UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10

 

GENERAL FORM FOR REGISTRATION OF SECURITIES

Pursuant to Section 12(b) or (g) of The Securities Exchange Act of 1934

 

EESTech, Inc

(Exact name of registrant as specified in its charter)

 

 

Delaware   33-0922627

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. employer

identification no.)

 

Suite 417, 241 Adelaide Street, Brisbane, 4000, Australia

(Address of principal executive offices and zip code)

 

(061) 417 079 299

(Registrant’s telephone number, including area code)

 

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

None

 

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

Common Stock, par value $0.001 per share

(Title of class)

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

 

Large accelerated filer [  ] Accelerated filer [  ]
       
Non-accelerated filer [X] Smaller reporting company [X]
       
    Emerging growth company [X]

 

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 financing accounting standards provided pursuant to Section 13(a) of the Exchange Act. [  ]

 

 

 

 

TABLE OF CONTENTS

EXPLANATORY NOTE 1
IMPLICATIONS OF BEING AN EMERGING GROWTH COMPANY 1
WHERE YOU CAN FIND MORE INFORMATION ABOUT US 2
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS 2
Item 1.  Description of Business. 3
Item 1A.  Risk Factors. 23
Item 2.  Financial Information. 29
Item 3.  Properties. 34
Item 4.  Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters. 34
Item 5.  Directors and Executive Officers. 35
Item 6.  Executive Compensation. 36
Item 7.  Certain Relationships and Related Transactions and Director Independence. 37
Item 8.  Legal Proceedings. 37
Item 9.  Market Price of and Dividends on the Registrant’s Common Equity and Related Stockholder Matters. 38
Item 10.  Recent Sales of Unregistered Securities. 38
Item 11.  Description of the Registrant’s Securities to be Registered. 40

 

 

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Item 12.  Indemnification of Directors and Officers. 43
Item 13.  Financial Statements and Supplementary Data. 43
Item 14.  Changes in and Disagreements with Accountants on Accounting and Financial Disclosure. 43
Item 15.  Financial Statements and Exhibits. 43
SIGNATURE 45

 

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EXPLANATORY NOTE

 

EESTech, Inc., a Delaware corporation (the “Company”, “EESTech”, “we”, “our”, “us”), is filing this General Form for Registration of Securities on Form 10 (this “registration statement”) to register common stock, par value $0.001 per share (“common stock”), pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Our common stock previously was registered pursuant to the Exchange Act; however, on February 17, 2009, we filed a Form 15 with the Securities and Exchange Commission (the “SEC”) to terminate registration of our common stock.

 

This registration statement will become effective automatically by lapse of time 60 days from the date of its filing pursuant to Section 12(g)(1) of the Exchange Act. As of the effective date of the registration statement, we will be subject to the requirements of Regulation 13(a) under the Exchange Act and will be required to file annual reports on Form 10-K, quarterly reports on Form 10-Q, and current reports on Form 8-K, and we will be required to comply with all other obligations of the Exchange Act applicable to issuers filing registration statements pursuant to Section 12(g) of the Exchange Act.

 

IMPLICATIONS OF BEING AN EMERGING GROWTH COMPANY

 

We qualify as an “emerging growth company,” as defined in the Jumpstart Our Business Startups Act of 2012 (the “JOBS Act”). For so long as we remain an emerging growth company, we are permitted and plan to rely on exemptions from certain disclosure requirements that are applicable to other public companies. These provisions include, but are not limited to:

 

·being permitted to have only two years of audited financial statements and only two years of related management’s discussion and analysis of financial condition and results of operations disclosure;

 

·being exempt from compliance with management’s assessment of our internal control over financial reporting pursuant to Section 404(a) of the Sarbanes-Oxley Act of 2002, as amended (the “Sarbanes-Oxley Act”);

 

·being exempt from compliance with the auditor attestation requirement in the assessment of our internal control over financial reporting pursuant to Section 404 of the Sarbanes-Oxley Act;

 

·not being required to comply with any requirement that may be adopted by the Public Company Accounting Oversight Board (the “PCAOB”) regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements;

 

·reduced disclosure obligations regarding executive compensation arrangements in our periodic reports, registration statements and proxy statements; and

 

·being exempt from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved by stockholders.

 

We have elected to take advantage of certain reduced disclosure obligations in this registration statement and may elect to take advantage of other reduced reporting requirements in future filings. In addition, the JOBS Act permits us, as an emerging growth company, to take advantage of an extended transition period to comply with new or revised accounting standards applicable to public companies. As a result, the information that we provide to our stockholders may be different from what you might receive from other public reporting companies in which you hold equity interests.

 

We will remain an emerging growth company until the earliest of (i) the last day of our fiscal year following the fifth anniversary of the date of our first sale of our common stock pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Securities Act”), (ii) the first fiscal year after our annual gross revenues exceed $1.07 billion, (iii) the date on which we have, during the immediately preceding three-year period, issued more than $1.00 billion in non-convertible debt securities or (iv) the end of any fiscal year in which the market value of our common stock held by non-affiliates exceeds $700 million as of the end of the second quarter of that fiscal year.

 

Even after we no longer qualify as an emerging growth company, we may still qualify as a “smaller reporting company” (as we do as of the filing date of this registration statement), which would allow us to take advantage of many of the same exemptions from disclosure requirements, including reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements.

 

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WHERE YOU CAN FIND MORE INFORMATION ABOUT US

 

When this registration statement becomes effective, the Company will begin to file reports, proxy statements, information statements and other information with the SEC. These filings will be accessible at www.sec.gov, which is a website maintained by the SEC. We also maintain a website at www.eestechinc.com. When this registration statement becomes effective, the Company also will make available on its website electronic copies of the materials it files with the SEC. Information contained on our website does not constitute part of this registration statement. The Company has included its website address in this registration statement solely as an inactive textual reference.

 

 

CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS

 

This registration statement contains forward-looking statements relating to plans and objectives of management for future operations, including plans and objectives relating to the products and the future economic performance of the Company. These forward-looking statements generally are identified by the words “believe,” “project,” “expect,” “anticipate,” “estimate,” “intend,” “budget,” “target,” “aim,” “strategy,” “estimate,” “plan,” “guidance,” “outlook,” “intend,” “may,” “should,” “could,” “will,” “would,” “will be,” “will continue,” “will likely result” and similar expressions, although not all forward-looking statements contain these identifying words. Forward-looking statements involve known and unknown risks, uncertainties and other important factors, which include, but are not limited to, the risks described under “Item 1A. – Risk Factors” in this registration statement, any of which could cause actual results to differ materially from those projected herein. Although the Company believes that the assumptions underlying the forward-looking statements contained herein are reasonable, any of those assumptions could prove inaccurate and, therefore, there can be no assurance that the results contemplated in any of the forward-looking statements contained herein will be realized. Based upon actual experience and business development, the Company may alter its marketing, capital expenditure plans or other budgets, which may in turn affect the Company’s results of operations. In light of the significant uncertainties inherent in the forward-looking statements included herein, the inclusion of any such statement should not be regarded as a representation by the Company or any other person that the objectives or plans of the Company will be achieved. These forward-looking statements speak only as of the date of this registration statement and, except as required by law, the Company undertakes no obligation to correct, update or revise any forward-looking statement, whether as a result of new information, future events or otherwise, except to the extent required under federal securities laws.

 

 

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Item 1. Description of Business.

 

EESTech’s mission is to promote economically and environmentally sustainable technologies to the world’s mining and minerals processing industry. EESTech has developed waste management solutions that enables the recycling of mine site waste and process slag to recover targeted materials of value. EESTech believes its process capabilities and technologies will deliver a paradigm shift in how mineral resourses are processed.

 

EESTech’s mineral processing capabilities have been developed to significantly reduce cost, increase productivity, reduce energy requirements, eliminate polluting leachates, transform hazardous waste liabilities into products of value with zero-waste outcomes, and significantly reduce the carbon footprint of mineral resource processing.

 

EESTech is currently focused on the delivery of terms under an Agreement for the recycling of process slag waste awarded to EESTech in 2019 by Samancor Chrome South Africa, the world's largest integrated FeCr producer. Further information on the Samancor project is provided in this Item 1 under –EESTech Customers/Prospects–Samancor Chrome Holdings Proprietary Limited.

 

EESTech is also nearing completion of a trial and of proof of capability demonstration under a Works Order funded by Sasol, South Africa. Further information on the Sasol project is provided in this Item 1 under –EESTech Customers/Prospects–Sasol South Africa Limited. 

 

Company Overview

 

EESTech, Inc., was incorporated in 2000 as a US corporation, with shares publicly traded on the OTC, Pink Open Market. “EESTech” stands for “Economically Environmentally Sustainable Technologies.”

 

The Company operates its commercial and market development activities through its 100% owned subsidiaries, EESTech Australia Pty Ltd, EESTech Inc Ltd (New Zealand), EESTech Management Services (Pty) Ltd (South Africa), EESTech Europe BV, with all Intellectual Property held in EESTech Holding Europe BV.

 

EESTech’s current focus is on developing, acquiring and commercializing reclamation and remediation services to the mining and minerals processing industries. Our goal is to provide mining and mineral processing companies with mine site and process waste management solutions, which we believe is essential to environmental sustainability, with significant Environmental, Social and Governance (“ESG”) benefits. EESTech believes that its R3 Process and waste management solutions will help supply chain requirements of critical raw materials without the need of additional mining, by recycling waste liabilities to recover valuable mineral resources.

 

EESTech believes that its proprietary capabilities developed for the processing of mineral resources and the recycling of mine site and process waste streams is a significant paradigm shift from current processes because of the following:

 

Traditionally, mineral ore resources are mined from the ground using large industrial equipment that is very energy intensive. Then, using high energy demand robust industrial equipment the mined ore is crushed and milled down to a size of approximately 25mm, which is then passed through a minerals beneficiation process to wash and separate all waste fines before the lumpy ore can be loaded into a furnace for smelting into metal. This process generates significant volumes of fine material below -9mm. All fine material can only be smelted after first undergoing the expensive process of sintering (pelletizing). However, the normal industry standard is to discard these fines, which over time, has resulted in tens of millions of tons of mineral ore fines classified as an environmentally hazardous waste stream being left in waste dumps or slimes dams across the landscapes of our world.

 

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Unlike the traditional process described above, EESTech does not need energy intensive mining or crushing to acquire mineral resources, EESTech uses its energy efficient R3 Process to recycle slag waste or mineral ore down to a size of less than 400mm (micron). This enables an increased recovery of targeted materials of value, left by the inefficiencies of traditional mineral processes, to produce a smelt ready concentrates that can either be sold back to the waste owner or smelted in the company's Inductosmelt Reduction Furnace (IRF). In addition, EESTech can also reconstitute waste finds and slime dam waste to produce WRAM-ROX, a smelt ready briquet that does not require the cost of sintering. All post process tailing from both processes are transformed into inert sand products, that are in high demand for application into a number of downstream markets, thereby delivering zero-waste and environmentally sustainable outcomes.

 

Furthermore, traditional, primary smelting furnaces are energy intensive processes that inefficiently batch smelts ore (metal oxides) into metal one crucible at a time. The smelt ready ore, reductants and fluxes are placed into a furnace crucible where massive amounts of energy is applied to melt the ore and additives into molten liquid metal. The process metal is then poured from the crucible into a market ready form, with large volumes of slag waste being discarded into waste dumps. This high energy demand process is then repeated with more slag discharged into waste dumps where it has the potential to generate toxic off-gases and environmentally hazardous leachates.

 

On the other hand, EESTech’s IRF uses a combination of plasma over induction to deliver a highly efficient fully automated primary smelting process that enable the decanting of molten liquid metal and liquid slag on a continuous basis. The ultra-high temperature plasma field of the IRF cracks the silica alumina matrix that encapsulates a high percentage of ores (metal-oxides), it is believed that this will provide a significant increase in metal unit yield. All process tailing are transformed into an inert sand product with no free silica, the cause of silicosis. this material is processed and sold as a high grade foundry sand, resulting in a zero-waste outcome.

 

EESTech’s Patent Pending application, PCT/IB2022/056624 ‘Method and system for beneficiation’ describes EESTech’s beneficiation and recycling process for the recovery of alloys, metals, and minerals from mine site and process slag waste. This process capability reduces the need to mine mineral resources from the environment. EESTech’s cost efficient transformation of hazardous waste liabilities into commercially valuable products with zero-waste outcomes has the potential to significantly reduce the carbon footprint of mineral processing and deliver an environmentally sustainable circular economy for the future of the mining and mineral processing industry.

 

To achieve its unique process capability, EESTech has established Heads of Agreements with the following Parties, setting out the principal terms on which the Parties are to formulate a commercial arrangement whereby EESTech will contract with each Party as a technology partner for the collaborative development and exclusive supply of engineering services and equipment as a primary components of the IRF for all commercial applications of the IRF by EESTech.

 

Internationally renowned Inductotherm Group will exclusively manufacture and support the deployment of all IRF. Inductotherm, established in 1953 in New Jersey, has 38 manufacturing facilities located in 19 countries with over 35,000 operation systems deployed around the world. Positioning Inductotherm as the world’s largest integrated producer of induction furnaces and all related support services

 

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and

 

Tetronics for advanced plasma technologies, a UK based Plasma research company established in 1964. Tetronics is a world leader in high temperature plasma technology. Plasma is a controllable, clean, ultra-high temperature, versatile heat source that does not involve combustion.

 

Both Inductotherm and Tetronics are industry leading equipment suppliers who have committed their support for the deployment of the IRF; with Inductotherm specifically stating:

 

“the integration of these two well established furnace technologies (plasma and induction) will provide substantial benefits and efficiencies for the foundry industry. The IRF will have the unique ability to smelt and melt concentrates into primary metals and alloys at efficiency rates never seen before in the industry”.

 

and as stated by Dr. Tim Johnson of Tetronics:

 

"the IRF will be greater than the sum of its parts”.

 

O’Brien & Gere Engineers Inc. (OBG), founded in 1945 in Syracuse, New York. OBG is an engineering integration specialist used by Inductotherm to manage their engineering and furnace integration work for U.S. military and NASA applications. OBG will deliver the integrated detailed engineering design for the different configurations of the IRF on an as and when needed basis to meet EESTech’s different project requirements.

 

An additional strength of EESTech is that, except as described above, its proprietary R3 Process capability, uses commercially available, robust industrial process equipment with long operating histories in the oil, cement and mineral processing industries, configured to meet EESTech’s application requirements.

 

The majority of EESTech’s process capability is achieved through the application of off-the-shelf equipment and components produced by international companies with representative agents within South Africa. All South African agents have expertise to support the deployment and commissioning of their equipment or components as required by EESTech, all are able to support EESTech's projects with an inventory of in country spare-parts.

 

Each component supplier underwrites the performance of their equipment with industry standard warranties as defined by the process flow and scope of works battery limits. Material handling interface equipment has been selected and approved by each vendor to link all process components into a fully integrated turnkey operation.

 

For project engineering, procurement and construction (EPC) requirements, EESTech has engaged the services of Nautilus Projects and Design, a South African based independent turnkey project engineering company. Nautilus’s expertise is in the mining sector where they deliver world-class mechanical and electrical turnkey solutions. Being South African, Nautilus offers a cost advantage (compared to international rates) with design and manufacture while still maintaining international quality standards. Nautilus’s scope of work will include design, manufacture, installation and commissioning of EESTech’s projects within South Africa. Nautilus provides a comprehensive understanding of all South African regulatory requirements for the deployment of EESTech’s process facilities.

 

EESTech has issued Work Orders to Nautilus for both the Samancor and Sasol projects. The Basic Front End Engineering and Design Study for the Samancor FeCr slag reclamation project has been completed, with Conceptual Engineering Study for the Sasol Fine Coal Agglomeration project nearing completion.

 

EESTech is committed to good corporate citizenship with the communities in which we operate and live. The long-term nature of projects should enable EESTech to establish lasting relationships with clients and communities by making a positive contribution wherever we work. EESTech seeks to support local enterprise development, employment, skills development and the use of local business services.

 

EESTech is committed to creating long-term shareholder value through development and commercialization of products and services designed to meet the needs of a world demanding ever increasing higher standards of environmental sustainability.

 

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Company and Subsidiary History

 

EESTech, Inc.

 

EESTech, Inc. was incorporated as Aqua Dyne, Inc in the State of Delaware and commenced operations on April 26, 2000. The Company was formed to develop or acquire economically environmentally sustainable technologies with the

intent of bringing them to commercialization within the mining and minerals processing industry. In June 2006, the Company changed its name from “Aqua Dyne, Inc.” to “EESTech, Inc.”

 

EESTech Australia Pty Ltd.

 

In December 2002, a wholly-owned subsidiary of the Company, Aqua Dyne Australia Pty Ltd. (now known as EESTech Australia Pty Ltd.), was incorporated under the laws of Australia. EESTech Australia Pty Ltd, was formed to conduct the Company’s proprietary process development and product introduction activities.

 

In November 2020, Albatross Equity Investments of New Zealand purchased a 27% interest in EESTech Australia Pty Ltd, this sale was initiated to enable the development of comprehensive laboratory and pilot plant trials for the environmentally sustainable disposal of the SPL at a New Zealand based aluminium production facility and to initiate the development of market opportunities for EESTech within Australia and New Zealand

 

EESTech Management Services (Pty) Ltd (EESTech-MS)

 

EESTech-MS was incorporated in South Africa in 2016 as a 100% owned subsidiary of EESTech Inc Ltd. The purpose of EESTech-MS was to serve as an employment and contracting platform for the engagement of employees and consultants, as required for the delivery of South African project opportunities being developed by EESTech Inc Ltd.

 

EESTech Inc Ltd.

 

In July 2017 EESTech Inc Ltd was incorporated in New Zealand as a 100% owned subsidiary of EESTech Inc. EESTech Inc Ltd was founded to deliver project opportunities being developed within South Africa.

 

E’Prime Alloys

 

In July 2019 E’Prime Alloys LLC was formed as a 100% wholly owned US subsidiary of EESTech, Inc. to establish a mineral oxide processing facilities within the US, sometime in the near future. The US Government has identified a series of ‘critical’ minerals deemed integral to the US national economy and security that need to be produced domestically. It remains EESTech’s intention to initiate the development of this facility once project financing and product offtake agreements have been confirmed.

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Environmental Management Solutions LLC (EMS)

 

In February of 2013 EESTech entered into a Technology License Agreement with the US systems and technologies development company, Environmental Management Solutions LLC (“EMS”) whereby the founder of EMS, Chad Lehman, became a fulltime consultant to EESTech Inc. Arrangements with EMS progressed and in 2015 EESTech signed another agreement which culminated in EESTech taking over the ownership of EMS, with Mr. Lehman becoming an equity holder and Chief Technologies Officer of EESTech Inc.

 

EMS had developed methods for particle shaping organic materials and proprietary formulations for the agglomeration of micro-fines into briquettes which, can include reductants, fluxes, metallurgical thermites and bounding agents. EMS developed these process capabilities for third world humanitarian applications, e.g.; the agglomeration of industry waste organic compounds to produce a wood replacement fuel source for heating, boiling water and cooking food. All technologies developed by EMS have been transferred to EESTech and the EMS company has been mothballed and remain under the ownership of EESTech.

 

Business Description

 

Primary Focus

 

EESTech is primarily focused on developing, acquiring and commercializing reclamation and remediation services to the mining and minerals processing industries, with efforts currently focused on the delivery of a contract awarded to EESTech by Samancor Chrome of South Africa in 2019

 

The following is a description of the technologies, services and or process capabilities that form the basis for EESTech’s push into the mining and minerals processing markets.

 

R3 Process

 

EESTech’s Reclamation Resource Recovery Process (R3 Process™) represents Stage 1 of an efficient comminution process that enhances the beneficiation of feed materials to increase yields and profitability of waste recycling.

 

EESTech’s waste recycling process capability incorporates equipment attributes from the oil, cement and minerals processing industries whereby the R3 Process vastly outperforms traditional industry processes.

 

Traditional industry processes reduce solid materials down to an average size of 1mm to 5mm for recovery of one target mineral resource at a time. The unique configuration of EESTech’s comminution process reduces feed material down to under 500 micron with the ability to liberate any target resource from its matrix material, efficiently recovering up to 99% of multiple target materials in a single pass, with increased yields of higher grade products. Conformation of the potential yield of recoverable FeCr units was confirmed by an independent review and analysis titled, 99% Target Materials Recovery by Dr Ir Ron McDowall OBE, Hazardous and Toxic Substances Waste Scientist UNEP Geneva and UN FAO Rome.

 

All post process tailings are upgraded into inert sand products marketed by EESTech as ThermaSandTM, (described below) sold for application into a number of downstream markets.

 

EESTech believes that its advanced beneficiation processes enhance the economic outcomes of the extractive metallurgy process to deliver significant improvements in resource recovery. All recovered materials are processed into smelt ready WRAM ROX, that enhance the efficiencies of the primary smelting process

 

EESTech Binary Compounds

 

EESTech delivers advanced waste stabilization solutions that incorporate the use of proprietary binary compounds that react with wastes to encapsulate hazardous heavy metal materials within an acid resistant matrix. This reaction produces a strong, low permeability, chemically stabilized substrate that can be used in the processing of organic and inorganic waste streams.

 

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When mixed with waste materials, these binary compounds react with polyvalent metal ions to produce precipitates, which are less soluble across a broader pH range than metal hydroxides produced by other processes. These precipitates reduce the solubility and leachability of heavy metals to produce a more chemically stable non-toxic material. The reduced mobility of hazardous solids through encapsulation, results in a by-product of limited solubility with reduced risk of leaching hazardous materials into the environment.

 

EESTech’s binary compound enhances the setting and hydration of all cementitious and pozzolanic matrixes. When combined with commercially available setting agents, it improves the final compressive strength of processed materials, reducing permeability and resistant to acidic attack. Increasing the hydration and bonding formation of cementitious or pozzolanic matrix decreases the total number and size of voids or channels that can form during curing to further promote the structural integrity of processed materials.

 

The permeability of processed material will decrease over time to further enhance acid resistance. The gel structures that achieve this function are generated through a combination of process formulations contributing to the structural compressive strengths of the final product. The resulting product is solid, less leachable and more resistant to corrosive or mechanical erosion and degradation.

 

The cumulative benefits of EESTech’s waste stabilization process transformed all post process tailing into an inert sand product trademarked as ThermaSand, validated by an independent analysis, titled; Inert Post Process Tailings by Dr J.H. van der Waals, PhD, Soil Science, Pr.Sci.Nat, Member of: Soil Science Society of South Africa (SSSSA), Accredited member of: South African Soil Surveyors Organization (SASSO).

The reclaimed sand generated from EESTech’s remediation process transforms the environmental liabilities of FeCr slag waste into an inert, commercially preferred high-grade sand, suitable for a variety of downstream applications including for production of a geopolymer cement. Independently reported by; Dr Ir Ron McDowall OBE, Hazardous and Toxic Substances Waste Scientist UNEP Geneva and UN FAO Rome, titled; Utilization of Reclaimed Sands from Metallurgical Slag Waste.

 

Waste Resource Agglomeration Module (WRAM)

 

WRAM is an EESTech developed process that incorporates proprietary technologies entailing the re-engineered and re-configured extrusion and or roll forming equipment, particle shaping and the chemical engineering of advanced binder formulations.

 

The WRAM process agglomerates ore concentrates or valuable materials reclaimed from coarse discard dumps and fines dams to produce a saleable product in the form of “WRAM ROX”:

 

·A single line WRAM facility is projected to be able to agglomerate up to 70-tonnes per hour of wet or dry fines into highly compacted customized shapes and size as required for downstream furnacing.

 

·WRAM readily enables the blending of various minerals such as iron ore and coking coal and or a EESTech proprietary pyro-metallurgical formula to enhance smelting efficiencies through reduced energy consumption and increased production.

 

·The WRAM process permits the porosity of WRAM ROX to be regulated to facilitate improved aeration and oxidization efficiencies when smelting.

 

·The high pressure blending and particle shaping of the WRAM allows for the potential bypassing of feedstock preparation of sintering, further reducing energy consumption and finished product costs.

 

·Regardless of the application, the high shear blending of the WRAM process produces high-quality products of consistent composition throughout with enhanced performance characteristics.

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An independent trial undertaken by, Anglo American Corp (Kumba Iron Ore) South Africa, titled WRAM-ROX Trials - Anglo American, successfully demonstrated that WRAM ROX have the necessary integrity to be used as feedstock for most applications, WRAM ROX increase the efficiency of blast furnace operation to significantly reduce energy demand. WRAM ROX resulted in a 30% reduction in downstream processing energy requirements and up to a 45% reduction in required carbon additives used by the furnace in the smelting process, equating to a substantial reduction in carbon emissions.

 

Inductosmelttm Reduction Furnace (IRF)

 

EESTech believes its IRF is a breakthrough in primary smelting furnace technology, a technology that incorporates plasma over induction that for the reasons described below deliver a significant shift in primary smelting furnaces.

 

Independent trials, titled Induction Furnace Smelting of Reclaimed FeCr Metal, Cr2O3, & Spinel, undertaken by Comenergy, Dr Patrick Glynn, Adjunct Professor Griffith University, Australia, confirmed the IRF's ability to deliver superior performance, with the potential to be significantly more energy efficient than current mainstream furnace technologies, with the capacity to achieve a higher conversion rate of metal-oxides into metals; as noted by Inductotherm.

 

The EESTech IRF will provide an ability to melt/smelt non-conductive materials such as ores, metal oxides, and silica that when smelted produce high levels of slag in an induction furnace. Until now, melting or smelting of non-conductive materials relied on low efficiency electric arc, blast furnaces, or traditional induction furnaces fitted with costly carbon crucibles which, contaminate the molten material with carbon and have a short life span making them costly to use. 

 

EESTech’s IRF hybrid furnace has the capability to melt/smelt ores and concentrates while managing the high-volume production of slag in a continuous and highly efficient manner. The proprietary design of the IRF positions an ultra-high temperature plasma field directly over the slag zone of the IRF mitigating the formation of dangerous slag crust forming above the molten metal while significantly reducing noxious off-gases, emitted to atmosphere, normally associated with traditional smelting furnaces.

 

A key design feature of the IRF is the positioning of “Induction Heated Decanting Spouts” that regulate and automatically control the discharge of molten metal and molten slag. The molten slag is discharged through a spray system that transforms molten slag into spherical micro-pills (ThermaPrills™), a high-end ceramic sand product widely sought after by the metal casting industry.

 

The application of the EESTech IRF, with an integrated plasma cap for primary smelting is primarily enabled due to the following:

 

·The IRF can maintain slag in a safe molten liquid state.

 

·Automated regulation and control of molten metal and slag volumes by continuous discharge through an induction heated discharge spouts.

 

·Feedstock material is passed directly through an ultra-high temperature plasma field to rapidly initiate the melt/smelt process.

 

·The ultra-high temperatures of the plasma field and its extended exposure to the reduction zone significantly reduces energy demands of primary ore smelting, delivering higher conversion rates of metal-oxides into metals.

 

·The induction heated metal zone below the plasma heated slag zone completes the reduction of metal-oxides into molten metal and provides electromagnetic stirring action that produces homogenous metal alloys.

 

EESTech believes the net result of the IRF will be a highly-efficient primary smelting platform that is more energy efficient than traditional furnaces. On February 19th, 2020. EESTech announced the signing of an exclusive supply agreement with the Inductotherm Group, the world largest integrated builder and supplier of induction furnaces. https://www.eestechinc.com/2020/02/19/eestech-inc-announces-heads-of-agreement-with-inductotherm-corp/.  

 

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ThermaSand - ThermaPrills

 

EESTech believes that its previously described, ThermaSand™ produced by EESTech’s unique process will have a market acceptance as a high grade, high demand, industrial sand product. Being manufactured from FeCr slag, it will have a typical chemical composition of silica, alumina and magnesium bound together in an amorphous glass matrix. ThermaSand is dust resistant, sub-angular, and with an elevated alumina content making it harder and stronger than silica sand which is being banned by the foundry and metals casting industries due to it causing silicosis.

 

 EESTech is developing a process for upgrading ThermaSand into high-end metal casting ceramic prills, to be trademarked as ThermaPrills™. This process incorporates the melting of ThermaSand in a proprietary induction heated launder where it is discharged into a PLC controlled proprietary venturi assembly using a high-pressure jet of air to rapidly cool the molten material into a spherical ceramic ThermaPrills, then screened into various size fractions ranging from 500µm to 100µm,

 

Sand is an essential part of the ferrous and non-ferrous foundry industry. Sand made from FeCr slag has proven to be a superior product when used in the production of casting molds. EESTech’s ThermaPrills can be sized and blended to meet demanding specifications of this high-end market opportunity.

 

ThermaPrills will have a fusion point of above 1600°C and a low rate of thermal expansion, making them an ideal, cost effective foundry sand solution for most casting requirements. ThermaPrills produce stable cores and molds that yield high quality metal surface finishes, thereby reducing finishing costs of the final product. These attributes make ThermaPrills a premium foundry casting sand solution.

 

More than 90% of all manufactured goods in the United States contain cast metal components, requiring 100 million tons of foundry sand in circulation with 10 million being replaced annually. ThermaSand and TheraPrills will provide a longer service life and a more environmentally friendly alternative to the banned silica sand. 

EESTech transforms process slag, an industry liability, into what it believes, is the first real alternative to stop controversial wetland sand mining and the destruction of sensitive ecosystems. The production of ThermaSand and ThermaPrills delivers a total full cycle waste management solution.

 

Geopolymer Cement

 

There are nine different classes of geopolymers, but the classes of greatest potential application for construction and infrastructure are comprised of aluminosilicate materials, used to completely replace Portland cement in concrete. Slag based geopolymer is ground-breaking and sustainable construction material, which can be used to replace Portland cement to reduce the adverse effect of extreme CO2 emission.

 

Based on a 1993 study the production of Portland cement is responsible for 7% of global CO2 emissions, the potential energy and carbon dioxide reduction using geopolymers are considerable. Studies show that slag based geopolymer concrete mixes indicate a potential to significantly reduce greenhouse gas emissions, making geopolymers a preferred alternative to Portland cement; https://www.researchgate.net/profile/Joseph-Davidovits/publication/306946529_Geopolymer_Cement_a_review_2013/links/5bf2cb7c299bf1124fde4512/Geopolymer-Cement-a-review-2013.pdf

 

Through the application of a unique proprietary process that takes advantage of the sunk energy cost inherent in FeCr slag EESTech is able to transform ThermaSand into geopolymer activator - a high pH, user friendly, liquid activator that chemically initiates the setting of sand and aggregate into geopolymer concrete.

 

EESTech’s geopolymers and green cement products offer advantages such as high strength, ultra-porosity, low drying shrinkage, low creep, acid resistance, thermal properties and ultra-low carbon footprint as a preferred substitute to Portland cement, therefore having the ability to generate carbon credits.

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The environmental regulations driving the cement industry to reduce emissions are increasing global demand for economically and environmentally sustainable alternatives to replace Portland cement. Furthermore, driving the demand for change is the international financial markets support investment in environmental sustainability projects which is contributing to the growth of the geopolymer and green cement markets.

 

All EESTech processes are nontoxic and ecologically harmless in freshwater environments, completely inorganic, economically and environmentally sustainable. 

 

HEDS Battery (High Energy Density Storage).

 

Designed, developed and licensed to EESTech by: Dr. Patrick Glynn; Adjunct Professor, Griffith University, Queensland Australia and member of EESTech’s Advisory Board.

 

The HEDS technology was appointed the winner of the Kanthal Award in 2018, for innovation in energy storage and power generation.

 

Thermal Energy Storage

 

EESTech believes its HEDS Battery (High Energy Density Storage) is a breakthrough in high density energy storage, that delivers a paradigm shift in how high density energy storage is achieved.

 

The HEDS battery is based on sensible and latent heat energy storage using silicon metalloid, a unique material that overcomes previous energy storage barriers for heat, solar and wind power production and will in time, revolutionize green energy production around the world.

 

Phase Change Material of Choice

 

Silicon metalloid is solid or as a solid in granular form. For Silicon metalloid to undergo a phase change it requires heat to be applied until it melts. This is the phase change we are looking for, the melting point at which Silicon metalloid turns to liquid, is 14100C.

 

To raise the temperature 1000 grams of Silicon metalloid from ambient temperature (<>250C) to 14100C, the Silicon metalloid will absorb approximately 975,365 Joules. To now force the same 1000 grams of Silicon metalloid through the phase change and into a liquid without raising the temperature, the Silicon metalloid would need to absorb a further 1,743,763 Joules. This would give Silicon metalloid in its molten state without exceeding 14100C, an energy storage capacity that is 20 times that of a lead acid battery.

 

The HEDS battery has unlimited charge/discharge cycles, 480 W/hour per kg energy storage density and a potential >90% efficiency when used in combined heat and power (CHP) applications. HEDS batteries are suited for energy storage applications including mobile phone cell-towers, bus, truck, train and sea ferries due the smallest size starting with 500 kW/hour thermal storage for transport and commercial vehicles increasing to over 50 MW/hour thermal storage for utilities requiring mass scale energy storage.

 

EESTech believes this technology will set a new benchmark for clean energy storage, it is based on existing proven technologies, reducing development time, with design advantages achieving 20 times higher energy storage capacity of a lead acid battery and up to 200% better than all other energy storage technologies. The integration of custom sized HEDS will significantly increase the average efficiencies of wind or solar power systems.

 

EESTech will assign a HEDS technology License Agreement to Bharat Energy Storage Technology, India, this company has successfully produced operating systems and is in the process of producing the first commercial HEDS for domestic and industry market applications within India. EESTech will initially contract Bharat for the production and distribution of HEDS, for EESTech’s worldwide distribution into other growth market opportunities.

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EESTech Customers/Prospects

 

Samancor Chrome Holdings Proprietary Limited

 

A revision of South Africa’s Mineral and Petroleum Resources Development Act 2002, which introduced strict regulations governing mine and process waste, compelled Samancor with over 40 million tons of FeCr slag stockpiled across six production sites, to contract with EESTech for the provision of an economically, environmentally sustainable, waste management solution.

 

In 2015, Samancor, the world’s largest integrated ferrochrome (FeCr) producer, entered into a Collaborative Development Agreement with EESTech, to demonstrate EESTech’s waste management capability by agglomerating discarded chromite ore fines into WRAM-ROX. The Agglomeration would enhance the efficiency of FeCr metal production, thereby eliminating a waste liability by transforming process slag waste into a valuable resource.

 

While working with Samancor, EESTech identified an opportunity to recycle Samancor’s FeCr slag to recover up to 99% of chrome units that remain locked within process slag, due to the inefficiencies of traditional process equipment, to produce a smelt ready concentrate in the form of WRAM-ROX.

 

EESTech’s ability to recover chrome units from slag for smelting in its IRF, results in all post process tailing being an ultra-clean sand product, independently classified as an inert material, that is nontoxic and ecologically stable, making it environmentally sustainable and suitable for a number of downstream commercial applications. This sand product has been trademarked by EESTech as ThermaSand.

 

EESTech’s process configurations were validated in South Africa by Samancor over the course of a 4-year due diligence process, which included multiple sample processing’s, third party test analysis and economic and technical feasibility appraisals.

 

Upon contract completion, EESTech initiated a planned rollout schedule to advance the Samancor project which included contracting the services of Ekoinfo CC Environmental & Wildlife Management Consultancy, to undertake a comprehensive, Government required Environmental Impact Assessment (“EIA”) as part of the regulatory requirements that must be completed and approved prior to initiating project construction. The Environmental Impact Assessment for the Samancor project was approved by the South African Government Department of: Agriculture, Rural Development, Land & Environmental Affairs, Mpumalanga Province, Republic of South Africa, titled, EIA Approval.

 

A two-stage two-year rollout plan was determined the most cost-effective way to establish the Samancor project. A two-stage deployment program will result in Stage 1 requiring the establishment of a FeCr slag milling and screening facility that should produce an early cashflow of saleable products: a) a Chrome concentrate in the form of WRAM-ROX which EESTech intends to sell to Samancor and b) ThermaSand, for which EESTech already has a high volume off-take commitment for by the foundry and metal casting industry.

 

Stage 2, comprises the deployment of EESTech’s patent pending plasma over induction furnace (IRF), for the primary smelting of the chrome concentrate WRAM-ROX into FeCr metal, sold back to Samancor under the terms of an Off-Take Agreement for all FeCr metal produced. The ability and efficiencies of Stage 2 will significantly increase the commercial benefits to EESTech.

