cth)) as required to enable the registration of the Bidder as the legal and beneficial owner of its Relevant Shares;

 

(ii)

deliver to the Bidder documents evidencing the release of all Encumbrances in respect of the Relevant Shares including, if applicable, an undertaking from the holder of each Encumbrance to discharge any relevant financing statement from the PPS Register within 10 Business Days of release of that Encumbrance,

 

upon the occurrence of which Alcoa will provide the Shareholder the Purchase Price in accordance with clause ‎3.4.

 

(c)

On the Completion Date, the Bidder will do all things necessary for the Bidder (or its nominee) to become the registered holder of the Relevant Shares.

 

3.4

Issue of Consideration CDIs

 

Subject to clause ‎3.1, if the Shareholder complies with its obligations under clause ‎3.3(b)(i) and ‎3.3(b)(ii), Alcoa must:

 

(a)

on the Completion Date:

 

(i)

issue and allot the Consideration CDIs to the Shareholder (or its nominees, acknowledging that the Shareholder acts as investment manager on behalf of a number of client portfolios);

 

(ii)

enter the name and address of the Shareholder (or its nominees, as applicable) in the register of members of Alcoa in respect of the Consideration CDIs, free from any Encumbrance or other rights or interests of third parties;

 

(iii)

deliver to the Shareholder (or its nominees) a statement or statements of holdings for the Consideration CDIs; and

 

(iv)

obtain official quotation of the Consideration CDIs by ASX (including, taking all steps necessary to satisfy any customary conditions imposed by ASX for the official quotation of Consideration CDIs on ASX); and

 

(b)

either:

 

(i)

on the Completion Date notify ASX:

 

(A)

that the Consideration CDIs were issued without disclosure to the Shareholder under Part 6D.2 of the Corporations Act;

 

(B)

that the notification is being given under subsection 708A(5)(e) of the Corporations Act (Cleansing Notice);

 

(C)

that, as at the date of the notice, Alcoa has complied with:

 

(aa)

the provisions of Chapter 2M of the Corporations Act as it applies to Alcoa; and

 

(bb)

section 674 of the Corporations Act; and

 

(D)

of any "excluded information" (within the meaning of sub-sections 708A(7) and (8) of the Corporations Act) as at the date of the notice; or

 

(ii)

If Alcoa is not able to issue a Cleansing Notice or ASIC does not grant individual relief under section 741 of the Corporations Act to permit the on-sale of the Consideration CDIs without a disclosure document, within 15 Business Days of the date of issue of the Consideration CDIs, lodge a prospectus with the Australian Securities and Investments Commission necessary to satisfy section 708A(11) of the Corporations Act.

 

3.5

Deferred consideration

 

(a)

If:

 

(i)

a Sale is completed; and

 

(ii)

after the date of this document and within 12 months of Completion, the Bidder increases the number of Alcoa CDIs offered under the Scheme or

 

any Transaction above the Purchase Price and the Scheme becomes Effective or any Transaction is completed,

 

then Alcoa must, on the day on which the Scheme is implemented or the Transaction is completed (as applicable), issue to the Shareholder the number of additional Alcoa CDIs calculated in accordance with the following formula (provided A is a positive figure):

 

A = (B — C) x S

 

where:

 

A =

the number of additional Alcoa CDIs to be issued to the Shareholder under this clause ‎3.5;

 

B =

the number of Alcoa CDIs per Share offered under the Scheme or Transaction (as applicable);

 

C =

the number of Alcoa CDIs per Relevant Share comprising the Purchase Price; and

 

S =

the number of Relevant Shares purchased by the Bidder pursuant to this document.

 

(b)

If:

 

(i)

a Sale is completed; and

 

(ii)

within 12 months from Completion the Scheme becomes Effective or any other Transaction is completed on terms which provide for the payment of cash consideration by the Bidder under the Scheme in addition to the value of the Purchase Price,

 

then Alcoa must, on the day on which the Scheme is implemented, pay to the Shareholder or its nominees the amount of such incremental cash consideration per Share under the Scheme multiplied by 'S' (as defined above).

