Governance and Sustainability
Kinetiko Energy Ltd is committed to conducting its global business in a transparent and ethical manner and adheres to Anti-Bribery and Corruption guidelines (the “Policy”) under which our employees, directors, staff and associated persons (including Contractors) are responsible to ensure compliance with all relevant anti-bribery and anti-corruption laws.
Kinetiko Energy has always treated the health, safety and wellbeing of its team as a priority so we can continue to operate the enterprise both in Australia and in The Republic of South Africa.
The onset of COVID – 19 has created an unusual set of risks and circumstances globally. As such, we have facilitated the continuation of business operations through our team working in accordance with best practice and common sense during this global pandemic. This will continue to be carried out, taking into consideration the differing situations that exist in the two jurisdictions we operate in.
Our team both in Australia and South Africa, will and have remained contactable through email and associated telephonic communication and will use this and video conferencing to continue interaction while social distancing and travel protocols remain in place.
We look forward to progressing current and future operations as the world navigates its way through the pandemic and applies methods to mitigate the risks and circumstances manifested by COVID -19.
The Board Charter sets out the role and responsibilities of the Board of Kinetiko Energy Limited, within the framework of the ASX Corporate governance guidelines, laws and regulation and the Constitution of the Company.
The Board’s primary role is the protection and enhancement of long-term shareholder value. To fulfil this role, the Board is responsible for oversight of the management and the overall corporate governance of the Company including its strategic direction, establishing goals for management and monitoring the achievement of these goals.
The composition of the Board is determined using the following principles:
- A minimum of three directors, with a broad range of business expertise;
- Directors should bring characteristics which allow a mix of qualifications, skills, experience, expertise and diversity on the board.
Membership of the Board shall be disclosed in the annual report including whether a director is independent or not independent. Loss or gain of independence will be disclosed as applicable.
In determining whether a director is independent the Board will consider whether the director:
- Is a substantial shareholder of the Company or an officer of, or otherwise associated directly with, a substantial shareholder of the Company
- Is employed, or has previously been employed in executive capacity by the Company or another group member, and there has not been a period of at least three years between ceasing such employment and serving on the board
- Has within the last three years been a principal of a material professional adviser or a material consultant to the Company or another group member, or an employee materially associated with the service provided
- Is a material supplier or customer of the Company or another group member, or an officer of or otherwise associated directly or indirectly with a material supplier or customer
- Has a material contractual relationship with the Company or other group member other than as a Director of the Company
Roles of the Board
The Board operates within the broad principles and responsibilities described in the following:
- Setting the strategic aims of the Company and overseeing management’s performance within that framework
- Making sure that the necessary resources (financial and human) are available to the Company and its senior executives to meet its objectives
- Overseeing management’s performance and the progress and development of the Company’s strategic plan
- Selecting and appointing suitable Executive Directors with the appropriate skills to help the Company in the pursuit of its objectives
- Determining the remuneration policy for the Board members, Company Secretary and Senior Management
- Controlling and approving financial reporting, capital structures and material contracts
- Ensuring that a sound system risk management and internal controls are in place
- Setting the Company’s values and standards
- Undertaking a formal and rigorous review of the Corporate Governance policies to ensure adherence to the ASX Corporate Governance Council
- Ensuring that the Company’s obligations to shareholders are understood and met
- Ensuring the health, safety and well-being of employees in conjunction with the senior management team, including developing, overseeing and reviewing the effectiveness of the Company’s occupational health and safety systems to assure the well-being of all employees
- Ensuring an adequate system is in place for the proper delegation of duties for the effective operative day to day running of the Company without the Board losing sight of the direction that the Company is taking
- Any other matter considered desirable and in the interest of the Company.
Roles of the Chairman and Executive Director
The Company is aware of the importance of a balanced Board, in line with the guidelines of the ASX Corporate Governance guidelines.
The Chairman is responsible for the following:
- Providing the necessary direction required for an effective Board
- Ensuring that all the Directors receive timely and accurate information so that they can make informed decisions on matters of the Company
- Ensuring that the Board collectively and individual directors’ performance is assessed annually
- Encouraging active engagement from all members of the Board
The Executive Director is responsible for:
- the executive management of the company’s operations
- policy direction of the operations of the Company
- the efficient and effective operation of the Company
- ensuring all material matters affecting the Company are brought to the Board’s attention
The Company Secretary is responsible for the application of best practice in corporate governance and also supports the effectiveness of the Board by:
- Ensuring a good flow of information between the Board, its committees, non-executive directors and executive directors
- Monitoring policies and procedures of the Board
- Advising the Board through the Chairman of corporate governance policies
- Providing support and advice to individual directors, various board committees, senior executives and the Board in general
- Conducting and reporting matters of the Board, including the despatch of Board agendas, briefing papers and minutes
- Ensuring that compliance systems relating ASX Listing Rules and the Corporations Act are maintained and the Company and Board adhere to those
- Disseminating regulatory news announcement to the ASX
The appointment, removal and remuneration of the Company Secretary is a matter of the Board.
The Board will meet approximately 10 times a year but no less than six times per year. The Board may meet as often as required to fulfil their responsibilities.
To assist the smooth running of Board processes:
- Board Papers are to be provided to the Board and invitees, where possible, 3 days prior to the meeting.
- Draft minutes of meeting are to be sent to Chairman and other directors within 14 days following the meeting.
The Board may review this policy from time to time. This is an indicative cycle only. The actual timing of events in the lead up to and follow up from Board meetings will be dependent upon the circumstances surrounding each individual meeting.
The Board from time to time establishes committees to assist in carrying out its responsibilities and adopts charters setting out matters relevant to the composition, responsibilities and administration of such committees, and other matters that the Board may consider appropriate.
The Board has decided that due size, composition and structure of the Board, there is no current requirement for the formation of any committees outside the Board forum.
As such, the roles of an Audit, Remuneration and Nomination Committee will be performed by the Board, as and when necessary. The requirements for these committees will be reviewed annually based on the size, composition and structure of the Board and management.
Where the Company is carrying out matters associated with public capital raisings, the Board will appoint a due diligence committee to oversee the process and the issue of any disclosure documents.
Induction and Education
It is the policy of the Company, that new Directors undergo an induction process in which they are given a full briefing on the Company. Where possible this includes meetings with key executives, tours of the premises, an induction package and presentations. Information conveyed to new Directors includes:
- Details of the roles and responsibilities of a Director;
- Formal policies on Director appointment as well as conduct and contribution expectations;
- Access to a copy of the Corporate Governance Manual;
- Guidelines on how the Board processes function;
- Details of past, recent and likely future developments relating to the Board;
- Background information on and contact information for key people in the organisation;
- An analysis of the Company;
- The culture and values of the Company;
- Board meeting arrangements;
- How the Directors are expected to interact with each other, senior executives and other stakeholders;
- A synopsis of the current strategic direction of the Company; and
- A copy of the Constitution of the Company.
New Directors are also provided with letters of appointment to the Board, setting out the key terms and conditions relative to the appointment.
In order to achieve continuing improvement in Board performance, all Directors are encouraged to undergo continual professional development. Specifically, Directors are provided with the resources and training to address skills gaps where they are identified and to receive continuing education concerning key developments in the Company and in the industry and environment within which the Company operates.