  

In September, 2017 Samancor informed EESTech that it would enter into an agreement with EESTech to implement a 10 million ton slag waste recycling project at their Ferrometals production facility, the largest of Samancor’s facilities, located in Emalahleni, Mpumalanga Province, approximately 65km east of Pretoria in South Africa.

 

On February 21, 2019, Samancor Chrome, awarded EESTech a 10-year contract with a 5-year extension option to undertake the recycling of FeCr slag waste at their Emalahleni facility. where over 12.5 million tons of FeCr slag waste is stockpiled with approximately 1 million tons of FeCr fines stored in a slimes dam.

 

EESTech was contracted to deliver a “zero waste” solution at Samancor’s Ferrometals production facility, where EESTech’s advanced process methodologies will reclaim up to 99% of residual FeCr units from Samancor’s slag dumps. The EESTech facility is configured to process in excess of 700,000 tons of slag per year, to produce reclaimed chrome concentrate and post process tailings (“PPT”). All PPT generated from recycling and reclaiming of chrome units from slag is beneficiated into high-grade inert, specialty sand products, highly sought after by a variety of industries. Under the terms of the contract with Samancor all PPT are 100% owned by EESTech (this will be marketed as ThermaSand), with all revenues from the sale of this material going to the sole benefit of EESTech. ThermaSand can be sold as a feature rich foundry and metal casting sand. https://www.alibaba.com/product-detail/Ferro-Chrome-Sand

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Under the terms of the contract, Samancor is obligated to purchase all FeCr metal reclaimed by EESTech at a pre-determined discount to the spot market price for FeCr. Based on the volume of recoverable FeCr and the volume of ThermaSand produced and sold, we believe the potential revenue value over a ten-year period will be in excess of US$800 million, plus an upside share in FeCr market price increases. The revenue target reflects on the forecasted value / revenues generated from the sale of product EESTech can reclaim from the Samancor Emalahleni FeCr slag dump. Samancor is contracted to provide EESTech 10 million tons of FeCr slag over the 10 year term of the agreement with an extension option for a further 5 years, EESTech’s revenue target assumptions are limited to the 10 year period. The current reserve of FeCr slag at the Samancor Emalahleni facility is reported at approximately 13 million tons, with an additional 1-2 million tons of slimes dam fines. Additionally, Samancor is producing over 300,000 tons of new horizons slag per annum.

 

EESTech has designed a reclamation facility with a process capacity of approximately 700,000 tons of Fr Cr slag per annum, producing between an estimated 100,000 to 120,000 tons of chrome concentrate and 550,000 to 600,000 tons of inert post process tailings sand per annum for resale. The chrome concentrate produced by EESTech has a forecasted value of US$150 per ton, as a discount to market price for chromite ore, https://trade-metal.com/chromite-ore-price-s5328.html, or if beneficiated-upgraded in EESTech's IRF to FeCr metal, a revenue contribution to EESTech of no lower than US$1200 per ton, the discounted floor price Samancor is contracted to purchase FeCr metal from EESTech, whereas the current market value of FeCr metal is approximately US$1,335 per ton,

 

The post process tailings sand is to be beneficiated into ThermaSand, which is forecasted to deliver a revenue contribution of US$150 per ton.

 

Revenues from the sale of the non-beneficiated chrome concentrate and ThermaSand exceed US$900 million over the ten year term of the contract;

 

Cr Concentrate : 100,000 tons x $150 x 10yrs = $150,000,000
Tailings Sand : 500,000 tons x $150 x 10yrs = $825,000,000

 

  - Currency exchange rates influence of domestic (South African) chrome concentrate as this product is sold locally back to Samancor is South African Rand. EESTech has modelled its assumptions on a Rand15 to US$1.

  

-The sales of ThermaSand and beneficiated Cr Concentrate (FeCr metal) is traded/ valued in US currency.
-The market price of FeCr varies according to market supply and demand conditions, however underlying demand for stainless steel which comprises approximately 18% FeCr has had the market price of FeCr consistently above the floor price that Samancor is contracted to purchase FeCr from EESTech for. Furthermore, it should be noted that South Africa represents approximately 72% of the worlds commercial supply of chromite. https://www.rough-polished.com/en/analytics/123526.html

-An estimated investment of approximately US$50 million for the commissioning of a Samancor FeCr Slag Reclamation facility is anticipated to generate approximately US$90 million per annum with an EBITDA of approximately 60%.

The project establishment period is defined as once project funding is finalized. Global supply chain constraints could impact equipment supply lead times, which could give rise to a 6-8 month over run in completion. The estimated target date for commissioning of the facility Q1 2025, with project deployment costs are estimated at $50,000,000.

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Effect of Governmental Regulations

 

With EESTech’s lead projects being in South Africa, compliance with South Africa’s Black Economic Empowerment Regulations is required. This recognizes the utilization of black owned local service and supply companies and either 26% of locally registered operating companies to be black owned or for multinational companies a Black Economic Empowerment levy of up to 4% of revenues.

 

South Africa has a Carbon Emissions tax of Rand 144 per ton, about US$9 per ton.

EESTech’s project deployments require environmental approvals that are granted from the submission of Environmental Impact Assessments (EIA). With EESTech positioned as an environmental service company provisioning environmentally sustainable solutions, the filing or submission of EESTech’s applications are being well received by South Africa’s Department of Environmental Affairs, the EIA for the Samancor project has now been approval and received by EESTech

 

Sasol South Africa Limited

 

Sasol Limited (“Sasol”) is a publicly listed company on the Johannesburg Stock Exchange in South Africa and the New York Stock Exchange in the United States. Sasol is a large company and the seventh largest coal mining company in the world. Sasol is a producer of synthetic chemicals and fuels derived from coal. Sustainability has become a major driver in Sasol's business, whereby they have prioritized four relevant Sustainable Development Goals to ensure their business is environmentally, socially and economically sustainable. https://www.sasol.com/sustainability/our-sustainability-approach

 

In February 2014 EESTech was invited by Sasol to demonstrate its ability to improve the physical or chemical properties (“beneficiate”) of discarded coal fines into a product suitable for gasification. Sasol operates Fischer-Tropsch synthesis-based fuels production plants and is one of the world’s leading large-scale producer of liquid fuels and chemicals from coal.

 

EESTech successfully demonstrated that it could mitigate Sasol’s environmental waste footprint through the deployment of the WRAM-ROX process, by converting a liability into a suitable feedstock for Sasol’s gasification plant. Gasification, rather than direct combustion, significantly reduces the environmental emissions of coal as a fuel source.

 

In August 2014, EESTech responded to a formal request for a proposal from Sasol by submitting a comprehensive proposal for a complete WRAM-ROX process line for the agglomeration of coal fines. Sasol did not proceed with the project however due to pressing sustainability concerns they reactivated the project and made direct contact with EESTech declaring EESTech was the only company that had been able to demonstrate the capability to agglomerate coal fines to the specification required for gasification.

  

Sasol has engaged EESTech to undertake an extensive testing / trial and demonstration program for the deployment of EESTech's WRAM-ROX process for the agglomeration of coal fines. The capital requirement for this project testing and trials are being underwritten by upfront establishment fees by Sasol.

 

EESTech was initially contracted to undertake an analysis of its various fine coal streams and determine if such product could be agglomerated into pellets that would allow this product to be gasified. The gasification of reconstituted coal fines requires unique performance characteristics greatly different from that required for combustion.


The initial experimental / R&D undertaking was followed up by a work order for production trials, that would produce 1 ton of agglomerated Sasol coal fines for Sasol gasification testing. Completion of this has led to Sasol commissioning EESTech to produce a conceptual engineering and design study for a commercial scale fine coal agglomeration facility to validate commercial scaling and financial feasibility of such a process facility.

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Conditional of this study meeting the requirements of Sasol, it is intended the Parties will enter into negotiation of a commercial contract that will become a significant component in assisting Sasol to meet its environmental sustainability objectives. Subject to further trials being completed by EESTech, the commercial contract will call for a long term (10-15yrs) tolling fee service arrangement for the agglomeration of approximately 1 million tons Sasol coal fines per annum and the doubling of this before 2029. Pre-contract trials are continuing.

 

Aside from this fine coal agglomeration project, EESTech is in advanced negotiations for the partnering with Sasol for the utilization and market deployment of other EESTech waste management / emissions reduction technologies. Completion of negotiations and announcement of a signed agreement is anticipated pre 2023.

 

Anglo American / Kumba Iron Ore

 

In August 2013 EESTech initiated an evaluation trial with AngloAmerican Corp (Kumba Iron Ore) to determine the application potential of the EMS formulations when used in EESTech’s WRAM. The shareholders of Kumba Iron Ore are; Anglo American plc (63.4%) the Industrial Development Corporation (IDC) of South Africa (13.1%) and Minority shareholders (23.5%).

 

The evaluation program demonstrated that WRAM-ROX have the necessary integrity to be used as feedstock for smelting iron ore and other metal oxides in a blast furnace. Trial results confirmed that WRAM-ROX increased the efficiency of blast furnace operations to significantly reduce energy demand. EESTech’s testing indicated that WRAM-ROX resulted in a 30% reduction in downstream processing energy requirements and up to a 45% reduction in require carbon additives used by the furnace smelting process; equating to a substantial reduction in carbon emissions. EESTech believes this innovation collectively delivers economic and environmental sustainability outcomes for smelting metal oxides into metal.

 

EESTech’s Other Technologies

 

The following is a description of other technologies that EESTech has decided to not aggressively pursue at this time but believes provide potential future value.

 

Hybrid Coal Gas Turbine (HCGT)

 

EESTech believes that its HCGT represents a significant initiative in the battle against climate change.

 

Billions of tons of waste coal are stockpiled in dumps around the world. Until now this has been an acknowledged legacy of coal mining and coal fired power generation. Waste coal is an ongoing generator of environmentally hazardous methane, a Green House Gases (“GHG”) emission that the United States EPA estimates is more than 25 time as potent as carbon dioxide at trapping heat in the atmosphere, See attached: Methane Emissions

 

The HCGT is a robust, high efficiency combustion process with a multi-fuel capability, designed and developed for the combustion of low-quality waste coal in combination with fugitive coal mine methane gases such as Ventilated Air Methane (“VAM”) or Coal Mine Methane (“CMM”), in the uniquely configured HCGT rotary kilns.

 

EESTech believes that using waste coal for the production of a low carbon cement and the generation of electrical energy would greatly reduce GHG emissions when compared to the volume of methane emissions constantly generated over the lifetime of waste coal dumps. Furthermore, EESTech believes that utilization of waste coal as a fuel for the HCGT will mitigate the production of methane and acid mine leachates, to deliver long-term environmentally sustainable benefits and commercially responsible governance of natural resources.

 

The HCGT uses a sophisticated combustion control system to regulate the flow of variable fuel types or combination of fuels, including waste coal, high volumes of forced air flow and the ability to use CMM / VAM to produce high temperature combustion gases. These super-heated gases are passed through a heat recovery boiler to convert heat energy generated from combustion into steam which is expanded through a steam condensing turbine to produce electricity. All exhaust gasses are treated by an industry first acoustic agglomeration filtration process that removes up to 83% of all particulate matter from the HCGT exhaust stream.

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The HCGT was developed as modular 1MW, 3MW and 6MW power generation platform with the capability of producing commercial volumes of low carbon cement per MWh of energy produced. All components utilized in the HCGT design were developed using commercially available components that could be sourced from local manufacturers, and configured as a platform to incorporate EESTech’s process. The HCGT was thus easily scalable to meet the requirements of most applications.

 

EESTech has recently made an addition to the HCGT by including the WRAM ROX process for the preparation of waste coal as fuel for the HCGT, whereby proprietary formulations are added to enhance the thermal values and combustion characteristics of the waste coal. The combination of enhanced fuel and high volumes of forced air flow result in ultra-high temperatures being achieved inside an enclosed flare, effectively eliminates any visible smoke from being exhausted.

 

A key component of the WRAM ROX formulation is designed to transform fly-ash, produced from the high temperature combustion of waste coal within the HCGT, into a calcined clinker that, when mixed with gypsum and milled down to a uniform size of below 30 micron, produces a high grade low carbon cement, an economically and environmentally sustainable replacement for Portland Cement.

 

After completing a fully developed HCGT pilot plant in 2007, three internationally recognized independent engineering companies were contracted to undertake a comprehensive performance review and to confirm the efficiencies and scalability of the HCGT.

 

JetWater

 

The JetWater system was developed by EESTech in 2004, is a water purification technology that is designed to deliver efficient and cost-effective treatment of contaminated effluent arising from industrial processes or occurring in process waste streams. The JetWater can also be used for the desalination of sea water.

 

The JetWater system (“JWS”) can process up to 11,000 gallons (50,000 litres) of contaminated water per hour, using a simple and unique process for extracting dissolved and suspended solids from water, resulting in water which can be processed to pharmaceutical standard if required.

 

The evaporation based JWS process can produce purity of output water to less than ten parts per million of suspended solids. Achieving target levels of the output contaminants can be controlled to any level by mixing of feed water with processed water. Water classified as demineralized or potable are able to be produced from the process. Industrial waste water can be processed to achieve 100% recycling of site waters, making for no off-site discharge and hence exceeding all EPA guidelines.

 

The quality of the produced water may permit discharge to ecosystems with no further treatment necessary to comply with EPA guidelines. Further chemical treatment can be utilised to address residual pathogens that are not sterilised in the heating by this process. The requirement for chemical treatment and the quantities of chemicals utilised in the post-treatment dosing are significantly reduced in comparison to all filtration technologies. Cost of total treatment of wastewaters is significantly reduced due to less chemical intervention to achieve the same cleaning of the water.

 

Pyro-Metallurgical Thermite Formulations

 

EESTech has developed proprietary pyro-metallurgical thermite formulations that can be incorporated into WRAM ROX to enhance primary smelting efficiencies by significantly reducing energy requirements for smelting mineral oxides into metal including reactive metals such as titanium.

 

EESTech successfully demonstrated that this proprietary process has the potential for competitive commercial titanium production. Laboratory-scale testing that incorporated the use of EESTech’s proprietary pyro-metallurgical thermite formulations, confirmed the ability to convert titanium dioxide TiO2 into Ti metal through a highly efficient three-stage process incorporating a modified IRF, trademarked as the Ti-IRF.

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The purpose of the first stage Ti-IRF process using EESTech’s pyro-metallurgical formulations was to ensure that the high-temperature smelting reactions occur reliably at a controlled rate.

 

The second stage of the process was smelting the WRAM ROX in the Ti-IRF to produce molten Ti metal. WRAM ROX formulations regulate the reaction rates to prevent violent splattering normally associated with high-temperatures generated by a thermite reaction. The Ti-IRF provides a controlled environment that prevents molten metal contamination. This aspect is critical to ensure a high-grade Ti metal product.

 

EESTech solved the problems related to the reactivity of titanium metal and its oxides by lining the Ti-IRF crucible with an oxide that does not react with molten Ti metal. Using a water-cooled copper skull crucible in the Ti-IRF for the production of Ti metal successfully addresses this critical issue.

 

The atmosphere within the Ti-IRF is controlled with inert gas to prevent oxidation of the molten Ti- metal during the smelting process. This will be continued in pilot-and commercial-scale work, and vacuum vessels will also be introduced to limit the oxygen content of the final product.

 

The third stage of the process for the reduction of the molten Ti-metal was the dissolved oxygen content so that the finished product meets industry standards. This is achieved by adding a granulated metal to the molten Ti-metal while in the Ti-IRF. The granulated metal has a higher affinity for oxygen than the molten Ti-metal, thus stripping out the oxygen without alloying with the molten Ti-metal. The granulated metal is converted to an oxide and is removed from the molten Ti-metal in the form of slag, which potentially has a commercial value of its own.

 

EESTech’s believes Ti-IRF has the potential to deliver a more efficient, more cost-effective method of producing Ti-metal compared to current industry processes. EESTech believes that the computational and experimental work conducted to date indicates that the Ti-IRF has the potential to deliver a more efficient and more cost-effective approach compared to the mainstream processes currently used to produce Titanium metal. EESTech believes the process will transition to become a major primary smelting breakthrough for the titanium industry.

 

EESTech believes that its’ proprietary formulations combined with the Ti-IRF process will disrupt and alter the landscape of this industry, as it holds the potential to be more energy efficient and to significantly reduce the carbon footprint of the industry standard Kroll process invented in 1932.

 

Delta-E

 

The Delta-E is a proprietary technology under development by EESTech, designed to be a highly efficient, milling process that utilizes the extreme dynamics of natural forces on hard rock.

The Delta-E, with no internal moving components, is intended to use a counter flow vortex generator, acoustic modulation, vacuum and cryogenics to generate the required conditions to breakdown the structural bond of materials fed directly into the process chamber.

 

The design features of the Delta-E are intended to induce naturally occurring stresses that have the ability to mill dry or saturated materials down from 70mm to ultra-fines subangular particles of less than -50µm, water is vaporized, all solids are disassembled to their elemental form before discharging within the gas/air stream.

 

Processed materials will be pneumatically conveyed into a cyclone where they are separated from the gas/air stream. The processed material will then be dispensed from a storage hoper into a gravitational separator, whereby the ultra-fine materials are separated by specific gravity.

 

The purified fine materials will be able to be bagged and sold as feed stock for a variety of industrial applications or can be processed into WRAM-ROX as a smelt ready concentrate for the production of Metals and alloys.

 

Prototype Delta-E devices have been built in a number of development configurations and tested with a variety of feed materials, demonstrating the potential to significantly reduce the cost of milling hard rock materials.

 

The development phase of the Delta-E has demonstrated a promising potential to achieve the priceable design objective. EESTech plans to continue this development as a work in progress

 

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Intellectual Property Rights and Strategy

  

EESTech Intellectual Property Strategy

 

The following presents a high-level summary of EESTech intellectual property: i) current status; ii) ownership and IP management; and iii) future strategy.

 

i) EESTech Intellectual Property – Current Status

 

EESTech intellectual property currently includes registered and unregistered intellectual property rights: three international patent applications, one early-stage patent application (filed but not yet extended internationally), two registered trademarks, five unregistered trademarks, copyright works, data, designs, confidential information and trade secrets (please see Tables 1 and 2).

 

Patents

 

We are using the Patent Cooperation Treaty (PCT), managed from Europe, which makes us eligible for patent protection in up to 156 countries around the world, including USA, Canada, Europe, China, India, and the countries of the Asia-Pacific area, Africa and south America. Mid-2023 to early 2024, we will select from the 156 countries of the PCT those countries of commercial or competitive importance and we will maintain the patents in those countries. Once granted and if maintained, the patents will continue in force for 20 years.

The three international patent applications protect the novel aspects of the EESTech technology as a process, as the related equipment and the resulting products or qualities of the products.

 

PCTIB2022/055499 ‘Improved hybrid smelting system’ describes the novel EESTech induction smelting system and the parameters of control that optimize the hybrid combination of plasma over induction for a superefficient, continuous smelting process, via real-time monitoring and adjustment of the process parameters.

 

PCT/IB2022/056395 ‘Method and system for the remediation of spent pot liners’, cites PCTIB2022/055499 and the pertinent advantages of the EESTech smelting process, and describes the EESTech plasma field remediation of spent pot liners where toxic and hazardous compounds are rendered safe, remediation yields are repurposed materials and value-add products are produced. Remediation is accomplished by a system comprising a primary plasma arc furnace to receive and decompose the spent pot liners to produce a raw syngas, a secondary plasma arc furnace to receive and decompose the raw syngas to produce a refined syngas, and a controller to monitor and control the remediation. 

 

PCT/IB2022/056624 ‘Method and system for beneficiation’ describes the EESTech method and system for beneficiation for the recovery of alloys, metals, and minerals from mining and process waste, for example, the recovery of ferrochrome (FeCr) from less desirable materials. An exemplary product is a chrome concentrate of 95% chrome units.

 

GB2210223.0 ‘Method and system for thermal spent pot liner beneficiation’ describes a process to thermally beneficiate spent pot liner from aluminum smelters into inert slag, crude iron (‘pig iron’) and syngas, with the advantage that the syngas is combusted in a generator providing supplemental power for the beneficiation process.

 

Trade marks

 

EESTech product and corporate names are protected via registered and unregistered trade marks. We intend to use the EESTech leaf – now registered in the European Union and being extended internationally - as an alphabet and translation agnostic brand identifier, akin to Apple Mac’s apple logo. A text component, the EESTech name, and other descriptors will be used in association with the graphical mark.

 

Copyright works

 

Copyright works support the technology covered by the patent applications and an inventory of copyright works (including software, design drawings flow charts and other documentation) is underway. These include: original source code and software relating to the patented process master control unit, documentation, brand illustrative and instructional matter, engineering and other design drawings that are not covered by design, flow charts, graphical works and data.

 

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Designs

 

Plant and apparatus components, as well as the unique physical form of products (e.g. briquettes), will be protected by registered and unregistered design right. In most major territories, a ‘grace period’ applies to registered designs whereby, unlike patents, a product can be disclosed before design protection is sought. EESTech will thus proceed with design protection during 2023.

 

IPR: Application number: Title: Filing date:
Patent: PCTIB2022/055499 Improved hybrid smelting system

15.06.21

 

  PCT/IB2022/056395

Method and system for the remediation of spent pot liners

 

03.12.21
  PCT/IB2022/056624 Method and system for beneficiation

17.12.21

 

  GB2210223.0 Method and system for thermal SPL beneficiation 12.07.22

Trade marks:

 

Registered trade marks

 

 

NZ 1077578

 

 

Inductosmelt®

 

 

04.10.17

  EU 018694714 ®

 

28.04.22

Unregistered trade marks  

ThermaSand™

ThermaPrills™

 
   

WRAM-ROX™

R3 Process™

Delta-E™

 

 
Copyright:  

source code* and software* (including of the patented process master control unit)

documentation

brand illustrative and instructional matter

design drawings*

flow charts

graphical works

data

 

 
Design:  

Equipment / plant*

Equipment / plant components

logo

 

 
   

* currently among EESTech trade secrets

 

 

 

ii) Ownership and IP management

 

In March 2022, EESTech Inc incorporated a wholly owned subsidiary company – EESTech Europe Holdings BV to manage EESTech intellectual property. Among the anticipated benefits of the intellectual property management entity are: clarity of ownership for ease of intergroup and commercial transactions; the focus of an expert team; the minimizing of the overall rate of tax for the group and simplification of inter-jurisdictional tax issues; and ease of IP valuation.

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In addition to other benefits, the Netherlands was chosen as the place of incorporation for EESTech Europe Holdings for its tax, funding and legal advantages (including the caliber of intellectual property law, practice and flexible choice of intellectual property rights filing jurisdiction).

 

All intellectual property is in the process of assignment from EESTech, Inc to EESTech Europe Holdings BV, and EESTech Europe Holdings BV will now be the applicant and owner of intellectual property.

 

iii) EESTech Intellectual Property Strategy

 

Each form of intellectual property right serves a different purpose. As separate legal instruments, each intellectual property right can be used independent of, or in combination with other rights and can thus build value and facilitate different commercial operations internationally.

 

Historically, EESTech had relied on confidentiality and trade secrets. This reflected the fast pace of improvement and development to the EESTech technology, while avoiding the ‘public’ disclosure that most forms of intellectual property application entail.

 

The EESTech intellectual property portfolio is now being constructed to take advantage of different intellectual property rights to enhance protection, value and commercialization options.

 

Our goal is to ensure that each novel and valuable aspect of the EESTech technology is captured - individually and within the context of use - as well as iterations that are non-core business for EESTech but which can be out-licensed to third parties or further developed as collaborative ventures.

 

We intend for EESTech intellectual property rights to be international: valid and enforceable in countries where EESTech operates/will be operating; in countries where there is out-licensing potential; and in countries where there might be risk of ‘invent around’ or ‘non-infringing’ copying. We will also select optimal jurisdiction for filing, according to qualitative criteria and competition.

 

Among other advantages, we intend that the portfolio will support EESTech’s commercial negotiating position and preemptively define EESTech ‘background’ intellectual property prior to collaboration to reserve EESTech’s right to related new intellectual property resulting from collaboration.

 

We intend that the portfolio will also be structured to enable EESTech to take-up alternative revenue generating opportunities.

 

Year Ended December 31, 2020

 

Covid-19

 

In February 2020, the Covid-19 Pandemic impacted EESTech’s project rollout plan by bringing everything to a halt, including EkoInfo’s work on the Samancor project EIA, with all other projects being disrupted.

 

Samancor Chrome

 

In January 2020, EESTech appointed Nautilus Projects (Pty) Ltd, as the lead engineering company to initiate the detailed engineering plan for the deployment of the Samancor project. Nautilus is an independent turnkey projects solutions company, with expertise in the mining sector where they deliver Engineering, Procurement and Construction (EPC) services.

  

Over the twelve months Nautilus has worked closely with EESTech to complete the Samancor projects scope of works, identifying and consolidating arrangements with all equipment and service providers. EESTech and Nautilus have completed a comprehensive process design review, confirming the logistics and supply chain certainty for all imported equipment.

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Sasol

 

In May 2020 Sasol issued an international Request for Proposals (RFP) / Tender for the agglomeration of coal fines to a specification suitable for gasification. While EESTech was once again invited to submit a proposal under this RFP now ready for public release. EESTech gave notice to Sasol that, as previously noted in 2019, that EESTech was not prepared to be part of its competitive tender process. EESTech reiterated that it would still welcome the opportunity to deliver the project for Sasol if the respondents to the new RFP failed to meet the original standards set by EESTech in 2014.

 

In 2021 Sasol made contact with EESTech because they were dissatisfied with the outcome of the tender by others as no suitable submissions were received. Subject to further trials being completed by EESTech Sasol is seeking a commercial arrangement with EESTech to agglomerate Sasol’s discard coal fines to a standard that could meet their gasification requirements. Sasol is ideally seeking a tolling / fee for service arrangement for an immediate agglomeration 25,000 tons of coal in the first year growing each year thereafter to an approximate 2,500,000 per year within 3 years, with a contract period of fifteen years. Pre-contract trials are continuing.

 

Spent Pot Liners (SPL) disposal

 

In March 2020 EESTech Australia Pty Ltd entered into a confidential Technology/process trial/demonstration Agreement with a New Zealand based aluminium smelter to develop and demonstrate a waste management solution for the disposal of Spent Pot Liners (SPL), a hazardous and problematic waste material produced through the production of aluminium. EESTech’s plans to develop an innovative waste management solutions that requires minimal pre-treatment of SPL waste streams by utilising the inherent calorific value of SPL to supplement the energy requirements for the remediation process.

 

EESTech’s reclamation and remediation process will incorporates the automated IRF to melt/smelt all SPL materials into non-hazardous vitrified and inert material suitable for downstream applications, resulting in a zero-waste outcome. The refractory component of SPL will be transformed into ThermaPrillsTM a high-grade, feature-rich, foundry and metal casting sands. The carbon component of SPL will be converted into an organics syngas. The syngas is quenched, cleaned and passed into an off-the-shelf engine that can use syngas as fuel for the generation of the project’s energy requirements.

 

In November 2020, Albatross Equity Investments of New Zealand purchased a 27% interest in EESTech Australia Pty Ltd, this sale was initiated to enable the development of comprehensive laboratory and pilot plant trials for the environmentally sustainable disposal of the SPL at the NZ aluminium production facility and to initiate the development of market opportunities for EESTech within Australia and New Zealand.

 

Year Ended December 31, 2021

 

Samancor Chrome

 

After disruptions and long delays caused by the Covid-19 Pandemic, EkoInfo, EESTech’s environmental engineering consultants were able to complete the Environmental Impact Assessment for the Samancor project, and in October 2021 EESTech received notification, from the South African Government Department of Environmental Affairs, that the EIA for the Samancor project had been approved.

 

The Samancor project will be initiated in two separate stages, with each being managed by a contracted Engineering, Procurement and Construction (EPC) specialist, contract to manage the deployment of each stage as defined by a scope of works.

 

Stage 1. incorporates EESTech’s patent pending Reclamation Resource Recovery Process (R3 Process) which represents a highly efficient comminution process that maximizes the yield potential of targeted material from the recycling of process slag.

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EESTech’s R3 Process capability incorporates long serves live equipment with successful operating histories in the oil, cement and minerals processing industries.

 

The unique configuration of EESTech’s comminution process reduces feed material down to under 500µm with the ability to liberate targeted resources from its matrix material, efficiently recovering up to 99% of multiple target materials in a single pass, all post process tailings are upgraded in inert products for downstream applications.

 

EESTech’s advanced R3 beneficiation process enhances the economic outcomes of the extractive metallurgy process to deliver significant improvements in resource recovery. All recovered resource concentrates are passed through a Waste Resource Agglomeration Module (WRAM) to produce saleable WRAM-ROX, an EESTech patent pending process that uses proprietary binder formulations to enhance the efficiencies of the smelting process.

 

Stage 2. incorporates EESTech’s patent pending Inductosmelt Reduction Furnace (IRF) a world’s first Plasma over Induction furnace comprising the integration of two well established technologies. The IRF has the ability to smelt non-conductive materials, a process that until now relied on low efficiency electric arc or blast furnaces. The IRF provides the perfect smelting environment to reduce metal-oxides into metal. It is significantly more cost effective to build, own, and operate than traditional furnace technologies.

 

Zero-Waste and Environmentally sustainable outcomes

 

Stage 1. incorporates a proprietary binary compound that reacts with the post process tailings to encapsulate any remaining hazardous materials within an acid resistant matrix to produce a high-grade, particle shaped, technical sand product, independently validated as a non-hazardous product with a NEMWA Class 4 “inert” material certification. Trademarked and marketed by EESTech as ThermaSand, in demand by a number of high volume downstream commercial markets.

 

ThermaSand can be further upgraded into ceramic prills, trademarked as ThermaPrills. Manufactured by melting ThermaSand in a proprietary induction heated launder which is then discharged to form spherical ceramic ThermaPrills, a high-end, high value metals casting sand.

 

Stage 2. The IRF primary smelting process produces two products, FeCr metal which is sold back to Samancor and an ultra-clean slag material that is upgraded into ThermaPrills.

 

The net result of EESTech’s process is Zero-Waste and Environmentally sustainable outcomes

 

Sasol

 

In April 2021 EESTech was once again contacted by Sasol who reported that they were dissatisfied with the outcome from multiple tenders as no suitable submissions were received and were now seeking a commercial arrangement with EESTech to use the WRAM ROX process to agglomerate Sasol’s discard coal fines to a standard that could meet their gasification requirements.

 

Sasol stated that the samples submitted by EESTech in 2014 were of a standard above any competitive offers presented by respondents to the RFP and that EESTech's WRAM-ROX were the only products that met their requirements.

 

This has resulted in Sasol exclusively engaging EESTech to deliver a fine coal agglomeration solution to recover what is presently deemed discard coal fines. The outcomes developed by EESTech will mitigate Sasol’s environmental waste footprint and convert an environmental liability into a suitable feedstock for Sasol’s gasification plant. Gasification, rather than direct combustion, significantly reduces the environmental emissions of coal as a fuel source.

 

While the previous RFP in 2014 was seeking to agglomerate coal fines for thermal combustion / power generation, the current requirement is for the agglomeration of coal fines for gasification, requiring a different formulation to produce WRAM-ROX, for gasification and the production of synthetic fuels.

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Sasol has given EESTech two work orders, one for 25,000 tons per month and the second for 2.5 million tons per year. Sasol is ideally seeking a $46 per ton tolling / fee for EESTech’s services.

 

Product Warranties

 

We have not yet determined what type of warranty, if any, will be offered other than back to back equipment warrantees and process guaranties provided by equipment/component suppliers. The deployment of our process capabilities will be covered by independent detailed engineering service providers and EPC contractors. We anticipate that performance guarantees will apply to most of our systems. 

 

Advisory Board

 

We utilize an Advisory Board to assist the Company in corporate and finance and research and development matters. The Advisory Board members have various backgrounds and experience that complement our operations and business strategy. The Advisory Board provides suggestions to our management on an as-needed basis. The Advisory Board members are appointed on renewable two year term. Additional information about the Advisory Board, which currently consists of 13 members, is available on our website at www.eestechinc.com.

 

Employees

 

Our operations have been conducted by utilizing the services of specialist consultants and contractors. The Company has no direct employees. For as long it remains in the development stage, the Company intends to continue to utilize consultants and contractors for administrative, accounting, and other services.

 

Item 1A. Risk Factors.

 

An investment in the Company involves a high degree of risk. Before making an investment decision with respect to our common stock, you should consider the risks described below in addition to the cautionary statements and risks described elsewhere and the other information in this registration statement and in our other subsequent filings with the SEC. These risks and uncertainties are not the only ones we face. Additional risks and uncertainties not presently known to us or currently deemed immaterial by us, may also impair our operations. If any such risks actually occur, our business, financial condition, liquidity, results of operations and prospects could be materially adversely affected and our ability to implement our growth plans could be adversely affected.

 

Risks Related to our Business and Operations

 

We have incurred significant net operating losses since our inception and anticipate that we will incur continued losses for the foreseeable future.

 

We had an accumulated deficit of $35.1 million as of June 30, 2022, and we will continue to incur significant expenses in the foreseeable future related to the development and commercialization of our business plan. As a result, we will be sustaining substantial operating and net losses, and it is possible that we will never be able to sustain or develop the revenue levels necessary to attain profitability.

 

Our financial position creates doubt as to whether we will continue as a going concern.

 

We generated minimal revenues in 2021 and no revenues in 2020. Our financial position raises substantial doubt about our ability to continue as a going concern, and we may need to raise additional funds in order to continue to conduct our business. The Company historically has sold equity to raise working capital from a number of investor sources, on an as and when needed basis. There can be no assurances that we will be able to achieve a level of revenues adequate to generate sufficient cash flow from operations or obtain funding from additional financing through private placements or other financing necessary to support our working capital requirements. If we are unable to secure sufficient capital to fund our operating activities, we may be forced to delay the completion of, or significantly reduce the scope of, our business plan.

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Some of our technologies are not, and may not become, commercially operated in the marketplace.

 

The Company’s technologies and process capabilities have not been commercially operated in the marketplace. We have established design capability and validated operational characteristics through laboratory testing, process trials and the operation of pilot plants. In addition, while our process capabilities are in an advanced stage of commercialization and are capable of “stand alone” operations, they have not been fully integrated with other technologies developed by the Company. In each of the technologies, the components are generally not unique in structure and operation. The uniqueness is in the formulation, process configurations and computerized operating control systems. There can be no

assurance that we will be able to integrate these technologies and market them successfully as a package to generate revenues.

 

Our plan requires technological expertise to develop and to oversee the operations our technologies and process capabilities.

 

Although our Chief Executive Officer, Chief Technologies Officer, engineering consultants and Advisory Board members are conversant with the Company’s technologies and process capabilities, we currently have no plans to develop a deployment or operating team. We will use external EPC and OM contractors with technical expertise to provide us with developmental and operations services. If we are unable to locate and utilize contractors and service providers, we may be unable to develop and operate our existing technologies and may be unable to develop other technologies in the future.

 

Due to the period that we expect it will take to deploy our products, we will require significant capital to sustain us until we are able to market our products.

 

We expect that once we initiate the deployment of our products, it will take approximately 18 to 24 months to bring our products to market. We anticipate that we will receive minimal if any revenues during this period, which will place significant pressure on funding and other supply considerations. While we have budgeted for what we believe to be the required lead time to bring our products to market, no assurances can be given for adequate funding during this period. If we are delayed in obtaining adequate funding, we may be delayed in bringing our products to market.

 

We depend on the services of key personnel and the loss of any of these personnel could disrupt our operations. 

 

We do not have any full-time employees. Our officers and all other support persons perform services for us pursuant to consulting arrangements. We do not maintain “key-man” life insurance policy on our executive officers. The unexpected loss of the services of any of our executive officers could have a material adverse effect on our operations. 

 

We will be dependent on suppliers and manufacturers when we bring our technologies to market.

 

We currently do not possess or intend to develop the capability to undertake the manufacture and fabrication of our technologies when they are ready to be brought to market. We are developing relationships with key suppliers and manufacturers able to meet our requirements for providing such services. The manufacture and fabrication of our technologies will require exacting standards. If we are unable to develop these relationships, we may be unable to produce any products. In addition, if the suppliers and manufacturers are unable to meet the standards that our products require, we may experience delays in bringing our product to market. Unless and until we develop a team that will address quality control issuers, we will be dependent on third parties to produce our technologies.

 

The COVID-19 pandemic may continue to create economic disruption and uncertainty around the world, and may continue to impact us, our suppliers and our customers.

