FEDERAL COURT OF AUSTRALIA Climax Mining Ltd, in the matter of Climax Mining Ltd (No 2) [2006] FCA 1444 IN THE MATTER OF CLIMAX MINING LTD (ACN 000 250 500) CLIMAX MINING LTD (ACN 000 250 500) NSD 1734 OF 2006 LINDGREN J 7 NOVEMBER 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1734 OF 2006 IN THE MATTER OF CLIMAX MINING LTD (ACN 000 250 500) CLIMAX MINING LTD (ACN 000 250 500) Plaintiff JUDGE: LINDGREN J DATE OF ORDER: 3 november 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Pursuant to ss 411(4) and (6) of the Corporations Act 2001 ('the Act'), the Scheme of Arrangement between the plaintiff and its shareholders which is annexed hereto and marked 'A' be and is hereby approved. 2. Pursuant to ss 411(4) and (6) of the Act, the Scheme of Arrangement between the plaintiff and its listed option holders which is annexed hereto and marked 'B' be and is hereby approved. 3. The plaintiff be exempt from compliance with s 411(11) of the Act. 4. The exhibits be returned to the plaintiff. 5. These orders be entered forthwith. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1734 OF 2006 IN THE MATTER OF CLIMAX MINING LTD (ACN 000 250 500) CLIMAX MINING LTD (ACN 000 250 500) Plaintiff JUDGE: LINDGREN J DATE: 7 NOVEMBER 2006 PLACE: SYDNEY REASONS FOR JUDGMENT No 2 (Second court hearing) 1 On 1 October 2006 I published reasons for judgment (Climax Mining Ltd, in the matter of Climax Mining Ltd [2006] FCA 1276) explaining why I ordered that meetings of shareholders and option holders in Climax be convened. (I will use the same abbreviated forms of reference as in the earlier reasons). 2 There is now evidence that both meetings were duly convened and held on 30 October 2006; that the shareholders, by the required majority, agreed to the Share Scheme; and that the option holders, by the required majority, agreed to the Option Scheme. 3 A minor point is that Dr Victor Rudenno, a director of Interfinancial Limited, who had provided a verified report that was before the Court on the first court hearing, discovered an error in his report. However, correction of the error made the Share Scheme even more beneficial to shareholders. In his original report, Dr Rudenno stated that the total consideration they were to receive was 42.6 cents per share, which represented a premium of 27.4 percent. The figures should have been 49.7 cents per share, and a premium of 48.8 percent. 4 At the Share Scheme meeting, the error and Dr Rudenno's correction of it were announced by the Chairman to the shareholders present, and it was explained that the correction reflected an increase in the consideration payable to shareholders. 5 Obviously, as Dr Rudenno has now deposed, he remained of the opinion that the Share Scheme was fair and reasonable. The Chairman also pointed this out to shareholders attending the meeting. 6 ASIC has advised under s 411(17)(b) of the Act, that it has no objection to the Schemes, on the basis that it is satisfied that they have not been proposed for the purpose of enabling any person to avoid the operation of any of the provisions of Chapter 6 of the Act. 7 There is no reason why the acquisition by Oceana, supported by the directors and now agreed to by the shareholders and option holders of Climax, should not proceed. 8 For the above reasons the Court will approve of both Schemes. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 7 November 2006 Counsel for the Plaintiff: Mr K L Andronos Solicitor for the Plaintiff: Mallesons Stephen Jaques Counsel for Oceana Gold Limited: Mr I M Jackman SC Solicitor for Oceana Gold Limited: Freehills Date of Hearing: 3 November 2006 Date of Judgment: 3 November 2006 Date of Publication of Reasons: 7 November 2006 A Share scheme of arrangement Climax Mining Limited ABN 40 000 250 500 and Each person registered as a holder of fully paid ordinary shares in Climax Mining Limited as at the Transaction Record Date 101 Collins StreetMelbourneVictoria3000Australia Telephone +61 3 9288 1234 Facsimile +61 3 9288 1567 www.freehills.com DX 240 Melbourne SYDNEY MELBOURNE PERTH BRISBANE SINGAPORE Correspondent Offices HANOI HO CHI MINH CITY JAKARTA KUALA LUMPUR Reference NP:81033880 Table of contents Clause Page 1 Definitions and interpretation 3 1.1 Definitions 3 1.2 Interpretation 5 1.3 Business Day 5 2 Preliminary 6 2.1 Preliminary matters 6 2.2 Merger Implementation Agreement and Shareholder Deed Poll 6 3 Conditions 6 3.1 Conditions precedent 6 3.2 Waiver 7 3.3 Conditions precedent and operation of clause 4 7 3.4 Certificate 7 3.5 End Date 7 4 The Share Scheme 7 4.1 Lodgement of Court orders with ASIC 7 4.2 Transfer and registration of CMX Shares 7 4.3 Title and rights in CMX Shares 8 4.4 Share Scheme Participants' agreements and representations 8 4.5 Appointment of sole proxy 8 5 Securities issued as Share Scheme Consideration 9 5.1 Provision of Share Scheme Consideration 9 5.2 OGD Shares and Options 9 5.3 Subject to constitution 9 5.4 Provision of Share Scheme Consideration to Foreign Shareholders 9 6 Fractions 10 6.1 Rounding 10 6.2 Shareholder splitting or division 10 7 Dealings in CMX Shares 11 7.1 Determination of Share Scheme Participants 11 7.2 CMX Register 11 7.3 Quotation of CMX Shares 12 8 Power of attorney 12 9 General Share Scheme provisions 12 9.1 Variations, alterations and conditions 12 9.2 Further action by CMX 12 9.3 Authority and acknowledgement 12 9.4 Stamp duty 13 9.5 Notices 13 9.6 Governing law 13 This share scheme of arrangement is made under section 411 of the Corporations Act between the following parties: 1. Climax Mining Limited ABN 40 000 250 500 of Suite 2, Level 14 BT Tower, 1 Market Street, Sydney, NSW (CMX) 2. Each person registered as a holder of fully paid ordinary shares in CMX on the Transaction Record Date 1 Definitions and interpretation 1.1 Definitions In this Share Scheme: ASIC means Australian Securities and Investments Commission; ASX means Australian Stock Exchange Limited; Business Day means a business day as defined in the official listing rules of the ASX; CMX means Climax Mining Limited (ABN 40 000 250 500); CMX Share means a fully paid ordinary share in CMX; CMX Register means the CMX register of members; Corporations Act means the Corporations Act 2001 (Cth); Court means the Federal Court of Australia; End Date means 31 December 2006 or such later date as OGD and CMX agree in writing; Effective means the coming into effect, under section 411(10) of the Corporations Act, of the Court order made under section 411(4)(b) in relation to the Share Scheme but in any event at no time before an office copy of the order of the Court is lodged with ASIC; Effective Date means the date on which the Share Scheme becomes Effective; Foreign Shareholder means a Share Scheme Participant whose address shown in the CMX Register is a place outside Australia and New Zealand and their external territories or who OGD is actually aware is a citizen or resident of a jurisdiction other than Australia or New Zealand and their external