 

3.6

Subsequent Third Party Transaction

 

If Completion occurs and the Bidder disposes of any of the Relevant Shares within 6 months after Completion under:

 

(a)

a scheme of arrangement pursuant to which any Third Party (excluding any associate of the Bidder) would acquire Shares; or

 

(b)

a takeover bid in respect of the Shares by any Third Party (excluding any associate of the Bidder),

 

(Subsequent Third Party Transaction), the Bidder must pay the Subsequent Third Party Transaction Amount (if it is a positive figure) to the Shareholder or its nominees within 20 Business Day of receipt of the relevant consideration under the scheme of arrangement or takeover bid (as applicable) by the Bidder, as an adjustment to the Purchase Price.

 

4.

Post-Completion

 

4.1

Undertaking to maintain ASX foreign exempting listing

 

Alcoa must maintain the ASX foreign exempt listing of the Alcoa CDIs, notwithstanding any suspension of the quotation of Alcoa CDIs, until the earlier of:

 

(a)

the Shareholder disposing of all Alcoa CDIs issued to it in accordance with clause ‎3 of this document; and

 

(b)

the 10th anniversary of the Completion Date.

 

5.

Warranties

 

5.1

Warranties

 

The Shareholder represents and warrants to the Bidder that:

 

(a)

it is the manager in respect of all of the Relevant Shares;

 

(b)

to the best of its knowledge and belief, the Relevant Shares are validly issued, are fully paid and no money is owing in respect of them;

 

(c)

to the best of its knowledge and belief, the Relevant Shares are not subject to any Encumbrance (other than those fully disclosed in writing to the Bidder before the date of this document);

 

(d)

to the best of its knowledge and belief, the Relevant Shares are able to be sold and transferred free of any competing rights, including pre-emptive rights or rights of first refusal;

 

(e)

at Completion, to the best of its knowledge and belief, the Bidder will receive valid and marketable title to the applicable Relevant Shares free and clear of all Encumbrances;

 

(f)

it has full power and capacity to enter into and perform its obligations under this document;

 

(g)

it has taken all necessary action to authorise its entry into, delivery and performance of this document;

 

(h)

its obligations under this document are valid and binding and are enforceable against it in accordance with its terms;

 

(i)

the entry into, delivery and performance by the Shareholder of this document does not breach:

 

(i)

any material obligations of the Shareholder, including, to the best of its knowledge and belief, any Encumbrance (other than those fully disclosed in writing to the Bidder before the date of this document);

 

(ii)

any applicable law; or

 

(iii)

the constitution or other constituent documents of the Shareholder;

 

(j)

it has been validly incorporated in accordance with the laws of its place of incorporation, is validly existing under those laws and has the power and authority to carry on its business as it is now being conducted; and

 

(k)

it is not the subject of an Insolvency Event.

 

5.2

Repetition

 

The representations and warranties in clause ‎5.1 are taken to be made on the date of this document, on the date of the Notice to Complete and at the time of transfer of the Relevant Shares to the Bidder.

 

5.3

Reliance

 

The Shareholder acknowledges that the Bidder and Alcoa have entered into this document and the Bidder and Alcoa agreed to take part in the transactions that this document contemplates in reliance on the warranties made or repeated in clause ‎5.1.

 

5.4

Indemnity

 

(a)

Subject to clause ‎5.4(c), the Shareholder indemnifies the Bidder and Alcoa against any loss suffered or incurred by the Bidder or Alcoa as a result of the Shareholder's breach of clause ‎5.1.

 

(b)

Subject to clause ‎5.4(c), the Bidder and Alcoa indemnify the Shareholder against any loss suffered or incurred by the Shareholder as a result of the Bidder's or Alcoa’s breach of clause ‎6.

 

(c)

No party shall be responsible for any Consequential Loss suffered by another party in relation to this document.

 

6.

Warranties by Alcoa and the Bidder

 

6.1

Warranties by Alcoa

 

Alcoa represents and warrants to the Shareholder that:

 

(a)

all Alcoa CDIs and New Alcoa Shares issued under this document will:

 

(i)

constitute legal, valid and binding obligations of Alcoa;

 

(ii)

will be issued in accordance with the constitution of Alcoa and all applicable laws and other rules and have the rights set out in Alcoa's constitution;

 

(iii)

will rank equally with each fully paid ordinary share in Alcoa for all dividends, distributions, rights and other benefits in accordance with Alcoa's constitution from the date of issue; and

 

(iv)

on the date of quotation, will be fully paid and shall rank pari passu with the existing ordinary securities and will be freely tradeable and are free from all liens (other than restrictions imposed by applicable securities law), charges and other encumbrances and not subject to any pre-emptive or similar rights or have any restriction on their issue and allotment to the Shareholder or its nominees.