The Company undertakes an annual performance as it is dedicated:
- To examine the impact of the effectiveness of its Directors, Board, and Board Committees
- To review and improve on the quality and performance of the entire Board and committee structure
The evaluation process is focused on objective and tangible criteria such as:
- Performance of the Company
- Accomplishment of long term strategic objectives
- Development of management
- Growth in shareholder value
The performance evaluation is conducted in such manner as the Board deems appropriate.
Independent Professional Advice
The Board collectively and each Director has the right to seek independent professional advice at the Company’s expense, up to specified limits, to assist them to carry out their responsibilities, subject to the prior approval of the Chairman whose approval will not be unreasonably withheld. If permission is withheld, the matter may be referred to the whole Board.
Information Seeking Protocol
Directors will adhere to the following protocol when seeking information:
- approach the Executive Director to request the required data;
- if the data is not forthcoming, approach the Chairman;
- if the information is still not forthcoming, write a letter to all Board members and the Executive Director detailing the information that is required, purpose of the information, and who the Director intends to approach in order to obtain the information; and
- as a last resort, employ the provisions of the Corporations Act
Code of Conduct
Kinetiko Energy Limited is committed to promoting good corporate conduct grounded by strong ethics and responsibility.
This Code of Conduct addresses matters relevant to the Company’s legal and ethical obligations to its stakeholders. It may be amended from time to time by the Board and will be published on the Company’s website.
This code applies equally to all directors, employees, contractors and officers of the Company.
All stakeholders are entitled to expect the highest professional standards from employees directors and officers of the Company.
Compliance with this Code and the Company’s other policies, will ensure compliance with the Corporations Act and will contribute to the good corporate governance of the Company.
Discharge of Duties
Directors must discharge their duties at the highest levels of honesty and integrity, acting in good faith and in the best interests of the whole Company, having regard to their position, and the organisation’s goals and objectives. This entails taking personal responsibility for all issues over which they have control, and for reporting any observed breaches of laws or regulations. It also requires that they do not act in ways which would lead others to question our commitment to the Company.
As appointed officers all Directors will undertake diligent analysis of all proposals placed before the Board, demonstrate commercial reasonableness in decision-making and will act with a level of skill expected from Directors and key executives of a publicly listed Company.
Performance-enhancing teamwork relies on a workplace where people are treated fairly, are respected by their colleagues, and encourage each other to develop corporately and personally. All Directors and key executives are all responsible for making this happen.
The Company is an equal opportunity employer, and discrimination or harassment of any kind will not be tolerated.
In dealings both inside and outside the Company individual Directors will value integrity, accuracy, conciseness and timeliness.
Compliance with Laws and Ethics
Directors must respect the laws, customs and business practices of the countries in which we operate, without compromising the Code principles. They must also comply with the ethical and technical requirements of relevant regulatory and professional bodies, promote ethical behaviour and will not engage in conduct likely to bring discredit upon the Company.
Conflicts of Interest
All Directors have an obligation to be independent in judgment and actions and as Directors will take all reasonable steps to be satisfied as to the soundness of all decisions of the Board.
In circumstances where personal interests may conflict with those of the Company, or its stakeholders, steps must be taken to eliminate or manage such conflict.
Directors must disclose to the Board actual or potential conflicts that may or might reasonably be thought to exist between the interests of the Director and the interests of the Company. Whether an interest is material or not is covered by the materiality threshold set by the board.
The Board can request a Director to take reasonable steps to remove the conflict of interest. If a Director cannot or is unwilling to remove a conflict of interest then the Director must absent himself or herself from the room when discussion and voting occur on matters to which the conflict relates. The entry and exit of the Director concerned will be minuted by the Company Secretary. Directors do not have to absent themselves when either (a) conflict of interest relates to an interest common to all Company members/shareholders or (b) the Board passes a resolution that identifies the Director, the nature and extent of the Director’s interest and clearly states that the other Directors are satisfied that the interest should not disqualify the Director concerned from discussion and/or voting on the matter.
Gifts or entertainment must not be accepted where they could create an obligation on the Company to outside parties.
Related Party Transactions
Related party transactions include any financial transaction between a Director or officer and the Company and will be reported in writing to each Board meeting.
In general, the Corporations Act requires related party transactions to be approved by the shareholders; the Board cannot approve these transactions. An exemption to this requirement occurs where the financial benefit is given on arm’s length terms.
To assist the Board in showing that a financial benefit, such as the awarding of a contract to a company in which a Director is a partner, is given on arm’s length terms, the process outlined below will be followed. The Board has also resolved that where applications are made by a related party to a Director or officer of the Company then the Director or officer shall exclude himself/herself from the approval process.
Related party for this process means:
- Spouse or de facto spouse of the Director or officer; or
- A parent, son or daughter of the Director or officer or their spouse or de facto spouse; or
- An entity over which the Director or officer or a related party defined in (a) or (b) has a controlling interest.
Employees in possession of commercially sensitive information should not disseminate it to colleagues unnecessarily, and certainly not to outside parties. All individuals are prohibited by law from trading in the Company’s securities if they possess commercially sensitive information not released to the ASX. The Board has adopted a Security Trading Policy governing when Directors, key executives and employees are able to buy and sell the Company’s securities.
Use of Company Assets
The Company’s assets are critical to its business and future success. They include, for example, office and plant equipment. Employees cannot make personal use of assets without permission.
There will be no unreasonable expenditure on benefits such as gifts or entertainment for employees or outside parties.
The Company competes fairly in the situations and markets in which it operates. It does not use coercive or misleading practices or falsify or wrongly withhold information.
Environment, Health and Safety
The Company must take into account the impact of environmental, health and safety issues when making business decisions and in particular, compliance with local laws.
Breach of the Code
Employees are under the obligation to ensure that the Code is not breached. Should any of the Company’s employees notice any violations of this code, the Executive Director or their immediate supervisor should be notified. In the case where none of the above is available, breaches can be reported to the Chairman of the Company.
The reporting of any violations under this Code will undergo thorough investigation and appropriate actions will be taken under the spirit of the law and this code. Any alleged breach of the code will be dealt with promptly and in fairness. The Company ensures that any employee reporting any alleged breach of this code will not be disadvantaged in any way. Employees must not use the reporting mechanism maliciously or mischievously.
Review of Code of Conduct
This Code will be formally reviewed by the Board each year.
Board Performance Evaluation Policy
Board of Directors
This policy is to ensure individual directors and the Board as a whole work efficiently and effectively in achieving their functions.
Each year the Board will undertake the following activities:
- The Chairperson will meet with each non-executive director separately to discuss individual performance and ideas for improvement.
- The board as a whole will discuss and analyse its own performance during the year including suggestions for change or improvement.
Executive Directors and Key Executives
This policy is to ensure the Executive Director and key executives execute the Company’s strategy through the efficient and effective implementation of the business objectives. In order to accomplish this:
- Each year the Board reviews the Company’s strategy.
- Following such a review the Board sets the organisation performance objectives based on qualitative and quantitative measures.
- These objectives are reviewed periodically to ensure they remain consistent with the Company’s priorities and the changing nature of the Company’s business.
- These objectives form part of the performance targets for the Executive Director.
- Performance against these objectives is reviewed annually by the Board and is reflected in the Executive Directors remuneration review.
This policy is to ensure committees to which the Board has delegated responsibilities are performing efficiently and effectively in accordance with the duties and responsibilities set out in their charter.
Each year the Board will undertake the following activities:
- The Board will review the necessity of establishing any committees and delegating certain of its responsibilities to the committee.