territories; Implementation Date means the date that is 5 Business Daysafter the Transaction Record Date; Listed Options means the 40,375,625 options issued by CMX to subscribe for CMX Shares that are quoted on the ASX; Listed Option Scheme means the scheme of arrangement under which all the Listed Options will be transferred to OGD under Part 5.1 of the Corporations Act between CMX and the holders of Listed Options as at the Transaction Record Date in such form as is agreed between OGD and CMX together with any amendments or modifications made pursuant to section 411(6) of the Corporations Act; Merger Implementation Agreement means the merger implementation agreement dated11 July 2006 between CMX and OGD; NZSX Market means the NZSX stock market conducted by NZX; NZX means New Zealand Exchange Limited; OGD means Oceana Gold Limited (ABN 56 107 488 200); OGD Option means an option in respect of one unissued OGD Share with the terms as set out in Annexure [ ] of the Share Scheme Booklet; OGD Registers means the OGD register of members and OGD register of optionholders; OGD Shareholder means each person who is registered in the OGD register of members as the holder of OGD Shares; OGD Share means a fully paid ordinary share in the capital of OGD; Registered Address means, in relation to a CMX Shareholder, the address shown in the CMX Register; Second Court Hearing means the first hearing of the application made to the Court for an order pursuant to paragraph 411(4)(b) of the Corporations Act approving this Share Scheme; Second Court Date means the first day on which an application made to the Court for an order under paragraph 411(4)(b) of the Corporations Act approving this Share Scheme is heard by the Court; Share Scheme means this scheme of arrangement under which all the CMX Shares will be transferred to OGD under Part 5.1 of the Corporations Act between CMX and holders of CMX Shares as at the Transaction Record Date together with any amendment or modification made pursuant to section 411(6) of the Corporations Act; Share Scheme Booklet means the document approved by the Court and despatched to CMX Shareholders and which must include this Share Scheme, the Shareholder Deed Poll, an explanatory statement complying with the requirements of the Corporations Act and applicable policy statements issued by ASIC, an independent expert's report, the Merger Implementation Agreement, a notice convening the Share Scheme Meeting and proxy forms; Share Scheme Consideration means 0.62 OGD Shares and 0.31 OGD Options in respect of each CMX Share; Share Scheme Meeting means the meeting of CMX Shareholders ordered by the Court to be convened under subsection 411(1) of the Corporations Act pursuant to this Share Scheme; Share Scheme Participant means each person who is a CMX Shareholder as at the Transaction Record Date; Share Scheme Transfer means, for each Share Scheme Participant, a duly completed and executed proper instrument of transfer of the CMX Shares for the purposes of section 1071B of the Corporations Act, which may be a master transfer of all CMX Shares; Shareholder Deed Poll means the deed poll dated 22 September 2006 executed by OGD in favour of the CMX Shareholders; and Transaction Record Date means 7.00pm on the date that is 5 Business Daysafter the Effective Date. 1.2 Interpretation In this Share Scheme, headings and bold type are for convenience only and do not affect interpretation and, unless the context requires otherwise: (a) words importing the singular include the plural and vice versa; (b) words importing a gender include any gender; (c) other parts of speech and grammatical forms of a word or phrase defined in this Share Scheme have a corresponding meaning; (d) a reference to a person includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture, a partnership, a trust and any government agency; (e) a reference to a clause, party, annexure or schedule is a reference to a clause of, and a party, annexure and schedule to this Share Scheme, and a reference to this Share Scheme includes any annexure and schedule; (f) a reference to a statute, regulation, proclamation, ordinance or by law includes all statutes, regulations, proclamations ordinances or by laws amending, consolidating or replacing it, whether passed by the same or another government agency with legal power to do so, and a reference to a statute includes all regulations, proclamations, ordinances and by laws issued under that statute; (g) a reference to any document (including this Share Scheme) is to that document as varied, novated, ratified or replaced from time to time; (h) the word "includes" in any form is not a word of limitation; (i) a reference to "$" or "dollar" is to Australian currency; (j) a reference to any time is a reference to that time in Sydney; and (k) a term defined in or for the purposes of the Corporations Act has the same meaning when used in this Share Scheme. 1.3 Business Day Where the day on or by which any thing is to be done is not a Business Day, that thing must be done on or by the next Business Day. 2 Preliminary 2.1 Preliminary matters (a) CMXis a publiccompany incorporated in Australia and registered in New South Wales and is a company limited by shares. CMX is admitted to the official list of the ASX and CMX Shares are officially quoted on the stock market conducted by ASX. (b) As at 11 July 2006, 454,887,608 CMX Shares were on issue. There are no other classes of CMX Shares on issue. (c) OGD is a public company incorporated in Australia and registered in Victoria and is a company limited by shares. OGD is admitted to the official list of ASX and OGD Shares are officially quoted on the financial market conducted by ASX. OGD Shares are also quoted on the NZSX Market. (d) If the Share Scheme becomes Effective: (1) in consideration of the transfer of each CMX Share held by Share Scheme Participants to OGD, OGD will, in accordance with the terms of the Shareholder Deed Poll and the terms of this Share Scheme, issue the Share Scheme Consideration to Share Scheme Participants; (2) all CMX Shares, and all the rights and entitlements attaching to them as at the Implementation Date, will be transferred to OGD; and (3) CMX will enter the name of OGD in the CMX Register in respect of all CMX Shares transferred to OGD in accordance with the terms of this Share Scheme. 2.2 Merger Implementation Agreement and Shareholder Deed Poll (b) CMX and OGD have agreed by executing the Merger Implementation Agreement to implement the terms of this Share Scheme and the steps contemplated to follow the implementation of this Share Scheme. (b) OGD has executed the Shareholder Deed Poll pursuant to which it has covenanted to perform its obligations under this Share Scheme, including to issue the Share Scheme Consideration. 