The novel coronavirus disease of 2019 (COVID-19) has created significant economic disruption and uncertainty around the world. COVID-19 has impacted us and our customers primarily due to an overall disruptions in supply chains and operations. The lingering impact of these conditions on our business is uncertain and will depend on many evolving factors which we continue to monitor but cannot predict, including the duration and scope of the pandemic and its variants, resulting actions taken by governments, businesses and individuals, and the flow-through impact on operations and supply chains. Potential effects of COVID-19 that may adversely impact our future business include limited availability and/or increased cost of components used in our products, reduced demand and/or pricing for our products, inability of our customers to pay for our products, and reduced availability of our consultants. While we continue to monitor the developments surrounding COVID-19 and take actions when possible to mitigate the business risks involved, the potential effects of COVID-19 on our business, alone or taken together, may pose a material risk to our future operating results and financial condition.

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If we are unable to adapt our technologies to the changing demands of the marketplace, our products may become obsolete.

 

Changes in technology, competitively imposed process standards and regulatory requirements influence the demand for our products and services. To grow and remain competitive, we need to anticipate changes in technological and regulatory standards. We need to introduce new and enhanced products on a timely basis. We may not achieve these goals and some of our products may become obsolete. New products often face lack of market acceptance, development delays or operational failure. Stricter governmental regulations also may affect acceptance of new products. If our products are unable to gain market acceptance, our operations and financial condition may be adversely affected.

 

We may face competition from other companies marketing similar technologies.

 

There may be other companies that are currently developing technologies that are similar to the ones that we are developing. If such competitors are able to bring their products to market sooner than we are able, there may be less of a market for our products. In addition, once a market exists for technologies such as ours, we expect that additional competitors will enter the industry to attempt to capture the growth potential in the market. If competitors are able to provide a better product or adapt the technologies more quickly than we are able to, we may be unable to obtain or maintain market share. Some of our current and future competitors may be larger and better funded than we are. If our competitors are more successful than we are at developing uses for our technologies, our ability to generate revenues may be adversely affected.

 

We will be subject to extensive environmental laws and regulations in the jurisdictions where our products are used and we may be subject to significant liability if we are unable to comply with such laws and regulations.

 

Environmental laws and regulations require us to meet certain standards and may impose liability if we do not meet them. Environmental laws and regulations and their interpretations change. We must comply with any new standards and requirements, even when they require us to clean up environmental conditions that were not illegal when the conditions were created. The liabilities and risks imposed on our customers by environmental laws may adversely impact demand for some of our products or services or impose greater liabilities and risks on us, which could also have an adverse effect on our competitive and financial position.

 

Our plan to operate internationally subjects us to increased risks that could harm our business, operating results and financial condition.

 

Although we intend to market our technologies internationally, we have limited experience with operations and our ability to manage our business and conduct our operations internationally. Doing so requires considerable management attention and resources and is subject to a number of risks, including the following:

 

·challenges caused by distance, language, and cultural differences;
·longer payment cycles;
·currency exchange rate fluctuations;
·political and economic instability; and
·higher costs associated with doing business internationally.

 

In addition, compliance with complex foreign laws and regulations that may apply to our international operations increases our cost of doing business in international jurisdictions. Violations of these laws and regulations could result in fines, criminal sanctions against us, our officers, prohibitions on the conduct of our business and damage to our reputation. Any such violation could result in prohibitions on our ability to offer our products and services to one or more countries, and could also materially damage our international expansion efforts, our business and our operating results.

25

 

If currency exchange rates fluctuate substantially in the future, our operating results, which are reported in U.S. dollars, could be adversely affected.

 

We present our financial statements in U.S. Dollar (“US$”). However, a significant portion of our expenses and revenue are and will be denominated in non-US$ currencies, in particular the Australian dollar (“A$”). As a result, there is potential that our financial results will be exposed to movements of the US$ against these foreign currencies. The risk may be increased where the foreign currency against the US$ becomes more volatile, for example, due to economic, political factors, or significant events that may occur in the jurisdictions of those foreign currencies.

 

If we are unable to protect our intellectual property rights, it could reduce the value of our products and services.

 

Our patents, trade secrets and other intellectual property rights are important assets for us. Various events outside of our control may pose a threat to our intellectual property rights as well as to our products and services. For example, effective intellectual property protection may not be available in every country in which our products are used. However, in the key geographical regions of South African, Australasian, North American and European markets, the Company already has patent applications in place. Also, the efforts we have taken to protect our proprietary rights may not be sufficient or effective. Any significant impairment of our intellectual property rights could harm our business or our ability to compete. Also, protecting our intellectual property rights is costly and time consuming. Any increase in the unauthorized use of our intellectual property could make it more expensive to do business and harm our operating results.

 

We may be subject to intellectual property rights claims, which are costly to defend, could require us to pay damages and could limit our ability to use certain technologies in the future.

 

Technology companies frequently own large numbers of patents and trade secrets and frequently enter into litigation based on allegations of infringement or other violations of intellectual property rights. Our technologies may not be able to withstand any third-party claims and, regardless of the merits of the claim, intellectual property claims are often time-consuming and expensive to litigate or settle. In addition, to the extent claims against us are successful, we may have to pay substantial monetary damages or discontinue use of our technologies that are found to be in violation of another party’s rights. We also may have to seek a license to continue such practices, which may significantly increase our operating expenses.

 

Risks Related to Our Common Stock

 

The market for our common stock may be limited, and our common stock price may fluctuate significantly.

 

Although shares of our common stock currently trade on the Pink Limited Information Tier of the OTC Markets, trading has been limited and sporadic. A more active trading market may not develop or be sustained following the effectiveness of this registration statement or otherwise in the future. The market price of our common stock could fluctuate significantly as a result of:

 

·our operating and financial performance and prospects;
·quarterly variations in the rate of growth of our financial indicators, such as net income per share;
·changes in revenue or earnings estimates or publication of research reports by analysts about us our industry;
·liquidity and registering our common stock for public resale;
·sales of our common stock by our stockholders;
·increases in our cost of capital;
·changes in market valuations of similar companies;
·additions or departures of key management personnel; and
·actions by our stockholders;

 

26

The trading price of our common stock also may be subject to volatility due to general market conditions unrelated to the operating performance of the Company. Any of these fluctuations may adversely affect the trading price of our common stock.

 

Because our common stock is subject to the penny stock rules, broker-dealers may experience difficulty in completing customer transactions and trading activity in our securities may be adversely affected.

 

Our common stock currently is subject to the penny stock rules. A penny stock generally is any equity security, not listed on a national exchange, with a price of less than $5.00, subject to certain exceptions, that is offered by a company with limited revenues and assets. The penny stock rules require a broker-dealer: to deliver on any solicited transactions a standardized risk disclosure document prepared by the SEC; to provide the customer with a current bid and offer quotations for the penny stock, the compensation of the broker-dealer and its salesperson in the transaction, monthly account statements showing the market value of each penny stock held in the customer’s account; to make a special written determination that the penny stock is suitable investment for the purchaser; and to receive the purchaser’s written agreement to the transaction. The disclosure requirements may have the effect of reducing the level of trading activity, if any, in the secondary market for the stock that becomes subject to the penny stock rules. Because our common stock is subject to the penny stock rules, investors may find it more difficult to sell their securities, and the market liquidity for our securities could be severely and adversely affected by limiting the ability of broker-dealers to sell our common stock and the ability of stockholders to sell our common stock in any secondary market.

 

Our directors and executive officers own a substantial portion of our common stock, and their interests may conflict with yours.

 

At September 30, 2022, our directors and executive officers beneficially owned 16.3% of our outstanding common stock. No other person to our knowledge holds more than 5% beneficial ownership in our common stock. Accordingly, our directors and executive officers may be in a position to exercise substantial influence over the Company’s affairs. We cannot assure you that the interests of our directors and executive officers will always align with the interests of other holders of our common stock.

 

There may be difficulty in enforcing judgments and effecting service of process on directors and officers that are not citizens of the United States.

 

Although the Company is incorporated in the United States (Delaware), certain of our directors and officers reside outside of the United States and some or all of the assets of such persons are located outside of the United States. Therefore, it may not be possible for stockholders to collect or to enforce judgments or liabilities against them under U.S. securities laws. Moreover, it may not be possible for stockholders to effect service of process within the United States upon such persons. Generally, original actions to enforce liabilities under U.S. federal securities laws may not be brought in an Australian or other foreign court. Such actions must be brought in a court in the United States with applicable jurisdiction. Persons obtaining judgments against us in U.S. courts, including judgments obtained under U.S. federal securities laws, then may need to bring an application in a court in the country where non-U.S. directors and officers are located to enforce such judgments.

 

Our by-laws designate the Court of Chancery of the State of Delaware as the sole and exclusive forum for certain types of actions and proceedings that may be initiated by our stockholders, which could limit our stockholders’ ability to obtain a favorable judicial forum for disputes with us or our directors, officers, agents or stockholders.

 

Our by-laws, as currently in effect, provide that, subject to limited exceptions, the Court of Chancery of the State of Delaware will be the exclusive forum for any derivative action or proceeding brought on our behalf; any action asserting a breach of fiduciary duty; any action asserting a claim against us arising under the Delaware General Corporation Law, our certificate of incorporation or our by-laws; and any action asserting a claim against us that is governed by the internal affairs doctrine.

 

Our by-laws, as will be in effect upon effectiveness of this registration statement, also provides that, to the fullest extent permitted by law, the federal district courts of the United States of America will be the exclusive forum for resolving any complaint asserting a cause of action arising under the United States federal securities laws, including the Securities Act and the Exchange Act. Investors cannot waive our compliance with federal securities laws and the rules and regulations thereunder.

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These exclusive forum provisions may limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes with us or our directors, officers or other agent of the Company, which may discourage such lawsuits against us and our directors, officers and other agents. If a court were to find these exclusive forum provisions in our by-laws to be inapplicable or unenforceable in an action, we may incur further significant additional costs associated with resolving such action in other jurisdictions, all of which could have a material adverse effect on our business, financial condition, and results of operations.

 

We are an “emerging growth company,” and the reduced reporting requirements applicable to emerging growth companies may make our common stock less attractive to investors.

 

We qualify as an “emerging growth company,” as defined in the JOBS Act. For so long as we remain an emerging growth company, we are permitted and plan to rely on exemptions from certain disclosure requirements that are applicable to other public companies that are not emerging growth companies. These provisions include, but are not limited to: being permitted to have only two years of audited financial statements and only two years of related management’s discussion and analysis of financial condition and results of operations disclosure; an exemption from compliance with the management’s assessment of our internal controls over financial reporting pursuant to Section 404(a) of the Sarbanes-Oxley Act; an exemption from compliance with the auditor attestation requirement in the assessment of our internal control over financial reporting pursuant to Section 404 of the Sarbanes-Oxley Act; not being required to comply with any requirement that may be adopted by the PCAOB regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements; reduced disclosure obligations regarding executive compensation arrangements in our periodic reports, registration statements and proxy statements; and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved by stockholders. In addition, the JOBS Act permits emerging growth companies to take advantage of an extended transition period to comply with new or revised accounting standards applicable to public companies. We intend to take advantage of the exemptions described above. As a result, the information we provide will be different than the information that is available with respect to other public companies. We cannot predict whether investors will find our common stock less attractive if we rely on these exemptions. In addition, there may be an increased risk, or perceived increased risk, of material weaknesses or other deficiencies in our internal controls or that they may go undetected. If some investors find our common stock less attractive as a result of our status as an emerging growth company, there may be a less active trading market for our common stock, and the market price of our common stock may be more volatile.

 

We will incur increased costs and will be subject to additional regulations and requirements as a public company, which will lower our profits and may make it more difficult to run our business.

 

As a public company, we will incur significant legal, accounting and other expenses including costs associated with public company reporting requirements. We expect these rules and regulations to increase our legal and financial compliance costs and to make some activities more time-consuming and costly. These laws and regulations also could make it more difficult or costly for us to obtain certain types of insurance, including director and officer liability insurance, and we may be forced to accept reduced policy limits and coverage or incur substantially higher costs to obtain the same or similar coverage. These laws and regulations could also make it more difficult for us to attract and retain qualified persons to serve on the Board of Directors or as our executive officers of the Company. Furthermore, if we are unable to satisfy our obligations as a public company, we could be subject to fines, sanctions and other regulatory action and potentially civil litigation.

 

We do not expect to pay cash dividends.

 

We do not expect to pay dividends in the near future. The payment of dividends, if any, will be contingent upon our revenues and earnings, if any, capital requirements, and our general financial condition. The payment of any dividends will be within the discretion of the Board of Directors. We presently intend to retain all earnings, if any, for use in our business operations and accordingly, the Board does not anticipate declaring any dividends in the foreseeable future.

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Item 2. Financial Information.

 

Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

The following should be read in conjunction with the financial statements and related notes appearing elsewhere in this registration statement. The discussion in this section regarding the Company’s business and operations includes “forward-looking statements” as described and qualified under “Cautionary Note Regarding Forward-Looking Statements” at the beginning of this registration statement.

 

Overview

 

EESTech promotes economically and environmentally sustainable technologies to the world’s mining and minerals processing industries. EESTech’s waste management solutions enable the recycling of mine site waste and process slag to recover targeted materials of value. EESTech’s mineral processing capabilities reduce cost, increase productivity, reduce energy requirements, eliminate polluting leachates, transform hazardous waste liabilities into products of value with zero-waste outcomes and reduce the carbon footprint of mineral resource processing. EESTech intends to generate its income from the sale of all recovered targeted materials being sold back to the waste owner. Post process tailing are transformed into inert high grade sand products 100% owned by EESTech. Trademarked as ThermSand and ThermaPrills, both products will be sold into high volume downstream markets.

 

Technologies and waste management Solutions offerings

 

Commercial advancement of EESTech’s remediation and reclamation capabilities is being underwritten by a self-performing approach whereby the Company demonstrating confidence in its service and technology offerings carries responsibility for project capital funding. Providing clients with low-risk waste management solutions on the basis that EESTech is only paid on performance.

 

EESTech initial focus will be on the deployment of the following Technology Solutions:

 

·Reclamation Resource Recovery Process (R3 Process): An efficient comminution process that maximizes the yield potential of targeted material from the recycling of mine site waste and process slag.
·Waste Resource Reclamation: Optimizing the recovery of materials of value from mine site waste and process slag.
·Waste Resource Agglomeration (WRAM): Agglomeration of fine materials into WRAM ROX, such as coal fines for gasification, recycling non-conductive materials, and metal oxides.
·Waste to Energy Platforms: 1, 3 and 6MW power generation from waste materials such as low grade/ discard coal, methane run off, agricultural and forestry waste.
·Inductosmelt Reduction Furnace: Increasing the efficiencies of primary smelting, melt/smelt reclaimed non-conductive materials including metal oxides into metal/alloy.

 

The Company has been working to secure contracts with major global mining entities. Prior to August 2021, no revenue had been recorded within EESTech, Inc. In February 2019 Samancor Chrome, South Africa, the world’s largest integrated ferro-chrome (FeCr) producer awarded EESTech an exclusive ten-year agreement, with a five-year extension option, granting EESTech the reclamation rights to the FeCr process slag located at Samancor’s Ferrometals process facility in Emalahleni, South Africa. Project start was delayed due to the impact of the covid virus, with the Environmental Impact Assessment (EIA) being granted in October of 2021 and approvals were received January of 2022. An 18-month project establishment period is required before project cashflows are generated. In August 2021, a trial has begun with Sasol for which EESTech Inc is being paid. Revenue at this stage is minimal and as such, losses are still being recorded.

 

The Company has been in the developmental stage since its inception.

29

 

Impact of COVID-19

 

The rapid global spread of the COVID-19 virus since December 2019 has affected production and sales, and disrupted supply chains across a range of industries. The impact of COVID-19 on the Company’s operations and financial performance will depend on numerous factors, including but not limited to the duration and spread of the virus, and the impact on the Company’s customers and vendors.

 

The main area in which the Company and our customers currently are experiencing COVID-19’s impact is in supply chain and/or logistics. We and our customers work with several suppliers worldwide for the procurement of components. Production delays and factory shutdowns by suppliers has created challenges in obtaining these items in a timely fashion. While the Company has taken and will continue to take ordinary business steps to mitigate the impact of COVID-19, we are not aware of any further impact, trends, or uncertainties related to product quality or reliability as a result of our mitigation efforts.

 

Results of Operations

 

The following table summarizes our results of operations:

 

    Six Months Ended     Years Ended
    June 30,     December 31,
    2022     2021     2021     2020
    $     $     $     $
Income     53,877             52,554      
Total operating expenses     (508,500)       (561,406)       (1,482,015 )     (932,455)
Net loss     (454,623)       (561,406)       (1,428,999 )     (932,471)
Loss per share     (0.002)       (0.003)       (0.007 )     (0.005)
Total assets     629,833       115,582       527,561       96,884
Total liabilities     521,275       1,153,713       570,199       1,025,533

  

Six Months Ended 30 June 2022 compared to Six Months Ended 30 June 2021

 

Net Loss. Our net loss for the six months ended June 30, 2022 and 2021 was $454,623 and $561,406 respectively.

 

General Administrative Expenses. Our general administrative expenses for the six months ended June 30, 2022 and 2021 were $508,500 and $561,406 respectively. A decrease of $52,906 or 9%. The decrease is primarily due to consulting fees which were $412,806 in the six months to June 30, 2021 compared to $325,703 during the six months to June 30, 2022. This decrease of 21% in the six months to June 30, 2022, is primarily due to a large number of shares issued to independent consultants in exchange for services in 2021. These services provided include delivering a series of small scale lab testing for the Rio Tinto SPL remediation project.

 

Foreign exchange loss (gain). Our foreign exchange loss/(gain) for the six months ended June 30, 2022 and 2021 were $226,239 loss and $119,269 loss respectively.

 

Year Ended December 31, 2021 compared to Year Ended December 31, 2020

 

Net Loss. Our net loss for the fiscal years ended December 31, 2021 and 2020 were $1,428,999 and $932,471 respectively.

 

General Administrative Expenses. Our general administrative expenses for the years ended December 2021 and 2020 were $1,482,015 and $932,455 respectively. An increase of $549,560 or 59%. The increase is primarily due to:

 

  · Gain on Extinguishment of Debt of $1,775 for December 31, 2020, and a loss of $57,058 for December 31, 2021, respectively, an increased loss of $58,833. During the year to December 31, 2021, the Company issued shares to extinguish debt. The creditors balance (which predominantly consisted of consulting fees owed to the directors) was reduced from $763,665 at December 31, 2020, to $359,173 at December 31, 2021. This realized a loss on extinguishment of debt, as the value of shares issued was in excess of the liability extinguished.

 

30

 

·In the year ended December 31, 2020, new contracts were issued on the existing warrants which increased the exercise price from $0.01 to $0.035. This downward revaluation created a credit in legal costs resulting in an ending balance in the year ended December 31, 2020, of $47,700. This resulted in a large movement to the year ended December 31, 2021 (in which the legal costs were $19,279) of $66,979.

 

  · Consultancy fees were $792,941 for the year to December 31, 2020, and $1,088,514 for the year to December 31, 2021, respectively an increase of $295,573 or 37%. In the year to December 31, 2021, our executive officers, a non-executive officer, and a director each received 1,500,000 shares for past services rendered. The impact on consulting expenses for this issue was $312,000.

 

·Laboratory expenses were $10,729 for the year to December 31, 2020, and $37,382 for the year to December 31, 2021, respectively an increase of $26,653 or 248%. This was due to the Sasol testing which was initiated in the year to December 31, 2021.

 

Foreign exchange loss (gain). Our foreign exchange loss/(gain) for the fiscal years ended December 2021 and 2020 was a $239,233 loss and a $240,923 gain respectively.

 

Liquidity and Capital Resources

 

As of June 30, 2022, the Company had a cash balance of $559,333. As of December 31, 2021, the Company had a cash balance of $416,811 ($82,250 at December 31, 2020).

 

Cash Used in Operating Activities

 

Net cash used in operating activities for the six months ended June 30, 2022, and June 30, 2021, and for the years ended December 31, 2021, and 2020, were as follows:

    Six Months Ended     Years Ended  
    June 30,     December 31,  
    2022     2021     2021     2020  
    $     $     $     $  
Net cash (used in)/provided by operating activities     (421,038)       (219,932)       (897,136)       (72,192)  
                                 

 

Operating cash outflows have increased primarily due to the increased activity in connection with this registration statement, including increased accounting, audit and consulting costs.

 

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Cash Flow from Investing Activities

 

Net cash used in investing activities for the six months ended June 30, 2022, and June 30, 2021, and for the years ended December 31, 2021, and 2020, were as follows:

    Six Months Ended     Years Ended  
    June 30,     December 31,  
    2022     2021     2021     2020  
    $     $     $     $  
Net cash (used in)/provided by investing activities     (32,662)       (3,828)       (43,194)       199,816  
                                 

 

All of the cash used in investing activities in 2021 and 2022 related to the purchase of fixed assets. In 2020, cash provided related to the sale of 27% of EESTech Australia.

 

Cash Flow from Financing Activities

 

Net cash used in financing activities for the six months ended June 30, 2022, and June 30, 2021, and for the years ended December 31, 2021, and 2020, were as follows:

    Six Months Ended     Years Ended  
    June 30,     December 31,  
    2022     2021     2021     2020  
    $     $     $     $  
Net cash provided by financing activities     585,251       346,351       1,320,651       44,675  
                                 

  

 

The majority of this related to issuance of common stock with a very small balance being repayment of loans.

 

Project Financing

 

The Company anticipates funding the Samancor and Sasol projects through both debt and issuance of equity capital. Project debt financing is planned to contribute between 60 – 70% of the required capital for each project with the balance from investors or process operators seeking to secure an interest in these projects. The Company intends to establish majority-owned special purpose South African registered companies for each project that should facilitate these project specific funding arrangements.

The Company also believes its capital requirements will be met through:

  · cash flows generated from the provision of engineering services sought by waste owners to engineer environmental solutions to meet their ESG objectives;

 

  · first round capital contributions from project operators seeking to secure contracts and working interest in these projects;
  · prepaid offtakes for the reclaimed products the Company will produce from these projects; and

 

  · private investments in the Company.

 

In addition, the Company intends to offer its services through these two financing models:

 

  · A tolling model, whereby the Company will generate cash flow on a per ton basis of material processed. This model requires an upfront establishment fee from the client, offset against tolling fees over the contract life of the project.

 

  · A zero-cost ownership model, whereby the Company pays no cost to take ownership of waste to be processed, then generates products of value for resale back to the customer or sale to downstream markets. In this model, the Company will underwrite capital requirement for establishing the process facility, with these capital requirements secured against off-take agreements for products produced.

However, both models will only be initiated when contract assured cash flows are confirmed.

 

Going Concern

 

The financial statements have been prepared on a going concern basis that presumes the realization of assets and the discharge of liabilities in the normal course of operations for the foreseeable future.

 

Continuation of the Company as a going concern is contingent upon establishing and achieving profitable operations. If such operations require additional financing, as in the past, this will be raised in the form of debt or equity placements to accommodate both corporate and project requirements. EESTech historically has sold equity for raising working capital from a number of investor sources, on an as and when needed basis as successfully achieved in the past. The Company believes that it similarly will be able to raise capital going forward and, accordingly, the Company will remain in a position to continue the pursuit of its planned objectives as an ongoing concern.

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The above conditions give rise to a material uncertainty which may cast substantial doubt on the Company’s ability to continue as a going concern.

 

Notwithstanding the above, management of the Company considers it appropriate to prepare the financial statements on a going concern basis after having regard to the Company being award a 10+year contract and two commercial work orders for its services, the Company in the near future will no longer be required to raise working capital through equity placements as the Company will have reached a market point where cash flows will be realized through its commercial and operational activities.

 

Should the Company be unable to continue as a going concern, it may be required to realize its assets and liabilities other than in the ordinary course of business, and at amounts that differ from those stated in the financial statements. These financial statements do not give effect to any adjustments, which could be necessary, should the Company be unable to continue as a going concern and therefore be required to realize its assets and discharge its liabilities in other than the normal course of business, and at amounts different from those reflected in the financial statements.

 

Critical Accounting Policies

 

This Management’s Discussion and Analysis of Financial Condition and Results of Operations is based on our consolidated financial statements, which have been prepared in accordance with US GAAP. A summary of our significant accounting policies is included in Note 2 to the accompanying consolidated financial statements.

 

A “critical accounting policy” is one that is both important to the portrayal of our financial condition and results of operations and that requires management’s most difficult, subjective, or complex judgments. Such judgments are often the result of a need to make estimates about the effect of matters that are inherently uncertain. We have identified the following accounting policies as critical:

 

Stock Based Compensation

 

Stock-based compensation is accounted for based on the requirements of the Share-Based Payment Topic of ASC 718 which requires recognition in the consolidated financial statements of the cost of employee and non-employee services received in exchange for an award of equity instruments over the period the employees, consultants and third parties are required to perform the services in exchange for the award (presumptively, the vesting period). The ASC also requires measurement of the cost of employees, consultants and third parties’ services received in exchange for an award based on the grant-date fair value of the award.

 

The fair value of these stock based compensation and warrants is measured at grant date using the Black-Scholes option pricing model taking into account the terms and conditions upon which the options were granted. This requires management to make estimates regarding the inputs for option pricing models, such as the expected life of the option, the volatility of our common stock price, the vesting period of the option and the risk-free interest rate are used. Actual results could differ from those estimates. The estimates are considered for each new grant of stock options or warrants.

 

Share-based compensation expense is recognized on a straight-line basis over the period during which the options vest, with a corresponding increase in equity.

 

 

Non-Controlling Interests

 

Non-controlling interests (“NCI”) are measured initially at their proportionate share of the acquiree’s identifiable net assets at the date of acquisition. Changes in the Company’s interest in a subsidiary that do not result in a loss of control are accounted for as equity transactions.

 

The acquisition of subsidiaries is accounted for using the acquisition method of accounting. A change in ownership interest, without the loss of control, is accounted for as an equity transaction, where the difference between the consideration transferred and the book value of the share of the non-controlling interest acquired is recognized directly in equity attributable to the parent.

33

 

Non-controlling interest in the results and equity of subsidiaries are shown separately in the statement of operations and comprehensive loss, statement of financial position and statement of changes in equity of the consolidated entity.

 

Losses incurred by the consolidated entity are attributed to the non-controlling interest in full, even if that results in a deficit balance.

 

Item 3. Properties.

 

The Company’s registered office is located at Level 1, Suite 417, 241 Adelaide Street, Brisbane, Queensland 4000, Australia. The Company currently does not have any material physical properties.

 

Item 4. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.

 

The following table sets forth as of September 30, 2022, the number and percentage of shares of common stock of the Company beneficially owned by the Company’s executive officers and directors. Common stock is the sole equity and voting securities outstanding of the Company. The Company is not aware of any other person beneficially owning more than 5% of common stock of the Company. On September 30, 2022, there were 272,454,891 shares of common stock outstanding.

 

Except as otherwise indicated, the Company believes that the beneficial owners of common stock listed below, based on information furnished by such owners, have sole investment and voting power with respect to such shares. Beneficial ownership is determined in accordance with the rules of the SEC.

Name   Amount and Nature of Beneficial Ownership   Percent of Class  
               
Murray Bailey (1)     18,520,488     6.8%  
Graeme Lynch (2)     12,980,775     4.8%  
Don Bartlem (3)     8,175,340     3.0%  
Gaylord Beeson     3,599,575     1.3%  
Patrick Caragata (4)     1,223,400     *  
Directors and executive officers as a group (5 persons)     44,499,578     16.3%  

 

*

Represents beneficial ownership of less than 1%. 

   
(1) Includes 1,100,139 shares owned by Mr. Bailey’s spouse and 1,783,300 shares owned by the Stonehaven Trust, of which Mr. Bailey is trustee. Mr. Bailey and his spouse share voting and dispositive power of the shares of our common stock owned by his spouse.
   
(2) Consists of (i) 5,195,875 shares owned by R3 Projects Pty Ltd, a custodian for a family trust of which Mr. Lynch is a beneficiary, (ii) 6,284,900 shares owned by Mr. Lynch’s spouse, of which 4,500,000 shares are pledged as security for a loan from a lender unaffiliated with the Company, and (iii) 1,500,000 shares owned by SIDEMA Pty, Ltd., a self-managed retirement fund on behalf of Mr. Lynch. Mr. Lynch and his spouse share voting and dispositive power of the shares of our common stock owned by his spouse and SDIEMA Pty, Ltd.
   
(3)

Includes 4,143,400 shares owned jointly with Mr. Bartlem’s spouse and for which they share voting and dispositive power. 

   
(4)

Consists of shares owned by Caragata Holdings Pty Ltd, of which Mr. Caragata is trustee. 

 

Changes in Control

 

We are not aware of any arrangements which may result in a “change in control” within the scope of Item 403 of Regulation S-K.

 

34

 

Item 5. Directors and Executive Officers.

 

The directors and executive officers of the Company, their ages and present positions held with the Company are as follows:

 

Name   Age   Position with the Company
         
Murray Bailey   73   Chief Executive Officer and President, and Director
Graeme Lynch   60   Chief Operating Officer
Don Bartlem   76   Director
Gaylord Beeson   74   Director
Patrick Caragata   73   Director

 

Murray Bailey co-founded the Company, and has served as a director since 2006 and as Chief Executive Officer and President since 2009. Mr. Bailey has experience as an entrepreneur and in international business, with technical skills in product identification, research, and development.

 

Graeme Lynch has served as Chief Operating Officer of the Company since 2014. Mr. Lynch has more than 25 years of senior international corporate experience in both private and publicly listed organizations, particularly venture companies with an emphasis on technology commercialization. He also has experience financing company growth, managing merger, acquisition and divestment initiatives.

 

Don Bartlem has served as a director of the Company since 2012. Mr. Bartlem formerly was a mining industry executive in various positions with a background in industrial, corporate, government and international trade. He has experience planning and developing major projects in Western Australia. Mr. Bartlem formerly was a director of the Pilbara Development Commission, and was chairman of one of Australia’s largest Employees Superannuation Fund.

 

Gaylord Beeson has served as a director of the Company since 2005. Mr. Beeson formerly was an executive in the oil and chemical industry in various positions for more than 25 years until his retirement in 2002. His has business expertise in plant design, project management, plant operations, and quality control. Mr. Beeson also has managed, developed and delivered complex engineering and infrastructure projects.

 

Patrick Caragata has served as a director of the Company since 2020. Mr. Caragata has been the Head of Research and Development at RapidRatings Inc. since 2007 and previously served as its Chief Executive Officer until 2006. RapidRatings, Inc. is a New York-based company that provides software-based corporate credit ratings to manage supply chain and third-party risk. Before establishing RapidRatings, Mr. Caragata formerly was the Chief Tax Policy Advisor and Special Adviser Taxation Economics with New Zealand Inland Revenue Department, the Chief Economist for the New Zealand Ministry of Energy where he was the architect of petroleum royalty regime, and the Senior International Economist at Toronto-Dominion Bank in charge of the country risk analysis group. Mr. Caragata holds a Ph.D in Mineral Economics and Foreign Policy from the University of Toronto.

 

There are no familial relationships between any director and executive officer.

 

All directors hold office until the next annual meeting of stockholders of the Company and the election and qualification of their successors. Officers are elected annually by, and serve at the discretion of, the Board of Directors of the Company.

 

Mr. Bartlem has indicated to the Company that he intends to resign as director of the Company subsequent to it becoming a reporting company with the SEC and when practical to do so.

 

Board Committees

 

The Company does not presently have an audit committee (or a director that could be considered an audit committee financial expert), nominating committee or compensation committee. The Board of Directors as a whole performs the functions of each of these committees. The Board of Directors anticipates seeking to appoint a director with financial expertise within the next 12 months who would qualify as an audit committee financial expert.

 

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Code of Ethics

 

The Company has not adopted a code of ethics that applies to its principal executive officer, principal financial officer or principal accounting officer. The Company does not believe that a code of ethics is currently necessary because the Company has no employees and is a development stage company.

 

Item 6. Executive Compensation.

 

The following table sets forth information regarding compensation earned by the Company’s executive officers for the fiscal year ended December 31, 2021. Executive officers are compensated in Australian dollars; accordingly, for purposes of this table, compensation paid in A$ has been converted to US$ at an exchange rate of A$1 to US$0.7256 for the year ended December 31, 2021.

 

Summary Compensation Table

 

 

Name and Principal Position

 

 

Year

 

 

Salary

($)

Stock Awards(1)

($)

All Other
Compensation ($)

Total

($)

 

Murray Bailey

Chief Executive Officer

    2021     181,110 (2)(3) 78,000

 

14,512

(4)(5)   273,622  

Graeme Lynch

Chief Operating Officer

    2021     148,022 (6) 78,000     226,022  

(1)

Represents the grant date fair value of shares of our common stock issued during the fiscal year indicated, calculated in accordance with ASC Topic 718. The fair value of shares of our common stock issued was based on the trading price of the stock on the date of issuance.

   
(2) Mr. Bailey serves as Chief Executive Officer pursuant to a five-year management services consulting agreement with the Company entered into in February 2019 that provides for compensation of A$250,000 annually.
   
(3) Includes 1,470,250 shares of our common stock paid in settlement of $58,810 of consulting fees for part of 2021.
   
(4) Represents fees for services as a director of the Company.
   
(5) Amount shown reflects 361,700 shares of our common stock paid in settlement of director fees for all of 2021.
   
(6) Mr. Lynch serves as Chief Operating Officer pursuant to a five-year management services consulting agreement with the Company entered into in February 2019 that provides for compensation of A$17,000 monthly.
   

Outstanding Equity Awards at Fiscal Year-end

 

The following table sets forth, as of the year ended December 31, 2021, information regarding stock that has not vested held by the Company’s executive officers. The Company did not issue, and the executive officers do not hold, options. The Company has not adopted an equity incentive plan.

 

Name  

Number of shares of
stock that have
not vested (1)

(#)

  Market value of shares of units of stock that have not vested
($)
   
Murray Bailey     224,240   $ 11,212    
Graeme Lynch     224,240   $ 11,212    

 

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(1)

 

Represents shares of our common stock, awarded in connection with each executive officer’s consulting agreement in 2019, that remained subject to a repurchase option by the Company as of December 31, 2021; however, in accordance with its terms, each such repurchase option was fully released in April 2022.

 

Director Compensation

 

The following table sets forth the compensation earned or awarded to each director who served on the Board of Directors in 2021. The compensation of Mr. Bailey, who also serves as an executive officer, is set forth above in the Summary Compensation Table. Compensation fees for service as a director is A$20,000 annually. All directors also are reimbursed for out-of-pocket expenses, if any, in connection with attendance at meetings of the Board of Directors. The directors are compensated in Australian dollars; accordingly, for purposes of this table, compensation paid in A$ has been converted to US$ at an exchange rate of A$1 to US$0.7256 for the year ended December 31, 2021.

 

Name  

Fees Earned or Paid in Cash

($)

 

Stock Awards(1)  

($)

   

All Other Compensation

($)

 

Total

($)

 
Don Bartlem     14,512     78,000       87,072 (2)(3)   179,584  
Gaylord Beeson     14,512               14,512  
Patrick Caragata     14,512 (4)             14,512  

  

(1) Represents the grant date fair value of shares of our common stock issued during the fiscal year indicated, calculated in accordance with ASC Topic 718. The fair value of shares of our common stock issued was based on the trading price of the stock on the date of issuance.
   
(2) Mr. Bartlem provides corporate secretarial services as a consultant to the Company pursuant to an unwritten arrangement approved by the Board of Directors for A$120,000 annually.
   
(3) Amount shown reflects 361,700 shares of our common stock paid in settlement of $14,512 of consulting fees for part of 2021.
   
(4) Amount shown reflects 361,700 shares of our common stock paid in full settlement of director fees for 2021.

 

Item 7. Certain Relationships and Related Transactions and Director Independence.

 

Since January 1, 2020, there has been no “transaction”, and there currently is no proposed “transaction”, in which the Company was or is a participant and in which any “related person” has or will have a direct or indirect material interest involving the lesser of $120,000 or one percent of the average of our total assets as of the end of last two completed fiscal years. The term “related person” has the meaning set forth in Item 404 of Regulation S-K and generally includes any executive officer, director, nominee for director or holder of 5% or more of our common stock, or an immediate family member of any of those persons. The term “transaction” has the meaning set forth in Item 404 of Regulation S-K and generally includes any financial transaction, arrangement or relationship, but generally excludes any executive compensation or director compensation within the scope of and reported pursuant to Item 402 of Regulation S-K.

 

It is the Company’s current practice that any transaction with officers, directors, 5% stockholders and their affiliates is entered into only if it is approved by a majority of the disinterested directors or is on terms no less favorable to us than could be obtained from unaffiliated parties and is reasonably expected to benefit the Company.