 

(b)

at Completion, all necessary waivers and approvals will have been obtained for the issue of Alcoa CDIs;

 

(c)

it is not aware of any reason why the New Alcoa Shares to be issued under this document should not be granted the SLAP Authorisation; and

 

(d)

Alcoa's sole purpose for issuing the Alcoa CDIs to be issued under this document is for the purpose of providing consideration for the acquisition of the Relevant Shares and its purpose does not and will not include any or all of the Alcoa CDIs to be issued being offered for the purpose of the Shareholder selling or transferring them or granting, issuing or transferring interests in, or options over, them.

 

6.2

Warranties by Alcoa and the Bidder

 

Each of Alcoa and the Bidder warrants to the Shareholder that:

 

(a)

it has full power and capacity to enter into and perform its obligations under this document;

 

(b)

it has taken all necessary action to authorise its entry into, delivery and performance of this document;

 

(c)

its obligations under this document are valid and binding and are enforceable against it in accordance with its terms;

 

(d)

the entry into, delivery and performance by it of this document does not breach:

 

(i)

any material obligations of Alcoa or the Bidder (as applicable);

 

(ii)

any applicable law; or

 

(iii)

the constitution or other constituent documents of Alcoa or the Bidder (as applicable);

 

(e)

it has been validly incorporated in accordance with the laws of its place of incorporation, is validly existing under those laws and has the power and authority to carry on its business as it is now being conducted; and

 

(f)

it is not the subject of an Insolvency Event.

 

7.

Voting of and dealing in Relevant Shares

 

7.1

Voting of Relevant Shares

 

(a)

Nothing in this document will be taken to restrict the ability of the Shareholder to exercise the votes attaching to any of its Relevant Shares in that Shareholder's absolute discretion.

 

(b)

Nothing in this document will be taken to restrict the ability of the Bidder to exercise votes attaching to any Shares it acquires as a result of a Sale in the Bidder's absolute discretion.

 

7.2

No Dealing

 

From the date of this document until 5.00 pm on the End Date, except as expressly provided in or permitted by this document, the Shareholder must not Deal with any of its Relevant Shares.

 

7.3

No relevant interest in Excess Shares

 

(a)

For the avoidance of doubt, nothing in this document is intended to nor does it give rise to the Bidder coming to have a relevant interest in any Excess Shares.

 

(b)

The Shareholder is free to dispose of or otherwise Deal with and vote any of its Excess Shares in its absolute discretion.

 

8.

Confidentiality

 

8.1

Confidentiality of this document

 

The Shareholder must, and must procure their related entities and advisors, treat the terms of this document as confidential information (save to the extent it has been publicly disclosed by the Bidder) and must not make, and must procure their related entities do not make, any announcement or communication relating to the negotiations of the parties or to the existence, subject matter or terms of this document unless:

 

(a)

the Bidder has first given its written approval;

 

(b)

the disclosure is to the Shareholder's related bodies corporate, officers, employees, consultants, professional advisers, bankers, financial advisers or financiers, or those of its clients holding a legal or beneficial interest in the Relevant Shares, and those persons undertake to keep confidential any information so disclosed; or

 

(c)

the disclosure is made to the extent reasonably needed to comply with:

 

(i)

any applicable Law; or

 

(ii)

the listing rules applicable to the Shareholder (or a related body corporate of the Shareholder),

 

but the Shareholder must promptly give notice of the intended disclosure to, and consult with, the Bidder to the extent practicable, and use its reasonable endeavours to minimise any such disclosure and to ensure that the information so disclosed will be treated confidentially.

 

8.2

Survival of obligations

 

The obligations in this clause ‎8 survive any termination or expiry of this document.

 

9.

General

 

9.1

Notices

 

(a)

A notice, consent, approval, waiver or other communication sent by a party under or in connection with this document (Notice) must be:

 

(i)

in writing;

 

(ii)

sent by an authorised representative of that party; and

 

(iii)

marked for the attention of the person named below,

 

and must be:

 

(iv)

left at, or sent by prepaid ordinary post (or by airmail if posted to or from a place outside Australia) to, the address set out below; or

 

(v)

sent by email to the address set out below.