3 Conditions 3.1 Conditions precedent The Share Scheme is conditional on: (a) all the conditions precedent in clause 3.1 (other than 3.1(n)) of the Merger Implementation Agreement having been satisfied or waived in accordance with the terms of the Merger Implementation Agreement by the time indicated in the Merger Implementation Agreement; (b) approval of the Share Scheme being given by the Court pursuant to paragraph 411(4)(b) of the Corporations Act; (c) approval of the Listed Option Scheme being given by the Court pursuant to paragraph 411(4)(b) of the Corporations Act; and (d) the Merger Implementation Agreement or Shareholder Deed Poll not having been terminated by either party to that agreement before 8.00am on the Second Court Date. 3.2 Waiver The condition precedent set out in clause 3.1(c) is for the benefit of each of OGD and CMX. OGD and CMX may jointly waive in their absolute discretion any breach or non-fulfilment of the condition precedent in clause 3.1(c). 3.3 Conditions precedent and operation of clause 4 The satisfaction or waiver of each condition of clause 3.1 is a condition precedent to the operation of clause 4. 3.4 Certificate CMX and OGD will provide to the Court at the Second Court Hearing a certificate confirming that all conditions precedent in this Share Scheme (other than Court approval) have been satisfied or waived. 3.5 End Date The Share Scheme will lapse and be of no further force or effect if the Effective Date does not occur on or before the End Date. 4 The Share Scheme 4.1 Lodgement of Court orders with ASIC CMX will lodge with ASIC, pursuant to section 411(10) of the Corporations Act, an office copy of the Court orders approving the Share Scheme by 5.00pm on the first Business Day after the day on which the Court approves the Share Scheme. 4.2 Transfer and registration of CMX Shares On the Implementation Date: (a) all CMX Shares, together with all rights and entitlements attaching to the CMX Shares as at the Implementation Date, will be transferred to OGD without the need for any further act by any Share Scheme Participant (other than acts performed by CMX as attorney and agent for Share Scheme Participants under clause 8); (b) OGD will deliver to CMX a duly completed, executed and stamped Share Scheme Transfer for registration, transferring to OGD all of the CMX Shares; (c) OGD will provide the Share Scheme Consideration to each Share Scheme Participant for their CMX Shares in accordance with the Share Scheme; and (d) after the duly completed and executed Share Scheme Transfer is received by CMX, CMX will, subject to OGD complying with its obligations under clause 4.2(c), enter the name of OGD in the CMX Register in respect of all CMX Shares the subject of the Share Scheme Transfer. 4.3 Title and rights in CMX Shares From the Effective Date, OGD will be beneficially entitled to the CMX Shares transferred to it under the Share Scheme pending registration by CMX of OGD in the CMX Register as the holder of the CMX Shares. 4.4 Share Scheme Participants' agreements and representations (a) The Share Scheme Participants agree to the transfer of their CMX Shares in accordance with the Share Scheme. (b) The Share Scheme Participants are deemed to have warranted to OGD and CMX that all their CMX Shares (including any rights attaching to those shares) which are transferred to OGD under the Share Scheme will, at the date of transfer, be fully paid and free from all mortgages, charges, liens, encumbrances and interests of third parties of any kind, whether legal or otherwise, and restrictions on transfer of any kind, and that they have full power and capacity to transfer their CMX Shares together with any rights attaching to those shares. 4.5 Appointment of sole proxy Upon the Share Scheme becoming Effective and until CMX registers OGD as the holder of all CMX Shares in the CMX Register, each Share Scheme Participant: (a) is deemed to have appointed OGD as attorney and agent (and directed OGD in such capacity) to appoint the Chief Executive Officer of OGD as its sole proxy and, where applicable, corporate representative to attend shareholders' meetings, exercise the votes attaching to the CMX Shares registered in their name and sign any shareholders' resolution, and no Share Scheme Participant may itself attend or vote at any of those meetings or sign any resolutions, whether in person, by proxy or by corporate representative (other than pursuant to this clause 4.5(a)); and (b) must take all other actions in the capacity of a registered holder of CMX Shares as OGD reasonably directs. OGD undertakes in favour of each Share Scheme Participant that it will appoint the Chief Executive Officer of OGD as that Share Scheme Participant's proxy or, where applicable, corporate representative in accordance with clause 4.5(a). 5 Securities issued as Share Scheme Consideration 5.1 Provision of Share Scheme Consideration The obligation of OGD to provide Share Scheme Consideration to each Share Scheme Participant (other than to Foreign Shareholders who shall be dealt with in accordance with clause 5.4) will be satisfied by OGD: (a) on the Implementation Date, issuing and allotting the Share Scheme Consideration to each Share Scheme Participant in respect of each CMX Share registered in the name of that Share Scheme Participant in the CMX Register at the Transaction Record Date; (b) on the Implementation Date, entering the name of each Share Scheme Participant on the OGD Registers in respect of the securities they are entitled to receive as Share Scheme Consideration; and (c) no later than four Business Days after the Implementation Date, despatching or procuring the despatch to each Share Scheme Participant by pre-paid post (or by pre-paid airmail if the address is outside of Australia) to his or her Registered Address at the Transaction Record Date, an uncertificated holding statement in the name of that Share Scheme Participant for the Share Scheme Consideration issued to them in accordance with this Share Scheme. In the case of joint holders of shares, uncertified holding statements shall be issued in the name of and forwarded to the holder whose name appears first in the CMX Register on the Transaction Record Date. 5.2 OGD Shares and Options (a) All OGD Shares issued pursuant to the Share Scheme will rank equally with all other OGD Shares in all respects. (b) On issue, each new OGD security issued to Share Scheme Participants as Share Scheme Consideration will be fully paid and free from any mortgage, charge, lien, encumbrance or other security interest. (c) OGD will apply for official quotation (on the ASX and the NZX) of the OGD Shares and OGD Options issued as Share Scheme Consideration and will take all reasonable endeavours to procure the quotation of such securities. 5.3 Subject to constitution Share Scheme Participants will accept the OGD Shares and OGD Options issued by way of Share Scheme Consideration subject to the constitution of OGD and agree to be bound thereby. 