- The Board will review the committee’s achievements during the year based on their duties.
- The Board will review the charters of the committees once per year to ensure that they are up to date.
Audit Committee Charter
Due to the size and scale of its operations, the Company currently does not have a separate Audit Committee. The roles and responsibilities of an Audit Committee are currently undertaken by the full Board.
The Audit Committee will consist of at least three members. Members will be appointed by the Board ‘where possible’ from amongst the non-executive, Directors, a majority of who ‘where possible’ will also be independent. In addition, the Audit Committee will comprise:
- Members who can all read and understand financial statements and are otherwise financially literate;
- At least one member with financial expertise either as a qualified accountant or other financial professional with experience in financial and accounting matters; and
- At least one member who has an understanding of the industry in which the Company operates.
The Audit Committee will appoint an independent Director, other than the Chairman of the Board, to be the Chairman of the Committee.
The Company Secretary will be the Secretary of the Audit Committee.
The Executive Director as well as other members of senior management may be invited to be present for all or part of the meetings of the Audit Committee, but will not be members of the Committee.
Representatives of the external auditor are expected to attend each meeting of the Audit Committee and at least once a year the Committee shall meet with the external auditors without any management staff or executives present.
A quorum will be two members.
Audit Committee meetings will be held not less than two times a year so as to enable the Committee to undertake its role effectively. In addition, the Chairman is required to call a meeting of the Audit Committee if requested to do so by any member of the Audit Committee, the Executive Director, or the external auditor.
The Audit Committee is authorised by the Board to investigate any activity within its charter. The Audit Committee will have access to management and auditors with or without management present and has rights to seek explanations and additional information. It is authorised to seek any information it requires from any employees and all employees are directed to cooperate with any request made by the Audit Committee.
The Audit Committee is authorised by the Board to obtain outside legal or other independent professional advice and to secure the attendance of outsiders with relevant experience and expertise if it considers this necessary.
The Audit Committee is required to make recommendations to the Board on all matters within the Audit Committee’s charter.
The Audit Committee will keep minutes of its meetings. The Secretary shall circulate the minutes of the meetings of the Committee to all members of the Committee for comment and change before being signed by the Chairman of the Audit Committee and circulated to the Board with the Board papers for the next Board meeting. The minutes are to be tabled at the Board meeting following the Audit Committee meeting along with any recommendations of the Committee.
Responsibilities of the Audit Committee
The Audit Committee is responsible for reviewing the integrity of the Company’s financial reporting and overseeing the independence of the external auditors. In particular, the Audit Committee has the following duties:
- To review the audited annual and half yearly financial statements and any reports which accompany published financial statements before submission to the Board, recommending their approval, focusing particularly on:
- Any changes in accounting policies and practices;
- Major judgmental areas;
- Significant adjustments, accounting and financial reporting issues resulting from the internal and external audit;
- Compliance with accounting policies and standards; and
- Compliance with legal requirements.
- To review the evaluation by management of factors related to the independence of the Company’s public accountant and to assist them in the preservation of such independence.
- To oversee management’s appointment of the company’s public accountant.
Related Party Transactions
- To monitor and review the propriety of any related party transactions.
External Audit Function
- To recommend to the Board the appointment of the external auditor.
- Each year, to review the appointment of the external auditor, their independence, the audit fee, and any questions of resignation or dismissal.
- To discuss with the external auditor before the audit commences the nature and scope of the audit,
- To meet privately with the external auditor on at least an annual basis.
- To determine that no management restrictions are being placed upon external auditor.
- To discuss problems and reservations arising from the interim and final audits, and any matters the auditors may wish to discuss (in the absence of management where necessary).
- To review the external auditor’s management letter and management’s response.
- To review any regulatory reports on the Company’s operations and management’s response.
- Providing, through regular meetings, a forum for communication between the Board, senior financial management, staff involved in internal control procedures and the external auditors.
- Enhancing the credibility and objectivity of financial reports with other interested parties, including creditors, key stakeholders and the general public.
- Establishing procedures for complaints and reports regarding accounting, internal accounting controls and auditing matters and ensuring a mechanism for the confidential treatment of such complaints and reports including the ability to submit them anonymously.
Assessment of Effectiveness
- To evaluate the adequacy and effectiveness of the Company’s administrative, operating and accounting policies through active communication with operating management and the external auditors.
Oversight of the Risk Management System
- To oversee the establishment and implementation by management of a system for identifying, assessing, monitoring and managing material risk throughout the Company. This system will include the Company’s internal compliance and control systems.
- To review at least annually the Company’s risk management systems to ensure the exposure to the various categories of risk are minimised prior to endorsement by the board.
- To evaluate the Company’s exposure to fraud.
- To take an active interest in ethical considerations regarding the Company’s policies and practices.
- To monitor the standard of corporate conduct in areas such as arms-length dealings and likely conflicts of interest.
- To identify and direct any special projects or investigations deemed necessary.
- To ensure the appropriate engagement, employment and deployment of all employees under statutory obligations.
- To ensure a safe working culture is sustained in the workforce.
- To determine the Company’s risk profile describing the material risks, including both financial and non-financial matters, facing the company.
- To regularly review and update the risk profile.
Remuneration And Nomination Committee Charter
Due to the size and scale of its operations, the Company currently does not have a separate Remuneration and Nomination Committee. The roles and responsibilities of a Remuneration and Nomination Committee are currently undertaken by the full Board.
The Remuneration & Nomination Committee shall be appointed by the Board from among the non-executive Directors of the Company and shall consist of not less than three members with the majority being independent Directors.
Directors will be appointed to the Remuneration and Nomination Committee for a term of three years or such shorter time as they remain in the office of Director. Directors may not serve consecutive terms on the Remuneration and Nomination Committee.
The Company will, where possible, limit the use of Executive Directors to serve on the Remuneration Committee in order to address the potential for, or perception of, conflict of interest or Executive Director involvement in Board decisions on their remuneration packages.
The Remuneration and Nomination Committee shall appoint an independent Director as the Chairman of the Committee.
The Company Secretary shall be the Secretary of the Remuneration and Nomination Committee.
A quorum shall be two members, however the Remuneration Committee shall be of a sufficient size and independence to discharge its mandate effectively.
Remuneration and Nomination Committee meetings will be held not less than once a year to enable the Committee to undertake its role effectively.
The Secretary shall circulate the minutes of the meetings of the Remuneration and Nomination Committee to all members of the Committee for comment and change before being signed by the Chairman of the Committee and circulated to the Board with the Board papers for the next Board meeting. The minutes are to be tabled at the Board meeting following the committee meeting along with any recommendations of the Remuneration and Nomination Committee.
If requested by the Board, the Remuneration and Nomination Committee shall also report on the Company’s progress against its workplace diversity objectives for inclusion in the Annual Report.
The duties of the Committee are set out below.
The remuneration duties of the Committee are to:
- Assist the Board in fulfilling its responsibilities in respect of establishing appropriate remuneration levels and policies including incentive policies for directors and senior executives.
- Assess the market to ensure that senior executives are being rewarded commensurate with their responsibilities.
- Obtaining the best possible advice in establishing salary levels.
- Set policies for senior executives’ remuneration which includes the ability to seek input from senior executives on the remuneration policies but no senior executives will be directly involved in deciding their own remuneration.
- Review the salary levels of senior executives and make recommendations to the Board on any proposed increases.