 

The Board of Directors has chosen to apply Nasdaq Stock Market corporate governance requirements and standards in determining director independence. The Board of Directors has determined that two of its four members, Gaylord Beeson and Patrick Caragata, are independent as defined by the listing standards of the Nasdaq Stock Market.

 

Item 8. Legal Proceedings.

 

Currently we are not a party to any legal proceedings. However, we could become subject to claims and legal proceedings that may arise out of the normal course of business in the future.

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Item 9. Market Price of and Dividends on the Registrant’s Common Equity and Related Stockholder Matters.

 

Since February 17, 2009, when the Company filed a Form 15 to terminate registration of our common stock, our common stock has had limited and sporadic trading. Our common stock currently trades on the Pink Limited Information Tier of the OTC Markets under the symbol “EESH”.

 

For the periods indicated, the following table sets forth the high and low bid prices per share of common stock of the Company. The below prices represent inter-dealer quotations without retail mark-up, markdown, or commission and may not necessarily represent actual transactions.

2022 Fiscal Year     High     Low  

 

Fourth Quarter (through October 21, 2022)

    0.11     0.06  
Third Quarter     0.16     0.0401  
Second Quarter     0.0515     0.045  
First Quarter     0.0575     0.0145  

  

2021 Fiscal Year     High     Low  
         
Fourth Quarter     0.065     0.013  
Third Quarter     0.059     0.0086  

Second Quarter     0.065     0.0022  
First Quarter     0.074     0.017  

 

2020 Fiscal Year     High     Low  
               
Fourth Quarter     0.065     0.035  
Third Quarter     0.065     0.031  
Second Quarter     0.074     0.031  
First Quarter     0.0895     0.025  

      

Shareholders

 

As of September 30, 2022, there were 517 stockholders of record of our common stock.

 

Dividends

 

Holders of our common stock are entitled to dividends when, as, and if declared by the Board of Directors, out of funds legally available therefore. We have never declared cash dividends on our common stock and the Board of Directors does not anticipate paying cash dividends in the foreseeable future as it intends to retain future earnings to finance the growth of our businesses. There are no restrictions in our articles of incorporation or by-laws that restrict us from declaring dividends.

 

Item 10. Recent Sales of Unregistered Securities.

 

The following sets forth information regarding all unregistered securities issued and sold by the Company since August 1, 2019:

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·In August and September 2019, the Company sold an aggregate of 1,407,891 shares of common stock at a price of $0.10 per share for total consideration of $140,789 in a series of private placements to investors outside the United States.

 

·In February 2020, the Company sold an aggregate of 802,193 shares of common stock at prices between $0.05 and $0.10 per share for total consideration of approximately $45,000 in a series of private placements to investors outside the United States.

 

·In October 2020, the Company sold an aggregate of 500,000 shares of common stock at a price of $0.02 per share for total consideration of $10,000 in a series of private placements to investors outside the United States.

 

·In November 2020, the Company sold 1,213,666 shares of common stock at a price of $0.03 per share for total consideration of $36,410 in a private placement to an investor outside the United States.

 

·In March 2021, the Company sold (i) an aggregate of 3,879,050 shares of common stock at a price of $0.02 per share for total consideration of $77,581 in a series of private placements to investors outside the United States, and (ii) 1,000,000 shares of common stock at a price of $0.035 per share for total consideration of $35,000 in a private placement to an investor outside the United States.

 

·In April 2021, the Company sold (i) an aggregate of 861,500 shares of common stock at a price of $0.04 per share for total consideration of $33,640 in a series of private placements to investors outside the United States, and (ii) 306,880 shares of common stock at a price of $0.035 per share for total consideration of $7,672 in a private placement to an investor outside the United States.

 

·In May 2021, the Company sold an aggregate of 2,704,934 shares of common stock at prices between $0.032 and $0.045 per share for total consideration of approximately $150,000 in a series of private placements to investors outside the United States.

 

·Between June and September 2021, the Company sold an aggregate of 13,589,173 shares of common stock at a price of $0.04 per share for total consideration of $543,567 in a series of private placements to investors outside the United States.

 

  · Between October and December 2021, the Company sold (i) an aggregate of 12,472,511 shares of common stock at a price of $0.04 per share for total consideration of $498,900 in a series of private placements to investors that included one United States person who qualified as an accredited investor and was known to the officers of the Company, and otherwise consisted of persons outside the United States, and (ii) 640,600 shares of common stock at a price of $0.045 per share for total consideration of $28,827 in a series of private placements to investors outside the United States.

 
  · Since January 2022, the Company has sold (i) an aggregate of 25,040,079 shares of common stock at a price of $0.04 per share for total consideration of $1,001,603 in a series of private placements to investors that included three United States persons who qualified as accredited investors and were known to the officers of the Company, and otherwise consisted of persons outside the United States, and (ii) 5,747,850 shares of common stock at a price of $0.045 per share for total consideration of $258,653 in a series of private placements to investors outside the United States.

 

·In June and July 2020, four advisors who qualified as accredited investors holding warrants to purchase 787,499 shares of common stock of the Company agreed to modify such warrants so that (i) warrants to purchase 62,499 shares exercisable at a price of $0.015 per share was increased to $0.035 per share, and (ii) warrants to purchase 725,000 shares exercisable at a price of $0.10 per share was reduced to $0.035 per share.

 

·In July 2020, the Company issued a warrant to purchase 950,000 shares of common stock of the Company at a price of $0.035 per share to an advisor who qualified as an accredited investor. The advisor subsequently exercised (i) a part of such warrant in August 2020 to purchase 100,000 shares of common stock, and (ii) a part of such warrant in January 2021 to purchase 285,714 shares of common stock.

 

39

·The Company issued an aggregate of 15,031,545 shares of common stock to a total of 21 directors, officers, consultants, and advisors. These shares were awarded for compensatory purposes and no cash consideration was received by the Company in connection with their issuance.

 

·The Company also issued an aggregate of 13,941,244 shares of common stock to a total of 12 directors, officers, consultants, and advisors. These shares were awarded in satisfaction of accrued compensation in the aggregate amount of $695,593.

 

None of the foregoing transactions involved any underwriters, underwriting discounts or commissions. The offers, sales, and issuances of the securities described in this Item 10 were deemed to be exempt from registration under the Securities Act in accordance with either Regulation S under the Securities Act or Section 4(a)(2) of the Securities Act (and Regulation D promulgated thereunder) as transactions by an issuer not involving any public offering. Appropriate transfer restrictions were implemented with respect to the securities issued in such transactions. The offers and sales of these securities were made without any general solicitation or advertising.

 

Item 11. Description of the Registrant’s Securities to be Registered.

 

Description of Our Securities

 

General

 

Our authorized capital stock consists of 450,000,000 shares of common stock, par value $0.001 per share and 50,000,000 shares of undesignated preferred stock, par value $0.001 per share. As of September 30, 2022, there were 272,454,891 shares of our common stock issued and outstanding held of record by 517 stockholders, and no shares of Preferred Stock issued or outstanding.

 

Common Stock

 

Voting. The holders of our common stock are entitled to one vote for each outstanding share of common stock owned by that stockholder on every matter properly submitted to the stockholders for their vote. Stockholders are not entitled to vote cumulatively for the election of directors. Except for the election of directors, which are elected by a plurality vote, a majority vote of common stockholders is generally required to take action under our by-laws.

 

Conversion, Redemption, and Pre-emptive Rights. Holders of our common stock have no conversion, redemption, pre-emptive, subscription or similar rights.

 

Dividend Rights. Subject to the rights of holders of preferred stock, holders of our common stock are entitled to receive such cash dividends as may be declared thereon by the Board of Directors from time to time out of assets of funds of the Company legally available for the payment of dividends.

 

Preferred Stock

 

The Board of Directors has the authority to issue this preferred stock in one or more series and to fix the number of shares and the relative rights, including conversion rights, voting rights and terms of redemption (including sinking fund provisions) and liquidation preferences, without further vote or action by the stockholders. If shares of preferred stock with voting rights are issued, such issuance could affect the voting rights of the holders of our common stock by increasing the number of outstanding shares having voting rights, and by the creation of class or series voting rights. If the Board of Directors authorizes the issuance of shares of preferred stock with conversion rights, the number of shares of our common stock outstanding could potentially be increased by up to the authorized amount. Issuance of preferred stock could, under certain circumstances, have the effect of delaying or preventing a change in control of the Company and may adversely affect the rights of the holders of our common stock. Also, preferred stock could have preferences over our common stock (and other series of preferred stock) with respect to dividend and liquidation rights. There have been no issuances of preferred stock to date.

40

 

Warrants

 

Since 2016, we have issued an aggregate of 1,737,499 warrants which currently have an exercise price of $0.035 per share. These warrants are exercisable for a period of up to seven years after the date of issuance. As of the filing date of this registration statement, 1,351,785 of these warrants are outstanding.

 

Limitations on Directors’ Liability; Indemnification of Directors and Officers

 

As permitted by Delaware law, our certificate of incorporation and by-laws provide that no director will be liable to us or our stockholders for monetary damages for breach of certain fiduciary duties as a director. The effect of this provision is to restrict our rights and the rights of our stockholders in derivative suits to recover monetary damages against a director for breach of certain fiduciary duties as a director, except that a director will be personally liable for:

 

·any breach of his or her duty of loyalty to us or our stockholders;
·acts or omissions not in good faith which involve intentional misconduct or a knowing violation of law;
·the payment of dividends or the redemption or purchase of stock in violation of Delaware law; or
·any transaction from which the director derived an improper personal benefit.

 

For additional information, refer to “Item 12. Indemnification of Directors and Officers” in this registration statement.

 

At present, we do not maintain directors’ and officers’ liability insurance in order to limit the exposure to liability for indemnification of directors and officers, including liabilities under the Securities Act; however, we are in the process of obtaining such insurance.

 

Anti-Takeover Provisions of our Charter Documents and Delaware Law

 

Certificate of Incorporation and By-Laws

 

effective date of this registration statement:

 

  · provide that special meetings of stockholder may be called only by the affirmative vote of a majority of all members of the Board, the chairperson of the Board, the lead independent director, and the Chief Executive Officer or President, and the ability of stockholders to call a special meeting is specifically denied;
  · do not allow for action by written consent by stockholders in lieu of meetings unless a majority of the Board approves in advance the taking of such action by means of written consent of stockholders;
  · require that stockholders provide advance notice of stockholder business and director nominations to be brought at a meeting of stockholders;

  · do not provide for cumulative voting rights, therefore allowing the holders of a majority of the shares of common stock entitled to vote in any election of directors to elect all of the director standing for election, if they should so choose; and

  · provide that all vacancies, including newly created directorships, may be filled by the affirmative vote of a majority of directors then in office, even if less than a quorum.

The combination of these provisions will make it more difficult for our existing stockholders to replace the Board of Directors as well as for another party to obtain control of us by replacing the Board of Directors. These and other provisions may be deemed to have an anti-takeover effect or may delay, deter or prevent a tender offer or takeover attempt that a stockholder might consider to be in its best interests, including attempts that might result in a premium being paid over the market price for the shares held by stockholders.

 

41

Delaware Takeover Statute

 

We are subject to Section 203 of the Delaware General Corporation Law (the “DGCL”) which prohibits a Delaware corporation that is a public company from engaging in any “business combination” (as defined below) with any “interested stockholder” (defined generally as an entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation and any entity or person affiliated with such entity or person) for a period of three years following the date that such stockholder became an interested stockholder, unless: (1) prior to such date, the Board of Directors of the corporation approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder; (2) on consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares outstanding those shares owned (x) by persons who are directors and also officers and (y) by employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or (3) on or subsequent to such date, the business combination is approved by the Board of Directors and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least two-thirds of the outstanding voting stock that is not owned by the interested stockholder.

 

Section 203 of the DGCL defines “business combination” to include: (1) any merger or consolidation involving the corporation and the interested stockholder; (2) any sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation involving the interested stockholder; (3) subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder; (4) any transaction involving the corporation that has the effect of increasing the proportionate share of the stock of any class or series of the corporation beneficially owned by the interested stockholder; or (5) the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation.

 

Potential for Anti-Takeover Effects

 

While certain provisions of Delaware law may have an anti-takeover effect, these provisions are intended to enhance the likelihood of continuity and stability in the composition of the Board of Directors and in the policies formulated by the board, and to discourage certain types of transactions that may involve an actual or threatened change of control. In that regard, these provisions are designed to reduce our vulnerability to an unsolicited acquisition proposal. The provisions also are intended to discourage certain tactics that may be used in proxy fights. However, such provisions could have the effect of discouraging others from making tender offers for shares of our common stock and, as a consequence, they also may inhibit fluctuations in the market price of our common stock that could result from actual or rumored takeover attempts. Such provisions also may have the effect of preventing changes in our management.

 

Choice of Forum

 

Our by-laws, as currently in effect, provide that the Court of Chancery of the State of Delaware will be the exclusive forum for any derivative action or proceeding brought on our behalf; any action asserting a breach of fiduciary duty; any action asserting a claim against us arising under the DGCL, our certificate of incorporation or our by-laws; and any action asserting a claim against us that is governed by the internal affairs doctrine.

 

Our by-laws, as will be in effect upon effectiveness of this registration statement, also provides that, to the fullest extent permitted by law, the federal district courts of the United States of America will be the exclusive forum for resolving any complaint asserting a cause of action arising under the United States federal securities laws, including the Securities Act and the Exchange Act. Investors cannot waive our compliance with federal securities laws and the rules and regulations thereunder.

 

These exclusive forum provisions may limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes with us or our directors, officers or other agents of the Company, which may discourage such lawsuits against us and our directors, officers and other agents. If a court were to find these exclusive forum provisions in our by-laws to be inapplicable or unenforceable in an action, we may incur further significant additional costs associated with resolving such action in other jurisdictions, all of which could have a material adverse effect on our business, financial condition, and results of operations.

42

 

Transfer Agent and Registrar

 

The transfer agent for shares of our common stock is Action Stock Transfer Corp, 2469 East Fort Union Boulevard, Suite 214, Salt Lake City, Utah, 84121.

 

Item 12. Indemnification of Directors and Officers.

 

Section 145 of the DGCL empowers a Delaware corporation to indemnify any persons who are, or are threatened to be made, parties to any threatened, pending, or completed legal action, suit, or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person was an officer or director of such corporation, or is or was serving at the request of such corporation as a director, officer, employee, or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit, or proceeding, provided that such officer or director acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests, and, for criminal proceedings, had no reasonable cause to believe his conduct was illegal. A Delaware corporation may indemnify officers and directors in an action by or in the right of the corporation under the same conditions, except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation in the performance of his duty. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses which such officer or director actually and reasonably incurred.

 

Our by-laws provide that we will indemnify our directors and officers to the fullest extent permitted by Delaware law. Our by-laws also provide that the right of directors and officers to indemnification will be a contract right and will not be exclusive of any other right now possessed or hereafter acquired under any statute, provision of the certificate of incorporation, by-law, agreement, vote of stockholders or disinterested directors or otherwise.

 

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

 

Item 13. Financial Statements and Supplementary Data.

 

The consolidated financial statements of EESTech, Inc. required to be included in this registration statement appear beginning on page F-1. 

 

Item 14. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.

 

None.

 

Item 15. Financial Statements and Exhibits.

 

(a) Financial Statements

 

The financial statements required to be included in this registration statement appear beginning on page F-1.

43

 

(b) Exhibits

 

 

Exhibit No. Description of Exhibit

 

3.1 Amended and Restated Certificate of Incorporation of EESTech, Inc. (incorporated by reference to Exhibit 3.1 of the Company’s Registration Statement on Form 10 filed August 26, 2022)

 

3.2 By-Laws of EESTech, Inc. (dated May 9, 2022) (incorporated by reference to Exhibit 3.2 of the Company’s Registration Statement on Form 10 filed August 26, 2022)

 

3.3 By-Laws of EESTech, Inc. (to be effective upon effectiveness of this registration statement)

 

10.1 Ferrochrome Recovery from Slag Agreement between Samancor Chrome Limited and EESTech Inc. Limited §

 

10.2 Agreement between EESTech, Inc. and Murray Bailey, dated as of February 18, 2019 (incorporated by reference to Exhibit 10.1 of the Company’s Registration Statement on Form 10 filed August 26, 2022) +

 

10.3 Agreement between EESTech, Inc. and Graeme Lynch, dated as of February 1, 2019 (incorporated by reference to Exhibit 10.2 of the Company’s Registration Statement on Form 10 filed August 26, 2022) +

 

21 Subsidiaries of Registrant (incorporated by reference to Exhibit 21 of the Company’s Registration Statement on Form 10 filed August 26, 2022)

 

+ Management contract in which an executive officer of the Company participates

§ Portions of this exhibit have been redacted in accordance with Item 601(b)(10(iv) of Regulation S-K

‡ Certain annexes and schedules to this exhibit have been omitted in accordance with Item 601(a)(5) of Regulation S-K. The registrant hereby agrees to furnish supplementally a copy of any omitted annex or schedule to the SEC upon its request.

 

44

 

 

SIGNATURE

 

Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized.

 

 

Dated: October 26, 2022 EESTECH, INC.
   
  By:   /s/ Murray Bailey
    Name:   Murray Bailey
    Title: Chief Executive Officer and President
       

 

 

 

45

INDEX TO CONSOLIDATED FINANCIAL STATEMENTS

Report of Independent Registered Public Accounting Firm (BDO Audit Pty Ltd; Brisbane, Queensland, Australia; PCAOB ID: 2256) F-2
EESTech, Inc Consolidated Financial Statements for the Years Ended 31 December 2021 and 2020 F-3
Consolidated Balance Sheets as at 31 December 2021 and 2020 F-3
Consolidated Statements of Operations and Comprehensive Loss for the Years Ended 31 December 2021 and 2020 F-4
Consolidated Statement of Changes in Stockholders’ Equity (Deficit) for the Years Ended 31 December 2021 and 2020 F-5
Consolidated Statements of Cash Flows for the Years Ended 31 December 2021 and 2020 F-6
Notes to Consolidated Financial Statements F-7
EESTech, Inc. Interim Unaudited Consolidated Financial Statements for the Six Months Ended 30 June 2022 F-16
Interim Unaudited Consolidated Balance Sheets for the Six Months Ended June 30, 2022, and December 31, 2021 F-16
Interim Unaudited Consolidated Statements of Operations and Comprehensive Loss for the Six Months Ended June 30, 2022, and June 30, 2021 F-17
Interim Unaudited Consolidated Statement of Changes in Stockholders’ Equity (Deficit) for the Six Months Ended June 30, 2022, and December 31, 2021 F-18
Interim Unaudited Consolidated Statements of Cash Flows for the Six Months Ended June 30, 2022, and June 30, 2021 F-19
Notes to Interim Consolidated Financial Statements F-20

 

 

F-1

 

Report of Independent Registered Public Accounting Firm

 

Board of Directors and Stockholders

 

EESTech, Inc.

Brisbane, Australia

 

Opinion on the Consolidated Financial Statements

 

We have audited the accompanying consolidated balance sheets of EESTech, Inc. (the “Company”) as of December 31, 2020 and December 31, 2021, the related consolidated statements of operations and comprehensive loss, statements of changes in stockholders’ equity (deficit), and cash flows for each of the two years in the period ended December 31, 2021 and the related notes (collectively referred to as the “consolidated financial statements”). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2020 and December 31, 2021, and the results of its operations and its cash flows for each of the two years in the period ended December 31, 2021 in conformity with accounting principles generally accepted in the United States of America.

 

Going concern uncertainty

 

The accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern. As described in Note 1 to the consolidated financial statements, the Company has suffered recurring losses from operations and has a net capital deficiency that raise substantial doubt about its ability to continue as a going concern. Management’s plans in regard to these matters are also described in Note 1. The consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty.

 

Basis for opinion

 

These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s consolidated financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

 

We conducted our audits in accordance with the standards of the PCAOB and in accordance with standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits, we are required to obtain an understanding of internal control over consolidated financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.

 

Our audits included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures include examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audits provide a reasonable basis for our opinion.

 

/s/ BDO Audit Pty Ltd

We have served as the Company’s auditor since 2021

Brisbane, Queensland, Australia

August 26, 2022, except for Note 2 as to which the date is October 26, 2022

F-2

 

EESTECH, INC. AND SUBSIDIARIES

(A DEVELOPMENT STAGE COMPANY)

EESTech, Inc Consolidated Financial Statements for the Years Ended 31 December 2021 and 2020

 

Consolidated Balance Sheets as at 31 December 2021 and 2020

 

  Note DECEMBER 31, DECEMBER 31,
    2021 2020
    $ $
ASSETS      
       
Current assets:      
Cash     416,811     82,250  
Prepaid expenses     28,128      
Other receivables 3   42,818     8,624  
Total current assets     487,757     90,874  
               
OTHER NON-CURRENT ASSETS              
Property and equipment, net 4   39,804     6,010  
Total non-current assets     39,804     6,010  
               
Total assets     527,561     96,884  
               
LIABILITIES AND STOCKHOLDERS’ EQUITY (DEFICIT)              
               
Current liabilities:              
Accounts payable 5   359,173     763,665  
Accrued expenses 6   189,258     215,656  
Shareholder loans     21,768     46,212  
Total current liabilities     570,199     1,025,533  
               
Stockholders’ equity (deficit):              
Common Stock, $0.001 par value, 450,000,000 shares authorized;              
 and 239,001,760 shares issued and outstanding at              
December 31, 2021 and 184,373,533 as at December 31, 2020, respectively     240,175     185,548  
Additional paid-in capital     35,769,252     33,489,487  
Accumulated deficit     (34,682,133 )   (33,329,874 )
Accumulated comprehensive loss     (1,550,394 )   (1,531,011 )
Change in proportionate interest reserve     1,178,039     1,178,039  
Total stockholders’ equity (deficit)     954,939     (7,811 )
Non-Controlling Interest in Subsidiaries     (997,577 )   (920,838 )
Total equity (deficit)     (42,638 )   (928,649 )
               
Total liabilities and stockholders’ equity     527,561     96,884  

 

 

The accompanying notes are an integral part of these financial statements

 

F-3

 

EESTECH, INC. AND SUBSIDIARIES

(A DEVELOPMENT STAGE COMPANY)

 

Consolidated Statements of Operations and Comprehensive Loss for the years ended 31 December 2021 and 2020

 

  Note FOR THE YEAR FOR THE YEAR
    ENDED ENDED
    DECEMBER 31, DECEMBER 31,
    2021 2020
    $ $
Revenue recognized from contracts with customers 9   52,554      
               
Operating expenses:              
General administrative     (1,482,015 )   (932,455 )
Total operating expenses     (1,482,015 )   (932,455 )
               
Loss from operations     (1,429,461 )   (932,455 )
               
Other income (expense):              
Unrealized FX gain/(loss) on translation     462      
Interest expense         (16 )
               
Net loss     (1,428,999 )   (932,471 )
               
Other comprehensive loss:              
Other comprehensive loss for the year, net of tax     (19,383 )   (91,706 )
               
Total comprehensive loss for the year     (1,448,382 )   (1,024,177 )
               
Loss for the year is attributable to:              
Owners of EESTech, Inc.     (1,352,260 )   (989,856 )
Non-Controlling Interests     (76,739 )   57,385  
               
Total comprehensive loss for the year is attributable to:              
Owners of EESTech, Inc.     (1,371,643 )   (1,081,562 )
Non-Controlling Interests     (76,739 )   57,385  
               
Loss per share     (0.007 )   (0.005 )
               
Weighted average number of common shares outstanding – basic and diluted     205,677,834     180,831,531  

 

  

The accompanying notes are an integral part of these financial statements 

 

F-4

EESTECH, INC. AND SUBSIDIARIES

(A DEVELOPMENT STAGE COMPANY)

Consolidated Statement of Changes in Stockholders’ Equity (Deficit) for the years ended 31 December 2021 and 2020

 

Common Stock     Deficit accumulated during
development
stage
     

Accumulated

other

comprehensive

loss

    Change in proportionate interest reserve    

Total

Stockholders’
equity
(deficit)

    Non-Controlling Interests
in
Subsidiaries
    Total
equity
(deficit)
       

Shares issued

Par

 

Par

Value
$0.001

   

Additional

paid-in

capital

                                             
No.   $     $     $       $     $     $     $     $     $  
                                                         

Balance December

31, 2019

  175,909,330     176,133     33,041,653       (32,340,018 )   (1,439,305 )       (561,536 )       (561,537 )
                                                         
Issuance of stock for
Cash
  2,515,859     2,517     88,820                   91,337         91,337  
Issuance of stock for
Services
  5,948,344     6,898     359,014                   365,912         365,912  
Issuance of shares to Non-Controlling Interest                         22     22         22  
Change in proportionate interests                         1,178,017     1,178,017     (978,223 )   199,794  
                                                         
Net Loss                 (989,856 )           (989,856 )   57,385     (932,471 )
Adjustment for foreign currency translations                     (91,706 )       (91,706 )       (91,706 )

Balance December

31, 2020

  184,373,533     185,548     33,489,487       (33,329,874 )   (1,531,011 )   1,178,039     (7,811 )   (920,838 )   (928,649 )
                                                         
Issuance of stock for
Cash
  35,740,362     35,739     1,309,355                   1,345,094         1,345,094  
Issuance of stock for
Services
  18,887,865     18,888     970,410                   989,298         989,298  
                                                         
Net Loss                 (1,352,260 )           (1,352,260 )   (76,739 )   (1,428,999 )
Adjustment for foreign currency translations                     (19,383 )       (19,383 )       (19,383 )

Balance December

31, 2021

  239,001,760     240,175     35,769,252       (34,682,133 )   (1,550,394 )   1,178,039     954,939     (997,577 )   (42,638 )

 

The accompanying notes are an integral part of these financial statements 

F-5

EESTECH, INC. AND SUBSIDIARIES

(A DEVELOPMENT STAGE COMPANY) 

Consolidated Statements of Cash Flows for the years ended 31 December 2021 and 2020

 

  FOR THE YEAR ENDED
DECEMBER 31,
2021
FOR THE YEAR ENDED
DECEMBER 31,
2020
  $ $
Cash flows from operating activities:    
     
Net loss   (1,428,999 )   (932,471 )
             
Adjustments to reconcile net loss to net            
cash used in operating activities:            
Amortization and depreciation   9,276     11,624  
Unrealized FX gain   462      
Shares issued for services and settlement of debt   989,298     365,912  
             
Changes in assets and liabilities:            
Increase (decrease) in accruals   (26,398 )   98,385  
Increase in other receivables   (8,152 )   (1,433 )
Decrease in prepaid expenses   (28,128 )    
Increase (decrease) in accounts payable   (404,495 )   385,791  
Net cash (used in) by operations   (897,136 )   (72,192)  
             
Cash flows used by investing activities:            
Acquisition of plant and equipment   (43,194 )    
Investment in subsidiaries       21  
Sale of 27% EESTech Australia       199,795  
Net cash (used by) from investing activities   (43,194 )   199,816  
             
Cash flows from financing activities:            
Issuance of common stock   1,345,094     91,337  
Loan repaid to shareholder   (24,443 )   (46,662 )
Net cash from financing activities   1,320,651     44,675  
             
Comprehensive loss on translation   (45,760 )   (90,088 )
Net increase in cash   334,561     82,211  
Cash, beginning of period   82,250     39  
Cash, end of period   416,811     82,250  
             
SUPPLEMENTAL DISCLOSURE OF NON-CASH INVESTING AND FINANCING ACTIVITIES:            
Issuance of stock for services and extinguishing debt   989,298     365,912  

 

 

The accompanying notes are an integral part of these financial statements

 

F-6

 

EESTECH, INC. AND SUBSIDIARIES

(A DEVELOPMENT STAGE COMPANY)

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

1. BASIS OF PRESENTATION, ORGANIZATION AND NATURE OF OPERATIONS

 

(a) Organization and nature of operations

 

EESTech, Inc and subsidiaries (the “Company,” “we,” or “our”) promotes economically and environmentally sustainable technologies to the world’s mining and minerals processing industry. The Company has developed waste management solutions that enables the recycling of mine site waste and process slag to recover targeted materials of value. the Company’s industry disruptive technologies deliver a paradigm shift in how mineral resourses are processed.

 

The Company’s mineral processing capabilities dramatically reduce cost, increase productivity, reduce energy requirements, eliminate polluting leachates, transform hazardous waste liabilities into products of value with zero-waste outcomes, significantly reduce the carbon footprint of mineral resource processing.

 

·The Company was formed on 26th April, 2000 as a Delaware corporation, File number 3218311 as Aquadyne Inc. On the 26th June 2006 the name of the Company was changed to EESTech Inc.
·EESTech Australia Pty Ltd, ACN 103 011 696, was registered on 2nd December 2002. EESTech Inc. holds 73% with Albatross Equity Investments Limited Holding 27%.
·EESTech Inc Limited, incorporation number 6341030, New Zealand, was incorporated on 19th June 2017. and is 100% owned by EESTech Inc.
·EESTech Management Services (Pty) Ltd, number 2016 / 410087 / 07 South Africa, was registered on the 20th September 2016. and is 100% owned by EESTech Inc Limited.
·E’Prime Alloys LLC, ID 2019-000867434, was registered on 23rd September 2019. and is 100% owned by EESTech Inc.
·Environmental Management Solutions LLC, File number 5324412, was formed on 11th July 2013. and is 100% owned by EESTech Inc.

 

(b) Basis of Preparation

 

The consolidated financial statements have been prepared in accordance with United States generally accepted accounting policies (“US GAAP”) and have been prepared on a historical cost basis.

 

In accordance with Accounting Standards Update (“ASU”) 2014-15, Disclosure of Uncertainties About an Entity’s Ability to Continue as a Going Concern (Subtopic 205-40), the Company has evaluated whether there are conditions and events that raise substantial doubt about the Company’s ability to continue as a going concern for at least one year after the date the consolidated financial statements are issued.

 

The Company has incurred significant losses since inception and expects to continue to incur losses as we advance our tests and development of technologies. The Company had an accumulated deficit of $34.7 million at December 31, 2021. Although the Company historically has sold equity for raising working capital from a number of investor sources, on an as and when needed basis, there is no assurance that any additional equity offerings, debt financings, or other non-dilutive third-party funding will be available to us on acceptable terms or at all. 

 

The above conditions give rise to a material uncertainty which may cast substantial doubt on the Company’s ability to continue as a going concern.

 

Notwithstanding the above, management of the Company considers it appropriate to prepare the financial statements on a going concern basis after having regard to the Company being award a 10+year contract and two commercial work orders for its services, the Company in the near future will no longer be required to raise working capital through equity placements as the Company will have reached a market point where cash flows will be realized through its commercial and operational activities.

 

Should the Company be unable to continue as a going concern, it may be required to realize its assets and liabilities other than in the ordinary course of business, and at amounts that differ from those stated in the financial statements. These financial statements do not give effect to any adjustments, which could be necessary, should the Company be unable to continue as a going concern and therefore be required to realize its assets and discharge its liabilities in other than the normal course of business, and at amounts different from those reflected in the financial statements.

F-7

 

COVID-19

 

The rapid global spread of the COVID-19 virus since December 2019 has affected production and sales, and disrupted supply chains across a range of industries. The impact of COVID-19 on the Company’s operations and financial performance will depend on numerous factors, including but not limited to the duration and spread of the virus, and the impact on the Company’s customers, employees and vendors.

 

As the COVID-19 pandemic continues to evolve, the ultimate impact of the pandemic on the Company’s operations is highly uncertain and subject to change and will depend on future developments, which cannot be accurately predicted, including the duration of the pandemic, additional or modified government actions, and the actions taken to contain COVID-19 or address its impact, among others. Management does not yet know the full extent of potential delays or impacts on the Company, research programs, healthcare systems or the global economy, but continue to monitor the situation closely.

 

2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES 

 

(a) Principles of Consolidation

 

The accompanying consolidated financial statements include the accounts of the Company and its wholly owned subsidiaries. The financial statements have been consolidated with the parent company and all inter-company transactions and balances have been eliminated in consolidation.

 

The acquisition of subsidiaries is accounted for using the acquisition method of accounting. A change in ownership interest, without the loss of control, is accounted for as an equity transaction, where the difference between the consideration transferred and the book value of the share of the non-controlling interest acquired is recognized directly in equity attributable to the parent.

 

Non-controlling interest in the results and equity of subsidiaries are shown separately in the statement of operations and comprehensive loss, statement of financial position and statement of changes in equity of the consolidated entity.

 

Losses incurred by the consolidated entity are attributed to the non-controlling interest in full, even if that results in a deficit balance.

 

(b) Use of Estimates

 

The preparation of consolidated financial statements in conformity with US GAAP requires management to make certain judgements, estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenues and expenses during the reporting periods. The Company has only used estimates for useful lives for depreciation, deferred income tax assets and liabilities and relatively minor accruals when they are not in possession of actual invoices after the balance date. The Company accounts for all its foreign subsidiaries on the same basis. Actual results could differ from those estimates.

 

(c) Revenue Recognition

 

F-8

Revenue in EESTech currently relates to the ongoing R&D process with Sasol as EESTech has taken on testing of excess fine coal agglomeration.

 

Revenues are recognized when the control of the promised goods and services are transferred to a customer in an amount that reflects the consideration that the Company expects to receive in exchange for those services.

 

The Company applies the five following steps in order to determine the appropriate amount of revenue to be recognized as it fulfils its obligations under each of its arrangements:

 

·Identify the contract with the customer,
·Identify the performance obligations in the contract,
·Determine the transaction price,
·Allocate the transaction price to performance obligations in the contract, and
·Recognize revenue as the performance obligation is satisfied.

 

The Company estimates the transaction price, including variable consideration, at the commencement of the contract and recognizes revenue over the contract term, rather than when fees become fixed or determinable.

 

(d) Goods and Services Tax (“GST”) and other similar taxes

 

Revenues, expenses and assets are recognized net of the amount of associated GST, unless the GST incurred is not recoverable from the tax authority. In this case it is recognized as part of the cost of the acquisition of the asset or as part of the expense.

 

Receivables and payables are stated inclusive of the amount of GST receivable of payable. The net amount of GST recoverable from, or payable to, the tax authority is included in other receivables or other payables in the statement of financial position.

 

Cash flows are presented on a gross basis. The GST components of cash flows arising from investing or financing activities which are recoverable from, or payable to the tax authority, are presented as operating cash flows.

Commitments and contingencies are disclosed net of the amount of GST recoverable from, or payable to, the tax authority.

 

(e) Cash

 

Cash  include short-term investments that are readily convertible into cash with original maturities of three months or less.

 

(f) Property and Equipment

 

Property and equipment is stated at cost and depreciated using the straight-line method over the estimated useful lives of the assets, which is three to seven years. The Company has no equipment under capital lease.

 

(g) Borrowings

 

Loans and borrowings (including to related parties) are initially recognized at the fair value of the consideration received, net of transaction costs.

 

(h) Income Taxes

 

The Company complies with the accounting and reporting requirements of ASC Topic 740, “Income Taxes,” which requires an asset and liability approach to financial accounting and reporting for income taxes. Deferred income tax assets and liabilities are computed for differences between the financial statement and tax bases of assets and liabilities that will result in future taxable or deductible amounts, based on enacted tax laws and rates applicable to the periods in which the differences are expected to affect taxable income. Valuation allowances are established, when necessary, to reduce deferred tax assets to the amount expected to be realized.

ASC Topic 740, “Income Taxes,” prescribes a recognition threshold and a measurement attribute for the financial statement recognition and measurement of tax positions taken or expected to be taken in a tax return. For those benefits to be recognized, a tax position must be more-likely-than-not to be sustained upon examination by taxing authorities. The Company’s management determined that Australia is the Company’s only major tax jurisdiction.

 

F-9

(i) Net Loss per Share

 

Basic earnings (loss) per share (“EPS”) is calculated by dividing profit or loss attributable to ordinary equity holders (numerator) by the weighted average number of ordinary shares outstanding (denominator) during the period. The denominator is calculated by adjusting the shares issued at the beginning of the period by the number of shares bought back during the period, multiplied by a time-weighting factor.

 

(j) Non-Controlling Interests

 

Non-controlling interests (“NCI”) are measured initially at their proportionate share of the acquiree’s identifiable net assets at the date of acquisition. Changes in the Company’s interest in a subsidiary that do not result in a loss of control are accounted for as equity transactions.

 

Non-controlling interest in the results and equity of subsidiaries are shown separately in the statement of operations and comprehensive loss, statement of financial position and statement of changes in equity of the consolidated entity.