5.4 Provision of Share Scheme Consideration to Foreign Shareholders In respect of Foreign Shareholders, unless OGD is satisfied that the laws of the Foreign Shareholder's country of residence (as shown in the CMX Register) permit the issue and allotment of OGD Shares and OGD Options to the Foreign Shareholder, either unconditionally or after compliance with conditions which OGD in its sole discretion regards as acceptable and not unduly onerous, then the OGD Shares and OGD Options to which a Foreign Shareholder would otherwise have been entitled will be issued to a nominee appointed by OGD (with the approval of CMX) who will sell those OGD Shares and OGD Options, for the benefit of those Foreign Shareholders, and pay as soon as reasonably practicable the net proceeds received after: (a) deducting any applicable brokerage, stamp duty and other taxes and charges; (b) averaging the total amount payable so that each Foreign Shareholder receives the same price per CMX Share; and (c) rounding down to the nearest whole cent, to that Foreign Shareholder in the form of a cheque drawn on an Australian Bank in Australian currency, sent by pre-paid post (or pre-paid airmail if the address is outside Australia) to his or her Registered Address at the Transaction Record Date in full satisfaction of the Foreign Shareholder's right to the Share Scheme Consideration. In the case of joint Foreign Shareholders, such cheques shall be issued in the name of and forwarded to the holder whose name appears first in the CMX Register on the Transaction Record Date. 6 Fractions 6.1 Rounding Subject to clause 6.1 of this Share Scheme, any fractional entitlement of a Share Scheme Participant to a part of an OGD Share will be rounded up to one OGD Share and any fractional entitlement of a Share Scheme Participant to part of an OGD Option will be rounded up to one OGD Option. 6.2 Shareholder splitting or division If OGD is of the opinion that two or more Share Scheme Participants, each of whom holds a number of CMX Shares which results in rounding in accordance with the definition of Share Scheme Consideration, have, before the Transaction Record Date, been party to shareholder splitting or division in an attempt to obtain advantage by reference to such rounding, OGD may give notice to those Share Scheme Participants, setting out the names and addresses of all of them, stating that opinion and attributing to one of them specifically identified in the notice (the Deemed Holder), all the CMX Shares held by all of them, upon which, for the purposes of the Share Scheme: (a) the Deemed Holder will be taken to hold all the CMX Shares referred to in the notice; and (c) each of the other Share Scheme Participants whose names are set out in the notice, will be taken not to hold any of the CMX Shares, and by complying with this clause 6.1, OGD will be taken to have satisfied and discharged its obligations under the terms of the Share Scheme to all the Share Scheme Participants named in the notice. 7 Dealings in CMX Shares 7.1 Determination of Share Scheme Participants To establish the identity of the Share Scheme Participants, dealings in CMX Shares will only be recognised if: (a) in the case of dealings of the type to be effected using CHESS, the transferee is registered in the CMX Register as the holder of the relevant CMX Shares on or before the Transaction Record Date; and (b) in all other cases, registrable transmission applications or transfers in registrable form in respect of those dealings are received on or before the Transaction Record Date at the place where the CMX Register is kept. 7.2 CMX Register (a) CMX must register any registrable transmission applications or transfers of the CMX Shares received in accordance with clause 0 on or before the Transaction Record Date. (b) If the Share Scheme becomes Effective, a holder of CMX Shares (and any person claiming through that holder) must not dispose of or purport or agree to dispose of any CMX Shares or any interest in them after the Effective Date. (c) CMX will not accept for registration or recognise for any purpose any transmission, application or transfer in respect of CMX Shares received after the Transaction Record Date (except a transfer to OGD pursuant to this Share Scheme and any subsequent transfer by OGD or its successors in title). (d) For the purpose of determining entitlements to the Share Scheme Consideration, CMX will maintain the CMX Register in accordance with the provisions of this clause 7 until the Share Scheme Consideration has been provided or paid to the Share Scheme Participants. Subject to clause 6, the CMX Register in this form will solely determine entitlements to the Share Scheme Consideration. (e) Any statements of holding in respect of CMX Shares will cease to have effect after the Transaction Record Date as documents of title in respect of those shares (other than statements of holding in favour of OGD and its successors in title). After the Transaction Record Date, each entry current on the CMX Register as at the Transaction Record Date (other than entries in respect of OGD or its successors in title) will cease to have effect except as evidence of entitlement to the Share Scheme Consideration. (f) As soon as practicable after the Transaction Record Date, and in any event at least 2 Business Days before the Implementation Date, CMX will ensure that details of the names, Registered Addresses and holdings of CMX Shares for each Share Scheme Participant, as shown in the CMX Register on the Transaction Record Date, are available to OGD in such form as OGD reasonably requires. 7.3 Quotation of CMX Shares (a) Suspension of trading on ASX in CMX Shares will occur from the close of trading of ASX on the Effective Date. (b) After the Scheme has been fully implemented, CMX will apply: (1) for termination of the official quotation of CMX Shares on ASX; and (2) to have itself removed from the official list of the ASX. 8 Power of attorney Upon the Share Scheme becoming Effective, each Share Scheme Participant, without the need for any further act by any Share Scheme Participant, irrevocably appoints CMX and each of its directors and officers (jointly and each of them severally) as its attorney and agent for the purpose of executing any document necessary or expedient to give effect to this Share Scheme including, without limitation: (a) the Share Scheme Transfer; and (b) any instrument appointing OGD as sole proxy for or, where applicable, corporate representative of each Share Scheme Participant as contemplated by clause 4.5. 9 General Share Scheme provisions 9.1 Variations, alterations and conditions CMX may, with the consent of OGD (which cannot be unreasonably withheld), by its counsel or solicitor consent on behalf of all persons concerned to any variations, alterations or conditions to the Share Scheme which the Court thinks fit to impose. 9.2 Further action by CMX CMX will execute all documents and do all things necessary or expedient to implement, and perform its obligations under, this Share Scheme. 