- Propose, for full Board approval, the terms and conditions of employment for the Managing Director.
- Review the Company’s recruitment, retention and termination policies and procedures for senior management.
- Review and make recommendations to the Board on remuneration by gender.
- Review and make recommendations to the Board on the Company’s incentive schemes and
- Review and make recommendations to the Board on the Company’s superannuation arrangements.
The nomination duties of the Committee are to:
- Develop and regularly review a policy on Board structure.
- Ensure a transparent Board selection process takes place in searching for and selecting new directors to the Board and provide reports to Shareholders on the processes undertaken.
- Develop criteria for Board membership and identify the factors taken into account in the selection process.
- Identify and screen specific candidates for nomination having regard to any gaps in the skills and experience of the directors on the Board and ensuring that a diverse range of candidates is considered.
- Ensure there is an appropriate induction and orientation program in place and in particular, ensure that new Directors gain an understanding of the culture and values of the Company, meeting arrangements and director interaction with each other, senior executives and senior stakeholders.
- Make recommendations to the Board for committee membership.
- Obtain a statement from the Board as to whether it supports the nomination of the proposed candidate(s).
- Ensure there is an appropriate Board succession plan in place to maintain an appropriate mix of skills, experience, expertise and diversity on the Board.
- Ensure the performance of the Board and its members is regularly reviewed.
- Develop with Directors an appropriate training and development program.
- Oversee management’s succession planning including the Managing Director and his/her direct reports.
- Assist the Chairman in advising Directors about their performance and possible retirement; and
- Review the policy in respect of tenure, remuneration and retirement of Directors.
Workplace Diversity Policy
This section of the Company’s corporate governance document sets out the Company’s policy on workplace diversity. The Company recognizes the benefits arising from employee and the importance of benefiting from all available personnel. The Company will promote a diverse environment which is conducive to the appointment of well qualified personnel so there is appropriate diversity which will assist with maximizing the achievement of the goals of the Company.
The Board has a commitment to promoting a corporate culture that is supportive of diversity and encourages the transparency of Board processes, review and appointment of Directors. The Board (or if requested by the Board, the Remuneration and Nominations Committee) are responsible for developing policies in relation to the achievement of measurable diversity objectives and the extent to which they will be linked to the Key Performance Indicators for the Board, CEO and senior executives.
The Company’s strategies may include:
- Recruiting from a diverse range of candidates for all positions, including senior executive roles and Board positions.
- Reviewing pre-existing succession plans to ensure that there is a focus on diversity.
- Encourage female participation across a range of roles across the Company.
- Review and report on the relative proportion of women and men in the workforce at all levels of the Company.
- Articulate a corporate culture which supports workplace diversity and recognizes that employees at all levels of the Company may have domestic responsibilities.
- Develop programs to encourage a broader pool of skilled and experienced senior management and Board candidates, including, workplace development programs, mentoring programs and targeted training and development.
- Any other strategies that the Board or the Nomination Committee develops from time to time.
If requested by the Board, the Remuneration and Nominations Committee will report on the Company’s progress against the objectives and its strategies for achieving a diverse workplace. The report will also include the proportion of female employees in the Company at senior management level and at Board level for inclusion in the Annual Report each financial year.
Continuous Disclosure Policy
The Company is committed to:
- Ensuring that shareholders and the market are provided with full and timely information about its activities;
- Complying with the continuous disclosure obligations contained in the ASX Listing Rules and the applicable sections of the Corporations Act in Australia; and
- Providing equal opportunity for all stakeholders to receive externally available information issued by the Company in a timely manner.
The Company’s Disclosure Policy covers financial markets communication, media contact and continuous disclosure issues. It forms part of the Company’s corporate policies and procedures and is available to all staff.
The Company Secretary manages the policy. This policy will develop over time as best practice and regulations change and the Company Secretary will be responsible for communicating any amendments.
The Company will immediately notify the market via an announcement to the ASX of any information concerning the Company that a reasonable person would expect to have a “material” effect on the price of the Company’s shares or securities or influence an investment decision on those securities.
The Company will ensure that it does not communicate material price sensitive information to an external party expect where that information has previously been disclosed to the ASX.
ASX Disclosure Carve-Outs
Disclosure is not required, where all of the three following requirements are met:
- A reasonable person would not expect the information to be disclosed;
- The information is confidential and ASX has not formed the view that the information has ceased to be confidential; and
- One or more of certain conditions contained in ASX Listing Rule 3.1.3 are satisfied being:
- It would be a breach of a law to disclose the information.
- The information concerns an incomplete proposal or negotiation.
- The information comprises matters of supposition or is insufficiently defined to warrant disclosure.
- The information is generated for the internal management purposes of the entity.
- The information is a trade secret.
Information is considered material if there is a substantial probability that the information would influence investors in deciding whether to invest in or divest the Company’s securities. In particular, results of drilling and sampling programs, economic studies and earnings forecast guidance will not be provided to the market where this has not been released to the market in general.
Reporting of Material Information
The Company’s protocol in relation to the review and release of ASX announcements (and media releases) is as follows:
- Information is determined by the Board, Company Secretary or other employee of the Company as being of a type or nature that may warrant disclosure to the ASX;
- If not known by the Executive Director, all information should be reported to the Executive Director;
- The Executive Director will determine the nature and extent of the information and consult with the Board and Company Secretary to determine the form and content of any ASX Release;
- The Executive Director will agree on the text of the proposed release and will be responsible for ensuring that Company establishes a vetting procedure to ensure that the announcements are factual and do not omit any material information. The Executive Director will also be responsible for ensuring that Company announcements are expressed in a clear and objective manner that allows investors to assess the impact of the information when making investment decisions. The Company Secretary may also be required to draft the release for review and will liaise with the Executive Director and Chairman to ensure all announcements are made in a timely manner;
- Depending on the nature of the release, the sensitivity of the information, availability of the Board, the Executive Director and Chairman will then determine whether the Board,as a whole, should be involved in the review of the Release;
- The Company Secretary will then release the ASX Release to the market, and ensure that the website is updated.
The Company will not release publicly any information required to be disclosed through the ASX until cleared by the ASX.
Only authorised persons are allowed to make public statements to external parties, shareholders, investors, stockbroker’s analysts or the media in relation on any matters affecting Kinetiko Energy Limited.
Currently, those persons authorised are:
- The Chairman
- The Executive Director
- Or their delegates nominated for that purpose.
Those authorised employees may clarify information that the Company has publicly released but will not comment on material price sensitive issues that have not been disclosed to the market generally.
Any staff member who receives a request for comment from an external third party is to refer the enquiry to the Executive Director.
Distribution of Information
All information released to the ASX after clearance from the ASX will be promptly placed on the Company’s website, the latest within 24 hours.
Any substantive written material or presentations made to institutions, stockbrokers or shareholders, which do not contain material information, will be placed on the company web site prior to such presentations and be sent to the ASX.
The Company’s employees and contractors must be made aware of the disclosure policy. Employees or contractors must disclose any information which comes to their attention and is believed to potentially be material to the Company Secretary or Executive Director.
Employees and contractors must be made aware of the “no comment policy” to external parties on any matters which may be material to the Company.
The Company may request a trading halt to maintain orderly trading in the Company’s shares or securities. The Company Secretary will manage the process in consultation with the Chairman, Executive Director and Directors as required.
Contact with the Market
Key executives interact regularly with the market on the Company’s activities in a number of ways, including briefings, market announcements, regular updates on industry issues, one-on one briefing, meetings and educational sessions.