 

Losses incurred by the consolidated entity are attributed to the non-controlling interest in full, even if that results in a deficit balance.

 

(k) Segment Information

 

FASB ASC Topic No. 280, Segment Reporting (“ASC 280”), establishes standards for the way that public business

enterprises report information about operating segments in their annual consolidated financial statements and requires that those enterprises report selected information about operating segments in interim financial reports. ASC 280 also establishes standards for related disclosures about products and services, geographic areas and major customers. The Company’s business segment is based on the organization’s structure used by the chief operating decision maker for making operating and investment decisions and for assessing performance.

 

The Company is organized as a single operating segment, whereby its chief operating decision maker assess the performance of and allocates resources to the business as a whole.

 

(l) Share capital

 

The Company records proceeds from share issuances net of issuance costs. Par value is recorded at its rate of 0.001 per share with the remaining proceeds net of issuance costs being recorded as additional paid in capital.

 

The Company has issued freestanding warrants to purchase shares of common stock. The warrants are recorded as equity instruments at the grant date fair value using the Black-Scholes option pricing model and are not subject to revaluation at each balance sheet date.

 

The Company records compensation expense related to stock options issue to nonemployees, including consultants based on the fair value of the stock options calculated using the Black-Scholes option pricing model over the service performance period as the equity instruments vest. The Black-Scholes option-pricing model requires the use of highly subjective and complex assumptions, which determining the fair value of share based awards, including the option’s expected term and the price volatility of the underlying stock. The Company calculates the fair value of options granted by using the Black-Scholes option-pricing model with the following assumptions:

 

Expected Volatility – The Company estimated volatility for option grants by evaluating the average historical volatility of a peer group of companies for the period immediately preceding the option grant for a term that is approximately equal to the options’ expected term.

 

Expected Term – The expected term of the Company’s options represents the period that the stock-based awards are expected to be outstanding. The Company has elected to use the midpoint of the stock options vesting term and contractual expiration period to compute the expected term, as the Company does not have sufficient historical information to develop reasonable expectations about the future exercise patterns and post-vesting employment termination behavior.

 

Risk-Free Interest Rate – the risk-free interest rate is based on the implied yield currently available on US Treasury zero-coupon issues with a term that is equal to the options’ expected term at the grant date.

 

Dividend Yield - The Company has not declared or paid dividends to date and does not anticipate declaring dividends. As such, the dividend yield has been estimated to be zero.

 

(m) Fair value of financial instruments

 

Assets and liabilities recorded at fair value on a recurring basis in the balance sheets are categorized based upon the level of judgment associated with the inputs used to measure their fair values. Fair value is defined as the exchange price that would be received for an asset or an exit price that would be paid to transfer a liability in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants on the measurement date. Valuation techniques used to measure fair value must maximize the use of observable inputs and minimize the use of unobservable inputs.

 

The three-tier fair value hierarchy for disclosure of fair value measurements as follows:

 

·Level 1 inputs consist of unadjusted quoted prices in active markets for identical assets or liabilities and have the highest priority.
F-10

·Level 2 valuations are based on quoted prices in markets that are not active.
·Level 3 valuations are based on inputs that are unobservable and supported by little or no market activity.

 

(n) Foreign Currency Translation

 

The reporting currency of the Group is United State Dollars. The functional currency of the Company’s foreign operations is Australian Dollars. The Company translates the foreign currency financial statements of its foreign operations in accordance with generally accepted accounting principles by translating balance sheet accounts at the appropriate historical or current exchange rate on the balance sheet date and the income statement accounts using the prevailing exchange rates at the transaction date. Translation gains and losses are recorded in stockholders’ equity and realized gains and losses are reflected in operations. The translation exchange loss for the year ended December 31, 2021, was $2,385 and the translation exchange loss for the year ended December 31, 2020, was $3,011.

 

(o) Research and Development

 

Research and development costs are charged to expense as incurred. The Company’s research and development expenses consist primarily of expenditures for operations, studies, compensation and consulting costs.

 

(p) Newly Adopted Accounting Standards

 

“Income Taxes - Simplifying the Accounting for Income Taxes” - In December 2019, the Financial Accounting Standards Board issued Accounting Standards Update, or ASU, 2019-12, which simplified various aspects related to accounting for income taxes. ASU 2019-12 removed certain exceptions to the general principles in Accounting Standards Codification, or ASC, Topic 740 –Income Taxes, and clarified and amended existing guidance to improve consistent application.

 

The adoption of ASU 2019-12 on January 1, 2021, did not have material impact on the Company’s consolidated financial statements.

 

(q) Accounting Standards Not Yet Implemented

 

In February 2016, the FASB issued ASU No. 2016-02, Leases (Topic 842). The core principle of Topic 842 is that a lessee should recognize the assets and liabilities that arise from leases. For operating leases, a lessee is required to recognize a right-of-use asset and a lease liability, initially measured at the present value of the lease payments, in the balance sheet. For leases with a term of 12 months or less, a lessee is permitted to make an accounting policy election by class of underlying asset not to recognize lease assets and lease liabilities. The accounting applied by a lessor is largely unchanged from that applied under previous GAAP. For SEC Filers (GAAP definition), excluding smaller reporting companies (SRCs) as defined by the SEC , the ASU 2016-02 is effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2018. For all other entities including smaller reporting companies, as amended by ASU 2019-10, the ASUs are effect for fiscal years beginning after December 15, 2021, and interim periods within fiscal years beginning after December 15, 2022. Earlier application is permitted. In transition, lessees and lessors are required to recognize and measure leases at the beginning of the earliest period presented using a modified retrospective approach. The Company is currently evaluating the effect that the adoption of this ASU will have on its consolidated financial statements.

  

In August 2020, the Financial Accounting Standards Board (FASB) issued Accounting Standards Update (ASU) No. 2020-06, Debt—Debt with Conversion and Other Options (Subtopic 470-20) and Derivatives and Hedging—Contracts in Entity’s Own Equity (Subtopic 815-40): Accounting for Convertible Instruments and Contracts in an Entity’s Own Equity, which simplifies the accounting for convertible instruments by eliminating the requirement to separate embedded conversion features from the host contract when the conversion features are not required to be accounted for as derivatives under Topic 815, Derivatives and Hedging, or that do not result in substantial premiums accounted for as paid-in capital. By removing the separation model, a convertible debt instrument will be reported as a single liability instrument with no separate accounting for embedded conversion features. This new standard also removes certain settlement conditions that are required for contracts to qualify for equity classification and simplifies the diluted earnings per share calculations by requiring that an entity use the if-converted method and that the effect of potential share settlement be included in diluted earnings per share calculations. The new standard will be effective for fiscal years beginning after December 15, 2021, including interim periods within those fiscal years. Early adoption is permitted, but no earlier than fiscal years beginning after December 15, 2020. The Company has not yet determined the potential impact the adoption may have on our consolidated financial statements.

 

In October 2021, the FASB issued ASU No. 2021-08, Accounting for Contract Assets and Contract Liabilities from Contracts with Customers. The amendments in this ASU improve the accounting for acquired revenue contracts with customers in a business combination by addressing diversity in practice and inconsistency related to recognition of an acquired contract liability, and payment terms and their effect on subsequent revenue recognized by the acquirer. The amendments in this ASU are effective for fiscal years beginning after December 15, 2023, including the interim periods within those fiscal years. Early adoption is permitted.

 

3. OTHER RECEIVABLES

 

F-11

Other receivables consist of the following:

   DECEMBER 31,
2021
  DECEMBER 31,
2020
    $    $ 
Amounts due from Customers   26,043     
Advances to related parties   14,955    7,702 
GST Receivable   1,820    922 
Total Other Receivables   42,818    8,624 

 

4. PROPERTY AND EQUIPMENT

 

Property and equipment consist of the following:

 

  Computers Plant & Equipment Lab Equipment TOTAL
  $ $ $ $
Balance at 1 January 2020 7,337 10,021 17,358
Additions 1,558 1,558
Impact of foreign exchange (1,282) (1,282)
Depreciation (3,924) (7,700) (11,624)
Balance at 31 December 2020 3,689 2,321 6,010
Additions 5,832 14,811 24,707 45,350
Impact of foreign exchange (2,318)  — (2,318)
Depreciation (3,096) (3,944) (2,198) (9,238)
Balance at 31 December 2021 4,107 13,188 22,509 39,804

  

Property and equipment is stated at cost and depreciated using the straight-line method over the estimated useful lives of the assets, which is three to seven years. The Company has no equipment under capital lease.

 

5. ACCOUNTS PAYABLE

 

Accounts payable consist of the following:

    DECEMBER 31,
2021
  DECEMBER 31,
2020
      $       $  
Amounts due for consulting costs to related parties/Directors     341,505       763,665  
Amounts due to suppliers     17,668        
Total Accounts Payable     359,173       763,665  

 

6. ACCRUED EXPENSES 

 

Accrued expenses consist of the following:

    DECEMBER 31,
2021
  DECEMBER 31,
2020
      $       $  
Amounts due to related parties/Directors     65,304       154,040  
Amounts due to suppliers     123,954       61,616  
Total Accounts Payable     189,258       215,656  

 

7. COMMON STOCK

 

During the fiscal year ended December 31, 2020, the Company raised $91,337 from private placements, via the issue of 2,515,859 shares.

 

F-12

During the fiscal year ended December 31, 2020, the Company issued 2,472,200 shares in lieu of services received, valued at $169,376.

 

During the fiscal year ended December 31, 2020, the Company issued 3,476,144 shares in lieu of invoices received, valued at $196,536.

 

During the fiscal year ended December 31, 2021, the Company raised $1,345,094 from private placements, via the issue of 35,740,362 shares.

 

During the fiscal year ended December 31, 2021, the Company issued 8,422,765 shares in lieu of services received, valued at $490,346.

 

During the fiscal year ended December 31, 2021, the Company issued 10,465,100 shares in lieu of invoices received, valued at $498,952.

 

 

Warrants

 

The Company has historically issued warrants to purchase 1,737,499 shares of the Company’s common stock with an exercise price of $0.035 per share and a term of seven years. As at 31 December 2021, 1,351,785 of these warrants are outstanding. The warrants were recorded to additional paid-in capital.

 

The fair value of the warrants was determined using the Black-Scholes option-pricing method, with the following assumptions:

 

  Warrants
Fair market value of common stock $0.035
Expected dividend yield -%
Risk-free interest rate 0.12%
Expected volatility 27.29%
Expected term (in years) 7

  

8. INCOME TAXES

 

The components of net deferred taxes consisted of the following at December 31 (in thousands):

 

    DECEMBER 31, 2021   DECEMBER 31, 2020
      $       $  
Deferred tax assets:                
Net operating loss carry-forward     7,627       7,339  
Gross deferred tax assets     7,627        7,339   
Lee valuation allowance     (7,624 )     (7,338 )
Total deferred tax assets            
Deferred tax liabilities:                
Depreciation     (3)       (1)  
Net deferred tax assets     —         —    

 

The Company has provided a full valuation allowance on the net deferred tax assets. The valuation allowance increased by $0.3 million during 2021 and $0.1 million during 2020.

 

The Company utilizes ASC 740, Accounting for Income Taxes, which requires the recognition of deferred tax assets and liabilities for the expected future tax consequences of events that have been included in the financial statements or tax returns. Under this method, deferred income taxes are recognized for the tax consequences in future years of differences between the tax bases of assets and liabilities and their financial reporting amounts at each period end based on enacted tax laws and statutory tax rates applicable to the periods in which the differences are expected to affect taxable income. Valuation allowances are established, when necessary, to reduce deferred tax assets to the amount expected to be realized. At December 31, 2021, and 2020, valuation allowances for the full amount of the net deferred tax asset were established due to the uncertainties as to the amount of the taxable income that would be generated in future years.

Reconciliation of the differences between the statutory tax rate and the effective income tax rate is as follows:

 

   DECEMBER 31,
2021
  DECEMBER 31,
2020
       
Statutory federal tax (benefit) rate   (21.00)%   (21.00)%
Statutory foreign tax (benefit) rate   (25.00)%   (26.00)%
           
Weighted average effective tax rate   (21.00)%   (21.00)%
           
Valuation allowance   21.00%   21.00%
           
Effective income tax rate   0.00%   0.00%

 

The Company had available approximately $35.6M (2021) and $34.1M (2020) of unused net operating loss carryforwards that may be applied against future taxable income. Net operating loss carryforward that arose in the tax year 2000 expired in 2021 for Federal purposes.

The future utilization of the Company’s NOL and tax credit carryforwards to offset future taxable income may be subject to a substantial annual limitation as a result of changes in ownership by stockholders that hold 5% or more of the Company’s common stock. An assessment of such ownership changes under Section 382 was not completed through December 31, 2021. To the extent that an assessment is completed in the future, the Company’s ability to utilize tax attributes could be restricted on a year-by-year basis and certain attributes could expire before they are utilized. The Company will examine the impact of any potential ownership changes in the future.

The Company files income tax returns in the U.S. federal jurisdiction and various state jurisdictions. In the normal course of business, the Company is subject to examination by taxing authorities throughout the nation. The Company is not currently under audit by the Internal Revenue Service or other similar state and local authorities. All tax years remain open to examination by major taxing jurisdictions to which the Company is subject. 

9. REVENUE

F-13

Revenue was first recorded in EESTech in the third quarter of FY 2021. It relates to the ongoing R&D process with Sasol as EESTech has taken on testing of excess fine coal agglomeration. As of 31 December 2021, revenue was immaterial but is forecasted to increase throughout FY2022 providing the successful completion of the testing process is achieved.

 

Revenue is based on completion of 3 stages of the fine coal agglomeration, each stage being deemed to be a distinct performance obligation. The 3 stages are as follows:

 

1)Evaluation of agglomerates to confirm suitability for gasfication – EESTech will be provided with 2 tons of fine coal by Sasol for test work from which the Company must produce agglomerates meeting Sasol’s expectations along with providing a basic analysis of the agglomerated material. The Company has fulfilled their requirements of this stage during FY2021, and has recognized revenue related to this performance obligation.
2)A proposal from EESTech on the business model – If stage 1 produces suitable agglomerates which pass Sasol’s testing, EESTech will be required to develop a full proposal on a 200 kilo tons per annum scale project including a detailed business model. The Company has provided the proposal which Sasol has deemed appropriate and thus fulfilled their requirements of this performance obligation and recognized the corresponding revenue during FY2021.
3)Full scale demonstration in a commercial gasifier – Stage 3 entails EESTech to manufacture about 1,000 tons of agglomerates to enable a commercial scale demonstration. As at December 31, 2021, this stage had not yet been completed by the Company and hence, Sasol had not been invoiced for payment at year-end. However, the requirements of this stage were satisfied subsequent to year-end and has therefore been received and recognized as revenue in March 2022.

 

Once each stage is complete, an invoice is raised, and the revenue is recognized at a point in time, upon completion of each stage, which represents a distinct performance obligation. Each stage has been deemed a distinct performance obligation since the agreement between EESTech and Sasol is such that the customer can begin benefitting from the results provided by the Company after completion of each stage, or, if the customer should see no further benefit, cancel the remaining stages. Payment for each invoice is typically due 7 days from the date of invoice. There are no warranties or rights of return under this contract.

 

Costs relating to the completion of the contract are recognized as incurred in line with each stage. Costs are minimal and mainly relate to lab hire and small lab expenses. Larger laboratory expenses have been capitalized and are being depreciated in line with the depreciation policy.

 

The breakdown of opening and closing revenue for the year from contracts is noted below:

 

Sasol

($)

Opening balance of Contract Revenue at 1 January 2021
New Contracts 66,130
Revenue recognized on Contracts for performance obligations satisfied (52,554)
Difference arising on translation of foreign currency 554
Closing balance of Contract Revenue at 31 December 2021 14,130

 

The Company expects to be able to invoice the final stage of the contract of $14,130 upon shipment of the agglomerated fine coal. This took place in March 2022.

 

There was no revenue recognized for completion of performance obligations in prior periods.

  

10.  LOSS PER SHARE

 

The calculation of basic loss per share has been based on the following loss attributable to ordinary shareholders and weighted average number of ordinary shares outstanding.

    DECEMBER 31,
2021
  DECEMBER 31,
2020
    $   $
Loss attributable to ordinary shareholders     (1,352,260 )     (989,856 )
                 
Weighted average number of ordinary shares at 1 January     180,831,531       171,195,779  
Effect of shares issued in year     24,846,302       9,635,753  
Weighted average number of ordinary shares at 31 December     205,677,834       180,831,531  
Loss per share     (0.007)       (0.005)  

  

 

11. RELATED PARTY TRANSACTIONS

(a) Due from related parties

During the period ended December 31, 2021, the Company provided advances to two directors in the form of credit cards to be able to pay for any expenses. As at December 31, 2021, balances on account from related parties were $14,955 (2020: $7,702).

(b) Due to related parties

As at December 31, 2021, balances owing to related parties were $406,809 (2020: $917,705). They were unsecured and non-interest bearing, and had no stated terms of repayment. All of these relate to director fees and contractor/consulting costs. 

12. ISSUANCE OF SHARES TO EXTINGUISH DEBT

 

The Company, on occasion, uses shares to extinguish debt. This can be in the form of an invoice or services received. Where an invoice has been received, the shares are valued at the quoted market value on the day of settlement. Any difference between the value of the shares and the net carrying amount of the extinguished debt is recognized in income of the period of extinguishment as losses or gains. For the year ended December 31, 2021, a loss of $57,058 has been recognized (2020: gain of $1,775).

 

F-14

 

Where shares are issued for services rendered, the Black-Scholes method of valuation is applied and the expense is straight lined over the period of service received. During the years ended December 31, 2021, and 2020 the Company issued 10,465,100 and 3,476,144 shares of common stock for the extinguishment of $498,952 and $196,536 of debt, respectively.

 

13. COMMITMENTS AND CONTINGENCIES

 

Operating Leases

 

The Company leases its corporate offices under a month-to-month agreement, and under an operating lease that is renewable annually and expires in December 2022. Rent expense for office space amounted to approximately $660 for both the years ended December 31, 2021, and 2020, respectively.

 

Legal Matters

 

From time to time, the Company is involved in various disputes and litigation matters that arise in the ordinary course of business. To date, the Company had no material pending legal proceedings.

F-15

EESTech, Inc. Interim Unaudited Consolidated Financial Statements for the Six Months Ended 30 June 2022

 

EESTECH, INC. AND SUBSIDIARIES

(A DEVELOPMENT STAGE COMPANY)

Interim Unaudited Consolidated Balance Sheets as at June 30, 2022, and December 31, 2021

 

    Note   JUNE 30,   DECEMBER 31,
        2022   2021
        $   $
ASSETS            
             
Current assets:            
Cash         559,333       416,811  
Prepaid expenses         11,926       28,128  
Other receivables   3     19,412       42,818  
Total current assets         590,671       487,757  
                     
OTHER NON-CURRENT ASSETS                    
Property and equipment, net   4     39,162       39,804  
Total non-current assets         39,162       39,804  
                     
Total assets         629,833       527,561  
                     
LIABILITIES AND STOCKHOLDERS’ EQUITY (DEFICIT)                    
                     
Current liabilities:                    
Accounts payable   5     364,579       359,173  
Accrued expenses   6     156,696       189,258  
Shareholder loans               21,768  
Total current liabilities         521,275       570,199  
                     
Stockholders’ equity (deficit):                    
Common Stock, $0.001 par value, 450,000,000 shares authorized;                    
 and 255,613,697 shares issued and outstanding at                    
June 30, 2022 and 239,001,760 as at December 31, 2021, respectively         256,289       240,175  
Additional paid-in capital         36,385,391       35,769,252  
Accumulated deficit         (35,071,260 )     (34,682,133 )
Accumulated comprehensive loss         (1,576,828 )     (1,550,394 )
Change in proportionate interest reserve         1,178,039       1,178,039  
Total stockholders’ equity (deficit)         1,171,631       954,939  
Non-Controlling Interest in Subsidiaries         (1,063,073 )     (997,577 )
Total equity (deficit)         108,558       (42,638 )
                     
Total liabilities and stockholders’ equity         629,833       527,561  

   

The accompanying notes are an integral part of these financial statements

 

F-16

 

EESTECH, INC. AND SUBSIDIARIES

(A DEVELOPMENT STAGE COMPANY)

 

 

Interim Unaudited Consolidated Statements of Operations and Comprehensive Loss for the Six Months Ended June 30, 2022, and June 30, 2021

 

    FOR THE SIX
MONTH PERIOD
  FOR THE SIX
MONTH PERIOD
    ENDED   ENDED
    JUNE 30,   JUNE 30,
    2022   2021
    $   $
Revenue recognized from contracts with customers  9   53,877        
                 
Operating expenses:                
General administrative     (508,500 )     (561,406 )
Total operating expenses     (508,500 )     (561,406 )
                 
Loss from operations     (454,623 )     (561,406 )
                 
Other income (expense):                
Unrealized FX gain/(loss) on translation            
Interest income            
Interest expense            
                 
Net loss     (454,623 )     (561,406 )
                 
Other comprehensive income/(loss):                
Other comprehensive income/(loss) for the year, net of tax     (26,434 )     (31,287)  
                 
Total comprehensive loss for the year     (481,057 )     (592,693 )
                 
Loss for the year is attributable to:                
Owners of EESTech, Inc.     (389,127 )     (520,149 )
Non-Controlling Interests     (65,496)       (41,257 )
                 
Total comprehensive loss for the year is attributable to:                
Owners of EESTech, Inc.     (415,561 )     (551,436 )
Non-Controlling Interests     (65,496)       (41,257 )
                 
Loss per share     (0.002 )     (0.003 )
                 
Weighted average number of common shares outstanding – basic and diluted     245,680,221       189,919,013  
                 

    

The accompanying notes are an integral part of these financial statements 

 

F-17

 

EESTECH, INC. AND SUBSIDIARIES

(A DEVELOPMENT STAGE COMPANY)

 

 

Interim Unaudited Consolidated Statement of Changes in Stockholders’ Equity (Deficit) for the Six Months Ended June 30, 2022, and June 30, 2021

 

    Common Stock     Deficit accumulated during
development
stage
 

Accumulated

other

comprehensive

income/(loss)

  Change in proportionate interest reserve  

Total

Stockholders’
equity
(deficit)

  Non-Controlling Interests
in Subsidiaries
  Total
equity
(deficit)
 
   

 

Shares issued

Par

 

Par

Value
$0.001

 

Additional

paid-in

capital

                           
    No.   $   $     $   $   $   $   $   $  
                                         

Balance December

31, 2020

    184,373,533       185,548       33, 489,487           (33,329,874 )     (1,531,011 )     1,178,039       (7,811 )     (920,838 )     (928,649 )
                                                                             
Issuance of stock for
Cash
    10,879,435       11,064       336,391                             347,455             347,455  
Issuance of stock for
Services
    1,887,985       1,888       133,868                             135,756             135,756  
Issuance of shares to Non-Controlling Interest                                                          
Change in proportionate interests                                                          
                                                                             
Net Loss                           (520,149 )                 (520,149 )     (41,257 )     (561,406 )
Adjustment for foreign currency translations                                 (31,287)             (31,287)             (31,287)  

Balance June

30, 2021

    197,140,953       198, 500       33,959,746           (33,850,023 )     (1,562,298 )     1,178,039       (76,036 )     (962,095 )     (1,038,131 )
                                                                             

Balance December

31, 2021

    239,001,760       240,175       35,769,252           (34,682,133 )     (1,550,394 )     1,178,039       954,939       (997,577 )     (42,638 )
Issuance of stock for
Cash
    14,983,207       14,986       584,345                             599,331             599,331  
Issuance of stock for
Services
    1,628,730       1,128       31,794                             32,922             32,922  
                                                                             
Net Loss                           (389,127 )                 (389,127 )     (65,496)       (454,623 )
Adjustment for foreign currency translations                                 (26,434 )           (26,434 )           (26,434 )

Balance June

30, 2022

    255,613,697       256,289       36,385,391           (35,071,260 )     (1,576,828 )     1,178,039       1,171,631       (1,063,073 )     108,558  
                                                                                     

  

The accompanying notes are an integral part of these financial statements 

F-18

EESTECH, INC. AND SUBSIDIARIES

(A DEVELOPMENT STAGE COMPANY) 

 

 

Interim Unaudited Consolidated Statements of Cash Flows for the Six Months Ended June 30, 2022, and June 30, 2021

 

    FOR THE SIX MONTHS ENDED JUNE 30, 2022   FOR THE SIX MONTHS ENDED JUNE 30, 2021
    $   $
Cash flows from operating activities:        
         
Net loss     (454,623 )     (561,406 )
                 
Adjustments to reconcile net loss to net                
cash used in operating activities:                
Amortization and depreciation     6,919       4,345  
Shares issued for services and settlement of debt     32,922       135,756  
                 
Changes in assets and liabilities:                
Increase (decrease) in accruals     (32,561)       30,239  
(Increase) decrease in other receivables     (2,609 )     89  
Increase in prepaid expenses     23,508        
Increase in accounts payable     5,406       99,045  
Net cash used in operations     (421,038 )     (219,932)  
                 
Cash flows used by investing activities:                
Acquisition of plant and equipment     (32,662 )     (3,828)  
Net cash used by investing activities     (32,662 )     (3,828)  
                 
Cash flows from financing activities:                
Issuance of common stock     599,331       347,455  
Loan repaid to shareholder     (14,080 )     (1,104 )
Net cash from financing activities     585,251       346,351  
                 
Comprehensive gain (loss) on translation     10,971       (31,247)  
Net increase in cash     142,522       19,344  
Cash, beginning of period     416,811       82,250  
Cash, end of period     559,333       101,594  
                 
SUPPLEMENTAL DISCLOSURE OF NON-CASH INVESTING AND FINANCING ACTIVITIES:                
Issuance of stock for services and extinguishment of debt     32,922       135,756  

    

The accompanying notes are an integral part of these financial statements

  

F-19

EESTECH, INC. AND SUBSIDIARIES

(A DEVELOPMENT STAGE COMPANY)

Notes to Interim Consolidated Financial Statements

 

1. BASIS OF PRESENTATION, ORGANIZATION AND NATURE OF OPERATIONS

 

Please see Note 1 “Basis of presentation, organization and nature of operations” contained in the audited consolidated financial statements for the year ended December 31, 2021.

 

2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

 

Please see Note 2 “Summary of Significant Accounting Policies” contained in the audited consolidated financial statements for the year ended December 31, 2021.

 

(a)Newly Adopted Accounting Standards and Accounting Standards not yet Implemented

 

During the period there has been no new Accounting Standards Update issued by the Financial Accounting Standards Board that had material impact on the Company’s consolidated financial statements.

 

3. OTHER RECEIVABLES

 

Other receivables consist of the following:

    JUNE 30,
2022
  DECEMBER 31,
2021
    $   $
Amounts due from Customers     -       26,043  
Advances to related parties     14,198       14,955  
GST Receivable     5,214       1,820  
Total Other Receivables     19,412       42,818  

 

 

4. PROPERTY AND EQUIPMENT

 

Property and equipment consist of the following:

 

  Computers Plant & Equipment Lab Equipment TOTAL
  $ $ $ $
Balance at 1 January 2021 3,689 2,321 6,010
Additions 5,832 14,811 24,707 45,350
Impact of foreign exchange (2,318) —  (2,318)
Depreciation (3,096) (3,944) (2,198) (9,238)
Balance at 31 December 2021 4,107 13,188 22,509 39,804
Additions 3,991 3,108 7,099
Impact of foreign exchange (1,158) 337 (821)
Depreciation (1,351) (2,448) (3,121) (6,920)
Balance at 30 June 2022 5,589 10,740 22,833 39,162

   

Property and equipment is stated at cost and depreciated using the straight-line method over the estimated useful lives of the assets, which is three to seven years. The Company has no equipment under finance lease.

 

5. ACCOUNTS PAYABLE

 

Accounts payable consist of the following:

F-20

 

 

    JUNE 30,
2022
  DECEMBER 31,
2021
    $   $
Amounts due for consulting costs to related parties/Directors     343,435       341,505  
Amounts due to suppliers     21,144       17,668  
Total Accounts Payable     364,579       359,173  

  

6. ACCRUED EXPENSES

 

Accrued expenses consist of the following:

    JUNE 30,
2022
  DECEMBER 31,
2021
    $   $
Amounts due to related parties/Directors     86,112       65,304  
Amounts due to suppliers     70,584       123,954  
Total Accrued Expenses     156,696       189,258  

   

7. COMMON STOCK

  

During the fiscal year ended December 31, 2021, the Company raised $1,345,094 from private placements, via the issue of 35,740,362 shares.

 

During the fiscal year ended December 31, 2021, the Company issued 8,422,765 shares in lieu of services received, valued at $490,346.

 

During the fiscal year ended December 31, 2021, the Company issued 10,465,100 shares in lieu of invoices received, valued at $498,952.

 

During the six month period ended June 30, 2022, the Company raised $599,331 from private placements, via the issue of 14,983,207 shares.

 

During the six month period ended June 30, 2022, the Company issued 1,537,480 shares in lieu of services received, valued at $27,922.

 

During the six month period ended June 30, 2022, the Company issued 91,250 shares in lieu of invoices received, valued at $5,000.

 

Warrants

 

The Company has historically issued warrants to purchase 1,737,499 shares of the Company’s common stock with an exercise price of $0.035 per share and a term of seven years. As at 30 June 2022, 1,351,785 of these warrants are outstanding. The warrants were recorded to additional paid-in capital.

 

The fair value of the warrants was determined using the Black-Scholes option-pricing method, with the following assumptions:

 

  Warrants
Fair market value of common stock $0.035
Expected dividend yield -%
Risk-free interest rate 0.12%
Expected volatility 27.29%
Expected term (in years) 7

  

8. INCOME TAXES

 

The components of the deferred tax asset are as follows:

    JUNE
30, 2022
  DECEMBER
31, 2021
      $       $  
Deferred tax assets:                
Net operating loss carry-forward     7,440       7,627  
Gross deferred tax assets     7,440       7,627   
Less valuation allowance     (7,438 )     (7,624 )
Total deferred tax assets            
Deferred tax liabilities:                
Depreciation     (2)       (3)  
Net deferred tax assets     —         —    

 

  

F-21

 

 

The Company has provided a full valuation allowance on the net deferred tax assets. The valuation allowance decreased by $0.2 million during the period ended 30 June 2022 and increased by $0.3 million during the year ended 31 December 2021.

The Company utilizes ASC 740, Accounting for Income Taxes, which requires the recognition of deferred tax assets and liabilities for the expected future tax consequences of events that have been included in the financial statements or tax returns. Under this method, deferred income taxes are recognized for the tax consequences in future years of differences between the tax bases of assets and liabilities and their financial reporting amounts at each period end based on enacted tax laws and statutory tax rates applicable to the periods in which the differences are expected to affect taxable income. Valuation allowances are established, when necessary, to reduce deferred tax assets to the amount expected to be realized. At June 30, 2022, and December 31, 2021, valuation allowances for the full amount of the net deferred tax asset were established due to the uncertainties as to the amount of the taxable income that would be generated in future years.

Reconciliation of the differences between the statutory tax rate and the effective income tax rate is as follows: 

 

    JUNE
30, 2022
  DECEMBER
31, 2021
         
Statutory federal tax (benefit) rate     (21.00 )%     (21.00 )%
Statutory foreign tax (benefit) rate     (25.00 )%     (25.00 )%
                 
Weighted average effective tax rate     (22.00 )%     (21.00 )%
                 
Valuation allowance     22.00 %     21.00 %
                 
Effective income tax rate     0.00 %     0.00 %

 

The Company had available approximately $34.7M (2022) and $35.6M (2021) of unused net operating loss carryforwards that may be applied against future taxable income. Net operating loss carryforwards that arose in the tax years 2001 and 2000 expired in 2022 and 2021, respectively, for Federal purposes.

  

9. REVENUE

 

 

Revenue was first recorded in EESTech in the third quarter of FY 2021. It relates to the ongoing R&D process with Sasol as EESTech has taken on testing of excess fine coal agglomeration. As of 31 December 2021, revenue was immaterial but is forecasted to increase throughout FY2022 providing the successful completion of the testing process is achieved.

 

Revenue is based on completion of 3 stages of the fine coal agglomeration, each stage being deemed to be a distinct performance obligation. The 3 stages are as follows:

 

1)Evaluation of agglomerates to confirm suitability for gasfication – EESTech will be provided with 2 tons of fine coal by Sasol for test work from which the Company must produce agglomerates meeting Sasol’s expectations along with providing a basic analysis of the agglomerated material. The Company has fulfilled their requirements of this stage during FY2021, and has recognized revenue related to this performance obligation.
2)A proposal from EESTech on the business model – If stage 1 produces suitable agglomerates which pass Sasol’s testing, EESTech will be required to develop a full proposal on a 200 kilo tons per annum scale project including a detailed business model. The Company has provided the proposal which Sasol has deemed appropriate and thus fulfilled their requirements of this performance obligation and recognized the corresponding revenue during FY2021.
3)Full scale demonstration in a commercial gasifier – Stage 3 entails EESTech to manufacture about 1,000 tons of agglomerates to enable a commercial scale demonstration. As at December 31, 2021, this stage had not yet been completed by the Company and hence, Sasol had not been invoiced for payment at year-end. However, the requirements of this stage were satisfied subsequent to year-end and has therefore been received and recognized as revenue in March 2022.

 

Once each stage is complete, an invoice is raised, and the revenue is recognized at a point in time, upon completion of each stage, which represents a distinct performance obligation. Each stage has been deemed a distinct performance obligation since the agreement between EESTech and Sasol is such that the customer can begin benefitting from the results provided by the Company after completion of each stage, or, if the customer should see no further benefit, cancel the remaining stages. Payment for each invoice is typically due 7 days from the date of invoice. There are no warranties or rights of return under this contract.

 

Costs relating to the completion of the contract are recognized as incurred in line with each stage. Costs are minimal and mainly relate to lab hire and small lab expenses. Larger laboratory expenses have been capitalized and are being depreciated in line with the depreciation policy.

 

The breakdown of opening and closing revenue for the year from contracts is noted below:

 

 

Sasol

($)

Opening balance of Contract Revenue at 1 January 2021
New Contracts 66,130
Revenue recognized on Contracts for performance obligations satisfied (52,554)
Difference arising on translation of foreign currency 554
Closing balance of Contract Revenue at 31 December 2021 14,130
New Contracts 39,500
Revenue recognized on Contracts for performance obligations satisfied (53,877)
Difference arising on translation of foreign currency 247
Closing balance of Contract Revenue at 30 June 2022

   

F-22

 

 

10. LOSS PER SHARE

 

The calculation of basic loss per share has been based on the following loss attributable to ordinary shareholders and weighted average number of ordinary shares outstanding.

    June 30,
2022
  June 30,
2021
    $   $
Loss attributable to ordinary shareholders     (389,127 )     (520,149 )
                 
Weighted average number of ordinary shares at 1 January     205,677,834       180,831,531  
Effect of shares issued in period     40,002,388       9,087,482  
Weighted average number of ordinary shares at 30 June     245,680,221       189,919,013  
Loss per share     (0.002)       (0.003)  

 

11. RELATED PARTY TRANSACTIONS

 

(a) Due from related parties

During the period ended June 30, 2022, the Company provided advances to two directors in the form of credit cards to be able to pay for any expenses. As at June 30, 2022, balances on account from related parties were $14,198 (December 31, 2021: $14,955).

(b) Due to related parties

As at June 30, 2022, balances owing to related parties were $429,547 (December 31, 2021: $406,809). They were unsecured and non-interest bearing, and had no stated terms of repayment. All of these relate to director fees and contractor/consulting costs.  

12. ISSUANCE OF SHARES TO EXTINGUISH DEBT

 

The Company, on occasion, uses shares to extinguish debt. This can be in the form of an invoice or services received. Where an invoice has been received, the shares are valued at the quoted market value on the day of settlement. Any difference between the value of the shares and the net carrying amount of the extinguished debt is recognized in income of the period of extinguishment as losses or gains. For the six month period ended June 30, 2022, a gain of $2,719 has been recognized (2021: loss of $24,115).

 

Where shares are issued for services rendered, the Black-Scholes method of valuation is applied, and the expense is straight lined over the period of service received. During the six month period ended June 30, 2022, the Company issued 91,250 shares of common stock for the extinguishment of $5,000 of debt.

 

13. COMMITMENTS AND CONTINGENCIES

 

Operating Leases

 

The Company leases its corporate offices under a month-to-month agreement, and under an operating lease that is renewable annually and expires in December 2022. Rent expense for office space amounted to approximately $660 for both the years ended December 31, 2022, and 2021, respectively.