 

Shareholder

 

Attention:

Simon Mawhinney

 

Address:

Level 2, Challis House, 4-10 Martin Place Sydney NSW 2000

 

Email:

[***********] (with a copy to [***********])

 

Bidder

 

Attention:

William F. Oplinger

 

Address:

201 Isabella Street, Suite 500, Pittsburgh, PA 15212-5858, United States of America

 

Email:

[***********] (with a copy to [***********]and kylie.lane@ashurst.com)

 

(b)

Subject to clause ‎9.1(c), a Notice is taken to be received:

 

(i)

if sent by delivery, when it is delivered;

 

(ii)

if sent by post, three days after posting (or seven days after posting if sent from one country to another); or

 

(iii)

if sent by email, on the first to occur of:

 

(A)

the sender receiving an automated message confirming delivery; and

 

(B)

two hours after the time sent (as recorded on the device from which the email was sent), provided that the sender does not receive an automated message that the email has not been delivered.

 

(c)

If a Notice is received or taken to be received under clause ‎9.1(b):

 

(i)

before 9.00 am on a Business Day, it will be taken to be received at 9.00 am on that Business Day; or

 

(ii)

after 5.00 pm on a Business Day or on a day other than a Business Day, it will be taken to be received at 9.00 am on the next Business Day.

 

9.2

Termination

 

(a)

This document:

 

(i)

automatically terminates without any liability to either party and (without prejudice to any accrued rights or obligations of any party) there will be no continuing rights or obligations of each party in respect of the Sale upon the earlier of:

 

(A)

5.00 pm on the End Date; and

 

(B)

the transfer of any Relevant Shares in accordance with clause ‎2.1;

 

(ii)

terminates in the circumstances contemplated by clause ‎3.1(b) or ‎3.2(b);

 

(iii)

if an SIA is entered into, and:

 

(A)

that SIA provides for consideration to Target shareholders not less favourable than the Purchase Price; and

 

(B)

the Shareholder has made a public statement that it intends, in the absence of superior Competing Proposal, to vote any Shares in the Target that it has voting rights over in favour of the Scheme,

 

this document terminates on the date which is one week after the SIA is entered into;

 

(iv)

may be terminated by the Bidder at any time by written notice to the Shareholder.

 

(b)

On termination in accordance with clause ‎9.2(a) (without prejudice to any accrued rights or obligations of either party), this document will become void and have no effect other than the provisions of clause ‎8 which will remain in force after termination.

 

(c)

If after the date of this document the Shareholder, in respect of some or all of the Relevant Shares, and in each case without any action being taken (or omitted to be taken) by the Shareholder and/or its associates or related bodies corporate to encourage or otherwise intended to bring about the relevant circumstances, either:

 

(i)

ceases to hold a relevant interest in those Relevant Shares;

 

(ii)

has received instructions from or on behalf of the beneficial owner of those Relevant Shares such that (A) the Shareholder is required to dispose of some or all of the Relevant Shares or (B) the Shareholder must otherwise take an action that would remove them from the operation of this document; or

 

(iii)

is required by a Court or the Takeovers Panel or is otherwise required by law to remove the Relevant Shares from the operation of this document,

 

then the Shareholder must give a written notice to the Bidder as soon as commercially practicable and in any case within one Business Day requesting that this document be terminated in respect of the affected Relevant Shares only and this document will terminate with respect to those affected Relevant Shares upon receipt of that notice by the Bidder. The term 'Relevant Shares', when used in this document, will be construed accordingly.

 

(d)

This document will not terminate in respect of any Relevant Shares under clause ‎9.2(c) unless, if required to prevent a breach of section 654A of the Corporations Act by the Bidder, the Bidder has obtained or obtained a modification from ASIC to section 654A of the Corporations Act to permit the disposal of the relevant interest in Relevant Shares that would occur if this document is terminated in respect of any Relevant Shares under clause ‎9.2(c) (Modification).

 

(e)

The Bidder must use its best endeavours, and co-operate and consult with the Shareholder, to seek the Modification if required.

 

(f)

For clarity, if terminated in respect of any Relevant Shares this document will remain on foot in respect of any remaining Relevant Shares.

 

9.3

Assignment

 

A party may only assign or novate, or otherwise deal with, its rights or obligations under this document with the prior written agreement of each other party.

 

9.4

Entire agreement

 

This document supersedes all previous agreements about its subject matter and embodies the entire agreement between the parties.