In addition, the Company occasionally provides background and technical information to institutional investors and stockbroking analysts to support announcements made to the ASX about the Company’s on-going business activities.
At all times when interacting with external individuals, investors, stockbroking analysts and market participants, the representatives of Kinetiko Energy Limited should adhere to the guiding principle set out in this policy.
Open Briefings to Institutional Investors and Stockbroking Analysts
The Company may hold open briefings (i.e. where all members of a relevant group are invited) with shareholders, investors and/or stockbroking analysts to discuss information that has been released to the market.
Representatives of Kinetiko Energy Limited are under the obligation of this policy and should not disclose any material price or value sensitive information that has not been announced to the market generally.
With regards to open briefings, the Company will place any written briefing and presentation materials onto their website at the conclusion of the briefing; and for the purposes of this policy, public speeches and presentations by the Company’s Chairman or Executive Director will be classed as ‘open briefings’.
One-on-one Briefings with Stockbrokers, Analysts and Institutional Investors and Shareholders
It is in the interests of the Company’s shareholders that stockbroking analysts have a thorough understanding of the Company business operations and activities. In addition other professional investors seek to better understand certain aspects of the company’s strategy.
From time to time, the Company participates in one-on-one briefings with various investment professionals. At these briefings the Company may provide background and technical information to assist these people in their understanding of the Company’s business activities. The Company’s policy is that no previously undisclosed material price or value sensitive information will be disclosed at these briefings.
For the purposes of this policy a one-on-one briefing includes any communication between the Company and a stockbroking analyst including, for example, phone calls or e-mails made to the Company’s Executive Director. Any written materials to be used at open or one-on-one briefings with institutional investors or stockbroking analysts will be reviewed by the Executive Director to ensure all information has previously been disclosed to the market. Where this is not the case, the information will be disclosed in the manner outlined above.
Review of Analyst Reports
The Company recognises the important role performed by analysts in assisting the establishment of an efficient market with respect to the Company’s securities. However, the Company is not responsible for, and does not endorse, analyst reports that contain commentary on the Company. The Company will keep a record of issues discussed at group or one to one briefings with investors and analysts including a list of who was present and the time and place of the meeting.
The Company will not provide non-disclosed material price or value sensitive information in response to such reports. The information may be reviewed only to correct factual inaccuracies. Any correction of factual inaccuracies by the Company does not imply endorsement of the content of these reports.
The Company will only comment on results of exploration and sampling programs and financial outcomes and other forecasts that may be contained in this type of information in line with previously publicly released comment.
Managing Market Speculation and Rumours
Market speculation and rumours, whether substantiated or not, have a potential to impact the Company’s share price. Speculation may also contain factual errors that could materially affect the company.
The Company’s general policy on responding to market speculation and rumours is that “the Company does not respond to market speculation or rumours”. However the Company may issue a statement in relation to market speculation or rumour where and when it considers in necessary.
Speculation may result in the ASX formally requesting disclosure by the Company on the matter, in which case the Company will respond to the request.
Shareholder Communications Policy
The Board of Directors aims to ensure that Shareholders are informed of all major developments.
Information is communicated to Shareholders as follows:
Reports to Shareholders
The Annual Report is distributed to all Shareholders (unless a Shareholder has specifically requested not to receive the Report). The Board ensures that the Annual Report includes relevant information about the operations of the Company during the year, changes in the state of affairs of the Company and details of future developments, in addition to the other disclosures required by the Corporations Act 2001.
The Half-yearly Report contains summarised financial information and a review of the operations of the Company during the period. Half-yearly reviewed Financial Statements prepared in accordance with the requirements of Accounting Standards and the Corporations Act 2001 are lodged with the Australian Securities & Investments Commission and the Australian Securities Exchange. The Financial Statements are sent to any Shareholder who requests them.
Regular reports are released through the Australian Securities Exchange and the media.
Annual General Meetings
The Board encourages full participation of shareholders at the Annual General Meeting to ensure a high level of accountability and identification with the Company’s strategy and goals. The Company will use general meetings as a tool to effectively communicate with shareholders and allow shareholders a reasonable opportunity to ask questions of the Board of Directors and to otherwise participate in the meeting. The external auditor of the Company will be asked to attend each Annual General Meeting of the Company and be available to answer shareholder questions about the conduct of the audit and the preparation of the auditor’s report.
The Company is committed to maintaining a Company website with general information about the Company and its operations and information specifically targeted at keeping the Company’s shareholders informed about the Company.
In particular, where appropriate, after confirmation of receipt by the ASX, the following will be posted to the Company website:
- Relevant announcements made to the market via the ASX
- Media releases
- Investment updates
- Company presentations and media briefings
- Copies of press releases and announcements for the preceding three years and
- Copies of annual and half yearly reports including financial statements for the preceding three years
While the Company aims to provide sufficient information to shareholders about the Company and its activities, it understands that shareholders may have specific questions and require additional information. To ensure that shareholders can obtain all relevant information to assist them in exercising their rights as shareholders, the Company has made available a telephone number and relevant contact details (via the website) for shareholders to make their enquiries. The Company intends to keep a summary records for internal use of the issues discussed at group or one-on-one briefings with investors and analysts, including a record of those present (names or numbers where appropriate) and the time and place of the meeting.
Review of Shareholder Communications
This Policy will be formally reviewed by the Board each year.
Risk Management Policy
Identification of Risk
The Board is responsible for the oversight of the Company’s risk management and control framework. Responsibility for control and risk management is delegated to the appropriate level of management within the Company with an Executive Director having ultimate responsibility to the Board for the risk management and control framework.
The primary objectives of the risk management system at the Company are to ensure:
- All major sources of potential opportunity for and harm to the Company (both existing and potential) are identified, analysed and treated appropriately.
- Business decisions throughout the Company appropriately balance the risk and reward trade off.
- Regulatory compliance and integrity in reporting is achieved; and
- Senior management, the Board and investors understand the risk profile of the Company.
In line with these objectives the risk management system covers:
- Operational risk.
- Financial reporting.
- Compliance / regulations.
- System/IT process risk.
Arrangements put in place by the Board to monitor risk management include:
- Monthly reporting to the Board in respect of operations and the financial position of the Company.
- Quarterly rolling forecasts prepared.
- Circulate minutes of relevant Committees to the Board and the Chairman of each respective committee and provide a report to the Board on an annual basis.
A risk management model is also being developed and will provide a framework for systematically understanding and identifying the types of business risks threatening the Company as a whole, or specific business activities within the Company.
Material Business Risks & Reporting
Given the speculative nature of the Company’s business it is subject to general risks and certain specific risks. Some of these risks include but are not limited to the following:
- Liquidity risk.
- Commodity and currency price volatility.
- Economic and political uncertainties.
- Operating risks.
- Loss of key personnel.
- Title risks and native title.
- Environmental risks.
- Reliance on strategic partners.
- Exploration success.
- Capital requirements.
The analysis and evaluation criteria are used to continually assess the impact of risks upon the Company’s business objectives. Management is responsible for the development of risk mitigation plans and the implementation of risk reduction strategies. The annual business planning process includes careful consideration of internal and external risk profile of the company.
The Executive Director and Chief Financial Officer (or equivalent) will report monthly to the board on the areas they are responsible for, including material business risks and provide an annual written report to the Board summarising the effectiveness of the companies’ management of material business risks.