 

Legal Matters

 

From time to time, the Company is involved in various disputes and litigation matters that arise in the ordinary course of business. To date, the Company had no material pending legal proceedings.

 

F-23

 

 

 

Exhibit 3.3 

______________________________________________________________________

 

 

BY-LAWS

 

OF

 

EESTECH, INC.

 

(herein, the “Corporation”)

 

A DELAWARE CORPORATION

 

 

ARTICLE I – REGISTERED OFFICE AND REGISTERED AGENT

 

Section 1. Registered Office; Registered Agent. The registered agent and registered office of the Corporation in the State of Delaware shall be as set forth in the Certificate of Incorporation, as it may be amended (the “Certificate of Incorporation”).

 

Section 2. Principal Office; Other Offices. The Corporation’s principal place of business shall be at such location in such state or other jurisdiction as the Board of Directors (the “Board”) may determine, from time to time, in its discretion. The Board will provide the stockholders with prompt notice of any such change in the Corporation’s principle place of business. The Corporation may also have offices in such other States or jurisdictions as the Board may from time to time designate.

 

ARTICLE II – SEAL

 

Section 1. Corporate Seal: The Corporate Seal, if such a Seal is employed by the Corporation, shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate Seal, Delaware” or “Seal Delaware”. The Board may define any additional features of the Seal or amend any features not required for such a Seal under the Delaware General Corporation Law (the “DGCL”), in its discretion. The Seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise, as may be prescribed by law or custom or by the Board.

 

ARTICLE III –STOCKHOLDERS MEETINGS

 

Section 1. Place of Meetings: Meetings of stockholders may be held at any place, either within or without the State of Delaware and the United States, as may be selected from time to time by the Board. In the discretion of the Board, meetings may also be held by means of telephonic, video, or other remote communication whereby each party can hear and be heard by the other parties as may be designated from time to time by a resolution of the Board and as set forth in the notice for the relevant meeting in accordance with Section 211(a)(2) of the DGCL.

 

Section 2. Annual Meetings: The annual meeting of the stockholders for the election of members of the Board (each a “Director”) and for the transaction of such other business as may properly come before the meeting shall be held at such date, time and place, if any, as shall be

 

 

determined by the Board and stated in the notice of the meeting. If no date for the annual meeting is established or said meeting is not held on the date established as provided above, a special meeting in lieu thereof may be held or there may be action by written consent of the stockholders on matters to be voted on at the annual meeting, and such special meeting or written consent shall have for the purposes of these By-Laws or otherwise all the force and effect of an annual meeting.

Section 3. Special Meetings: Special meetings of the stockholders may only be called in the manner provided in the Certificate of Incorporation and may be held at such place, if any, either within or without the State of Delaware and at such time and date as the Board or the Chairman of the Board shall determine and state in the notice of meeting. The Board may postpone, reschedule or cancel any special meeting of stockholders previously scheduled by the Board or the Chairman of the Board.

 

Section 4. Notice of Meetings: Notice of the place, if any, date, hour, the record date for determining the stockholders entitled to vote at the meeting or the specific details for accessing a meeting held through any remote means of communication, if any, of every meeting of stockholders shall be given by the Corporation not less than 10 days nor more than 60 days before the meeting (unless a different time is specified by law) to every stockholder entitled to vote at the meeting as of the record date set forth such purpose. Notices of special meetings shall also specify the purpose or purposes for which the meeting has been called. Notices of meetings to stockholders may be given by mailing the same, addressed to the stockholder entitled thereto, at such stockholder’s mailing address as it appears on the records of the Corporation and such notice shall be deemed to be given when deposited in the mail, postage prepaid. Without limiting the manner by which notices of meetings otherwise may be given effectively to stockholders, any such notice may also be effectively provided by means of an electronic transmission (meaning an “Electronic Transmission” as used in Section 232 of the DGCL). Notice of any meeting need not be given to any stockholder who shall, either before or after the meeting, submit a waiver of notice or who shall attend such meeting, except when the stockholder attends for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Any stockholder so waiving notice of the meeting shall be bound by the proceedings of the meeting in all respects as if due notice thereof had been given.

 

Section 5. Adjournment: Any meeting of the stockholders, annual or special, may be adjourned from time to time by a vote of the majority of the shares present to reconvene at the same or some other place, if any, and notice need not be given of any such adjourned meeting if the time, place, if any, thereof, and the means of remote communication, if any, are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than 30 days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If, after the adjournment, a new record date is fixed for stockholders entitled to vote at the adjourned meeting, the Board shall fix a new record date for notice of the adjourned meeting and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at the adjourned meeting as of the record date fixed for notice of the adjourned meeting.

 

Section 6. Quorum: A majority of the outstanding shares of the Corporation entitled to vote at a given meeting, represented in person or by proxy, shall constitute a quorum at such meeting of stockholders. If less than a majority of the outstanding shares entitled to vote at such meeting is represented at a meeting, a majority of the shares so represented may adjourn the meeting as set forth above in Section 5 of this Article III at any time without further notice.

 

 

 

Section 7. Voting; Proxies: Unless otherwise required by law or the Certificate of Incorporation, the election of Directors shall be decided by a plurality of the votes cast at a meeting of the stockholders by the holders of stock entitled to vote in the election. Unless otherwise required by law, the Certificate of Incorporation, or these By-Laws, any matter, other than the election of Directors, brought before any meeting of stockholders shall be decided by the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the matter. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy or by a transmission permitted by Section 212(c) of the DGCL, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the Corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. The Corporation shall not directly or indirectly vote any share of its own stock; provided, however, that the Corporation may vote shares which it holds in a fiduciary capacity to the extent permitted by law.

 

Section 8. No Action by Consent of Stockholders In Lieu of Meetings: Any action required or permitted to be taken at any annual or special meeting of the stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, must be effected at a duly called annual or special meeting of the stockholders of the Corporation, unless a majority of the Board approves in advance the taking of such action by means of written consent of stockholders, in which case such action may be taken without a meeting, without prior notice and without a vote, if a consent in writing (including one provided through Electronic Transmission), setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.

 

Section 9. Setting the Record Date: In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall not be more than 60 nor less than 10 days before the date of such meeting. If the Board so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the determination of stockholders entitled to vote at the adjourned meeting and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for the determination of stockholders entitled to vote therewith at the adjourned

 

 

meeting. In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall not be more than 10 days after the date upon which the resolution fixing the record date is adopted by the Board. If no record date has been fixed by the Board, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting: (a) when no prior action by the Board is required by law, the record date for such purpose shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery (by hand, or by certified or registered mail, return receipt requested) to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded and (b) if prior action by the Board is required by law, the record date for such purpose shall be at the close of business on the day on which the Board adopts the resolution taking such prior action.

 

Section 10. Advance Notice of Stockholder Business:

 

(a) Annual Meetings of Stockholders. No business may be transacted at an annual meeting of stockholders, other than business that is either (I) specified in the Corporation’s notice of meeting (or any supplement thereto) given by or at the direction of the Board, (II) otherwise properly brought before the annual meeting by or at the direction of the Board, or (III) otherwise properly brought before the annual meeting by any stockholder of the Corporation (x) who is a stockholder on the date of the giving of the notice provided for in this Section 10(a) and who is entitled to vote at such annual meeting and (y) who complies with the notice procedures set forth in this Section 10(a). Except for proposals properly made in accordance with Rule 14a-8 (or any successor thereof) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and included in the notice of meeting given by or at the direction of the Board, the foregoing clause (III) shall be the exclusive means for a stockholder to propose business to be brought before an annual meeting of stockholders. Stockholders seeking to nominate persons for election to the Board must comply with Section 11 of this Article III, and this Section 10 shall not be applicable to nominations.

(i) In addition to any other applicable requirements, for business (other than nominations) to be properly brought before an annual meeting by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation and such business must otherwise be a proper matter for stockholder action. Subject to Section 10(a)(iv), a stockholder’s notice to the Secretary with respect to such business, to be timely, must comply with the provisions of this Section 10(a)(i). A stockholder’s notice must be received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the 90th day nor earlier than the opening of business on the 120th day before the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that if the annual meeting is called for a date that is more than 30 days earlier or more than 60 days later than such anniversary date, notice by the stockholder to be timely must be so received not earlier than the opening of business on the 120th day before the meeting and not later than the later of (x) the close of business on the 90th day before the meeting or (y) the close of business on the 10th day following the day on which public announcement of the date of the annual meeting is first made by the Corporation. The public announcement of an adjournment or postponement of an annual meeting shall not commence a new time period for the giving of a stockholder’s notice as described in this Section 10(a).

 

 

(ii) To be in proper written form, a stockholder’s notice to the Secretary with respect to any business (other than director nominations which are the subject of Section 11 of this Article III) must set forth:

(A) as to each such matter such stockholder proposes to bring before the annual meeting (1) a brief description of the business desired to be brought before the annual meeting and any material interest in such business of such stockholder and any Stockholder Associated Person (as defined below), individually or in the aggregate, (2) the text of the proposal or business (including the text of any resolutions proposed for consideration and if such business includes a proposal to amend these By-Laws, the text of the proposed amendment) and (3) the reasons for conducting such business at the annual meeting;

(B) the name and address of the stockholder proposing such business, as they appear on the Corporation’s books;

(C) the class or series and number of shares of capital stock of the Corporation that are owned of record or are directly or indirectly owned beneficially by such stockholder and by any Stockholder Associated Person;

(D) any proxy (other than a revocable proxy given in response to a solicitation made pursuant to Section 14(a) (or any successor thereof) of the Exchange Act by way of a solicitation statement filed on Schedule 14A), contract, arrangement, understanding or relationship pursuant to which such stockholder or any Stockholder Associated Person has a right to vote any shares of the Corporation;

(E) any derivative position held by such Stockholder and by any Stockholder Associated Person;

(F) a description of all agreements, arrangements or understandings (written or oral) between or among such stockholder, any Stockholder Associated Person or any other person or persons (including their names) in connection with the proposal of such business by such stockholder;

(G) any other information relating to such stockholder and any Stockholder Associated Person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitation of proxies for election of Directors (even if an election contest is not involved), or would be otherwise required, in each case pursuant to Section 14 (or any successor thereof) of the Exchange Act and the rules and regulations promulgated thereunder

(H) a representation that such stockholder intends to appear in person or by proxy at the annual meeting to bring such business before the meeting; and

 

 

(I) a statement of whether such stockholder or any Stockholder Associated Person intends, or is part of a group that intends, to solicit proxies in connection with the proposal.

(iii) The foregoing notice requirements of this Section 10(a) shall be deemed satisfied by a stockholder as to any proposal made pursuant to Rule 14a-8 (or any successor thereof) of the Exchange Act if the stockholder has notified the Corporation of such stockholder’s intention to present such proposal at an annual meeting in compliance with Rule 14a-8 (or any successor thereof) of the Exchange Act. No business shall be conducted at the annual meeting of stockholders except business brought before the annual meeting in accordance with the procedures set forth in this Section 11(a), provided, however, that once business has been properly brought before the annual meeting in accordance with such procedures, nothing in this Section 11(a) shall be deemed to preclude discussion by any stockholder of any such business conducted in accordance with the rules for such meeting as set forth below in Section 13 of this Article III. If the Board or the chairman of the annual meeting determines that any stockholder proposal was not made in accordance with the provisions of this Section 10(a) or that the information provided in a stockholder’s notice does not satisfy the information requirements of this Section 10(a), such proposal shall not be presented for action at the annual meeting. Notwithstanding the foregoing provisions of this Section 10(a), if the stockholder (or a qualified representative of the stockholder) does not appear at the annual meeting of stockholders of the Corporation to present the proposed business, such proposed business shall not be transacted, notwithstanding that proxies in respect of such matter may have been received by the Corporation.

(iv) In addition to the provisions of this Section 10(a), a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth herein. Nothing in this Section 10(a) shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 (or any successor thereof) under the Exchange Act.

(v) Solely for purposes of this Article III, the term “Stockholder Associated Person” shall mean for any stockholder that is a beneficial owner of shares of stock of the Corporation (i) any person controlling, directly or indirectly, or acting as a group (within the meaning of Rule 13-d under the Exchange Act) with respect to the shares of stock of the Corporation with, such stockholder and (ii) any beneficial owner of shares of stock of the Corporation owned of record or beneficially by such stockholder.

(b) Special Meetings of Stockholders. Any business may be transacted at a special meeting of stockholders, provided that with respect to each special meeting of stockholders, only such business shall be conducted as is permitted by Section 3 of this Article III. Nominations of persons for election to the Board may be made at a special meeting of stockholders pursuant to Section 11 of this Article III.

Section 11. Advance Notice for Nomination of Directors:

 

(a) Only persons who are nominated in accordance with the following procedures shall be eligible for election as Directors by the stockholders of the Corporation, except as may be otherwise provided by the terms of one or more series of Preferred Stock with respect to the rights of holders of one or more series of Preferred Stock to elect Directors. Nominations of persons for election to the Board at any annual meeting of stockholders, or at any special meeting of stockholders called for the purpose of electing Directors as set forth in the

 

 

Corporation’s notice of such special meeting, may be made (i) by or at the direction of the Board or (ii) by any stockholder of the Corporation (x) who is a stockholder of record on the date of the giving of the notice provided for in this Section 11 and who is entitled to vote in the election of Directors at such meeting and (y) who complies with the notice procedures set forth in this Section 11.

 

(b) In addition to any other applicable requirements, for a nomination to be made by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation. To be timely, a stockholder’s notice to the Secretary must comply with the provisions of this Section 11(b). A stockholder’s notice must be received by the Secretary at the principal executive offices of the Corporation: (i) in the case of an annual meeting, not later than the close of business on the 90th day nor earlier than the opening of business on the 120th day before the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that if the annual meeting is called for a date that is more than 30 days earlier or more than 60 days after such anniversary date, notice by the stockholder to be timely must be so received not earlier than the opening of business on the 120th day before the meeting and not later than the later of (x) the close of business on the 90th day before the meeting or (y) the close of business on the 10th day following the day on which public announcement of the date of the annual meeting is first made by the Corporation; (ii) except as specified in clause (iii), in the case of a special meeting of stockholders called for the purpose of electing Directors, not earlier than the opening of business on the 120th day before the meeting and not later than the later of (x) the close of business on the 90th day before the meeting or (y) the close of business on the 10th day following the day on which public announcement of the date of the special meeting is first made by the Corporation; and (iii) in the case of a special meeting of stockholders for the purpose of electing Directors, not later than 15 days prior to such meeting. The public announcement of an adjournment or postponement of an annual meeting or special meeting shall not commence a new time period for the giving of a stockholder’s notice as described in this Section 11.

 

(c) Notwithstanding anything in paragraph (b) to the contrary, if the number of Directors to be elected to the Board at an annual meeting is greater than the number of nominees of the Corporation and there is no public announcement by the Corporation specifying a decrease in the size of the Board at the time the notice of such meeting is given to stockholders, a stockholder’s notice required by this Section 11 shall be considered timely, but only with respect to the directorships for which the Corporation has failed to provide nominees, if it shall be received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the 10th day following the date on which such notice was given by the Corporation.

 

(d) To be in proper written form, a stockholder’s notice to the Secretary must set forth:

 

(i) as to each person whom the stockholder proposes to nominate for election as a director:

 

(A) the name, age, business address and residence address of the person;

 

(B) the principal occupation or employment of the person;

 

 

 

(C) the class or series and number of shares of capital stock of the Corporation that are owned of record or are directly or indirectly owned beneficially by the person;

 

(D) any derivative instrument directly or indirectly owned beneficially by such nominee; and

 

(E) any other information relating to the person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of Directors pursuant to Section 14 (or any successor thereof) of the Exchange Act and the rules and regulations promulgated thereunder; and

 

(ii) as to the stockholder giving the notice:

 

(A) the name and address of such stockholder as they appear on the Corporation’s books;

 

(B) the class or series and number of shares of capital stock of the Corporation that are owned of record or directly or indirectly owned beneficially by such stockholder and any Stockholder Associated Person;

 

(C) any proxy (other than a revocable proxy given in response to a solicitation made pursuant to Section 14(a) (or any successor thereof) of the Exchange Act by way of a solicitation statement filed on Schedule 14A), contract, arrangement, understanding or relationship pursuant to which such stockholder or any Stockholder Associated Person has a right to vote any shares of the Corporation;

 

(D) any Derivative Position held by such Stockholder and by a Stockholder Associated Person;

 

(E) a description of all agreements, arrangements or understandings (written or oral) between or among such stockholder, any Stockholder Associated Person, any proposed nominee or any other person or persons (including their names) pursuant to which the nomination or nominations are to be made by such stockholder;

 

(F) a representation that such stockholder intends to appear in person or by proxy at the meeting to nominate the persons named in its notice;

 

(G) any other information relating to such stockholder and any Stockholder Associated Person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of Directors pursuant to Section 14 (or any successor thereof) of the Exchange Act and the rules and regulations promulgated thereunder;

 

(H) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during

 

 

the past three years, and any other material relationships, between or among such stockholder or any Stockholder Associated Person, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the stockholder making the nomination and any Stockholder Associated Person, or any person acting in concert therewith, was the “registrant” for purposes of such rule and the nominee was a director or executive officer of such registrant; and

 

(I) a statement of whether such stockholder or any Stockholder Associated Person intends, or is part of a group that intends, to solicit proxies for the election of the proposed nominee. Such notice must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if elected.

 

(e) If the Board or the chairman of the meeting of stockholders determines that any nomination was not made in accordance with the provisions of this Section 11, then such nomination shall not be considered at the meeting in question. Notwithstanding the foregoing provisions of this Section 11, if the stockholder (or a qualified representative of the stockholder) does not appear at the meeting of stockholders of the Corporation to present the nomination, such nomination shall be disregarded, notwithstanding that proxies in respect of such nomination may have been received by the Corporation.

 

(f) In addition to the provisions of this Section 11, a stockholder shall also comply with all of the applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth herein. Nothing in this Section 11 shall be deemed to affect any rights of the holders of Preferred Stock to elect Directors pursuant to the Certificate of Incorporation or the right of the Board to fill newly created directorships and vacancies on the Board pursuant to the Certificate of Incorporation.

 

Section 12. List of Stockholders: The Corporation shall prepare a complete list of the stockholders entitled to vote at any meeting of stockholders (provided, however, if the record date for determining the stockholders entitled to vote is less than 10 days before the date of the meeting, the list shall reflect the stockholders entitled to vote as of the 10th day before the meeting date), arranged in alphabetical order, and showing the address of each stockholder and the number of shares of each class of capital stock of the Corporation registered in the name of each stockholder at least 10 days before any meeting of the stockholders. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, on a reasonably accessible electronic network if the information required to gain access to such list was provided with the notice of the meeting or during ordinary business hours, at the principal place of business of the Corporation for a period of at least 10 days before the meeting. If the meeting is to be held at a place, the list shall also be produced and kept at the time and place of the meeting the whole time thereof and may be inspected by any stockholder who is present. If the meeting is held solely by means of remote communication, the list shall also be open for inspection by any stockholder during the whole time of the meeting as provided by applicable law. Except as provided by applicable law, the stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the stock ledger and the list of stockholders or to vote in person or by proxy at any meeting of stockholders.

 

 

 

Section 13. Conduct of Meetings: The Board may adopt by resolution such rules and regulations for the conduct of the meeting of the stockholders as it shall deem appropriate. At every meeting of the stockholders, the President, or in his or her absence or inability to act, the person whom the President shall appoint, shall act as chairman of, and preside at, the meeting. The Secretary or, in his or her absence or inability to act, the person whom the chairman of the meeting shall appoint to serve as secretary of the meeting, shall act as secretary of the meeting and keep the minutes thereof. Except to the extent inconsistent with such rules and regulations as adopted by the Board, the chairman of any meeting of the stockholders shall have the right and authority to prescribe such rules, regulations, and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations, or procedures, whether adopted by the Board or prescribed by the chairman of the meeting, may include, without limitation, the following: (a) the establishment of an agenda or order of business for the meeting; (b) the determination of when the polls shall open and close for any given matter to be voted on at the meeting; (c) rules and procedures for maintaining order at the meeting and the safety of those present; (d) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the chairman of the meeting shall determine; (e) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (f) limitations on the time allotted to questions or comments by participants.

 

Section 14. Inspectors of Election: The Board may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more persons as inspectors of election, who may be employees of the Corporation or otherwise serve the Corporation in other capacities, to act at such meeting of stockholders or any adjournment thereof and to make a written report thereof. The Board may appoint one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspectors of election or alternates are appointed by the Board, the chairman of the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall ascertain and report the number of outstanding shares and the voting power of each; determine the number of shares present in person or represented by proxy at the meeting and the validity of proxies and ballots; count all votes and ballots and report the results; determine the disposition of any challenges and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors; and certify their determination of the number of shares represented at the meeting and their count of all votes and ballots. No person who is a candidate for an office at an election may serve as an inspector at such election. Each report of an inspector shall be in writing and signed by the inspector or by a majority of them if there is more than one inspector acting at such meeting. If there is more than one inspector, the report of a majority shall be the report of the inspectors.

 

ARTICLE IV – DIRECTORS

 

Section 1. Board Management: The business and affairs of the Corporation shall be managed by or under the direction of its Board. The Board shall consist of such number of persons as the Board shall determine from time to time, in its discretion. In the absence of the Board of Director’s determination to change such number, the Corporation shall have three (3) Directors. Each Director shall hold office until a successor is duly elected and qualified or until the Director’s earlier death, resignation, disqualification, or removal. Any Director may resign at any time by notice given in writing (including through Electronic Transmission) to the Corporation. Such resignation shall take effect at the date of receipt of such notice by the Corporation or at such later time as is therein specified. Verbal resignation shall not be deemed

 

 

effective until confirmed by the Director in writing (including through Electronic Transmission) to the Corporation.

 

Section 2. Regular Meetings: Regular meetings of the Board may be held without notice at such times and at such places as may be determined from time to time by the Board or its chairman.

 

Section 3. Special Meetings: Special meetings of the Board may be called by the Chairman of the Board on 2 days notice to all Directors, either personally or by mail, courier service, or through Electronic Transmission; special meetings may be called by the President or Secretary in like manner and on like notice by written request (including by request through Electronic Transmission) to the Chairman of the Board.

 

Section 4. Telephonic or Web Meetings: Board meetings or committee meetings, regular or special, may be held by means of telephone conference or other communications equipment by means of which all persons participating in the meeting can hear each other and be heard, as may be determined by the Board. Attendance by a Director in a meeting through the relevant media pursuant to this Section 4 shall constitute presence in person at such meeting.

 

Section 5. Quorum: A majority of the total number of Directors shall constitute a quorum of any regular or special meetings of the Directors for the transaction of business.

 

Section 6. Voting: Except as otherwise expressly required by these By-Laws, the Certificate of Incorporation, or by applicable law, the vote of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board.

 

Section 7. Consent In Lieu of Meeting: Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all Directors or members of such committee, as the case may be, consent thereto in writing (including through Electronic Transmission), and the consents are filed with the minutes of proceedings of the Board or committee in accordance with the DGCL.

 

Section 8. Board Committees: The Board may designate one or more committees, each committee to consist of one or more of the Directors of the Corporation. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. If a member of a committee shall be absent from any meeting, or disqualified from voting thereat, the remaining member or members present at the meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent permitted by the DGCL, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation and may authorize the seal of the Corporation to be affixed to all papers that may require it to the extent so authorized by the Board. Unless the Board provides otherwise, at all meetings of such committee, a majority of the then authorized members of the committee shall constitute a quorum for the transaction of business, and the vote of a majority of the members of the committee present at any meeting at which there is a quorum shall be the act of the committee. Each committee shall keep regular minutes of its meetings. Unless the Board provides otherwise, each committee designated by the Board may make, alter, and repeal rules and procedures for the conduct of its business. In the absence of such rules and procedures each committee shall conduct its business in the same manner as the Board conducts its business pursuant to this Article IV.

 

 

 

Section 9. Compensation: Directors may receive equity compensation or such fees as the Board may determine from time to time. In addition, a fixed sum per Board or committee meeting and any expenses of attendance may be allowed for attendance at each regular or special meeting. Nothing herein contained shall be construed to preclude any director from serving the Corporation as an officer or employee and receiving compensation therefore.

 

Section 10. Board Vacancies: Any newly created Director positions resulting from an increase in the authorized number of Directors and any vacancies occurring in the Board, may be filled by the affirmative votes of a majority of the remaining members of the Board, although less than a quorum, or by a sole remaining Director. A Director so elected shall be elected to hold office until the earlier of the expiration of the term of office of the Director whom he or she has replaced, a successor is duly elected and qualified, or the earlier of such Director’s death, resignation or removal. When one or more Directors shall resign from the Board, effective at a future date, a majority of the Directors then in office, including those who have resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective.

 

Section 11. Removal: Except as prohibited by applicable law or the Certificate of Incorporation, all or any number of the Directors may be removed, with or without cause, at a meeting called expressly for that purpose, by a vote of the holders of a majority of the shares then entitled to vote at an election of Directors.

 

ARTICLE V – OFFICERS

 

Section 1. Officers: The officers of the Corporation shall be chosen by the Board. The officers shall include a Chief Executive Officer (who shall also be President for the purpose of the DGCL, unless otherwise determined by the Board), Secretary, and Treasurer. The Board may choose one or more Vice Presidents and such other officers as the Board shall deem necessary, and may delegate the selection of lesser officers to one or more officers of the Corporation. The Board may also choose a Chairman from among its own members. Any number of offices may be held by the same person, including a Director.

 

Section 2. Salaries: Salaries of all officers and agents of the Corporation shall be determined and fixed by the Board. The primary terms of such officers’ and agents’ compensation, responsibilities, obligations and other terms of employment shall be set forth in an employment agreement between the officer and the Corporation.

 

Section 3. Term of Office: Subject to the terms of any employment agreement between the Corporation and the officers, the officers of the Corporation shall serve at the pleasure of the Board and shall hold office until their successors are chosen and have qualified. Any officer or agent elected or appointed by the Board may be removed by the Board whenever, in its judgment, the best interest of the Corporation will be served thereby.

 

Section 4. President: The President shall be chief executive officer of the Corporation, shall preside at all meetings of the stockholders, and shall have general and active management of the business of the Corporation. He or she may be an ex officio member of all committees if provided for by the Board, and shall have the general power and duties of supervision and management, the scope of which shall be set by the Board.

 

 

 

       Section 5. Secretary: The Secretary shall attend all sessions of the Board and all meetings of the stockholders and act as clerk thereof, and record all votes of the Corporation and the minutes of all its transactions in a book to be kept for that purpose, and shall perform like duties for all the committees of the Board when required. He or she shall give, or cause to be given, notice of all meetings of the stockholders and of the Board, and such other duties as may be prescribed by the Board or President, under whose supervision shall be. He or she shall keep in safe custody the Seal of the Corporation, and when authorized by the Board, affix the same to any instrument requiring it.

 

Section 6. Treasurer: The Treasurer shall have custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall keep the moneys of the Corporation in a separate account to the credit of the Corporation. He or she shall disburse the funds of the Corporation as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and Directors, at the regular meetings of the Board or whenever they may require it, an account of all his transactions as Treasurer and of the financial condition of the Corporation.

 

Section 7. Delegation; Customary Powers: In case any officer is absent, or for any other reason that the Board may deem sufficient, the President or the Board may delegate for the time being the powers or duties of such officer to any other officer or to any Director. Each officer of the Corporation shall have in addition to the duties and powers specifically set forth herein such duties and powers as are customarily incident to such officer’s office, and such duties and powers as may be designated from time to time by the Board.

 

ARTICLE VI – CORPORATE RECORDS

 

Section 1. Maintenance of Records: Any records administered by or on behalf of the Corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be maintained on any information storage device, method, or one or more electronic networks or databases (including one or more distributed electronic networks or databases); provided that the records so kept can be converted into clearly legible paper form within a reasonable time, and, with respect to the stock ledger, the records so kept comply with Section 224 of the DGCL. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect such records pursuant to applicable law.

 

Section 2. Inspection Rights: Any stockholder of record, in-person or by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours of business to inspect for any proper purpose the Corporation’s stock ledger, a list of its stockholders, and its minute of Stockholder meetings for the past two years. A proper purpose shall mean a purpose reasonably related to such person’s interest as a stockholder. In every instance where an attorney or other agent shall be the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other agent to so act on behalf of the stockholder. The demand under oath shall be directed to the Corporation at its registered office or at its principal place of business.

 

ARTICLE VII – STOCK CERTIFICATES, DIVIDENDS, ETC.

 

Section 1. Certification of Shares: The shares of stock of the Corporation may or may not be represented by certificates; the Board may provide by resolution or resolutions that some or all of any class or series shall be uncertificated shares that may be evidenced by a book-entry

 

 

system maintained by the registrar of such stock. If shares are represented by certificates, such certificates shall be in the form, other than bearer form, approved by the Board. The certificates representing shares of stock of each class shall be signed by, or in the name of, the Corporation by any two authorized officers of the Corporation. Any or all such signatures may be facsimiles. Although any officer, transfer agent, or registrar whose manual or facsimile signature is affixed to such a certificate ceases to be such officer, transfer agent, or registrar before such certificate has been issued, it may nevertheless be issued by the Corporation with the same effect as if such officer, transfer agent, or registrar were still such at the date of its issue.

 

Section 2. Transfers: Stock of the Corporation shall be transferable in the manner prescribed by law and in these By-Laws. Any transfer of stock by a stockholder must be made in compliance with the Securities Act of 1933, as amended, as well as similar state securities laws. Transfers of stock shall be made on the books of the Corporation only by the holder of record thereof, by such person’s attorney lawfully constituted in writing and, in the case of certificated shares, upon the surrender of the certificate thereof, which shall be cancelled before a new certificate or uncertificated shares shall be issued. No transfer of stock shall be valid as against the Corporation for any purpose until it shall have been entered in the stock records of the Corporation by an entry showing from and to whom transferred. To the extent designated by the President or the Treasurer of the Corporation, the Corporation may recognize the transfer of fractional uncertificated shares, but shall not otherwise be required to recognize the transfer of fractional shares.

 

Section 3. Lost Certificate: The Board may direct a new certificate or uncertificated shares to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen, or destroyed upon the making of an affidavit of that fact by the owner of the allegedly lost, stolen, or destroyed certificate. When authorizing such issue of a new certificate or uncertificated shares, the Board may, in its discretion and as a condition precedent to the issuance thereof, require the owner of the lost, stolen, or destroyed certificate, or the owner’s legal representative to give the Corporation a bond sufficient to indemnify it against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen, or destroyed or the issuance of such new certificate or uncertificated shares.

 

Section 4. Dividends: Subject to applicable law and the Certificate of Incorporation, dividends upon the shares of capital stock of the Corporation may be declared by the Board at any regular or special meeting of the Board. Dividends may be paid in cash, in property, or in shares of the Corporation’s capital stock, unless otherwise provided by applicable law or the Certificate of Incorporation.

 

Section 5. Reserves: Before payment of any dividend there may be set aside out of the net profits of the Corporation such sum or sums as the Directors, from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining the property of the Corporation, or for such other purpose as the Directors shall think conducive to the interests of the Corporation, and the Directors may abolish any such reserve in the manner in which it was created.

 

ARTICLE VIII – INDEMNIFICATION AND ADVANCEMENT

 

Section 1. Definitions: Solely for purposes of this Article VIII, the following terms shall have the definition set forth below:

 

 

 

(b) Disinterested Director” means, with respect to each Proceeding in respect of which indemnification is sought hereunder, a Director of the Corporation who is not and was not a party to such Proceeding.

(b) “Expenses” means all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees of expert witnesses, private investigators and professional advisors (including, without limitation, accountants and investment bankers), travel expenses, duplicating costs, printing and binding costs, costs of preparation of demonstrative evidence and other courtroom presentation aids and devices, costs incurred in connection with document review, organization, imaging and computerization, telephone charges, postage, delivery service fees, and all other disbursements, costs or expenses of the type customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, settling or otherwise participating in, a Proceeding.

 

(c) “Non-Officer Employee” means any person who serves or has served as an employee or agent of the Corporation, but who is not or was not a Director or Officer;

 

(d) “Officer” means any person who serves or has served the Corporation as an officer appointed by the Board of the Corporation;

 

(e) “Proceeding” means any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, inquiry, investigation, administrative hearing or other proceeding, whether civil, criminal, administrative, arbitrative or investigative.

 

Section 2. Indemnification of Directors and Officers: Each current or former director or officer of the Corporation shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment) against any and all Expenses, judgments, penalties, fines and amounts reasonably paid in settlement that are incurred by such Director or Officer or on such Director’s or Officer’s behalf in connection with any threatened, pending or completed Proceeding or any claim, issue or matter therein, which such Director or Officer is, or is threatened to be made, a party to or participant in by reason of such Director’s or Officer’s status or conduct as such, if such Director or Officer acted in good faith and in a manner such Director or Officer reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. The rights of indemnification provided by this Section 2 shall continue as to a Director or Officer after he or she has ceased to be a Director or Officer and shall inure to the benefit of his or her heirs, executors, administrators and personal representatives.

 

Section 3. Indemnification of Non-Executive Employees: Subject to the operation of these By-Laws, each Non-Officer Employee may, in the discretion of the Board of the Corporation, be indemnified by the Corporation to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended, against any or all Expenses, judgments, penalties, fines and amounts reasonably paid in settlement that are incurred by such Non-Officer Employee or on such Non-Officer Employee’s behalf in connection with any threatened, pending or completed Proceeding, or any claim, issue or matter therein, which such Non-Officer Employee is, or is threatened to be made, a party to or participant in by reason of such Non-Officer Employee’s status or conduct as such, if such Non-Officer Employee acted in good faith and in a manner such Non-Officer Employee reasonably believed to be in or not opposed to the best

 

 

interests of the Corporation and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. The rights of indemnification provided by this Section 3 shall exist as to a Non-Officer Employee after he or she has ceased to be a Non-Officer Employee and shall inure to the benefit of his or her heirs, personal representatives, executors and administrators. Notwithstanding the foregoing, the Corporation may indemnify any Non-Officer Employee seeking indemnification in connection with a Proceeding initiated by such Non-Officer Employee only if such Proceeding was authorized by the Board of the Corporation.

 

Section 4. No Presumption of Bad Faith: The termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal proceeding, that the person had reasonable cause to believe that the conduct was unlawful.

 

Section 5. Advancement of Expenses to Directors Prior to Final Disposition:

 

(a)        The Corporation shall advance all Expenses incurred by or on behalf of any Director in connection with any Proceeding in which such Director is involved by reason of such Director’s Corporate Status within 10 days after the receipt by the Corporation of a written statement from such Director requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by such Director and shall be preceded or accompanied by an undertaking by or on behalf of such Director to repay any Expenses so advanced if it shall ultimately be determined that such Director is not entitled to be indemnified against such Expenses.

 

(b)        If a claim for advancement of Expenses hereunder by a Director is not paid in full by the Corporation within 10 days after receipt by the Corporation of documentation of Expenses and the required undertaking, such Director may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and if successful in whole or in part, such Director shall also be entitled to be paid the expenses of prosecuting such claim. The failure of the Corporation (including its Board or any committee thereof, independent legal counsel, or stockholders) to make a determination concerning the permissibility of such advancement of Expenses under this Article VIII shall not be a defense to the action and shall not create a presumption that such advancement is not permissible. The burden of proving that a Director is not entitled to an advancement of Expenses shall be on the Corporation.

 

(c)        In any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that the Director has not met any applicable standard for indemnification set forth in the DGCL.

 

Section 6. Advancement of Expenses to Officers and Non-Officer Employees Prior to Final Disposition:

 

(a)       The Corporation may, at the discretion of the Board of the Corporation, advance any or all Expenses incurred by or on behalf of any Officer and Non-Officer Employee in connection with any Proceeding in which such is involved by reason of such person’s status and/or actions as such upon the receipt by the Corporation of a statement or statements from such Officer or Non-Officer Employee requesting such advance or advances from time to time,

 

 

whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by such Officer and Non-Officer Employee and shall be preceded or accompanied by an undertaking by or on behalf of such to repay any Expenses so advanced if it shall ultimately be determined that such Officer or Non-Officer Employee is not entitled to be indemnified against such Expenses.

(b)       In any suit brought by the Corporation to recover an advancement of Expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such Expenses upon a final adjudication that the Officer or Non-Officer Employee has not met any applicable standard for indemnification set forth in the DGCL.