 

9.5

Waiver

 

(a)

A single or partial exercise of a right or remedy under this document does not prevent a further exercise of that or of any other right or remedy.

 

(b)

Failure to exercise or delay in exercising a right or remedy under this document does not operate as a waiver or prevent further exercise of that or of any other right or remedy.

 

9.6

Exercise of rights

 

A party may exercise a right or remedy or give or refuse its consent in any way it considers appropriate (including by imposing conditions), unless this document expressly states otherwise. If a party does not exercise a right or remedy fully or at a given time, the party may still exercise it later. A party is not liable for loss caused by the exercise or attempted exercise of, failure to exercise, or delay in exercising a right or remedy under this document.

 

9.7

Cumulative rights

 

Except as expressly provided in this document, the rights of a party under this document are in addition to and do not exclude or limit any other rights or remedies provided by law.

 

9.8

Further assurances

 

Except as expressly provided in this document, each party must, at its own expense, do all things reasonably necessary to give full effect to this document and the matters contemplated by it.

 

9.9

Variation

 

No variation of this document is effective unless made in writing and signed by each party.

 

9.10

Severability

 

Any term of this document which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity or enforceability of the remainder of this document is not affected.

 

9.11

Counterparts

 

This document may be executed in any number of counterparts, each of which, when executed, is an original. Those counterparts together make one instrument.

 

9.12

Governing law

 

(a)

This document is governed by the laws of the State of Victoria within the Commonwealth of Australia.

 

(b)

Each party submits to the exclusive jurisdiction of the courts of Victoria, Australia and waives an objection that it may now or in the future have to the venue of any proceedings, and any claim it may now or in the future have that any proceedings have been brought in an inconvenient forum, if that venue is the courts of Victoria, Australia.

 

9.13

Scheme

 

Nothing in this document obliges the Bidder to announce or proceed with the Scheme.

 

9.14

Damages

 

(a)

The Shareholder acknowledges that monetary damages alone would not be adequate compensation for a breach by the Shareholder of this document and that the Bidder is entitled to seek an injunction or specific performance from a court of competent jurisdiction if the Shareholder fails to comply or threatens to fail to comply with this document or the Bidder has reason to believe the Shareholder will not comply with this document.

 

(b)

The Bidder acknowledges that monetary damages alone would not be adequate compensation for a breach by the Bidder of this document and that the

 

Shareholder is entitled to seek an injunction or specific performance from a court of competent jurisdiction if the Bidder fails to comply or threatens to fail to comply with this document or the Shareholder has reason to believe the Bidder will not comply with this document.

 

9.15

Costs and expenses

 

Each party must pay its own costs and expenses in respect of the negotiation, preparation, execution and delivery of this document and any other deed or document entered into or signed under this document.

 

Schedule 1  

 

Notice to Complete

 

To: Allan Gray Australia Pty Ltd

 

In accordance with clause ‎3.2 of the Share Sale Agreement dated on or about [●] (Share Sale Agreement), AAC Investments Australia Pty Ltd. (Bidder) hereby gives you notice that:

 

a)

it wishes to Complete the sale and purchase of Relevant Shares and require you to transfer all of the Relevant Shares in accordance with clause ‎2.1 of the Share Sale Agreement to the Bidder;

 

b)

the Bidder will give you notice of the Completion Date once the conditions in clause ‎3.1 have been satisfied; and

 

c)

the Bidder will pay the Purchase Price per Relevant Share on the same day as the transfer of the Relevant Shares in accordance with clause ‎3.2 of the Share Sale Agreement.

 

Terms which are defined in the Share Sale Agreement have the same meaning in this Notice

 

Dated:

 

 

Signed for and on behalf of
AAC Investments Australia Pty Ltd by [name]

 

EXECUTED as an agreement.

 

executed by Allan Gray Australia Pty Ltd:
/s/ Simon Mawhinney		/s/ Elizabeth Lee
Signature of director		Signature of director/secretary
Simon Mawhinney		Elizabeth Lee
Name		Name

 

 

executed by AAC Investments Australia Pty Ltd:
		/s/ Matthew Shane Zauner
		Signature of sole director
		Matthew Shane Zauner
		Name

 

 

executed by ALCOA CORPORATION:
		/s/ Andrew Hastings
		Signature of duly authorised officer
		Andrew Hastings
		Name

 

 

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