9.3 Authority and acknowledgement (a) Each of the Share Scheme Participants consents to CMX doing all things necessary or expedient for or incidental to the implementation of this Share Scheme. (b) Each of the Share Scheme Participants acknowledges that this Share Scheme binds CMX and all Share Scheme Participants (including those who do not attend the Share Scheme Meeting or do not vote at that meeting or vote against the Share Scheme at that Meeting). 9.4 Stamp duty OGD will pay all stamp duty payable in connection with the Share Scheme. 9.5 Notices If a notice, transfer, transmission application, direction or other communication referred to in this Share Scheme is sent by post to CMX, it will not be taken to be received in the ordinary course of post or on a date and time other than the date and time (if any) on which it is actually received at CMX's registered office or at the office of the registrar of CMX Shares. 9.6 Governing law This Share Scheme is governed by the laws of New South Wales. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and of the Commonwealth of Australia. B Listed Option scheme of arrangement Climax Mining Limited ABN 40 000 250 500 and Each person registered as a holder of listed options to purchase fully paid ordinary shares in Climax Mining Limited as at the Transaction Record Date 101 Collins StreetMelbourneVictoria3000Australia Telephone +61 3 9288 1234 Facsimile +61 3 9288 1567 www.freehills.com DX 240 Melbourne SYDNEY MELBOURNE PERTH BRISBANE SINGAPORE Correspondent Offices HANOI HO CHI MINH CITY JAKARTA KUALA LUMPUR Reference NP:81033880 Table of contents Clause Page 1 Definitions and interpretation 3 1.1 Definitions 3 1.2 Interpretation 5 1.3 Business Day 6 2 Preliminary 6 2.1 Preliminary matters 6 2.2 Merger Implementation Agreement and Listed Optionholder Deed Poll 6 3 Conditions 7 3.1 Conditions precedent 7 3.2 Conditions precedent and operation of clause 4 7 3.3 Certificate 7 3.4 End Date 7 4 The Listed Option Scheme 7 4.1 Lodgement of Court orders with ASIC 7 4.2 Transfer and registration of Listed Options 7 4.3 Title and rights in Listed Options 8 4.4 Listed Option Scheme Participants' agreements and representations 8 4.5 Appointment of sole proxy 8 5 Securities issued as Listed Option Scheme Consideration 9 5.1 Provision of Listed Option Scheme Consideration 9 5.2 OGD Shares and Options 9 5.3 Subject to constitution 9 5.4 Provision of Listed Option Scheme Consideration to Foreign Optionholders10 6 Fractions 10 6.1 Rounding 10 6.2 Shareholder splitting or division 10 7 Dealings in Listed Options 11 7.1 Determination of Listed Option Scheme Participants 11 7.2 CMX Options Register 11 7.3 Quotation of CMX Shares 12 8 Power of attorney 12 9 General Listed Option Scheme provisions 12 9.1 Variations, alterations and conditions 12 9.2 Further action by CMX 12 9.3 Authority and acknowledgement 13 9.4 Stamp duty 13 9.5 Notices 13 9.6 Governing law 13 This Listed Option scheme of arrangement is made under section 411 of the Corporations Act between the following parties: 1. Climax Mining Limited ABN 40 000 250 500 of Suite 2, Level 14 BT Tower, 1 Market Street, Sydney, NSW (CMX) 2. Each person registered as a holder of listed options in CMX on the Transaction Record Date 1 Definitions and interpretation 1.1 Definitions In this Listed Option Scheme: ASIC means Australian Securities and Investments Commission; ASX means Australian Stock Exchange Limited; Business Day means a business day as defined in the official listing rules of the ASX; CMX means Climax Mining Limited (ABN 40 000 250 500); CMX Share means a fully paid ordinary share in CMX; CMX Options Register means the CMX register of persons who are holders of Listed Options; Corporations Act means the Corporations Act 2001 (Cth); Court means the Federal Court of Australia; End Date means 31 December 2006 or such later date as OGD and CMX agree in writing; Effective means the coming into effect, under section 411(10) of the Corporations Act, of the Court order made under section 411(4)(b) in relation to the Listed Option Scheme but in any event at no time before an office copy of the order of the Court is lodged with ASIC; Effective Date means the date on which the Share Scheme becomes Effective; Foreign Optionholder means a Listed Option Scheme Participant whose address shown in the CMX Options Register is a place outside Australia and New Zealand and their external territories or who OGD is actually aware is a citizen or resident of a jurisdiction other than Australia or New Zealand and their external territories; Implementation Date means the date that is 5 Business Daysafter the Transaction Record Date; Listed Options means the 40,375,625 options issued by CMX to subscribe for CMX Shares that are quoted on the ASX; Listed Optionholder means a person who is registered in the CMX Options Register as the holder of Listed Options; Listed Optionholder Deed Poll means the deed poll dated [insert date] August 2006 executed by OGD in favour of the Listed Optionholders; Listed Option Scheme means this scheme of arrangement under which all the Listed Options will be transferred to OGD under Part 5.1 of the Corporations Act between CMX and the holders of Listed Options as at the Transaction Record Date together with any amendments or modifications made pursuant to section 411(6) of the Corporations Act; Listed Option Scheme Booklet means the document approved by the Court and despatched to CMX Shareholders and which must include this Listed Option Scheme, the Listed Optionholder Deed Poll, an explanatory statement complying with the requirements of the Corporations Act and applicable policy statements issued by ASIC, an independent expert's report, the Merger Implementation Agreement, a notice convening the Listed Option Scheme Meeting and proxy forms; Listed Option Scheme Consideration means 0.2941 OGD Shares and 0.1470 OGD Options for every 1 Listed Option held by a Listed Option Scheme Participant.; Listed Option Scheme Meeting means the meeting of Listed Optionholders ordered by the Court to be convened under section 411(1) of the Corporations Act pursuant to this Listed Option Scheme; Listed Option Scheme Participant means each person who is a Listed Optionholder as at the Transaction Record Date; Listed Option Scheme Transfer means, for each Listed Option Scheme Participant, a duly completed and executed proper instrument of transfer of the Listed Options for the purposes of section 1071B of the Corporations Act, which may be a master transfer of all Listed Options; Merger Implementation Agreement means the merger implementation agreement dated11 July 2006 between CMX and OGD; NZSX Market means the NZSX stock market conducted by the NZX; NZX means New Zealand Stock Exchange Limited; OGD means Oceana Gold Limited (ABN 56 107 488 200); OGD Option means an option in respect of one unissued OGD Share with the terms as set out in Annexure [ ] of the Share Scheme Booklet; OGD Registers means the OGD register of members and OGD register of optionholders; OGD Shareholder means each person who is registered in the OGD register of members as the