Section 7. Contractual Nature of Rights:

 

(a)        The foregoing provisions of this Article VIII shall be deemed to be a contract between the Corporation and each Director and Officer entitled to the benefits hereof at any time while this Article VIII is in effect, and any repeal or modification thereof shall not affect any rights or obligations then existing with respect to any state of facts then or theretofore existing or any Proceeding theretofore or thereafter brought based in whole or in part upon any such state of facts.

 

(b)        If a claim for indemnification hereunder by a Director or Officer is not paid in full by the Corporation within 60 days after receipt by the Corporation of a written claim for indemnification, such Director or Officer may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim, and if successful in whole or in part, such Director or Officer shall also be entitled to be paid the expenses of prosecuting such claim. The failure of the Corporation (including its Board or any committee thereof, independent legal counsel, or stockholders) to make a determination concerning the permissibility of such indemnification under this Article VIII shall not be a defense to the action and shall not create a presumption that such indemnification is not permissible. The burden of proving that a Director or Officer is not entitled to indemnification shall be on the Corporation.

 

ARTICLE IX – FORUM SELECTION

 

Section 1. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall, to the fullest extent permitted by law, be the sole and exclusive forum for: (a) any derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim for breach of a fiduciary duty owed by any Director, officer, employee or agent of the Corporation to the Corporation or the Corporation’s stockholders, (c) any action asserting a claim arising pursuant to any provision of the DGCL, the Certificate of Incorporation or these By-Laws or (d) any action asserting a claim governed by the internal affairs doctrine, in each case subject to said Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein.

 

Section 2. Unless the Corporation consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended, or any successor thereto, or under the Exchange Act to the fullest extent permitted by law.

 

Section 3. Any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and to have

 

 

consented to the provisions of this Article IX. Failure to enforce the foregoing provisions of this Article IX would cause the Corporation irreparable harm, and the Corporation shall be entitled to equitable relief, including injunctive relief and specific performance, to enforce the foregoing provisions.

 

ARTICLE X – AMENDMENTS

 

Section 1. Notwithstanding any other provision of these By-Laws, any alteration, amendment or repeal of these By-Laws, and any adoption of new By-Laws, shall require the approval of the Board or the stockholders of the Corporation as provided in the Certificate of Incorporation.

 

ARTICLE XI – MISCELLANEOUS PROVISIONS

 

Section 1. Checks: All checks or demands for money and notes of the Corporation shall be signed by such officer or officers as the Board may from time to time designate.

 

Section 2. Fiscal Year: The fiscal year of the Corporation shall be the calendar year, unless otherwise determined by the Board.

 

Section 3. Notice: Whenever notice is required to be given to any person by these By-Laws, such notice shall be deemed given effectively if given in person, by mail addressed to such person at such person’s address as it appears on the records of the Corporation, by facsimile, or by any means of Electronic Transmission.

 

Section 4. Waiver of Notice: Whenever any written notice is required by these By-Laws, a waiver thereof in writing, signed by the person or persons entitled to such a notice, whether before or after the time stated therein, including a communication sent by means of Electronic Transmission bearing the name of the person or persons entitled to notice, shall be deemed equivalent to the giving of such notice. Attendance of a person either in person or by proxy at any meeting shall constitute a waiver of notice of such meeting, except where a person attends a meeting for the express purpose of objecting to the transaction of any business because the meeting was unlawfully convened.

 

 

 

 

 

The undersigned, being the President of EESTech, Inc. is authorized by the Board of EESTech, Inc. to sign these By Laws on behalf of EESTech, Inc.

 

/s/ Murray James Bailey

 

Murray James Bailey

President / Director

___________ 2022.

* * * * *

 

 

 

 

Exhibit 10.1

Ferrochrome Recovery from Slag Agreement

SCR11943

 

 

 

Between

 

 

 

SAMANCOR CHROME LIMITED

(Registration Number 1926/008883/06)

 

 

 

 

and

 

 

 

 

EESTECH INC. LIMITED

(Registration Number 6341030)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Certain information indicated with [* * *] in this document has been omitted from this exhibit because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.]

 

 

 

 

Table of Contents

 

1 Definitions and interpretations 4
2 Structure and Precedence 9
3 SAMANCOR Responsibilities 9
4 Responsibilities, Representations and Warranties of EESTECH 10
5 Representations, undertakings and warranties of SAMANCOR 14
6 Early Termination 16
7 Product Specification 16
8 Determination of Product Mass 16
9 Delivery and Risk 17
10 Fees and Invoicing 18
11 Unsold Reclaimed Sand 18
12 Mutual Cooperation and Good Faith 19
13 Confidentiality and Non-Circumvention 19
14 Independent Contracting Parties 20
15 Breach 20
16 Non-Economic Circumstance and Disruption to Workings 21
17 Term and Termination 22
18. Consequences of Termination 23
19. Environmental Liability 24
20. Governmental and/or Regulatory Authorities Penalties and Fines 24
21. Limitation of Liability 25
22. Business Conduct 25
23. Governing Law and Dispute Resolution 26
24 Rehabilitation Liability 27
25 Costs 27
26 Parties' Representatives 27
27 Domicilium and Notices 28
28 Assignment. 29
29 Entire Agreement 29
30 Miscellaneous 29
31 Signature Page 31

 

 

 

 

 

SCHEDULES

 

 

 

 

1.DESIGNATED SLAG RESOURCE STOCKPILES AND VOLUMES

 

2.PRICING OF RECLAIMED FeCr SOLD TO SAMANCOR

 

3.LEASE AGREEMENT FOR PROJECT SITE

 

4.NDA AGREEMENT

 

5.PRODUCT SPECIFICATION DETAILS

 

6.MASTER TERMS AND CONDITIONS

 

 

2

 

 

Ferrochrome Slag Recovery Agreement

 

 

 

Parties

 

 

 

1.SAMANCOR CHROME LIMITED, a South African registered company having its head office located at 1st Floor, Block B, Cullinan Place, Cullinan Close, Morningside, Sandton, South Africa, 2196.

 

(SAMANCOR)

 

 

2.EESTECH INC. LIMITED, a company duly incorporated under the Laws of New Zealand with certified registration number 6341030.

 

(EESTECH)

Collectively referred to herein as the Parties or individually as a Party.

 

 

Background

 

A.SAMANCOR is the second largest ferrochrome producer in the world, and owns a significant tonnage of ferrochrome slag located at various sites.

 

B.EESTECH is a provider of proprietary recycling and reclamation technologies and services for the management of mine site discard and industrial process waste.

 

C.EESTECH can provide Waste Recycling and Reclamation Facilities to be installed, commissioned, operated and maintained by EESTECH for the recycling of ferrochrome slag dumps located at SAMANCOR Ferrochrome smelting operations in order to produce Ferrochrome, Reclaimed Sand and other sand based products.

 

D.This Agreement sets out the terms and conditions on which EESTECH will undertake the recycling and reclamation of saleable material from the ferrochrome slag and other discard produced by SAMANCOR.

 

 

 

 

 

 

Operative Provisions

 

1Definitions and interpretations

 

 

1.1Definitions

 

In this document, the following definitions apply:

 

1.1.1Affiliate means with respect to each of the Parties, any corporation, partnership or other enterprise directly or indirectly controlling, directly or indirectly controlled by, or under direct or indirect common control with, such Party. For this purpose, "control" refers to the existence of either (a) ownership of more than fifty percent (50%) of the voting shares or equivalent, or (b) actual ability to direct the business affairs of the enterprise controlled, and includes cases where the control exists through one or more intermediary enterprises or entities;

 

1.1.2Agreement means this agreement, including any schedules;

 

1.1.3Business Days means Mondays to Fridays from 07h00 to 17h00, public holidays excluded;

 

1.1.4Calendar Year means the year beginning on January 01 and ending on December 31;

 

1.1.5Confidential Information means information in whatever form (including without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to inter alia, the mine site waste reclamation processes, technologies, business affairs, products of SAMANCOR and EESTECH, and without limitation includes:

 

1.1.5.1proposals, tenders and/or agreements with any entity or person in relation to the Workings, or the fact that the Parties are carrying on the Workings;

 

1.1.5.2business plans, financial, budgetary and similar information concerning, relating to, or in any way involving the Workings and all research, reports, surveys, data, reviews, books and records, including technical drawings, manuals and correspondence relating to the Workings, Designated Slag Resource, and Project Site; and

 

1.1.5.3any other documents, information and intellectual property of either Party, respectively treated by them as confidential, including all present and future trade and business secrets, the existence of this Agreement and the fact as to whether or not it has been entered into, any documents or information generated in relation to the matters referred to in this Agreement (including material provided before the Signature Date) or otherwise relating to the business affairs and
 

 

business methods of the Parties, any advice, training programs, techniques, data, formula, process diagrams and other proprietary information and know-how, records, customer lists, equipment suppliers, marketing material, concepts, ideas, specifications, visual representations, plans and drawings, reports, consents, applications, methods, processes and components that may be regarded as a form of intellectual property, regardless of whether the right giving rise to intellectual property is registered or unregistered and includes intellectual property to the extent that information is not in the public domain;

 

1.1.6Cr means the chrome metal content as a percentage of the Designated Slag Resource, Reclaimed FeCr and Reclaimed FeCr Fines;

 

1.1.7Decommissioning Work means the dismantling and removal of the Slag Recycling and Reclamation Facility and any other plant, equipment, materials or other tangible structures or objects which EESTECH or its Workings Operator has erected or placed or procured to be placed at the Project Site;

 

1.1.8Designated Slag Resource means the stockpile(s) of ferrochrome slag and other discard owned by SAMANCOR as set out in Schedule 1 which EESTECH has been granted the exclusive right to process through the Slag Recycling and Reclamation Facility and sell the processed products resulting therefrom pursuant to this Agreement;

 

1.1.9Environmental Laws means all laws, common and statutory, including but not limited to, the National Water Act, No. 36 of 1998, the National Environmental Management Act, No. 107 of 1998, the Environment Conservation Act, No. 73 of 1989, statutory instruments, provincial ordinances and legislation, local government by-laws relating to the environment; regulations, orders, demands, judgements of any court, administrative or regulatory authority, national government, provincial government, local government or any other body with responsibility for the protection of the environment;

 

1.1.10FeCr means ferrochrome;

 

1.1.11Initial Period means a period of 1 (one) Calendar Year commencing from the date all necessary regulatory permit approvals are granted by the relevant authorities for the establishment of the Slag Recycling and Reclamation Facility at the Project Site, and power and water to construct, install, commission and operate the Slag Recycling and Reclamation Facility becomes available at the Project Site, within which period, EESTECH shall construct, install and commission at minimum the first stage of the two stage Slag Recycling and Reclamation Facility at the Project Site;

 

1.1.12Law (s) means all the laws of South Africa, including Environmental Laws and any law of general application and includes the common law and any statute, constitution, decree, treaty, regulation, directive, ordinance, by-law, standard or any other enactment of legislative measure of government (including local and provincial government) statutory or regulatory body which has the force of law in the Republic of South Africa;
 

 

1.1.13Lease Agreement means the lease agreement that will permit the establishment of the Slag Recycling and Reclamation Facility at the Project Site which will be instigated once detailed engineering and design of the Workings has been completed, a copy of which is attached hereto as Schedule 3;

 

1.1.14Master Terms and Conditions means SAMANCOR's Master Terms and Conditions for the Supply of Goods and Services as agreed between the Parties and attached hereto as Schedule 6;

 

1.1.15Material Breach means a breach by either Party hereto as defined in clause 15.2 to this Agreement, in particular and without limitation, clauses 4.7, 4.9 and 11.2 hereto and paragraph 2 of Schedule 5 hereto;

 

1.1.16Operating Guidelines means the operating guidelines to be agreed on by the Parties in terms of clause 4.10.10 herein;

 

1.1.17Primary Recovery Processing means water jigging and spiralling undertaken by SAMANCOR of such type or as currently deployed at the Ferrometals smelting facility as of the Signature Date;

 

1.1.18Project Site means the area of land and/or working area and/or specified property to be provided by SAMANCOR to EESTECH within which EESTECH will conduct the Slag Recycling and Reclamation Workings. The area of land and/or working area and/or specified property shall be provided to EESTECH as set out in the Lease Agreement;

 

1.1.19Purchase Order means the purchase order to be issued by SAMANCOR to EESTECH on a monthly basis for the duration of the Agreement setting out the quantities of Reclaimed FeCr carried over SAMANCOR's weighbridge in line with the provisions of this Agreement;

 

1.1.20Quarter means a period of three consecutive months starting on one of January 01, April 01, July 01 or October 01 respectively;

 

1.1.21Rehabilitation means the process that attempts to restore Project Site back to the state it was in prior to the construction commencement of the Slag Recycling and Reclamation Facility;

 

1.1.22Reclaimed FeCr means the ferrochrome metal reclaimed by the Slag Recycling and Reclamation Process and beneficiated by EESTECH to meet the specifications detailed in Schedule 5 of this Agreement;

 

1.1.23Rehabilitation Trust Account means the trust account to be established pursuant to clause 24 hereof, which trust account is to be established in order to better secure to SAMANCOR the performance by EESTECH of its obligations hereunder in respect of the removal from the project site the Reclaimed Sands stockpiled once this Agreement is terminated;
 

 

1.1.24Reclaimed FeCr Fines means FeCr reclaimed in the first stage of the two stage Slag Recycling and Reclamation Process where the Designated Slag Resource has been only partly processed and has not been beneficiated to meet the specifications required of the Reclaimed FeCr;

 

1.1.25Reclaimed Sand means the balance of material after Reclaimed FeCr and/or Reclaimed FeCr Fines separation which has been processed and cleaned by the Slag Recycling and Reclamation Facility in the manner contemplated by this Agreement and designated by EESTECH as commercially saleable material;

 

1.1.26Signature Date means the date of signature of this Agreement by the Party signing last;

 

1.1.27Spot Selling Price means 10% (ten percent) less than the previous calendar month's listed CRU (CRU International Ltd) China High Carbon 49% (forty nine percent) to 70% (seventy percent) Chrome imports monthly average listed price as published by CRU with pricing fixed and firm on a Cost, Insurance and Freight (CIF) basis and published in United States Dollars and cents per pound Chrome units (USDc/lb Cr);

 

1.1.28Slag Recycling and Reclamation Facility, Process or Facility, means a two stage EESTECH recycling and reclamation process facility that is to be designed, constructed, installed, commissioned and operated at the Project Site for the purpose of processing the Designated Slag Resource hereunder, which facility shall incorporate and utilise the Slag Recycling and Reclamation Technologies and in respect of which EESTECH is permitted to nominate a Workings Operator;

 

1.1.29Slag Recycling and Reclamation Technologies means the recycling and reclamation process technologies and services provided by EESTECH, which technologies incorporate the fragmentation, separation, purification, beneficiation and agglomeration of the Designated Slag Resource, resulting in the production of materials suitable for commercial use and sale;

 

1.1.30Stage 1 has the meaning set out in clause 4.3;

 

1.1.31Stage 2 has the meaning set out in clause 4.4;

 

1.1.32Term means the term of this Agreement as set out in clause 17 herein;

 

1.1.33Termination Date means the date upon which this Agreement is terminated as provided in clause 17 herein;

 

1.1.34Workings or Slag Recycling and Reclamation Workings, means, any or all of (as the context shall require), the design, development, engineering, construction, and commissioning of a Slag Recycling and Reclamation Facility, the processing of the Designated Slag Resource through that Facility and the sale of any reclaimed materials resulting from such processing;
 

 

1.1.35Workings Operator means the person, if any, nominated by EESTECH pursuant to clause 4.5, through which EESTECH will operate and maintain the Slag Recycling and Reclamation Facility and facilitate the processing of the Designated Slag Resource, which entity shall be nominated subject to SAMANCOR prior written approval provided that such approval shall not be unreasonably withheld. The Workings Operator shall comply with all the applicable provisions of clause 6.2 of the Master Terms and Conditions; and

 

1.1.36Works Funding means the funding that shall be required to carry out the Workings for the Term of this Agreement.

 

1.2Interpretation

 

In the interpretation of this Agreement, the following provisions apply unless the context otherwise requires:

 

1.2.1Headings are inserted for convenience only and do not affect interpretation;

 

1.2.2A reference to a business day means a day other than a Saturday, Sunday or day on which banks are not open for business generally in Johannesburg, South Africa;

 

1.2.3If the day on which any act, matter or thing is to be done under this Agreement is not a business day, the act, matter or thing must be done on the next business day;

 

1.2.4A reference to any Law, legislation or legislative provision includes any statutory modification, amendment or re-enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision;

 

1.2.5A reference to any agreement or document is to that agreement or document as amended, novated, supplemented or replaced;

 

1.2.6The term "person" and any expression importing a natural person includes any company, trust, partnership, joint venture, association, body, group, body corporate governmental agency or other legal entity;

 

1.2.7Where a word or phrase is given a defined meaning, another part of speech or other grammatical form in respect of that word or phrase has a corresponding meaning;

 

1.2.8The singular also denotes the plural and the plural also denotes the singular, and a reference to any gender also denotes the other genders;

 

1.2.9The reference to the word 'include' or 'including' is to be construed without limitation;

 

 

1.2.10A reference to this Agreement means the agreement recorded in this document; and

 

 

1.2.11Any schedules and attachments form part of this Agreement.
 

 

2Structure and Precedence

 

 

2.1This Agreement expressly incorporates the Master Terms and Conditions but in the event of a conflict between the provisions of the Master Terms and Conditions and the provisions of this Agreement, the provisions of this Agreement shall prevail.

 

2.2Unless specifically accepted in writing by the Chief Executive Officer on behalf of SAMANCOR, no addition to or modification of this Agreement shall be binding on SAMANCOR. Where EESTECH'S quotation, order acknowledgement or any other correspondence contains terms and conditions at variance with or in addition to this Agreement, such contrary and/or additional terms and conditions are hereby expressly refused and rejected and neither acceptance by SAMANCOR of the services in terms of this Agreement and/or a Purchase Order nor payment therefor shall constitute a waiver by SAMANCOR of any of the provisions of this Agreement or assent to any other conditions.

 

3SAMANCOR Responsibilities

 

 

3.1SAMANCOR shall, on the terms and conditions set out hereinafter:

 

3.1.1Give EESTECH access to such a minimum tonnage of Designated Slag Resource, at no cost to EESTECH as more fully described in Schedule 1 of this Agreement;

 

3.1.2Allow EESTECH to process, rework and reclaim the Designated Slag Resource and otherwise carry on the Workings at the Project Site so that EESTECH is able to carry on the Workings as contemplated in this Agreement;

 

3.1.3Ensure that the Project Site is equipped with electricity and water supply points in line with the provisions of and as set out in the Lease Agreement;

 

3.1.4Grant EESTECH the right to stockpile at the Project Site the Reclaimed Sand resulting from the Workings in a manner that is mutually agreed upon by the Parties and as detailed in Schedule 5 of this Agreement; and

 

3.1.5Grant EESTECH the right to stockpile at the Project Site the Reclaimed FeCr Fines resulting from Stage 1 of the Slag Recycling and Reclamation Facility Workings.

 

3.2SAMANCOR shall purchase from EESTECH, all Reclaimed FeCr that meets the pre-determined specifications as detailed in Schedule 5 of this Agreement, and SAMANCOR shall pay to EESTECH the price for such Reclaimed Ferrochrome as set out in Schedule 2A to this Agreement.

 

3.3SAMANCOR agrees, acknowledges and undertakes that the entire right, title, ownership and property in respect of all material processed by EESTECH at the Slag Recycling and Reclamation Facility shall automatically pass to EESTECH upon completion of processing.
 

 

SAMANCOR shall have no right, benefit, title, property or interest whatsoever in, to, over or otherwise in respect of this processed material except for its rights set out in clauses 4.6 and 4.7 of this Agreement.

 

3.4SAMANCOR shall provide the premises and land for the installation of the Slag Recycling and Reclamation Facility and the conducting of the Workings in accordance with the provisions of the Lease Agreement.

 

3.5SAMANCOR shall ensure that it keeps disruption and inconvenience to EESTECH and/or at the Project Site to an absolute minimum, subject to SAMANCOR's site safety and security, SHEQ procedures and the Operating Guidelines. SAMANCOR undertakes to give reasonable notice to EESTECH should it foresee that it may in the conduct of its normal business activities, cause disruption or inconvenience to EESTECH and/or at the Project Site so as to enable EESTECH to take the necessary steps to minimise and/or avoid the effects of any such disruptions or inconvenience to its operations.

 

4Responsibilities, Representations and Warranties of EESTECH

 

EESTECH shall, on the terms and conditions set out hereinafter:

 

4.1Submit regulatory permit applications for both Stage 1 and Stage 2 of the Slag Recycling and Reclamation Facility simultaneously or as one application, whichever is deemed appropriate to expedite the regulatory approvals for the construction and commissioning of both Stage 1 and Stage 2 of the Slag Recycling and Reclamation Facility. EESTECH will also apply its best endeavours to obtain the regulatory approvals speedily and without unmerited or intended delay for both Stage 1 and Stage 2.

 

4.2Submit to SAMANCOR, prior to the collaborative development of the Operating Guidelines as contemplated in clause, 4.10.110, a Project Site risk assessment setting out all reasonably foreseeable risks, the probability of the identified risks occurring and the processes put in place or to be put in place by EESTECH in order to avoid or mitigate the identified risks.

 

4.3Engineer, construct, establish, deploy, commission Stage 1 (fragmentation, separation, purification) of the Slag Recycling and Reclamation Facility at the Project Site within 18 months of receipt of the required regulatory permits to deploy and operate the Stage 1 Process..

 

4.4Engineer, construct, establish, deploy and commission Stage 2 (smelting, refining and casting) of the Slag Recycling and Reclamation Facility at the Project Site within 18 (eighteen) months of receipt of the required regulatory permits to deploy and operate the Stage 2 Process..

 

4.5Should the need arise and with the prior written consent of SAMANCOR, provided that such consent is not unreasonably withheld, appoint a Workings Operator, who shall be responsible for any or all of the construction, establishment, commissioning, operation, maintenance and decommissioning of the Slag Recycling and Reclamation Facility. EESTECH acknowledges
 

 

that it shall be responsible for all the actions and/or omissions of such appointed Workings Operator and indemnifies SAMANCOR in respect thereof.

 

4.6Sell to SAMANCOR all or such part of the Reclaimed FeCr which meets the pre-determined specifications as set out in Schedule 5 of this Agreement and such purchase shall be in accordance with wholesale pricing detailed in Schedule 2A of this Agreement.

 

4.7Sell to SAMANCOR the Reclaimed FeCr that does not meet the pre-determined specifications in Schedule 5 of this Agreement and such purchase shall be in accordance with the pricing terms set out in Schedule 2B. The Parties agree that a breach of the provisions of this clause shall constitute a Material Breach of this Agreement.

 

4.8Pay to SAMANCOR a 7.5% (seven and one half percent) royalty on any EESTECH sales of Reclaimed FeCr Fines to third parties post commissioning of Stage 1 Process prior to the commissioning of Stage 2 Process, subject to the provisions of clause 4.9 below.

 

4.9Permanently cease the sale of any Reclaimed FeCr fines to third parties on deployment and operation of Stage 2 of the Slag Recycling and Reclamation Facility or after 6 (six) months from commissioning of the Stage 1 Process, which ever event occurs first. The Parties agree that a breach of the provisions of this clause shall constitute a Material Breach of this Agreement

 

4.10EESTECH shall also be responsible for:

 

4.10.1Securing Works Funding;

 

4.10.2Designing, engineering, constructing, establishing, deploying, commissioning, operating and maintaining the Slag Recycling and Reclamation Facility and carrying out the Decommissioning Work;

 

4.10.3Compliance with all applicable Laws, in respect of the construction, installation, commissioning and operation of the Slag Recycling and Reclamation Facility;

 

4.10.4Compliance with all of SAMANCOR's health and safety policies;

 

4.10.5Reimbursing SAMANCOR for all costs (including but not limited to electricity and water consumption) and expenses incurred by it in respect of the Project Site utilities procured for EESTECH under clause 3.1.3 in accordance with the provisions of and as set out in the Lease Agreement within 30 (thirty) calendar days of receipt of an invoice for same with the appropriate supporting documents;

 

4.10.6Selling any Reclaimed FeCr Fines produced whilst Stage 2 of the Slag Recycling and Reclamation Facility is awaiting commencement of operation;

 

4.10.7Selling of any Reclaimed Sand or products derived from the Reclaimed Sand;
 

 

4.10.8Carrying on the Workings and all matters incidental thereto and in a commercially and environmentally responsible manner;

 

4.10.9Providing SAMANCOR with Quarterly projected process volumes and actual process volumes on a monthly basis in respect of the Slag Recycling and Reclamation Facility;

 

4.10.10Collaborating with SAMANCOR in the development of and thereafter the adherence to, Operating Guidelines for the Workings. In particular, the Operating Guidelines shall establish policies and procedures that are designed to ensure that the Workings are undertaken in a proper, effective, efficient, environmentally and commercially responsible manner and in compliance with all applicable Laws;

 

4.10.11Complying with the agreed Operating Guidelines; and

 

4.10.12Obtaining and maintaining all necessary licences, permits and permissions as may be required for the installation, commissioning, operation and maintenance of the Slag Recycling and Reclamation Facility.

 

4.11EESTECH warrants that it shall keep any disruption and inconvenience to any other production and/or other service providers at the Project Site to an absolute minimum when carrying out the Workings. Without prejudice to the generality of the foregoing, EESTECH agrees and undertakes that it will:

 

4.11.provide SAMANCOR with a proposed monthly operating programme of activities for the Project Site and details of all personnel (whether employed by EESTECH or by its Workings Operator, contractors or agents) for which it requires access passes to the Project Site;

 

4.11.2comply with all of SAMANCOR's access, health and security policies and any other applicable rules, regulations and all reasonable requests which SAMANCOR may have or make in relation to access to and or conduct on or about the Project Site;

 

4.11.3at all times conduct the Workings at the Project Site in a professional manner and in compliance with all applicable Laws, consents, standards, regulations, best working practices, enactments, orders and other applicable instruments;

 

4.11.4at all times comply with all Environmental Laws and standards and any reasonable environmental requirements by SAMANCOR. EESTECH agrees that if a fine or penalty is levied against SAMANCOR as a result of EESTECH's non-compliance with any Environmental Laws and/or standards, such fine and any accompanying remedial action shall be for EESTECH's account;

 

4.11.5not access the Project Site or provide and/or permit access to the Project Site or provide to its Workings Operator, contractors, agents, persons, vehicles, machinery and/or other equipment except as authorised by SAMANCOR in advance and in writing provided that such written consent shall not be unreasonably withheld;
 

 

4.11.6not cause any damage to or at the Project Site or injury to any employees, agents and/ or contractors of SAMANCOR. Should it be proved by SAMANCOR that EESTECH caused any damage to or at the Project Site, EESTECH agrees to repair and make good such proven damage at its sole cost and expense. Should EESTECH fail to repair and make good such proved damage within the time periods set out in the letter notifying the damage or if no time period is notified, then within a reasonable time ,SAMANCOR shall be entitled in its sole and absolute discretion to repair and make good any such proved damage with all costs being accountable to EESTECH and EESTECH shall on first written demand, pay to SAMANCOR the cost of any such repairs;

 

4.11.7at all times procure that the vehicles, machinery and I or other equipment at the Project Site are fit for their purpose and that its Workings Contractor's (where applicable), employees, contractors and agents comply with all applicable statutory and regulatory requirements, including, without limitation, the Environmental Laws;

 

4.11.8at all times comply with all applicable Laws, enactments, orders, regulations and other instruments relating to the packing, packaging, marking, storage, handling, and transportation of the unassembled or dismantled parts of the Slag Recycling and Reclamation Facility to the Project Site;

 

4.11.9upon completion of the Workings and subject to clause 18.3, carry on and conduct all the relevant and required Decommissioning Works at its expense, clear away and remove from the Project Site all surplus materials, rubbish and temporary works of every kind including filling up of holes of any nature and leave the whole of the Project Site clean and in a workmanlike condition to the reasonable satisfaction of SAMANCOR; and

 

4.11.10upon obtaining the relevant Works Funding, procure all the required resources, equipment, vehicles, authorities, licences and permissions for the carrying out of the Workings.

 

4.12EESTECH warrants that it:

 

4.12.1has the requisite expertise to design, manufacture, install, commission, operate and maintain the Slag Recycling and Reclamation Facility;

 

4.12.2is not a party to any existing or previous agreement or arrangement which prevents it from entering into this Agreement or adversely affects its ability to perform its obligations under this Agreement;
4.12.3will give SAMANCOR prior written notice, before performing any services for any person if such services could, in the reasonable opinion of SAMANCOR, lead to a conflict with its obligations under this Agreement;

 

4.12.4will file such reports, notices, and other communication as may be required by any governmental agency regarding the Slag Recycling and Reclamation Facility, except in

 

 

 

instances where it is clear that the specific report, notice or communication is to be submitted by SAMANCOR, in which case, EESTECH shall promptly inform SAMANCOR in writing of any request received by it for the filing of such report, notice and/or other communication. EESTECH shall at all times consult with SAMANCOR prior to filling such report, notice or communication;

 

4.12.5has not and will not contravene any provision of its constitutional documents, or any order or other decision of any authority, court or arbitrator that is binding on it as at the Signature Date through its execution and performance of its obligations arising from this Agreement and that this Agreement is valid, binding and enforceable against it; and

 

4.12.6has not committed any act that may be reasonably likely to lead to its insolvency, placement under judicial management or administration, or similar process, nor is there a concern that it might commit such an act of insolvency as of the Signature Date.

 

5Representations, undertakings and warranties of SAMANCOR

 

 

5.1SAMANCOR agrees, represents, undertakes and warrants that it:

 

5.1.1Is the beneficial owner and holder of all rights and title to the Designated Slag Resource and such rights and title are valid and current as at the Signature Date in accordance with applicable Law;

 

5.1.2Has not been given notice of any breach of any provisions of any applicable Law or the terms and conditions of any permit pertaining to the Designated Slag Resource;

 

5.1.3Shall not under any circumstance attempt or commit any act or omission relating to the removal, disposal, sale, cession or assignment of or otherwise encumber the Designated Slag Resource or part thereof;

 

5.1.4Shall not take any action that would unreasonably prejudice EESTECH's rights to the Designated Slag Resource and the processing of such resource at the Project Site through the Slag Recycling and Reclamation Facility for the duration of this Agreement, and it shall grant to EESTECH, and/or the Workings Operator (where applicable) access to the Project Site, and the Designated Resource in line with SAMANCOR's safety and security procedures;

 

5.1.5Will permit EESTECH to locate and operate at the Project Site, the Slag Recycling and Reclamation Facility required to carry out the Workings, and grant it direct access to the Designated Slag Resource in accordance with SAMANCOR's safety and security procedures;

 

5.1.6Will provide and allow EESTECH and the Workings Operator (where applicable) and their employees, agents and contractors, access to cross and recross land at the Project Site as reasonably required in order to carry out the Workings and in particular, to gain entry
 

 

to and from that part of the land on which the Slag Recycling and Reclamation Facility and the Designated Slag Resource is located in line with the SAMANCOR's safety and security procedures;

 

5.1.7Will provide EESTECH and the Workings Operator (where applicable) with the benefit of all permits and other authorisations obtained by SAMANCOR from the Signature Date and those which may be obtained by it at a later date, so far as it is reasonably able so to do so without cost to itself and in the event that there is a cost incurred in doing same, that EESTECH shall reimburse it for such costs if it wishes to have the benefit thereof;

 

5.1.8Will provide reasonable assistance to EESTECH in applying for and obtaining the necessary permits, licences and approvals (and renewal of same) required by EESTECH to engineer, construct, operate and maintain the Slag Recycling and Reclamation Facility;

 

5.1.9Will, pending the sale of the Reclaimed Sand by EESTECH, allow EESTECH to stockpile such unsold Reclaimed Sand at the stockpiling area, subject to the specification agreed to by the Parties and the maximum quantities as set out in Schedule 5 hereto;

 

5.1.10Hold no claim or entitlement to any royalties or commissions relating to the sale of the Reclaimed Sands undertaken by EESTECH;

 

5.1.11Is duly authorised, has the legal capacity, and is otherwise permitted to enter into agreements for the reclamation of the Designated Slag Resource as contemplated in this Agreement and in particular, enter into this Agreement and on the terms set out herein. Furthermore, that for the duration of this Agreement, no third party shall hold any rights, whether legal or equitable, in relation to the Designated Slag Resource and that no agreement, heads of agreement, memorandum of understanding, other interest, obligation, understanding or option exists, or will exist during the Term of this Agreement, that might conflict with the subject matter of this Agreement and in particular the rights granted to EESTECH in respect of the Designated Slag Resource and the carrying out of the Workings by it;

 

5.1.12Has not and will not contravene any provision of its constitutional documents, or any order or other decision of any authority, court or arbitrator that is binding on it as at the Signature Date through its execution and performance of this Agreement and that this Agreement is valid, binding and enforceable against it;

 

5.1.13Has not committed any act that may be reasonably likely to lead to its insolvency, placement under judicial management or administration, or similar process, nor is there a concern that it might commit such an act of insolvency; and

 

5.1.14Will not, unless this Agreement has been lawfully terminated by it because of a breach of the terms hereof by EESTECH, engage in any efforts to, and will not, directly or indirectly,
 

 

through any officer, employee, director, representative, parent, shareholder, affiliate, broker, advisor or otherwise, solicit, initiate or encourage the submission of inquiries, proposals or offers from any person relating to the sale of, or granting of rights to the Designated Slag Resource.

 

6Early Termination

 

6.1In the event that SAMANCOR wishes to terminate this Agreement because of a sale of the Project Site, SAMANCOR shall be liable to first pay to EESTECH an amount representing all of EESTECH's outstanding costs in relation to the establishment, construction, deployment, commissioning and decommissioning of the Slag Recycling and Reclamation Facility, including, without limitation, any and all outstanding capital costs, interest costs, early termination finance penalties and shut down costs, and second: (i) if such termination is to occur in fewer than 5 (five) years after the expiration date of the Initial Period then SAMANCOR shall give a minimum of 2 (two) years' notice of its intention to terminate this Agreement; and (ii) if termination is to occur 5 (five) or more years after the expiration of the Initial Period then SAMANCOR shall give a minimum of 1 (one) year's notice of its intention to so terminate. During such notice period EESTECH shall be permitted to continue, in all ways unaffected by the sale of the Project Site and to continue the Workings of the Slag Recycling and Reclamation Facility as intended by this Agreement.

 

6.2Should SAMANCOR enter into a sale agreement in respect of the Project Site and the purchaser wishes to continue with this Agreement, the Parties hereby agree that EESTECH shall be obliged to continue with this Agreement and deal with the purchaser on the same terms and conditions as set out hereunder, subject to any changes that EESTECH and the purchaser may wish to make to the Agreement.

 

7Product Specification

 

7.1The Reclaimed FeCr to be supplied by EESTECH to SAMANCOR in terms of this Agreement shall comply in all respects with the agreed specifications stated herein and particularly set out in Schedule 5.

 

7.2EESTECH shall adopt a high degree of attention and supervision to all aspects of the provision of the Reclaimed FeCr and shall maintain an effective quality management system in order to ensure and demonstrate that the Reclaimed FeCr conforms to the agreed specifications. For the avoidance of doubt, EESTECH will not despatch Reclaimed FeCr that does not conform to the agreed specification and all costs in this regard shall be for the account of EESTECH.

 

7.3The typical product size fractions and typical product chemical analysis shall be as set out in Schedule 5 with all the chemical analyses represented on a dry basis.

 

8Determination of Product Mass

 

8.1EESTECH and SAMANCOR agree that the allowable moisture content of the Reclaimed FeCr,
 

 

for invoicing purposes, shall not be greater than 1% (one percent).

 

8.2EESTECH shall, at its cost and expense, measure and report the mass of each truckload on a legally certified weighbridge and SAMANCOR shall also measure each truckload at its own legally certified weighbridge.

 

8.3The Parties shall use correctly certified and operational mass measuring devices to measure any mass in terms of this Agreement.

 

8.4Should the Parties record a discrepancy between the weight recorded by the EESTECH weighbridge and the weight recorded by SAMANCOR's weighbridge of greater than 1% (one percent) in any given month ("Monthly Reconciliation"), the following alternatives shall apply:

 

8.4.1If EESTECH accepts SAMANCOR's weighbridge measurements, then the relevant invoice shall be issued based on the accepted amount;

 

8.4.2In the event that EESTECH within 10 (ten) Business Days of the relevant Monthly Reconciliation still disputes SAMANCOR's weighbridge measurements and if the mass recorded at the relevant weighbridges continues to differ by more than 1% (one percent), EESTECH may request the testing and/or calibration of SAMANCOR's and EESTECH's weighbridges by an independent and South African Bureau of Standards accredited third party; and

 

8.4.3If, on re-testing and/or re-calibration, by the independent third party, one of the weighbridges is found to deviate by more than 1% (one percent) of the mass recorded, the Party responsible for such weighbridge shall be responsible for the costs of the re- testing and/or re-calibration at both weighbridges and the relevant invoice shall be issued based on the reclaimed ferrochrome tonnage recorded by the weighbridge that did not deviate by more than 1% (one percent) according to such re-testing and /or recalibration.