The Company’s business risk management process provides a comprehensive, integrated approach for carrying out risk management activities. This process will allow management to minimise the potential impact of business risks in achieving objectives to create and protect shareholder value.
Integrity of Financial Reporting
The Company’s Chief Executive Officer and Chief Financial Officer (or equivalent) are required to report in writing to the Board (as required by section 295A of the Corporations Act) that:
- The financial statements of the Company and its controlled entities (where appropriate) for each half and full year present a true and fair view, in all material aspects, of the Company’s financial condition and operational results and are in accordance with accounting standards.
- The above statement is founded on a sound system of risk management and internal compliance and control which implements the policies adopted by the Board.
- The Company’s risk management and internal compliance and control framework is operating efficiently and effectively in all material respects.
Note: Under the provisions of the Corporations Act a person performs a chief executive function in relation to the Company if the person is the person who is primarily and directly responsible to the directors for the general and overall management of the Company. In addition, in the event that there is not a Chief Financial Officer in place, the Corporations Act provides that a person performs a chief financial officer function in relation to the Company if that person is the person who is primarily responsible for financial matters in relation to the Company and directly responsible for those matters to either the directors or the person or persons who perform the chief executive function in relation to the Company.
The persons fulfilling these respective roles will be identified by the Board with the appropriate declarations made as required.
Security Trading Policy
This document sets out the Company’s policy on the sale and purchase of its securities by its Directors, employees and contractors.
The purpose of this policy is to:
- impose ”Black-out” periods at various times during the year, particularly in periods leading up to an announcement of results, during which trading of the Company’s securities by Directors, employees and contractors is prohibited; and
- set out procedures to reduce the risk of insider trading.
A basic explanation on insider trading is provided together with the steps taken by the Company to prevent the practice, including:
- a description of what conduct may constitute insider trading.
- the windows when Directors, employees and contractors are permitted to buy or sell securities in order to minimise the risk of insider trading.
- the steps to take when buying or selling securities in the Company.
Definition of Insider Trading
Insider trading is a criminal offence. A person will be guilty of insider trading if:
(a) That person possesses information in relation to a company which is not generally available to the market, and if it were generally available to the market, would be likely to affect the price or value of that company’s securities (i.e. information that is “price sensitive”) and
(b) That person:
(i) buys or sells securities in the company;
(ii) procures someone else to buy or sell securities in the company; or
(iii) passes on that information to a third party where that person knows, or ought reasonably to know, that the third party would be likely to deal in the securities or procure someone else to deal in the securities of the company.
Price sensitive information means information relating to the Company that would, if the information were publicly known, be likely to:
- Have a material effect on the price or value of the its shares
- Influence persons who invest in securities in deciding whether or not to buy or sell the company’s shares
The following are examples of price sensitive information which, if made available to the market, would be likely to affect the price of the Company’s securities:
- The Company is considering the acquisition of another company,
- Product testing results confirming (or falling short of) the market’s expectations.
Dealing Through Third Parties
A person does not need to be a Director, employee of Company to be guilty of insider trading in relation to securities in the Company. The prohibition extends to dealings by anyone, including Directors’ and employees’ nominees, agents or other associates, such as family members, family trusts and family companies, as well as customers and suppliers.
Contractors and External Advisors
Contractors employed by the Company shall be informed of this policy when they are appointed and are required to adhere to the policy so long as they are contracted by the Company. Breach of the policy may lead to termination of contract arrangements.
The Company’s staffs dealing with external advisers needs to ensure that the advisers are aware of the insider trading rules and where these dealings cover material matters, that the issue of insider trading is covered in confidentiality documents.
Meaning of Securities
The rules covers shares in the Company, derivatives related to the Company’s shares, whether issued by the company or not and to any traded company options. It also applies to the exercise of options, including employee options.
Directors, employees and contractors , where they possess inside information, should also not deal in securities of other companies with which the Company might have an association or be about to enter such association such as joint venture or farm in partners.
Guidelines for Trading in the Company’s Securities
Directors, employees and contractors can deal in securities of the Company in the following circumstances:
(a) they have satisfied themselves that they are not in possession of any price sensitive information that is not generally available to the public;
(b) they have contacted the Chairman or in his absence, the Managing Director and notified them of their intention to do so and the Chairman or Managing Director indicates that there is no impediment to them doing so.
Where the Chairman wishes to deal in securities, he must contact the Managing Director, or in his absence, the Company Secretary and notify them of his intention to do so and the Managing Director or Company Secretary will indicate if there is no impediment to him doing so.
The Chairman will generally not allow directors, employees and contractors to deal in securities of the Company as a matter of course in the following periods:
(a) within the period of 14 days prior to the release of annual, half yearly or quarterly results;
(b) within the period of 14 days prior to the Annual General Meeting; and
(c) if there is in existence price sensitive information that has not been disclosed because of an ASX Listing Rule exception.
Directors and executives are also excluded from dealing in securities within the period from receipt of the Board Pack and the Directors’ Meeting.
Directors, employees and contractors must wait at least 2 days after the relevant release before dealing in securities so that the market has had time to absorb the information.
This notification obligation operates at all times and applies to dealings in the Company’s securities by family members and other associates of Directors, employees and contractors as well as to personal dealings by Directors and employees. It does not apply to any issue of securities by the Company pursuant to a prospectus or like disclosure under the Corporations Law, or under employee share and option plans.
Directors, employees and contractors should not at any time engage in short-term trading in securities of the Company.
Directors, employees and contractors must not communicate price sensitive information to a person who may deal in securities of the Company. In addition, a Directors, employees and contractors should not recommend or otherwise suggest to any person (including a spouse, relative, friend, trustee of a family trust or directors of a family company) the buying or selling of securities in the Company.
This policy does not apply to trading which does not result in a change in beneficial control of the Company’s shares eg. transferring a personal holding of the Company’s shares to a superannuation fund.
Hedging unvested entitlements
(a) Entitlements under the Company’s equity based incentive plans (if any) are subject to the satisfaction of various time and/or performance hurdles to ensure alignment of employee rewards with the Company’s objectives and performance. Transactions which “hedge” the value of entitlements could distort the proper functioning of these hurdles and reduce the intended alignment with shareholder interests.
(b) Directors, and executives participating in an equity-based executive incentive plan, are prohibited from entering into any transaction which would have the effect of hedging or otherwise transferring to any other person the risk of any fluctuation in the value of any unvested entitlement in the Company’s securities.
Notwithstanding the restriction imposed by paragraph (b) above, Directors may enter into hedging transactions in respect of the Company securities held by them outside any equity based performance plan or once the securities have been vested.
However, Directors should ensure that entry into any hedging transaction occurs outside the Company’s black-out periods and otherwise complies with the Security Trading Policy.
Dealing in Exceptional Circumstances
In specific circumstances however, such as financial hardship, the Chairman may waive the requirement of a Director, employee or contractors to deal in securities outside blackout periods on the condition that the Directors, employees and contractors can demonstrate to him that they are not in possession of any price sensitive information that is not generally available to the public.
Consequences of Breach of the Security Trading Policy
Breach of the Security Trading Policy by any the Company’s employees or their family members would be exposed to criminal and civil liability.
The Company will regard breach of insider trading law or this policy as serious misconduct.
ASX Notification by Directors
ASX obliges a Director to notify the ASX within the 5 days after any dealings in Company’s securities (either personally or through a third party) which results in a change in the relevant interests of the Director in Company’s securities.
Accordingly, Directors must notify the Company Secretary immediately on acquiring or disposing of a relevant interest in any securities in the Company.
It is the individual responsibility of Directors to ensure they comply with this requirement.
I hereby acknowledge that I have read and understood the Kinetiko Energy Limited Security Trading Policy and agree to conduct any trading in the Company’s securities in accordance with the Policy.
1.1 Kinetiko is committed to conducting its business with honesty and integrity, and we expect all employees to maintain the same high standards. However, all organisations face the risk of things going wrong from time to time, or of unknowingly harbouring illegal or unethical conduct. A culture of openness and accountability is essential in order to prevent such situations occurring or to address them when they do occur.
1.2 The purpose of this policy is to:
- Encourage employees to report suspected wrongdoing as soon as possible, with the knowledge that their concerns will be taken seriously and investigated as appropriate and that their confidentiality will be respected;
- Provide employees with guidance when reporting allegations of suspected misconduct or improper activities; and
- Reassure employees that they can raise genuine concerns in good faith without fear of reprisals, even if they turn out to be mistaken.
2. Who is covered by this Policy?
The policy applies to all employees at all levels of the organisation, including senior managers, officers, directors, employees, consultants, contractors, trainees, homeworkers, part-time and fixed-term workers and casual staff (collectively referred to as “Employee” or “Employees”) of Kinetiko Energy Limited and all its subsidiaries (collectively referred to as “Kinetiko”)
3. What is unacceptable conduct?
Unacceptable conduct covered by this policy includes any conduct which:
- Is dishonest, fraudulent or corrupt;
- Is illegal, such as theft, drug sale or use, violence, harassment and intimidation, criminal damage to property or other breaches of state or federal law;
- Is unethical, such as dishonesty altering company records or data, dishonestly altering records or documents provided by Kinetiko to any regulators and third parties or adopting questionable accounting practices;
- Is potentially damaging to a Kinetiko person, such as unsafe work practices, or substantially wasting of company resources;
- Is potentially damaging to Kinetiko’s reputation;
- May cause financial loss to Kinetiko or be otherwise detrimental to Kinetiko’s interests;
- Involves any other kind of serious impropriety; or
- Jeopardises or potentially jeopardises the ability of Kinetiko to hold required licenses for its business.
4. What is whistleblowing?
4.1 Whistleblowing is the disclosure of information which relates to suspected unacceptable conduct.
4.2 A whistleblower is a person who raises a genuine concern in good faith. If you have any genuine concerns related to suspected unacceptable conduct you should report it under this policy.
5. Raising a whistleblowing concern
5.1 Employees are strongly encouraged to report actual or suspected illegal or unacceptable conduct or any breach or suspected breach of law or regulation that may adversely impact Kinetiko, Kinetiko’s shareholders, employees, investors, associated interests or the public at large.
5.2 Kinetiko maintains mechanisms for all employees, consultants, contractors, agents, customers, suppliers and service providers to report actual or suspected instances of illegal or unacceptable conduct.
5.3 Instances of behaviour involving possible fraud, bribery and corruption may be reported by employees, consultants, contractors, agents, customers, suppliers and service providers in the following manner:
- Chairman on +61 8 6211 5099 or firstname.lastname@example.org
5.4 Employees, consultants, contractors, agents, suppliers and service providers may feel that in some circumstances they wish to report suspected incidents anonymously.
5.5 Kinetiko encourages the disclosure of acts of illegal or unacceptable conduct in writing, to assure a clear understanding of the issues raised. A Whistleblower Report Form is attached at Appendix 1.
5.6 All Whistleblower Report Forms should be sent to the Chairman.
5.7 The sender will receive acknowledgement of receipt of the reported actual or suspected illegal or unacceptable conduct within five business days.
6. Investigating alleged misconduct or improper activities
6.1 The Chairman will assess the nature of the complaint and determine an appropriate response to the allegations.
6.2 Upon review of the facts of the suspected illegal or unacceptable conduct, the Chairman will, in consultation with other Board members as appropriate, determine the appropriate form of investigation.
6.3 Upon conclusion of an appropriate course of action, the Chairman will inform, to the extent necessary, the notifying party, if identified, of the outcome of any investigation conducted or decision made.
7. Outcome of investigations
7.1 The Chairman shall communicate the results of the completed investigations to the Board.
7.2 At the end of the investigation, the Board will determine the appropriate response. This response will include rectifying any unacceptable conduct and taking any action required to prevent any future occurrences of the same or similar conduct.
7.3 Where issues of discipline arise, the response will be in line with Kinetiko’s procedures for disciplinary matters. Where allegations of unacceptable conduct made against another person cannot be substantiated, that person will be advised accordingly and will be entitled to continue their role as if the allegations had not been made.
7.4 A person who has committed or been involved in unacceptable conduct will not be immune from disciplinary action merely because they have reported the unacceptable conduct in accordance with this policy. However, the person’s conduct in making the report is likely to be taken into account in determining what disciplinary action is appropriate.
7.5 If the Chairman concludes that a whistleblower has made false allegations maliciously, in bad faith or with a view to personal gain, the whistleblower will be subject to disciplinary action.
8. Protection and support for whistleblowers
8.1 Kinetiko recognises that people do not generally decide to publicly express serious concerns about the integrity of their employer or their work colleagues without a good deal of prior thought. Provided that concerns are raised in good faith, the employee will not be at risk of losing their job or suffering any form of reprisal, including being labelled a troublemaker, for coming forward, irrespective of the outcome of any subsequent investigation.
8.2 If an employee makes a report of unacceptable conduct under this policy, Kinetiko will endeavour to ensure that person’s identity is protected from disclosure. Accordingly, Kinetiko will not disclose the employee’s identity unless:
- The employee making the report consents to the disclosure;
- The disclosure is required by law;
- The disclosure is necessary to prevent or lessen a serious threat to person’s health or safety; or
- It is necessary to protect or enforce Kinetiko’s legal rights or interests or to defend any claims.
8.3 Kinetiko will also ensure that any records relating to a report of unacceptable conduct are stored securely and are only accessible by authorised staff.
8.4 Employees must not suffer any detrimental treatment as a result of raising a concern in good faith. Detrimental treatment includes dismissal, disciplinary action, threats or other unfavourable treatment connected with raising a concern. If you believe that you have suffered any such treatment, you should inform the Chairman immediately.
8.5 Employees must not threaten or retaliate against whistleblowers in any way. Anyone involved in such conduct will be subject to disciplinary action.
Related Parties Transactions and Conflicts of Interest Policy
The following definitions apply in this document.
ASX: Australian Securities Exchange
Kinetiko (or the Group): Kinetiko Energy Limited and any joint ventures under Kinetiko’s operational control.
Board: Board of Directors of Kinetiko Energy Ltd
2. RELATED PARTY TRANSACTIONS
The purpose of this policy is to establish a protocol for directors and management in negotiating and entering transactions between Kinetiko and related parties.
Transactions between Kinetiko and a related party raise a number of potential legal issues:
1) There may be an actual or perceived conflict of interest on the part of a director and a director may have a material personal interest for the purpose of section 195 of the Corporations Act (the Act);
2) a director could breach their duties owed to Kinetiko if they fail to separately consider and act in the best interests of the Company, as distinct from the interests of the related party;
3) a transaction could contravene Chapter 2E of the Act which, subject to certain exceptions, prohibits public companies from giving financial benefits to a related party of the public company without shareholder approval;
4) Directors, other persons involved in the negotiations and the related party may be liable for civil penalties for a breach of Chapter 2E;
5) the ASX Listing Rules may require approval of the shareholders of Kinetiko where Kinetiko acquires or disposes of a substantial asset, or issues equity securities, to certain related and other parties.
3. WHO IS A RELATED PARTY OF KINETIKO?
1) For the purpose of Chapter 2E, related parties of Kinetiko include:
a. a director of Kinetiko or members of that director’s immediate family such as a spouse, parent or child;
b. any entity which has the ability to control Kinetiko (Controlling Entity);
c. directors of any Controlling Entity and their immediate families;
d. other entities controlled by any of the above parties;
e. an entity which was a related party to Kinetiko within the previous 6 months;
f. an entity that believes it will become a related party in the future; and an entity acting in concert with a related party.
2) ‘Control’ exists where a person has the ability to determine decisions in relation to the financial and operating policies of another entity.
3) The definition of ‘related party’ for the purpose of the ASX Listing Rules is similar.
4. WHAT DOES ‘GIVING A FINANCIAL BENEFIT’ INVOLVE?
1) For the purpose of Chapter 2E, giving a financial benefit is interpreted broadly under the Corporations Act, having regard to the substance rather than the form of the transaction, and includes giving a financial benefit indirectly. Where there is a purchase or sale transaction, both parties to the transaction are ‘giving a financial benefit’ to the other. The fact that there is payment of consideration for the benefit, even if fair value, does not cause the transaction to escape Chapter 2E of the Act.
2) Examples of giving a financial benefit include:
a. giving or providing finance or property;
b. buying or selling an asset;
c. leasing an asset;
d. supplying or receiving services;
e. issuing securities or granting options; and
f. taking up or releasing an obligation.
5. SHAREHOLDER APPROVAL UNDER CHAPTER 2E – EXCEPTIONS
1) Shareholder approval will not be required for a related party transaction where the following circumstances apply:
a. benefits to closely held (i.e. wholly owned) subsidiaries;
b. where the transaction is conducted on an arm’s length basis (or more favourable to Kinetiko than an arm’s length basis);
c. the financial benefit consists of reasonable remuneration or reimbursement to employees or officers;
d. payment of reasonable indemnities, insurance premiums and legal costs;
e. small amounts paid to a director (less than $5,000);
f. benefits that do not discriminate unfairly between members; and
g. payments made under an order of court.
6. SHAREHOLDER APPROVAL UNDER THE LISTING RULES
1) Subject to a number of exceptions, under ASX Listing Rule 10.1, Kinetiko may not, without the approval of non-associated shareholders, acquire a substantial asset from, or dispose of a substantial asset to:
a. a related party;
b. a subsidiary;
c. a substantial shareholder who has or who had at any time within 6 months prior to the transaction an interest in at least 10% of the voting securities in the Company;
d. an associate of any of the persons referred to above; or
e. a person whose relationship to Kinetiko or to a person referred to above is such that, in Australian Securities Exchange (ASX) ASX’s opinion, the transaction should be approved by the shareholders in the Company.
2) An asset is a ‘substantial asset’ if its value, or the value of the consideration is, or in ASX’s opinion is, 5% or more of the equity interests in the Company.
3) The ASX may deem shareholder approval is necessary even where the transaction falls below the 5% threshold in certain circumstances.
4) Subject to a number of exceptions, under ASX Listing Rule 10.11, shareholder approval may be required for an issue of equity securities to a related party.
7. PROCEDURES FOR RELATED PARTY TRANSACTIONS
1) All proposed or potential related party transactions must be disclosed to the Board of Kinetiko before they are entered into.
2) All related party transactions must be undertaken on arm’s length terms or otherwise in compliance with Chapter 2E and the ASX Listing Rules.
3) Consideration of all proposed or potential related party transactions must be undertaken in compliance with section 195 of the Corporations Act, which may preclude a director.
4) Arrangements concerning related party transactions should generally be negotiated at arm’s length by persons who are independent of the related party. This may require an independent committee of the Board to be formed to supervise negotiations.
5) All related party transactions should generally be approved only by independent members of the Board of Kinetiko. Both before and during a related party transaction, it should be ensured the transaction meets the following criteria:
i. It is in the best interests of existing shareholders – the obligation to act in the best interests of shareholders means that the Board is required to ensure that related party transactions are conducted at arm’s length and on commercial terms.
ii. Fair value and reasonable – the terms negotiated of the transaction must be at least as good as, or better than it would receive if it were dealing at arm’s length on a commercial basis.
iii. Properly documented – including records to justify the price and any other terms and conditions upon which the related party transaction is entered into, in particular the rationale for entering into the transaction.
iv. Independent Report – report as to the reasonableness of the price and other terms and conditions may be appropriate in certain circumstances
v. Appropriate disclosure.
6) Independent advice should be sought (where appropriate) in relation to whether a related party transaction is permitted by the Chapter 2E or the ASX Listing Rules, requires shareholder approval, is on arm’s length terms or requires disclosure to the market.
8. CONFLICTS OF INTEREST
Under the Corporations Act and general law, directors and officers must avoid situations where their interests and the interests of the company conflict. Each director and officer has a duty to avoid conflicts of interest. Interests which give rise to a conflict include, without limitation:
1) other directorships
2) potentially conflicting duties owed to other entities
3)outside investments of the director and officer and their related parties; and
4) outside employment of engagements.
This policy intends to provide guidance to directors and officers in complying with their obligations to take all reasonable steps to avoid actual, potential or perceived conflicts of interests.
9. DECLARATION OF INTERESTS
Directors and officers are required to comply with the company’s Code of Conduct, which amongst other things, imposes obligations in relation to conflicts of interest. In addition to those obligations, directors and officers must comply with the following requirements:
1) They must take all reasonable steps to avoid actual, potential or perceived conflicts of interests.
2) In accordance with the Corporations Act, directors must disclose any conflicts of interest and, in certain circumstances, abstain from participating in any discussion or voting on matters in which they have a material personal interest.
3) In the event that a director or officer becomes aware of any current or potential conflicts of interest, the director must immediately notify the Chair or the Company Secretary.
4) Directors may choose to submit standing notices of interest to all board members, or must disclose his or her interest in a matter being considered by the board at that time.
5) Directors and officers are expected to be sensitive to actual and perceived conflicts of interest that may arise and give ongoing consideration to this in view of the changing nature of the company’s business
6) All related party transactions require proper approval from the board in accordance with the Related Party Transactions section of this policy.
7) Director and officers must obtain the company’s consent before disclosing company information to another company or third party.
10. PROCEDURES TO MANAGE CONFLICTS OF INTEREST
Generally speaking, directors:
1) must disclose to the board any actual or potential conflicts of interest which may exist of might reasonably be thought to exist as soon as they arise;
2) cannot receive the relevant board or board committee papers if the actual or potential conflict is recognised in advance of the circulation of the papers unless the other directors agree otherwise;
3) must absent themselves from the room when the board or committee discusses and votes on matters to which the conflict relates unless the other directors resolve that the director in question may stay;
4) cannot vote on the matter unless the other directors resolve that the director in question can vote;
5) must, if deemed appropriate by the board of the director, take such other steps as are necessary and reasonable to resolve any conflict of interest within an appropriate period.