holder of OGD Shares; OGD Share means a fully paid ordinary share in the capital of OGD; Registered Address means, in relation to a Listed Optionholder, the address shown in the CMX Options Register; Second Court Hearing means the first hearing of the application made to the Court for an order pursuant to paragraph 411(4)(b) of the Corporations Act approving this Listed Option Scheme; Second Court Date means the first day on which an application made to the Court for an order under paragraph 411(4)(b) of the Corporations Act approving this Listed Option Scheme is heard by the Court; Share Scheme means the scheme of arrangement under which all the CMX Shares will be transferred to OGD under Part 5.1 of the Corporations Act between CMX and holders of CMX Shares as at the Transaction Record Date in such form as is agreed between OGD and CMX together with any amendments or modifications made pursuant to section 411(6) of the Corporations Act; and Share Scheme Booklet means the document approved by the Court and despatched to CMX Shareholders and which must include this Share Scheme, the Shareholder Deed Poll, an explanatory statement complying with the requirements of the Corporations Act and applicable policy statements issued by ASIC, an independent expert's report, the Merger Implementation Agreement, a notice convening the Share Scheme Meeting and proxy forms; Shareholder Deed Poll means the deed poll dated 22 September 2006 executed by OGD in favour of the CMX Shareholders; and Transaction Record Date means 7.00pm on the date that is 5 Business Daysafter the Effective Date. 1.2 Interpretation In this Listed Option Scheme, headings and bold type are for convenience only and do not affect interpretation and, unless the context requires otherwise: (a) words importing the singular include the plural and vice versa; (b) words importing a gender include any gender; (c) other parts of speech and grammatical forms of a word or phrase defined in this Listed Option Scheme have a corresponding meaning; (d) a reference to a person includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture, a partnership, a trust and any government agency; (e) a reference to a clause, party, annexure or schedule is a reference to a clause of, and a party, annexure and schedule to this Listed Option Scheme, and a reference to this Listed Option Scheme includes any annexure and schedule; (f) a reference to a statute, regulation, proclamation, ordinance or by law includes all statutes, regulations, proclamations ordinances or by laws amending, consolidating or replacing it, whether passed by the same or another government agency with legal power to do so, and a reference to a statute includes all regulations, proclamations, ordinances and by laws issued under that statute; (g) a reference to any document (including this Listed Option Scheme) is to that document as varied, novated, ratified or replaced from time to time; (h) the word "includes" in any form is not a word of limitation; (i) a reference to "$" or "dollar" is to Australian currency; (j) a reference to any time is a reference to that time in Sydney; and (k) a term defined in or for the purposes of the Corporations Act has the same meaning when used in this Listed Option Scheme. 1.3 Business Day Where the day on or by which any thing is to be done is not a Business Day, that thing must be done on or by the next Business Day. 2 Preliminary 2.1 Preliminary matters (a) CMXis a publiccompany incorporated in Australia and registered in New South Wales and is a company limited by shares. CMX is admitted to the official list of the ASX and CMX Shares are officially quoted on the stock market conducted by ASX. (b) As at 11 July 2006, 40,375,625 Listed Options were on issue. (a) OGD is a public company incorporated in Australia and registered in Victoria and is a company limited by shares. OGD is admitted to the official list of ASX and OGD Shares are officially quoted on the financial market conducted by ASX. OGD Shares are also quoted on the NZSX Market. (b) If the Listed Option Scheme becomes Effective: (1) in consideration of the transfer of each Listed Option held by a Listed Option Scheme Participant to OGD, OGD will, in accordance with the terms of the Listed Optionholder Deed Poll and the terms of this Listed Option Scheme, issue the Listed Option Scheme Consideration to Listed Option Scheme Participants; (2) all Listed Options, and all the rights and entitlements attaching to them as at the Implementation Date, will be transferred to OGD; and (3) CMX will enter the name of OGD in the CMX Options Register in respect of all Listed Options transferred to OGD in accordance with the terms of this Listed Option Scheme. 2.2 Merger Implementation Agreement and Listed Optionholder Deed Poll (a) CMX and OGD have agreed by executing the Merger Implementation Agreement to implement the terms of this Listed Option Scheme and the steps contemplated to follow the implementation of this Listed Option Scheme. (b) OGD has executed the Listed Optionholder Deed Poll pursuant to which it has covenanted to perform its obligations under this Listed Option Scheme, including to issue the Listed Option Scheme Consideration. 3 Conditions 3.1 Conditions precedent The Listed Option Scheme is conditional on: (a) all the conditions precedent in clause 3.1 (other than 3.1(n)) of the Merger Implementation Agreement having been satisfied or waived in accordance with the terms of the Merger Implementation Agreement by the time indicated in the Merger Implementation Agreement; (b) approval of the Listed Option Scheme being given by the Court pursuant to paragraph 411(4)(b) of the Corporations Act; (c) approval of the Share Scheme being given by the Court pursuant to paragraph 411(4)(b) of the Corporations Act; and (d) the Merger Implementation Agreement or Listed Optionholder Deed Poll not having been terminated by either party to that agreement before 8.00am on the Second Court Date. 3.2 Conditions precedent and operation of clause 4 The satisfaction of clause 3.1 is a condition precedent to the operation of clause 4. 3.3 Certificate CMX and OGD will provide to the Court at the Second Court Hearing a certificate confirming that all conditions precedent in this Listed Option Scheme (other than Court approval) have been satisfied or waived. 3.4 End Date The Listed Option Scheme will lapse and be of no further force or effect if the Effective Date does not occur on or before the End Date. 4 The Listed Option Scheme 4.1 Lodgement of Court orders with ASIC CMX will lodge with ASIC, pursuant to section 411(10) of the Corporations Act, an office copy of the Court orders approving the Listed Option Scheme by 5.00pm on the first Business Day after the day on which the Court approves the Listed Option Scheme. 