 

8.5In relation to clause 8.4.1, adjustments to invoices shall be effected by EESTECH indicating the agreed and reconciled Reclaimed FeCr by way of a credit note or debit note (as the case shall require) to SAMANCOR. EESTECH or SAMANCOR (as the case shall require) shall effect payment in such a manner so as to appear in SAMANCOR's or EESTECH's nominated bank account (as the case shall require), no later than 7 (seven) calendar days following the presentation of the credit note or debit note, by said Party.

 

8.6EESTECH shall ensure that loading of the Reclaimed FeCr on road trucks for transportation complies with all applicable Laws.

 

9Delivery and Risk

 

9.1Deliveries of the Reclaimed FeCr shall be made by EESTECH as and when a truckload of the Reclaimed FeCr is produced and a truckload of all Reclaimed FeCr that meets the agreed specifications set out herein is produced and available to be delivered with the quantities being
 

 

delivered, dates of such deliveries and destination to be detailed in an accompanying delivery notice.

 

9.2Risk in and to the Reclaimed FeCr shall remain with EESTECH until such time as the Reclaimed FeCr has been delivered to and at SAMANCOR's weighbridge.

 

 

9.3SAMANCOR shall provide the necessary transport services for the delivery of the Reclaimed FeCr at EESTECH's cost.

 

10Fees and Invoicing

 

 

10.1EESTECH's fees ("Fees") in consideration for the due and proper fulfilment of all of EESTECH's obligations in terms of a Purchase Order and this Agreement shall be calculated on the basis of the amounts set out in Schedule 2 hereto.

 

10.2All invoices and payments to EESTECH by SAMANCOR shall be subject to the subsequent adjustment and correction (as necessary), upon the Parties' receipt of further information concerning the samples, delivery charges, penalties, taxes and/or other costs, or as may otherwise be agreed upon by the Parties after detailed scrutiny and reasonable amendments to the invoice (if any) have been made.

 

10.3In the event that, EESTECH has supplied SAMANCOR with Reclaimed FeCr which did not conform to the specifications, EESTECH shall within 1 (one) month of the Parties having concluded discussions in respect thereof, present SAMANCOR with a credit note for the amount paid by it for the delivered Reclaimed FeCr which did not conform to the agreed specifications.

 

10.4Upon conclusion of the discussions referred to in clause 10.3 in respect of the non-conforming Reclaimed FeCr, EESTECH shall effect payment in such a manner so as to appear in SAMANCOR's nominated bank account by no later than 7 (seven) calendar days following the presentation of the credit note by EESTECH to SAMANCOR.

 

10.5Payments to EESTECH by SAMANCOR, where payment is due to EESTECH pursuant to clause 10.2 shall be made to EESTECH's nominated offshore account in United States (US) currency in line with the provisions of clause 8.2 of the Master Terms and Conditions.

 

11Unsold Reclaimed Sand

 

 

11.1The Parties agree that any unsold Reclaimed Sand stockpiled by EESTECH at the Project Site shall be in such manner and form as agreed to by the Parties and as particularly set out in Schedule 5 so as to enable the Parties to be able to sell or utilise the Reclaimed Sand in a safe manner in the normal course of their businesses and in line with applicable Environmental Laws and utilising its current waste disposal facilities.
 

 

11.2The Parties agree that failure by EESTECH to comply with the provisions of this clause 11 shall constitute a Material Breach of this Agreement and EESTECH shall indemnify SAMANCOR against any losses and/or expenses SAMANCOR may incur as a result of EESTECH's failure to comply with the provisions of this clause 11.

 

12Mutual Cooperation and Good Faith

 

The Parties agree that although they are arm's length commercial Parties and owe no fiduciary duties to each other, they will as far as possible cooperate and act in good faith towards each other and will each use their best efforts, within the terms and constraints of this Agreement and their respective commercial interests, to ensure the most efficient and effective commercial operation of the Workings for their joint benefit hereunder.

 

13Confidentiality and Non-Circumvention

 

 

13.1Obligation to Keep Information Confidential

The Parties acknowledge that prior to the Signature Date, a non-disclosure agreement ("NDA Agreement"), attached hereto as Schedule 4 was concluded between Samancor and EESTECH Australia (Pty) Ltd (Registration Number ABN 50103 011696). For the avoidance of doubt, the Parties agree the NDA Agreement is binding on the Parties hereto, mutatis mutandis. Furthermore, the Parties agree to comply with all the terms of the NDA Agreement. Without derogating from any of the terms of the NDA Agreement, each Party agrees to:

 

13.1.1keep this Agreement and all information regarding the Workings (as well as all information obtained in establishing, developing and carrying on the Workings) strictly confidential and shall not disclose any material element of this Agreement unless required by Law, regulation or policy of a relevant governing body;

 

13.1.2not use the other Party's Confidential Information, other than solely for the purpose for which that Confidential Information was or is disclosed;

 

13.1.3only disclose the other Party's Confidential Information to their officers and employees or professional advisers to the extent that they need to know for the purposes of effecting this Agreement;

 

13.1.4ensure that its officers and employees keep all the other Party's Confidential Information confidential;

 

13.1.5not copy or record in any other form any part of the other Party's Confidential Information except as is strictly necessary for the purposes of this Agreement; and

 

13.1.6if requested by the other Party, as soon as possible after the Termination Date, return to the other Party or destroy all hard copy records and computer records of their Confidential Information (whether copies originally provided, or any copies or copies of copies thereof) and will provide the other Party with assurances which are reasonably requested that it has fully complied with the request set out in this clause 13.1.6.
 

 

13.2Obligation Not To Circumvent

 

13.2.1Each Party acknowledges that the other Party may introduce third parties and or mine site and process waste recycling and reclamation technology suppliers, service providers and project opportunities to it arising out of and in relation to the Confidential Information or the Workings, including and not limited to the provision of goods and services by one Party to the other.

 

13.2.2The Parties agree that, for the term of this Agreement, neither Party including their Affiliates, will directly or indirectly interfere with, circumvent or attempt to circumvent, avoid, by-pass or obviate the other's interests, or the interest or relationship of the other Party in relation to the Workings unless a written agreement allowing same, is reached between the Parties.

 

14Independent Contracting Parties

 

 

The nature of the legal relationship between the Parties created by this Agreement is that of independent contracting commercial parties. The Parties expressly acknowledge and agree, that nothing in this Agreement shall be construed as creating a relationship of agency or a joint venture or partnership between the Parties and neither of them shall be entitled to bind the other to any obligation.

 

15Breach

 

 

15.1If a Party ("Defaulting Party") commits any breach of this Agreement and fails to remedy such breach within 15 (fifteen) Business Days ("Notice Period") of written notice requiring the breach to be remedied, then the Party giving notice ("Aggrieved Party") will be entitled, at its option, to:

 

15.1.1Claim immediate specific performance of the Defaulting Party's obligations that are capable of specific performance and due for performance under this Agreement, with or without claiming damages,; or

 

15.1.2Cancel this Agreement, with or without claiming damages, in which case, written notice of the cancellation shall be given to the Defaulting Party, and the cancellation shall take effect on the giving of the notice. No Party shall be entitled to cancel this Agreement unless the breach is a Material Breach.

 

15.2A breach will be deemed to be a Material Breach if it is of such nature, extent and duration, in Law that would give the Aggrieved Party the right to cancel the Agreement, and if it is:

 

15.2.1Capable of being remedied, but is not remedied within the Notice Period; or

 

15.2.2Incapable of being remedied and payment in money will compensate for such breach but such payment is not made within the Notice Period.

 

 

 

15.3An Aggrieved Party's remedies in terms of this clause 15 are without prejudice to any other remedies to which the Aggrieved Party may be entitled in Law.

 

15.4Each Party hereby unconditionally and irrevocably indemnifies and holds harmless the other Party against all direct claims, costs, expenses, losses, prejudices, liabilities and/or damages, including without limitation all legal costs (on an attorney own client basis) which may be brought against, suffered by or incurred by the other Party as a result of any act or omission by the first mentioned Party in relation to or arising out of a breach of this Agreement.

 

15.5The Parties acknowledge and agree that damages alone would not be an adequate remedy for a breach of any of the provisions of this Agreement. Accordingly, without prejudice to any other rights and remedies it may have, the Aggrieved Party shall be entitled to the granting of equitable relief (including without limitation injunctive relief) concerning any threatened or actual breach of any of the provisions of this Agreement and in particular, but not limited to, breaches in relation to Confidential Information and intellectual property.

 

16Non-Economic Circumstance and Disruption to Workings

 

 

16.1In the event that the Workings, on reasonable grounds. become commercially unviable or non-economic and in particular because of the wholesale price structure detailed in Schedule 2 of this Agreement, which shall be deemed to be the case if the Spot Selling Price falls below US$0.50 per pound , but such state of affairs is, on reasonable grounds, not regarded as likely to be permanent, then the Parties shall make all reasonable efforts to negotiate in good faith, a temporary variation to the wholesale price structure (and such other terms of this Agreement as may be required) which will enable the Parties to continue to operate the Slag Recycling and Reclamation Facility and purchase the processed resource until such aforesaid state of affairs no longer subsists and the terms of this Agreement that were temporarily varied shall apply once again.

 

16.2In the event that the Parties are unable to agree upon changes to the terms of this Agreement in the event of the state of affairs referred to in clause 16.1 above, then the Workings shall be suspended until such state of affairs no longer subsists, and such suspension of the Workings shall not be deemed a breach of this Agreement, material or otherwise.

 

16.3Should the suspension of the Workings set out in 16.2 continue for a period of at least 6 (six) months, then either Party shall have the right to terminate this Agreement forthwith.

 

16.4EESTECH shall at all times during any such suspension, be responsible for the Slag Recycling and Reclamation Facility and shall ensure that the Slag Recycling and Reclamation Facility is secured at all times in line with SAMANCOR's safety and security procedures. EESTECH shall indemnify SAMANCOR for any loss and/or damages it may incur as a direct consequence of EESTECH failing to ensure that the Slag Recycling and Reclamation Facility is secured as required in this clause during any such suspension.

 

 

 

17Term and Termination

 

 

17.1This Agreement shall be effective from the Signature Date and shall, subject to the terms and conditions contained herein, continue for the Initial Period and at the expiry of the Initial Period continue for a further period of 10 (ten) years OR until EESTECH has completed the processing of all of the Designated Slag Resource through the Slag Recycling and Reclamation Facility and sold all the Reclaimed FeCr, Reclaimed Sand and Reclaimed FeCr Fines arising therefrom whichever occurs first and then conduct all the required Decommissioning Work and Rehabilitation processes required of it under clause 18.3.

 

17.2This Agreement shall continue for the full duration of the term as set out in clause 17.1, unless terminated at an earlier time in the event of:

 

17.2.1Either Party at any time, determining on reasonable grounds that the Workings is not commercially viable, or that it is impossible or impractical to carry on the Workings with no realistic prospect of that situation changing, subject to the provisions of clause 16; or

 

17.2.2Any Law coming into operation subsequent to the Signature Date, which Law in the reasonable opinion of the Parties substantially affects an integral aspect or matter or issue contained in this Agreement, such that a benefit to be received by a Party under this Agreement will be substantially reduced, or the obligation of a Party hereunder will be substantially increased, or a benefit or obligation under this Agreement will be substantially different than was contracted for, then the Parties shall enter into negotiations in good faith regarding a variation of this Agreement in order to ensure that neither this Agreement nor its implementation constitutes a contravention of such Law and that the relevant benefit to be received, or the obligation to be performed, shall be given effect to the extent that it is reasonably possible and practical to do so in conformity with the relevant Law and otherwise compensated for as far as possible to reflect the relevant intended benefit or obligation as contemplated hereunder.

 

17.2.3If either Party is prevented from performing any of its obligations under this Agreement as a result of any existing or new Law or as a result of any event beyond its reasonable control whether or not foreseeable, including general power failures, breakdown of telecommunication networks or computers, political intervention, imposition of sanctions, riot or insurrection, then, subject to the Parties reaching an agreement for variation of this Agreement as set out in clause 17.2.2, it shall not be liable for any failure to perform its obligations under this Agreement while such event persists and the other Party shall have the right (unless such event has persisted, or is reasonably likely to persist for a period of time not exceeding 6 (six) months} to terminate this Agreement at any time after the intervention of or becoming aware of such event;

 

17.2.4The Parties mutually agreeing to terminate this Agreement;

 

17.2.5The development of a Slag Recycling and Reclamation Facility having not commenced on or before the expiry of the Initial Period, provided that SAMANCOR may at its sole
 

 

discretion allow EESTECH such further period of time as it sees fit in which to commence the development of the Slag Recycling and Reclamation Facility;

 

17.2.6A Party being in Material Breach of this Agreement, and/or having failed to remedy that breach as required under clause 15, and the other Party having exercised its right to terminate this Agreement on that basis;

 

17.2.7A Party which otherwise has the power to terminate this Agreement under applicable Law, giving written notice to the other Party that this Agreement is terminated; or

 

17.2.8A Party becoming insolvent, being wound up, or entering into a composition for the benefit of creditors, being in administration or some other form of statutory management or protection and the other Party deciding to terminate the Agreement in consequence of the same.

 

17.3The Term of this Agreement can be extended for a further period of five (5) years (New Term)

after the expiration of the Term, on the terms set out here below:

 

17.3.1If EESTECH wishes to extend the Term, then it shall notify SAMANCOR of its desire so to do, no later than two years prior to the end of the Term by written notice thereof to SAMANCOR (Notice to Extend Term); and

 

17.3.2SAMANCOR shall have 3 (three) months from the date of receipt of the Notice to Extend Term, to communicate to EESTECH its decision to extend the Term or otherwise. In the event that SAMANCOR agrees to the extension of the Term, then this Agreement shall remain in full force and effect for the New Term, on its existing terms and conditions, subject to any changes that the Parties may wish to make to the Agreement, which the Parties shall use their best efforts to agree upon within one month of SAMANCOR's communication to EESTECH of its decision to extend the Term or otherwise.

 

18.Consequences of Termination

 

 

In the event of the termination of this Agreement:

 

18.1Nothing herein shall be construed to release either Party from any obligation incurred prior to the Termination Date which is intended to survive termination of this Agreement;

 

18.2Termination of this Agreement shall not be deemed to be a waiver of any claims which either Party may have against the other in respect of any breach or failure to comply with any term of this Agreement prior to the Termination Date;

 

18.3EESTECH shall carry out or procure the carrying out of all the Decommissioning Works within 6 (six) months of the Termination Date, failing which SAMANCOR shall conduct the Decommissioning Works at EESTECH's cost and EESTECH indemnifies SAMANCOR against any costs and/or expenses so incurred;
 

 

18.4EESTECH shall be responsible for the Rehabilitation of the Project Site and ensuring that all the Reclaimed Sand is removed from the Project Site prior to commencing the removal of Stage 2 Process Equipment (smelting, refining and casting systems).

 

18.5In the event of termination due to breach, the non-Defaulting Party may claim from the Defaulting Party, all direct costs, expenses, losses and damages, suffered or incurred by the non-Defaulting Party, as a result of the termination;

 

18.6The Parties shall continue to perform their obligations under this Agreement until the Termination Date;

 

18.7EESTECH shall be responsible for the costs of restoring the Project Site (where applicable) to a state no worse than when it first began occupying the Project Site in line with the provisions of relevant Environmental Laws;

 

18.8All rights, fees and other entitlements to which the Parties became entitled on or before the Termination Date which have not been received shall be provided and settled forthwith; and

 

18.9The provisions of this clause 18 shall survive the termination of this Agreement.

 

19.Environmental Liability

 

19.1EESTECH shall comply with all Environmental Laws in its conduct of the Workings at the Project Site.

 

19.2The Parties shall jointly undertake a Project Site contamination analysis prior to the deployment of the Workings to provide a comparative measure for when the Workings are removed upon termination of this Agreement.

 

19.3SAMANCOR shall not be responsible for claims directly related to hazardous materials at the Project Site arising out of the negligent, and/or intentional acts or omissions of EESTECH. This provision of the Agreement shall not be construed to require EESTECH to take corrective action with respect to any hazardous materials located at the Project Site on or before the commencement of the Initial Period.

 

19.4If action is required at the Project Site to comply with any applicable Environmental Laws during the Term of this Agreement, SAMANCOR shall be responsible for the costs of compliance, only to the extent that such non-compliance is not as a result of EESTECH's negligence, and /or intentional acts.

 

20.Governmental and/or Regulatory Authorities Penalties and Fines

 

20.1If during the Term of this Agreement any governmental or regulatory authority or agency assesses and imposes any fines or penalties against SAMANCOR arising from EESTECH's failure to operate and maintain the Slag Recycling and Reclamation Facility in accordance with any applicable Laws such fines and/or penalties shall be the sole responsibility and for the account of EESTECH.
 

 

20.2In the event that EESTECH does not comply with any applicable Laws and a fee or fine is levied on SAMANCOR by any governmental authority, then SAMANCOR will, on notice to EESTECH, pay the relevant fee or fine and conduct any required accompanying remedial action and deduct the fee or fine amount and all costs of the remedial action from EESTECH's invoice of the same month. In the event that the fee or fine is more than an EESTECH invoice of that month, then the remainder of the amount shall be deducted from the next EESTECH invoice (s) of the following month(s) until such time as the fine or penalty amount has been fully reimbursed. Should SAMANCOR not be able to deduct such amounts from the EESTECH invoice(s) or should there be no invoices to deduct from, SAMANCOR shall demand and EESTECH shall pay on first demand the monies so paid by SAMANCOR to the relevant governmental authority.

 

20.3EESTECH shall indemnify SAMANCOR against all fines or penalties that may be levied against SAMANCOR in terms of this clause. This indemnity clause shall survive the termination of this Agreement.

 

21.Limitation of Liability

 

 

21.1Nothing in this Agreement shall limit or exclude the liability of EESTECH for:

 

 

21.1.1death or personal injury resulting from negligence; or

 

 

21.1.2fraud or fraudulent misrepresentation.

 

 

21.2SAMANCOR shall not under any circumstances whatsoever be liable to EESTECH, whether in contract, delict, (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any:
21.2.1loss of profit; or

 

21.2.2loss of goodwill; or

 

21.2.3loss of business; or

 

21.2.4loss of business opportunity; or

 

21.2.5loss of anticipated saving; or

 

21.2.6special, indirect or consequential damages suffered by EESTECH.

 

 

22.Business Conduct

 

The Parties shall at all times comply with all business conduct and legislation and undertake herein not to condone corruption or anti-competitive practices within the market place and acknowledge their commitment to the promotion of and adherence to ethical and professional

 

 

standards, which includes a zero-tolerance policy towards bribery and facilitation payments of any form.

 

23.Governing Law and Dispute Resolution

 

 

23.1This Agreement shall be governed by and construed in accordance with the Laws of South Africa.

 

23.2In the event of there being any dispute or difference between the Parties arising out of this Agreement, upon the written request of either Party, the dispute shall immediately be referred to senior management of each Party. Such persons shall meet within 5 (five) Business days and attempt to negotiate a resolution of the dispute. If the Parties are unable to resolve the dispute for any reason within 30 (thirty) Business Days after a Party's written request for a meeting was made, then either Party may request the other Party to submit the dispute to binding arbitration in accordance with the procedures set forth in clause 23.3.

 

23.3Subject to clause 23.2, all disputes shall be finally resolved by and in accordance with the rules (the "Rules") of the Arbitration Foundation of South Africa ("AFSA") then in effect.

 

23.4Subject to clause 23.2, a Party may initiate arbitration proceedings by issuing a notice to the other Party (a "Notice of Arbitration") pursuant to the Rules.

 

23.5The Parties hereby consent to the arbitration being dealt with on an urgent basis in terms of the Rules should either Party by written notice to the other, require the arbitration to be held on an urgent basis. If such notice is issued, the Parties agree to apply jointly to AFSA's secretariat as required in terms of the Rules to facilitate such urgent arbitration.

 

23.6The arbitration will take place before a single arbitrator appointed under clause 23.7.

 

23.7The Parties must appoint an arbitrator within 15 (fifteen) Business days of the receipt of the Notice of Arbitration. If the Parties fail to appoint an arbitrator within 15 (fifteen) Business days, AFSA may appoint the arbitrator on application by either Party.

 

23.8The Parties agree that any arbitration award shall be final and binding upon the Parties and (to the fullest extent permitted by applicable Law) the Parties waive their right to any form of appeal or other similar recourse to a court of Law.

 

23.9The language of the arbitration proceedings shall be English.

 

23.10Nothing herein contained shall be deemed to prevent or prohibit a Party to the arbitration from applying to the appropriate court for urgent relief or for judgment in relation to a liquidated claim.

 

23.11This clause will continue to be binding on the Parties notwithstanding any termination of this Agreement.
 

 

24Rehabilitation Liability

 

 

24.1In order to better secure to SAMANCOR the performance by EESTECH of its obligations in respect of the removal of all Reclaimed Sand from the Project Site after the termination of this Agreement, upon the commencement of processing of the Designated Slag Resource, EESTECH shall in respect of each ton of Reclaimed Sand stockpiled by EESTECH, pay the sum of $US1 (one US Dollar) per ton from the sale of FeCr into the Rehabilitation Trust Account, such funds to be held on trust for SAMANCOR for the aforesaid purpose, provided that the amount of funds in the said account will not exceed a maximum amount equating to the amount of funds required to be paid into the account in the event that one million tons of Reclaimed Sand is stockpiled.

 

24.2In the event that EESTECH has neither removed all the Reclaimed Sand during the Decommissioning Work, nor entered into an off-take agreement for the removal of the remaining Reclaimed Sand (which agreement shall be acceptable to SAMANCOR in its reasonable judgment), then SAMANCOR may make a claim against the Rehabilitation Trust Account for an amount calculated by multiplying the number of tons of Reclaimed Sand that remain by $US1.

 

24.3The balance of funds remaining in the Rehabilitation Trust Account (if any) after the payment of any claim which SAMANCOR is entitled to make (if any) shall become funds which are the sole legal and beneficial property of EESTECH.

 

 

25Costs

 

Each Party shall bear all expenses incurred by it in connection with the negotiation, entering into and completion of this Agreement, including, without limitation, the charges of its legal counsel, accountants and financial advisors.

 

26Parties' Representatives

 

The Parties' respective representative(s) duly authorised to issue and accept instructions with regard to obligations arising in terms of this Agreement shall be –

 

* * *

 

 

[Certain information indicated with [* * *] in this document has been omitted from this exhibit because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.]

 

27Domicilium and Notices

 

 

27.1Any notice or communication given to a Party under this Agreement is only given to the other Party if it is in writing and sent in one of the following ways:

 

27.1.1Delivered or posted to the relevant SAMANCOR or EESTECH address as set herein; or

 

27.1.2Emailed to the relevant SAMANCOR or EESTECH email addresses set herein.

 

27.2Where a Party is required to give written notice under this Agreement, notice shall be deemed as having been given (and received by the other Party) as follows:

 

27.2.1Any notice delivered personally is deemed to have been delivered on the date of its delivery;

 

27.2.2Any notice sent by airmail post is deemed (in the absence of evidence of earlier receipt), to have been delivered seven calendar days after dispatch and in proving the fact of dispatch it is sufficient to show that the envelope containing the notice was properly addressed, stamped and conveyed to the postal authorities or courier service for transmission by airmail or special courier;

 

27.2.3Any notice sent by special courier is deemed to have been delivered on the date recorded by the courier company as the delivery date; and

 

27.2.4Any notice sent by facsimile is deemed to have been delivered on the date of transmission, provided that it was correctly addressed and no error message was received by the information systems used by the Party sending the notice and the recipient acknowledges complete receipt of such email.

 

27.3A Party may by two Business Days' notice to the other Party change its postal address, or email for receipt of notices.

 

27.4SAMANCOR chooses as its domicillium citandi et executandi for all purposes arising out of or in connection with this Agreement at which address all processes and notices arising out of or in connection with this Agreement, its breach or termination may validly be served upon or delivered:

1st Floor, Block B

Cullinan Place
Cullinan Close
Morningside
SANDTON
2196

Marked for the attention of: SAMANCOR Group Legal Manager and Company Secretary.

 

27.5EESTECH chooses as its domicillium citandi et executandi for all purposes arising out of or in connection with this Agreement at which address all processes and notices arising out of or in

 

 

 

connection with this Agreement, its breach or termination may validly be served upon or delivered.

EESTech Inc Ltd
Level 4, BDO Centre,
4 Graham Street,

Auckland 1010,
New Zealand.

Email: mbailey@eestechinc.com

Marked for the attention of: EESTECH Company Secretary

 

28Assignment

 

Neither SAMANCOR nor EESTECH may transfer or assign this Agreement or its rights or obligations hereunder without the prior written consent of the other Party.

 

29Entire Agreement

 

This Agreement constitutes the entire agreement between the Parties as to its subject matter and supersedes all previous correspondence, negotiations, representations and warranties (whether oral or written), agreements and understandings between the Parties, except as expressly agreed to the contrary herein.

 

30Miscellaneous

 

 

30.1Partial or delayed exercising of rights

If a Party does not exercise a right or remedy fully or within a certain period of time, the Party may still exercise it later, nor shall it restrict or prevent the Party exercising any other right or remedy.

 

30.2Further exercising of rights

No partial, delayed or single exercise of any right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

 

30.3Remedies cumulative

The rights and remedies provided in this Agreement are cumulative, and all rights and remedies are in addition to other rights and remedies set forth in this Agreement or given by Law or at equity independently of this Agreement.

 

30.4Waiver of breach and variation

 

30.4.1If a Party waives a breach of a provision of this Agreement, the Party does not thereby waive or vary all or part of that provision, or of any other provision, or of the right of that Party to avail itself of any of its rights or remedies subsequently.

 

30.4.2A provision of this Agreement or a right or obligation created under it may not be waived or varied except in writing signed by the Party to be bound and is effective only to the extent expressly stated.
 

 

30.5Approvals and consents

By giving its approval or consent, a Party does not make or give any warranty or representation as to any circumstance relating to the subject matter of the consent or approval.

 

30.6Conflict of interest

The Parties' rights and remedies under this Agreement may be exercised even if this involves a conflict of duty or a Party has a personal interest in their exercise.

 

30.7Construction

No rule of construction applies to the disadvantage of a Party because that Party was responsible for the preparation of, or seeks to rely on, this Agreement or any part of it.

 

30.8Non-Merger

Except as otherwise expressly provided herein, all provisions of this Agreement (including all representations and warranties), shall forever survive the execution of this Agreement and to the extent that they have not been fulfilled and satisfied or are capable of having effect, remain in full force and effect.

 

30.9Force Majeure

Neither Party shall have any liability or be deemed to be in breach of this Agreement for any delay or failure in performance of this Agreement that results from circumstances beyond the reasonable control of that Party, including but not limited to, any labour disputes involving that Party, customs and permitting delays. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. The occurrence of any such circumstances shall not affect the running of the Term of this Agreement.

 

30.10Supervening legislation

Any present or future legislation which operates to vary the obligations of a Party in connection with this Agreement with the result that another Party's rights, powers or remedies are adversely affected (including, by way of delay or postponement) is excluded except to the extent that its exclusion is prohibited or rendered ineffective by Law.

 

30.11Counterparts

This Agreement may be executed in any number of counterparts any one of which may be signed by either Party. Either Party may enter into this Agreement by executing a counterpart and if the Parties shall have only signed different counterparts, then the signed counterparts shall together constitute the agreement between the Parties, provided however that this Agreement shall not take effect until a counterpart has been executed by both Parties.

 

30.12Illegality, Invalidity and Severability

If the whole or any part of a provision of this Agreement is held to be invalid, unenforceable or illegal by any court of competent jurisdiction:

 

 

30.12.1it must be read down to such extent as may be necessary to ensure that it is not invalid, unenforceable or illegal and as may be reasonable in all the circumstances so as to give it a valid operation; and

 

30.12.2if the provision or part thereof cannot be so read down, it must be severed without affecting the validity and enforceability of the remaining provisions of this Agreement.

 

30.13Inurement

This Agreement shall remain of full force and effect endure to the benefit of and be binding upon the Parties hereto and their successors and permitted assigns, including in the event either Party undergoes a change of control, according to how "change of control" is understood under South African company Law.

 

30.14No representations or warranties

Each Party acknowledges that in entering into this Agreement it has not relied on any representations or warranties about its subject matter except as expressly provided by the written terms of this Agreement.

 

30.15Compliance with all applicable Laws

The Parties agree that they will comply with all applicable Laws.

 

 

 

31Signature Page

 

This Ferrochrome Recovery from Slag Agreement is hereby entered into by the Parties upon their signing below.

 

 

Executed by

15-02-19

Authorised representative for SAMANCOR:

 

 

 

                                                  

Signature of witness

 

 

                                                  

Name of witness (please print)                                    By executing this Agreement, the signatory warrants that the signatory is duly authorised to execute this Agreement on behalf of Samancor Chrome Limited.

 

 

 

Date:

 

 

Executed by Mr. Murray Bailey

) M.J. Bailey

    )

Authorised representative for EESTECH:

 

 

 

 

Donald Bartlem_______________________

Signature of witness

 

 

Donald Graham Bartlem_________________

Name of witness (please print)                                 By executing this Agreement, the signatory warrants that the signatory is duly authorised to execute this Agreement on behalf of EESTECH Inc. Limited.

 

 

 

Date: 21st February 2019

 

 

 

 

 

 

 

 

ANNEXURE1

 

INFORMATION RELATING TO PROPERTY AND PREMISES

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Annex omitted in accordance with Item 601(a)(5) of Regulation S-K as it does not contain information material to an investment or voting decision]

 

 

 

ANNEXURE 2

 

SKETCH PLAN INDICATING RELEVANT DETAILS OF EQUIPMENT TO BE INSTALLED ON THE PREMISES, THE POSITION OF SUCH EQUIPMENT ON THE PREMISES AND THE LOCATION OF THE PREMISES ON THE PROPERTY

 

 

  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Annex omitted in accordance with Item 601(a)(5) of Regulation S-K as it does not contain information material to an investment or voting decision]

 

 

 

 

SCHEDULE 1

 

Designated Slag Resource Stockpiles and Volumes

 

 

FeCr Slag Stockpile Name / Location FeCr Slag Dump Reserve Estimates as of Year End 2015 (metric tons) New Annual FeCr Slag Production 2016 Estimates
(metric tons)
Designated Slag Resource
Project Site

Ferrometals (FMT)

Witbank/

Emalahleni

12,254,000 525,000 Minimum of 10,000,000 (ten million) metric tons incorporating FeCr Slag Dump Reserves plus Slimes Dam Tailings as required, arising from the Primary Recovery Processing activities

 

 

 

 

 

 

 

 

SCHEDULE 2

 

Pricing of Reclaimed FeCr sold to SAMANCOR

 

 

Schedule 2A Reclaimed Ferrochrome (FeCr) Wholesale Price Structure

 

Whereas SAMANCOR has disclosed in good faith;

 

1.China is the primary market of SAMANCOR's ferrochrome exports.

 

Whereupon EESTECH has established a Wholesale Price table (Table 1) which the Parties have agreed;

2.The Wholesale Price set by EESTECH for the safe of Reclaimed FeCr to SAMANCOR is based on US Dollar per pound Cr excluding tax supplied at the gate of EESTECH's Slag Recycling and Reclamation Facility.

 

* * *

 

 

3.Pricing calculations are to be rounded up to 3 (three) decimal points.
4.SAMANCOR will provide EESTECH notification of any price change to the Spot Selling Price within 7 (seven) calendar days of such price change.
5.The Wholesale Price table will be reviewed annually.
6.Such adjustments to the Wholesale Price table require the written acceptance by the Parties before enactment.
7.* * *

[Certain information indicated with [* * *] in this document has been omitted from this exhibit because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential].

 

Schedule 2B Price Structure for Reclaimed FeCr Below Agreed Specification

 

 

1. Reclaimed FeCr that does not meet the specification of ≥50% Cr content and is between 46% and <50%Cr content with ≤6% slag content will be sold to Samancor at a 15% (fifteen percent) discount to the Wholesale Price structure in Schedule 2A (Table 1).

 

 

 

 

 

 

 

 

 

 

 

 

 

SCHEDULE 3-LEASE AGREEMENT

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Schedule omitted in accordance with Item 601(a)(5) of Regulation S-K as it does not contain information material to an investment or voting decision]

 

 

 

SCHEDULE 4 - NDA AGREEMENT

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Schedule omitted in accordance with Item 601(a)(5) of Regulation S-K as it does not contain information material to an investment or voting decision]

 

 

 

 

SCHEDULE 5

 

PRODUCT SPECIFICATION DETAILS

 

 

1.Specification of Reclaimed Ferrochrome Produced by EESTECH for Sale to SAMANCOR.

 

 

* * *

 

 

2.Specification for Stockpiling of Reclaimed Sand post FeCr Removal

 

 

Stockpile Limit: Stockpiling and storing of Reclaimed Sand shall be as set out in the relevant applicable Environmental Laws, including but not limited to the National Environmental Management Waste Act (NEMWA) Act 59 of 2008 and its regulation. In the event of there being no legislative provisions relating to limits on stockpiling the Reclaimed Sand, the Parties agree that EESTECH shall not at any given point stockpile more than 1,000,000 (one million) tons of Reclaimed Sand on the Project Site. Storm water management of the stockpile facility shall be set out as per the National Water Act 36 of 1998 (NWA). A breach of the provisions of this clause shall constitute a Material Breach of this Agreement. Written application for this cap to be increased can be made to SAMANCOR upon EESTECH submitting an offtake agreement for the amount by which the cap is to be increased and SAMANCOR shall, at its discretion decide to grant the requested increase in the cap. Any such increase in the stockpiling cap shall not be in contravention of any relevant applicable Laws.

 

Compliance:The Reclaimed Sand shall comply as a Type 4 Inert Waste. This classification is based on current governing legislation as per the National Environmental Management Waste Act (NEMWA) (Act 59 of 2008).

[Certain information indicated with [* * *] in this document has been omitted from this exhibit because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.]

 

The Reclaimed Sand will be treated to adhere to industry dust suppression protocols for the transportation and stockpiling of such material and meet SAMANCOR standards for approved use of the SAMANCOR Ferrometal's waste dumps. Dust monitoring from the facility shall be in place to ensure compliance to the National Dust Control Regulations, 2013; and as amended.

 

Declaration:

EESTECH's Slag Recycling and Reclamation Process does not use any hazardous chemicals in its Recycling and Reclamation Process. The Reclaimed Sand will comprise the original material less the extraction of up to * * * of the compounds that constitute the reclaimed Cr units.

The Reclaimed Sand will comply with the specifications of the materials that Samancor currently disposes of on-site under existing permits.

 

 

Form Factor: The Reclaimed Sand particle sizing to -500 microns with a moisture content of+/- 20% with an indicative only particle size distribution of:

 

* * *

 

 

Commercial Suitability:

 

 

 

 

 

 

Long Term Stockpiling:

 

 

 

 

 

 

Curing Features:

The Reclaimed Sand is treated, cleaned and conditioned for use as a raw material for the downstream commercial use in geopolymer, Shot-Crete, refractory sand, cement, mortar, plastering, concrete and brick making.

 

 

The Reclaimed Sand is required to be transported with an MSDS at EESTECH's cost to the site of stockpiling within 48 (forty eight) hours of being made available.

It is recommended that the residual waste be layered and leveled at an approximate depth of 400mm, then compacted to facilitate curing.

 

* * *

 

Once cured the material is specified to be readily reworked.

 

Post curing into a semi-solid, a chemical reduction will occur when the compacted material is saturated with rainfall. The compacted

[Certain information indicated with [* * *] in this document has been omitted from this exhibit because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.]

 

material will undergo redox reduction, reducing any remaining chrome units into Cr2+ reducing the potential formation of Cr VI.

  

 

 

 

 

 

[Certain information indicated with [* * *] in this document has been omitted from this exhibit because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.]

 

 

SCHEDULE 6-MASTER TERMS AND CONDITIONS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Schedule omitted in accordance with Item 601(a)(5) of Regulation S-K as it does not contain information material to an investment or voting decision]