4.2 Transfer and registration of Listed Options On the Implementation Date: (a) all Listed Options, together with all rights and entitlements attaching to the Listed Options as at the Implementation Date, will be transferred to OGD without the need for any further act by any Listed Option Scheme Participants (other than acts performed by CMX as attorney and agent for Listed Option Scheme Participants under clause 8); (b) OGD will deliver to CMX a duly completed, executed and stamped Listed Option Scheme Transfer for registration, transferring to OGD all of the Listed Options; (c) OGD will provide the Listed Option Scheme Consideration to each Listed Option Scheme Participant for their Listed Options in accordance with the Listed Option Scheme; and (d) after the duly completed and executed Listed Option Scheme Transfer is received by CMX, CMX will, subject to OGD complying with its obligations under clause 4.2(c), enter the name of OGD in the CMX Options Register in respect of all Listed Options the subject of the Listed Option Scheme Transfer. 4.3 Title and rights in Listed Options From the Effective Date, OGD will be beneficially entitled to the Listed Options transferred to it under the Listed Option Scheme pending registration by CMX of OGD in the CMX Options Register as the holder of the Listed Options. 4.4 Listed Option Scheme Participants' agreements and representations (a) The Listed Option Scheme Participants agree to the transfer of their Listed Options in accordance with the Listed Option Scheme. (b) The Listed Option Scheme Participants are deemed to have warranted to OGD and CMX that all their Listed Options (including any rights attaching to those options) which are transferred to OGD under the Listed Option Scheme will, at the date of transfer, be fully paid and free from all mortgages, charges, liens, encumbrances and interests of third parties of any kind, whether legal or otherwise, and restrictions on transfer of any kind, and that they have full power and capacity to transfer their Listed Options together with any rights attaching to those options. 4.5 Appointment of sole proxy Upon the Listed Option Scheme becoming Effective and until CMX registers OGD as the holder of all Listed Options in the CMX Options Register, each Listed Option Scheme Participant: (a) is deemed to have appointed OGD as attorney and agent (and directed OGD in such capacity) to appoint the Chief Executive Officer of OGD as its sole proxy and, where applicable, corporate representative to attend shareholders' meetings, exercise the votes attaching to the Listed Options registered in their name and sign any Listed Optionholders' resolution, and no Listed Option Scheme Participant may itself attend or vote at any of those meetings or sign any resolutions, whether in person, by proxy or by corporate representative (other than pursuant to this clause 4.5(a)); and (b) must take all other actions in the capacity of a registered holder of Listed Options as OGD reasonably directs. OGD undertakes in favour of each Listed Option Scheme Participant that it will appoint the Chief Executive Officer of OGD as that Listed Option Scheme Participant's proxy or, where applicable, corporate representative in accordance with clause 4.5(a). 5 Securities issued as Listed Option Scheme Consideration 5.1 Provision of Listed Option Scheme Consideration The obligation of OGD to provide Listed Option Scheme Consideration to each Listed Option Scheme Participant (other than to Foreign Optionholders who shall be dealt with in accordance with clause 5.4) will be satisfied by OGD: (a) on the Implementation Date, issuing and allotting the Listed Option Scheme Consideration to each Listed Option Scheme Participant in respect of each Listed Option registered in the name of that Listed Option Scheme Participant in the CMX Options Register at the Transaction Record Date; (b) on the Implementation Date, entering the name of each Listed Option Scheme Participant on the OGD Registers in respect of the securities they are entitled to receive as Listed Option Scheme Consideration; and (c) no later than four Business Days after the Implementation Date, despatching or procuring the despatch to each Listed Option Scheme Participant by pre-paid post (or by pre-paid airmail if the address is out of Australia) to his or her Registered Address at the Transaction Record Date, an uncertificated holding statement in the name of that Listed Option Scheme Participant for the Listed Option Scheme Consideration issued to them in accordance with this Listed Option Scheme. In the case of joint holders of shares, uncertified holding statements shall be issued in the name of and forwarded to the holder whose name appears first in the CMX Options Register on the Transaction Record Date. 5.2 OGD Shares and Options (a) All OGD Shares issued pursuant to the Listed Option Scheme will rank equally with all other OGD Shares in all respects. (b) On issue, each new OGD security issued to Listed Option Scheme Participants as Listed Option Scheme Consideration will be fully paid and free from any mortgage, charge, lien, encumbrance or other security interest. (c) OGD will apply for official quotation (on the ASX and the NZX) of the OGD Shares and OGD Options issued as Listed Option Scheme Consideration and will take all reasonable endeavours to procure the quotation of such securities. 5.3 Subject to constitution Listed Option Scheme Participants will accept the OGD Shares and OGD Options issued by way of Listed Option Scheme Consideration subject to the constitution of OGD and agree to be bound thereby. 5.4 Provision of Listed Option Scheme Consideration to Foreign Optionholders In respect of Foreign Optionholders, unless OGD is satisfied that the laws of the Foreign Optionholder's country of residence (as shown in the CMX Options Register) permit the issue and allotment of OGD Shares and OGD Options to the Foreign Optionholder, either unconditionally or after compliance with conditions which OGD in its sole discretion regards as acceptable and not unduly onerous, then the OGD Shares and OGD Options to which a Foreign Optionholder would otherwise have been entitled will be issued to a nominee appointed by OGD (with the approval of CMX) who will sell those OGD Shares and OGD Options, for the benefit of those Foreign Shareholders, and pay as soon as reasonably practicable the net proceeds received after: (a) deducting any applicable brokerage, stamp duty and other taxes and charges; (b) averaging the total amount payable so that each Foreign Shareholder receives the same price per Listed Option; and (c) rounding down to the nearest whole cent, to that Foreign Optionholder in the form of a cheque drawn on an Australian Bank in Australian currency, sent by pre-paid post (or pre-paid airmail if the address is outside Australia) to his or her Registered Address at the Transaction Record Date, in full satisfaction of the Foreign Optionholder's right to the Listed Option Scheme Consideration. In the case of joint Foreign Optionholders, such cheques shall be issued in the name of and forwarded to the holder whose name appears first in the CMX Register on the Transaction Record Date. 6 Fractions 6.1 Rounding Subject to clause 6.2 of this Listed Option Scheme, any fractional entitlement of a Listed Option Scheme Participant to a part of an OGD Share will be rounded up to one OGD Share and any fractional entitlement of a Listed Option Scheme Participant to a part of an OGD Option will be rounded up to one OGD Option. 6.2 Shareholder splitting or division If OGD is of the opinion that two or more Listed Option Scheme Participants, each of whom holds a number of Listed Options which results in rounding in accordance with the definition of Listed Option Scheme Consideration, have, before the Transaction Record Date, been party to optionholder splitting or division in an attempt to obtain advantage by reference to such rounding, OGD may give notice to those Listed Option Scheme Participants, setting out the names and addresses of all of them, stating that opinion and attributing to one of them specifically identified in the notice (the Deemed Holder), all the Listed Options held by all of them, upon which, for the purposes of the Listed Option Scheme: (a) the Deemed Holder will be taken to hold all the Listed Options referred to in the notice; and (b) each of the other Listed Option Scheme Participants whose names are set out in the notice, will be taken not to hold any of the Listed Options, and by complying with this clause 6.1, OGD will be taken to have satisfied and discharged its obligations under the terms of the Listed Option Scheme to all the Listed Option Scheme Participants named in the notice. 7 Dealings in Listed Options 7.1 Determination of Listed Option Scheme Participants To establish the identity of the Listed Option Scheme Participants, dealings in Listed Options will only be recognised if: (a) in the case of dealings of the type to be effected using CHESS, the transferee is registered in the CMX Options Register as the holder of the relevant Listed Options on or before the Transaction Record Date; and (b) in all other cases, registrable transmission applications or transfers in registrable form in respect of those dealings are received on or before the Transaction Record Date at the place where the CMX Options Register is kept. 7.2 CMX Options Register (a) CMX must register any registrable transmission applications or transfers of the Listed Options received in accordance with clause 7.1(b) on or before the Transaction Record Date. (b) If the Listed Option Scheme becomes Effective, a holder of Listed Options (and any person claiming through that holder) must not dispose of or purport or agree to dispose of any Listed Options or any interest in them after the Effective Date. (c) CMX will not accept for registration or recognise for any purpose any transmission, application or transfer in respect of Listed Options received after the Transaction Record Date (except a transfer to OGD pursuant to this Listed Option Scheme and any subsequent transfer by OGD or its successors in title). (d) For the purpose of determining entitlements to the Listed Option Scheme Consideration, CMX will maintain the CMX Options Register in accordance with the provisions of this clause 7 until the Listed Option Scheme Consideration has been provided or paid to the Listed Option Scheme Participants. Subject to clause 6, the CMX Options Register in this form will solely determine entitlements to the Listed Option Scheme Consideration. (e) Any statements of holding in respect of Listed Options will cease to have effect after the Transaction Record Date as documents of title in respect of those shares (other than statements of holding in favour of OGD and its successors in title). After the Transaction Record Date, each entry current on the CMX Options Register as at the Transaction Record Date (other than entries in respect of OGD or its successors in title) will cease to have effect except as evidence of entitlement to the Listed Option Scheme Consideration. (f) As soon as practicable after the Transaction Record Date, and in any event at least 2 Business Days before the Implementation Date, CMX will ensure that details of the names, Registered Addresses and holdings of Listed Options for each Listed Option Scheme Participant, as shown in the CMX Options Register on the Transaction Record Date, are available to OGD in such form as OGD reasonably requires. 7.3 Quotation of CMX Shares (a) Suspension of trading on ASX in Listed Options will occur close of trading of ASX on the Effective Date. (b) After the Scheme has been fully implemented, CMX will apply: (1) for termination of the official quotation of Listed Options on ASX; and (2) to have itself removed from the official list of the ASX. 8 Power of attorney Upon the Listed Option Scheme becoming Effective, each Listed Option Scheme Participant, without the need for any further act by any Listed Option Scheme Participant, irrevocably appoints CMX and each of its directors and officers (jointly and each of them severally) as its attorney and agent for the purpose of executing any document necessary or expedient to give effect to this Listed Option Scheme including, without limitation: (a) the Listed Option Scheme Transfer; and (b) any instrument appointing OGD as sole proxy for or, where applicable, corporate representative of each Listed Option Scheme Participant as contemplated by clause 4.5. 9 General Listed Option Scheme provisions 9.1 Variations, alterations and conditions CMX may, with the consent of OGD (which cannot be unreasonably withheld), by its counsel or solicitor consent on behalf of all persons concerned to any variations, alterations or conditions to the Listed Option Scheme which the Court thinks fit to impose. 9.2 Further action by CMX CMX will execute all documents and do all things necessary or expedient to implement, and perform its obligations under, this Listed Option Scheme. 9.3 Authority and acknowledgement (a) Each of the Listed Option Scheme Participants consents to CMX doing all things necessary or expedient for or incidental to the implementation of this Listed Option Scheme. (b) Each of the Listed Option Scheme Participants acknowledges that this Listed Option Scheme binds CMX and all Listed Option Scheme Participants (including those who do not attend the Listed Option Meeting or do not vote at that meeting or vote against the Listed Option Scheme at that Meeting). 9.4 Stamp duty OGD will pay all stamp duty payable in connection with the Listed Option Scheme. 9.5 Notices If a notice, transfer, transmission application, direction or other communication referred to in this Listed Option Scheme is sent by post to CMX, it will not be taken to be received in the ordinary course of post or on a date and time other than the date and time (if any) on which it is actually received at CMX's registered office or at the office of the registrar of Listed Options. 9.6 Governing law This Listed Option Scheme is governed by the laws of New South Wales. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia.