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 AGREEMENT FOR THE FORMATION





OF A JOINT VENTURE COMPANY


BETWEEN


LA GENERALE DES CARRIERES ET DES MINES DU DRC, a State


company duly incorporaled in lhe DRC, with its registered office at 419.


Kamanyola Avenue. P O Box 450, Lubumbashi, DRC (“Gecamines”);


AND


TREMALT LIMITED


1. PARTIES


1.1. GECAMINES


1.2. TREMALT LIMITED


2. DEFINITIONS AND GENERAL PROVISIONS


2.1 The head notes io lhe clauses of this Agreement are inserted for


référence purposes oniy and shall in no way govern or affect the


interprétation hereof.


2.2 Unless inconsislent with lhe context, the expressions set forth below.


whether used as a verb or a noua, shall bear the following meanings:


O / z/Z1


2.2.1 “the Act” means Act N° 81 - 013 of 2 April 1981 on


general législation pertaining to mines and











hydrocarbons in the DRC;


2.2.2 “the agreement / this means the Mining Convention and Joint


Agreement/lhe Venture Agreement set out in this document


Convention" and includes ail appendices or other


annexure hereto;


2.2.3 “Auditor" means the auditors of KMC for the time


being;


2.2.4 “the Board" means the hoard of dircctor KMC as


constituted from time to time;


2.2.5 "Business Day" means any day other than a Saturday,


Sunday or an official public holiday in the


DRC;


2.2.6 “KMC" means the Joint Venture Company new


company to be incorporatcd in the DRC, as


contemplated in clause 5 below.





•Commercialisation" means the marketing and sale of extracted


minerais, including cobalt, copper and othcr





mêlais, in any format, including crushed,


concentrated, refined, metallurgically


processcd or any on the world market;


2.2.8 “Concession Area" means the demarcated area outlined in red on


the plan attached hereto as Annexure “A”


initialled by the parties for identification





purposes, which area includes ail the


Concessions, Quarries and Mines excluding


Likasi;


2.2.9 “the Concessions” means Concessions identified on Annexure


“K” to this Agreement , and any other


Mining and/or Quarry Rights, which entail


ail rights in terms of a mining permit or


mining tille granted under the provisions of


the Act, to mine Minerais in the area in


 respect whereof the Concession is granted;





2.2.10 “Dollars or $” Means United States Dollars, as the official


currency of the United States of America on


the Signature Date;


2.2.11 “DRC/the DRC” Means the sovereign country known as the


Démocratie Republic of the Congo.


2.2.12 “Exploration” the activity hy which a party intends to


search for minerai deposits by way of


exploration works which disturb the surface


of the earth;


2.2.13 “Gecamines” Means the party defined in clause 1.1 above;


2.2.14 “TREMALT Means the party deftned in clause 1.2 above;


LIMITED”





2.2.15 “Management Team” Means those members of KMC personnel


front time to time contracted or employed or


appointed by KMC who are vested with the


day to day management of KMC;


2.2.16 “Metals” Means metallurgically proccssed minerais;


2.2.17 “Minerals/Mineral means any minerai substance which is the


Deposits/Ore subject of any of the Concessions or Quarry


Deposits” Rights transferred to KMC pursuant to this


Agreemcnt, occurring naturally in or on or


undernealh the earth, in or under water,


which minerai substance may hâve value and





which has been formed by or subjected to


some geological process, excluding water, in


any format or dérivative;





2.2.18 “the Minerai Rights / shall include but not be limitcd to ail


the Mining Titles” reconnaissance, prospecting, exploration,


rétention and mining licences, permissions


and Concessions to Minerais such as Coopcr,


- Cobalt Deposits and Quarry Substances,


issued by the DRC authorities (or its


predecessors) under previous, pfeyailing or


 lULUJC


the Act;





2.2.19 “the Mining Zone / means the entire geographical area wherein


the Mines” KMC may conduct its exploration, research


and mining operations in the Concession


Area, being an area duly surveyed, with its


perimeter boundaries demarcated and


beaconed, as more fully illustrated in


Annexure “A” hereto, comprising no less


than the individual Minerai Deposits and


quarries set in Annexure “L” to this


Agreement;


2.2.20 “Mining/Mining means the activity by which, from a Minerai


Operations” Deposit sufficiently explored, by means of


either opencast or surface or underground


works, to an unlimited depth, a party extracts


Minerais, refînes same, and transforms it into


any dérivative or format thereof with value,


where after the Minerais are commercialised;


2.2.21 “Non-Project means any production arising from mining or


Production” exploitation or processing of Minerais other


than in terms of the Mining Operations


contemplated herein;


2.2.22 “the Project” means the joint venture Project hereby


undertaken by the parties comprising of the


conception, exploration, development


exploitation and mining operations


undertaken in the Concession Area,


including the marketing and


commercialisation of the extracted Metals;


2.2.23 “the Signature Date” the date on which the last party to sign this


Agreement, signs it;


2.2.24 “Tailings” means the discards from the processing of


minerais located within the Conception Area


and identified in Annexure “F" hereto;


2.2.25 “year means a calendar year;





2.3. Unless inconsistent with the context, an expression which dénotés :


2.3.1 Any gender includes the other gender;


2.3.2 A natural person includes an artificial person and vice versa;


2.3.3. The singular includes the plural and vice versa


2.4. Any annexure and schedules to this Agreement form an intégral part


hereof and words and expression defined in this Agreement shall,


unless the context otherwise requires, the meaning in such annexures





and schedules, and définitions in this clause 2 must inter alia be


interpreted in accordance with any substantive provisions contained


in this “Interprétation” clause.





2.5 Any term or word utilized in this Agreement shall, unless expressly


or contextually stated otherwise, bear the meaning ascribed thereto


in the Act.








INTRODUCTION





3.1 Gecamines, a State company with an industrial and commercial


character and vested with legal personality, the entire share capital


whereof is 100 % (one hundrcd per centum) owned by the DRC, is





the registered holder of respectively ail the Minerai Rights, Mining


Titles, Concessions and Quarry Rights in the Mining Zone, and


owner of the Processing Equipment defined above.





3.2 TREMALT LIMITED is a private company registered in Switzerland


with its headquarters located 6 Boulevard George Favon in Geneva.





3.3 TREMALT LIMITED wishes to conclude a Joint Venture agreement


with Gecamines for the incorporation of K.MC, whereby the Project


hereby constituted will enable K.MC to mine and process the


Minerais found in the Mining Zone, on the terms and conditions


hercin contained, to the mulual benefit of the parties hereto.





3.4 It is further recorded thaï :





3.4.1 The proposed exploitation of the Minerai Rights within the Mining


Zone will fall within the framework. of DRC’s policy topromote the


 6


value of the counlry’s minerai resources, train domestic manpower,


create jobs, transfer technology and elevate the population’s standard


of living;


3.4.2 The execution of the proposed mining Project will require a large


investment and substantial foreign financing will be necessary to


complément KMC’s share capital;


3.4.3 Considering the risks involved in such a mining project, the


procurement of foreign loans will be impossible unless, during the


investment period, the Project generates enough net profits from


operations to ensure the repayment of these loans;


3.4.4 The complète success of the Project will require stable and durable


legal, fiscal and économie conditions under which KMC can conduct


its operations;


3.4.5 The Project will resuit in greater économie activity and employaient


in the concession Area and its surrounding régions, as well as large


foreign export revenue for DRC;


3.5. TREMALT LIMITED and Gecamines wish to exploit Minerais in the


Mining Zone by way of a joint shareholding in KMC, based upon the


joint venture relationship provided for herein.


4 JOINT VENTURE


This Agreement is conceived as and shall constitute a joint venture


between TREMALT LIMITED and Gecamines, with effect from the


Signature Date, subject however in ail respects to the terms and


conditions and limitations hereof, with the purpose of profitable


exploitation and processing of Minerais extracted from the Mining


Zone, and each shall accordingly act as a joint venturer towards the


other with the sanie good faith upon the terms of this Agreement and


subjcct to the conditions hereof, provided however that nothing


herein contained shall be deemed to constitute a partnership between


the parties, or create any several liability, and the Parties hereto


accordingly reciprocally indemnify each other against any daims


which may be made against the one in relation to the obligations or


liabilities of the other, including obligations which were incurred


prior to --- or after the Signature Date.


5. INCORPORATION OF KMC


5.1 TREMALT LIMITED and Gecamines shall endeavour to procure the


incorporation as soon as possible of a company being a “société


privée à responsabilité limitée” to be known as KABAMBANKOLA


MINING COMPANY(KMC). TREMALT LIMITED shall be entitled


to seule the nature, constitution, initial capitalization, share


structure, notarial status documents, and ail other matters affecting


the registration, formation and incorporation of KMC.


5.2.1 Upon incorporation of KMC, or as soon as reasonably possible


thereafter, KMC shall procure the issue and allotment to respectively


Gecamines of 20 % (twenty percent) of the issued share capital of


KMC, and to TREMALT LIMITED of 80 % (eighty percent) of


KMC's issued share capital. Gecamines shall obtain its shareholding


free of any considération additional to what is provided for in this


Agreement. The Auditors shall be obliged to ensure that the formai


share registers of KMC contain ail relevant information in order to


accurately reflect the sharcholdings.


5.2.2 TREMALT LIMITED shall, during the subsistence of this


Agreement, notwithstanding anything to the contrary contained in


the founding documents or other constitutional documents of KMC,


be at liberty to sell, and to offer for sale, its shareholding (or any


portion thereof) in KMC to any third party of its élection.


5.2.3 At any stage after incorporation of KMC, Gecamines and TREMALT


LIMITED, as KMC's sole sharehoiders, may at their discrétion


further define their rclationship by of a sharehoiders agreement,


which must be signed by both parties.


6 WARRANTIES


6.1 Gecamines warrants and undertakes in favour of KMC, that as the


Signature Date hereof, and furthermorc at the date of cession of the


Minerai Right and Concessions to KMC, as contemplated herein :


6.1.1 In respect of ail the Minerai Rights and each and ail of the


Concessions :


6.1.1.1 Ail laws applicable thereto and to operations in terms thereof hâve


been complied with in ail respects by Gecamines^----jf


 8





6.1.1 .2 Gecamines is not in breach of any of its obligations;


6.1.1.3 No threats of cancellation, termination, withdrawal, invalidity,


unenforceability, or non-compliance hâve been received or rumoured


in respect thereof;


6.1.1.4 Ail minimum work lawfully required to be performed by Gecamines


has been performed;


6.1.1 .5 Gecamines has incurred ail minimum legally required expenditure;


6.1.1.6 Gecamines has ail rights, titles, permits and other contractual and


statutory right and authorizations in respect of the Mining Zone in


order lo carry on prospecting, development and mining operations in


respect of Minerais in the Mining Zone;


6.1.1.7 The Minerai Rights and Concessions are valid and enforceable on


the Signature Date and shall furthermore be valid for a period


terminating not earlier lhan 20 (twenty) years after Signature Date,


which validity is extendable thereafter for either the life of the


Mines or a further period of 10 (ten) years, whichever of the 2 (two)


latter periods are the shorter.


6.1.1.8 The Minerais Rights and Concessions confer on the holder thereof


the sole and exclusive right to mine, or to acquire the tight or little to


mine, for the specified Minerais in the Concession Area;


6.1.2 Gecamines do not hold and during the subsistence of this Agreement,


in respect of the Mining Zone and Concession Area, will hold no


other rights lo prospect or mine, or rights ancillary to prospecting or


mining, or options or rights of first refusai in respect thereof;


6.1.3 Gecamines is not aware of any impediments to the full


implémentation and continuation of this Agreement;


6.1.4 Gecamines in the sole titleholder and owner of the Tailings, which


are hereby transferred lo KMC in unencumbered form.


6.1.5 Gecamines is the sole holder of respectively the Minerai Rights and


Ore Deposits in the Concession Area and of the Mines in the Mining


Zone;


r\ /)/L


6.1.6 Should lhe Minerai Rights or the Concessions expire while this


Agreement is still in force, Gecamines shall timeously provide for


the renewal or for the grant of one or more new Concessions with


identical terms and conditions in accordance with Article 24 of the


Act, for the duration of this Agreement and any renewal thereof.


Gecamines warrants thaï the Project is sufficient, as a matter of law,


for purpose of renewal and/or granting anew such Minerai Rights.


Gecamines shall furthermore be obliged to cede additional


exploitable Concessions lo KMC in the eventuality of the herein


defined Concessions being depleted prior to expiry of this


Agreement.


6.1.7. The Minerai Right and Concessions are not encumbered by any


duties, obligations or constraints towards third parties and


Gecamines can transfer the Minerai Right and Concessions


unrestrained;


6.1.8 Gecamines is the exclusive titleholder, owner and beneficiary in and


to the Processing Equipment, which it warrants to be free of any


obligations towards third parties, and is entitled to grant valid


Option to lease ail facilitics of the Processing Equipment to KMC


for the duration of this Agreement. Accordingly, as recorded in


clause 4 abovc, Gecamines hereby identifies KMC against any


liabilities or claims, of whatsoever nature, made by third parties at


any stage prior to or the Signature Date, in respect of debts or


obligations or any liabilities incurred as a resuit of the direct or


indirect activities or failures of Gecamines.


6.1.9 Gecamines possesses ail rights to use the surface assets in the


Concession Area, naturally occurring or man-made, and ail


infrastructural improvemcnls necessary to operate in the Mining


Zone, and Gecamines will for lhe duration of this Agreement grant


KMC such unrestricted access and usage thereto (inclusive of rail,


water, electricity, roads, airports and airspace);


6.1.10 No non-contracting party lias any right to any part of the Processing


Equipment or to the Minerais, Metals or concentrâtes derived there


from. \\


 10


6.1.11 Gecamines warrants and déclarés that it has completed ail feasibility





studies, in respect of thc Concessions, the Minera! Deposits and the


Mines, which lawfully require completion, prior to the Signature


Date.








6.1.12 Gecainines hereby waives ail rights to dividends in the favour of the


DRC's Government and shall hâve no entitlement to dividends


declared by K.MC at any stage, either during the currency or after





expiry of this Agrcement.


Dividends are regulated by a profit sharing agreement executed by


I TREMALT LIMITED with DRC Government.





7.1 TREMALT LIMITED and Gecamines, stipulate, déclaré and warrant


I each to the other, that :








7.1.1 It is validly constituted company or other entity legal personality


according to the laws in effect at the place of its incorporation, it is


duly organized and exists validly according to those laws and it has


the power to exercise its activities in the jurisdictions wherein it


opérâtes;


I


7.1.2 It has full power and compétence to exercise its activities, to enter





into this Agreement, as well as to execute any and ail obligations


imposed upon it in terms of this Agreement;








7.1.3 It has obtained ail resolutions or other compulsory authorizations


needed in order to sign, remit and execute this Agreement and any


and ail agreements or obligatory acts envisaged in this Agreement;


furthermore such signature, remittance and execution;








7.1 .3.1 Do not contradict or violate any of the provisions of its statutes, any


decision by shareholders or administrators, any agreement,


stipulation’ or undertaking whatsoever to which it is a party of by


which it is bound, and do not creatc any charge on its assets by


virtue of those same Acts; and


3


7.1.3.2 Do not violate any applicable law in the jurisdiction where it is





I incorporated;





I





 11





7.2 This Agreement is validly signed and remitted by itself and is in


accordance with its terms, valid, compulsory and exécutable on


each’s part.





PRINCIPAL OBLIGATIONS OF GECAMINES





8.1 On the Signature Date, to the extent to which it shall not already


hâve donc so, Gecamines shall deliver to KMC, ail feasibility


studies, geological, geophysical, geobotanical, geochemical, photo





geological, aero magnetic, assay and analysis information and any


other relevant data (including drilling samples and interprétation of


such data) in its possession or control relating to ail prospecting and


rnining activities carried on by Gecamines in the Concession Area


prior to the Signature Date.





8.2 Within 7 (seven) days after either the incorporation of KMC or the


Signature Date, whichever is the later, Gecamines shall cede and


assign to KMC the Tailings, Minerai Rights and the Concessions and





any and ail other relevant rights held by Gecamines in respect of the


Mining Zone.





8.3 KMC shall be entitled at any time to amcnd or extend or procure


replacements or substitutes for ail or any of the Minerai Rights or


the Concessions, or to exercise ail or any of the rights therein





contemplated, including but not limited to. rights to acquire Mining


Rights or Mining Tilles. Upon the lawful termination or Final expiry


of this Agreement, KMC shall bc obliged to cede and transfer to


Gecamines, or its nominee, ail Minerai Rights and Concessions


obtained by it in terms of this Agreement, to vacate and cancel the


leases in respect of Processing Equipment (which shall include ail


improvements or réhabilitation lhereof made during the currency of


this Agreement), and to surrender any and ail rights to any unused


portions of the Tailings.





8.4 The transfer of the Minerai Rights and Concessions will be


undertaken in such a way that KMC will hâve at its disposai ail plant


and equipment, waste dumps, slag dumps, Tailings dams and ail





other infrastructure of the Mining Zone, provided that KMC shall not


assume any liabilities associated with these assets arising prior to the


Signature Date. « x'' '


 12





9. THE SHITURU PLANT


9.1 Shituru Plant remains the propcrty of Gecamines.








9.2 Gecamines shall provide unhindered access to KMC in order to


proccss ils concentrate according to a toll treatment agreement to be


9.3 agreed without delay.


To ensure efficient and effective use of the plant the two parties


shall set up a joint technical collaboration team in Shituru Plant.


10.


RESTRA1NT AND EXCLUSIVITY


10.1 Gecamines shall not, during the period of this Agreement, grant any rights to any





third party in respect of the Concession Area or the Mining Zone or in any other


10.2 way relevant to this Project, without first having offered such rights to KMC.


Nothing in this Agreement shall disentitle TREMALT LIMITED from carrying


out any prospecting or mining operations independently of Gecamines or KMC


anywhere in DRC, subject to lawfully required permissions from the DRC, and


TREMALT LIMITED shall be under no obligation whatsoever, save as expressly


10.3 provided for in this Agreement, to offer any such prospecting or mining


propositions or any rights thereto to Gecamines or to KMC.


KMC shall be entitled at any time after its formai incorporation to enter into a


contract with TREMALT LIMITED or Gecamines in ternis whereof one or more


or ail aspects and functions of the Mining Operations of the Project may be


11. fulfilled by TREMALT LIMITED or Gecamines. This contract may be in the


form of either a minera! lease or any other similar agreement.


FINANCING





11.1 From the Signature Date:


1 1.1.1 TREMALT LIMITED will be subject to a 6 (six) month period in order to


establish, with the obligatory assistance of the other parties hereto as and when


required, in the name of and for the account of KMC, the necessary financing


required to conduct the mining operations of the Project. Substantive mining


11.1.2 operations in respect of at least 3 (three) of the Minerai Deposits listed in


Annexure “L” hereto, will hâve to commence within a further 3 (three) months


after the expiry of the aforementioned 6 (six) month period;


Ail financing for the Project shall be procured by means of advanccs cffected by


TREMALT LIMITED and/or by loans.


11.1.3


Gecamines shall hâve no responsibilities in respect of any of the operational


financing requirements of the Project. It shall, however, always be accurately


infomied of the Financial position of KMC and the Mining Operations, by virtue


of its seat on the board of directors of KMC. Gecamines may fiartherEg-requircd,


 13


in its capacity as a Shareholder of KMC, to co-operate in the procurement or


establishment of bank or other guarantees necessary for financing in accordance


with clause 13.2 below.





11.2 Gecamines hereby formally consents to TREMALT LIMITED and KMC


obtaining part or ail of the financing for the Project from international agencies


and/or banks and/or other suitable entities or persons, subject in ail respects to the


provisions of clause 13.1.2 above. TREMALT LIMITED is hereby authorised to


act at its own reasonable discrétion in this regard. Gecamines shall co-operate


fully with TREMALT LIMITED and/or KMC to facilitate the procurement of


such financing, particularly by signing any documents and by giving ail


assurances which may reasonably be required to obtain such financing, though


without any financial and legal obligations on its part.


12. AGREEMENT WITH DRC GOVERNMENT


GECAMINES, TREMALT LIMITED and. KMC will settle immediatcly with the


DRC Government a spécifie convention covering the purpose of the présent


agreement and goveming key issues of the intended operations such as:


- Social obligations


- Calculation of net taxable income


- Customs duties


- Fiscal and other duties exonérations


- Samples and exports


- Work permits and visas


- Authority for security and means of communications


- Central bank


- Arbitrations


- Performance


- More favourable provisions


- Free circulation


- Power and water, etc..


13. ACCOUNTING


13.1 Accounting Records


13.1.1 The accounting records and financial statements of KMC shall be drawn up in


accordance with the provisions of the DRC accounting législation and practice.


Such records shall also takc into account and respect the accounting rules and


procedures usually adhered to by the international mining industry;


13.1.2 KMC's accounting records and financial statements shall be drawn up in United


State Dollars and may be convcrted to Congolese Francs simultaneously with


finalization of the required audit procedures annually, by the utilization of the


official rate of exchange as effective on the final business day of the exercise


concemed.


13.2 Annual Audit


 14


13.2.1 The Auditors shall perform an annual audit of KMC’s accounts in the manner and


in accordance with the international régulations pertaining to mining companies;





13.2.2 Each year, within 3 (three) months of receiving the Auditors’ report, KMC shall


send the report, together with its comments and observations, to its shareholders.


14. SALES


In accordance with the provisions of clause 12 above, KMC’s products shall be


sold in the United States Dollar currency or other foreign currencies and both of


these parties shall each hâve the right to dispose freely of the retums from these


sales.


15. ACCOUNTS ABROAD





15.1 KMC may open, hold and operate one or more foreign accounts abroad in foreign


currency with one or more reputable international banks it has selected and which


are approved of by the Centra) Bank of the DRC. The transactions made on these


accounts wi 11 include, without limitation:


15.1.1 the payments made by the shareholders of KMC


15.1.2 the calls made by KMC on the loans granted by its financial backcrs;


15.1.3 the sale proceeds, pursuant to clauses 12 and 14 above;


15.1.4 the proceeds from other transfers and possible commercial or financial dealings.


15.2 From these accounts will be deducted the amounts necessary for:


15.2.1 the payment of supplies and contracts for the construction and investment of the


Project;


15.2.2 the payment of salaries and rémunérations owed in foreign cunency;


15.2.3 the payment for the purchase of goods, supplies and services necessary for the


normal operation of the exploitations;


15.2.4 covering the operating costs in the DRC;


15.2.5 the rédemption of debt;


15.2.6 the payment of management and other fees;


15.2.7 the payment of dividends;


15.2.8 the establishment of any reserve necessary to covcr future costs and risks;


15.2.9 the payment of the liquidation bonus in favour of the shareholders;


rx?





 15


15.2.10 the repayaient of loans and the payaient of dividends, consultant fees and other


payments in favour of KMC shareholders.


16. PERSONNEL AND OTHER OPERATIONAL ISSUES


16.1 Personnel


16.1.1 KMC shall forthwith after exercising the Options be contractually responsible for


payment of the salaries of ail personnel members employed by Gecamines on date


of signature of the Agreement (“the employées”), provided however that such


employées are required and will be directly involved in the Project undertaken in


ternis of the Convention. To this end, Gecamines will supply a list of relevant


employées to KMC who shall be able to verify the correctness thereof prior to


incurring any contractual liabilities. However, ail other past employment benefits


of the employées obtained from Gecamines shall remain the exclusive


responsibility of Gecamines, for instance'pension and medical aid benefits.


Accordingly new employer/employee relationship will be established between the


employées and either KMC.


16.1.2 Furthermore al) other responsibilities and administrative aspects of employment in


respect of the employées shall remain the exclusive responsibility of KMC, and e


monthly Financial rémunérations pertaining to employées will be transferred to


KMC upon conclusive vérification of the correctness of the list of employées


subséquent to the Options having been exercised.


16.1.3 Additionally, if any employées are found to be unsuitable for their intended


position, Gecamines will hâve to replace such employées, to the complété


satisfaction of KMC, failing which the latter 2 (two) parties will be able to replace


them.


16.1.4 There are no restriefions on the number of expatriâtes KMC may appoint to the


Project, neither are there restrictions on the positions which these expatriâtes can


fin.


16.1.5 Board control and Managerial control at KMC will be exercised by the majority


shareholder, TREMALT LIMITED. Notwithstanding their respective


shareholdings, TREMALT LIMITED is allowcd to appoint 5 (five) directors to


the board of KMC for every 2 (two) directors that Gecamines may appoint. In


considération of the control it has at board level, TREMALT LIMITED shall also


be able to control the appointment of the entire Management Team of KMC.


16.1.6 Subject to the provisions of clauses 18.1.1 to 18.1.5 above and of the Labour Law


of DRC, KMC shall be free to select, recruit, employ and dismiss the employées in


accordance with the relevant régulations, provided that the consent of Gecamines


must always First be obtained for the instant dismissal of any employée


contractually utilised by KMC in respect of the Project.


16.2 TRAINING AND ANTICIPATORY MANAGEMENT


16.2.1 TREMALT LIMITED undertakes to implement a policy of technology transfer,


subject to normal confidentiality provisions. This transfer and related training in


z*z» 5?





 16


respect of extraction of minerais and metallurgical processing of minerais shall


take place eithcr on the Project site or elsewhere.








16.2.2 In addition to technology transfer, there will also be a transfer of operational


techniques, especially in extraction and processing sectors. The transfer of


modem management techniques will also be a primary objective for the


management and supervisory team.





16.2.3 TREMALT LIMITED undertakes to supply the employées with the training


necessary to undertake their work competently, and with the opportunity to leam


new techniques which will allow them to progress in future in relation to more


complex and demanding posts. This policy has as its objective to encourage the


employées to show initiative and to take on responsibilities in order to fulfil their


potential.





17. DISPUTES


17 ] Amicable Seulement. In the case of a dispute between the Parties resulting from


or conceming this Agreemcnt or related to a breach hereof, the Parties in question


undertake, beforc beginning any arbitral or judicial procedure, and except in the


case of urgency, to meet in an attempt to reach an amicable seulement. To this


effect, the president of the Parties in question (or their agents) will meet within 15


days of the date of a written invitation sent by registered post by the most diligent


Party to the other Parties involved. If this meeting does not take place within this


time lirait or if the dispute is not resolvcd by a written agreement signed by ail the


Parties involved within 15 days of the meeting, the Party involved may submit the


dispute to arbitration or may take it to court in accordance with the following


provisions of this Article.








17.2 Arbitration





(a) Binding Arbitration. AU disputes, controversies or daims arising out of


or related to this Agreement or the breach hereof, which are not








resolvcd in accordance with section 17.1 above, will be seUled by


arbitration.


(b) Désignation of Arbitrators. Within 15 days after delivery of its notice


demanding arbitration, the Party first calling for arbitration will


designate one person to serve as its arbitrator and will deliver a notice


containing the name and address of its désignée to the other Party.


Within 10 days after its receipt of such notice, the other Party will


designate another person to serve as a second arbitrator and will deliver


a notice containing the name and address of its désignée to the Party


who first designated an arbitrator. Within 20 days after the désignation


of the second arbitrator, the 2 arbitrators so designated will designate


and secure the agreement to serve of a third arbitrator, who will be a


person reasonably knowledgeable with respect to the matters involved


in the arbitration.


(c) Situs. The arbitration will be conducted in Geneva (Switzerland) in


English with simultaneous French translation, and the arbitrators will


 17


takc inspiration from the procedure rules of the International Chamber


of Commerce to the extent such rules are not inconsistent with law or


this Agrecment. Arbitration proceedings will continue in the absence of


an arbitrator or a Party who, after notice given pursuant to this Article


17, fails to participate in or to obtain an adjoumment of the proceedings.


A Party who fails to exercise any right granted to it in this Article 17


within the time provided herein will be deemed to hâve waived such


right. A majority of the arbitrators will by written notice to the Parties


establish a schedule for the arbitration proceedings and issue orders


relating to the conduct of such proceedings goveming, among other


matters, discovery and the conduct of the hearing. Unless the Parties


agréé otherwise in writing, the arbitrators will issue their final decision


in writing within 60 das of the désignation of the third arbitrator. If


they fail to do so, they will be discharged and 3 other arbitrators will be


designated in accordance with the provisions of this Article 17 and


arbitration hereunder will begin anew upon the demand by either Party.


(d) Decision. The decision of the arbitrators will be final and binding upon


the Parties as soon as it is notified to each of the Parties pursuant to


Article 18. The decision must State clearly how the arbitrators hâve


ruied with respect to each issue submitted to them.


(e) Fees. Each Party will pay ail fees and costs of the arbitrator


designated by it and of its counsel and witnesses and ail other


expenses associated with the préparation and présentation of its


case. AU other costs and expenses of the arbitration will be shared


equally by the Parties unless the decision of the arbitrators will


specify a different apportionment of any or ail of such costs and


expenses.


17.3 Disputes with the State. If one Party considers that a dispute between Parties is


connected to a dispute between one or more Parties and the State, it must first of


ail submit the question of such connection to the arbitration court mentioned at


section 19.2. If this arbitration court confirms the connection, the latter must


déclaré itself incompetent. In this case, the most diligent Party may, in accordance


with Article 37 of the State Agreement, jointly submit the two disputes which


hâve bcen recognised as connected, to the International Centre for the Scttlement


of Investment Disputes. Gecamines hereby submits itself to the jurisdiction of this


last body, but only in this spécifie situation. If the arbitration court judges that


there is no connection, the two disputes will be treated separately in accordance


with the procedures provided in each of the agreements.


1 7.4 Jurisdiction. AU disputes, controversies or daims arising out of or related to this


Agreement, or the breach thereof, for which the arbitration court referred to in


section 19.2 or section 19.3 (and 7.6) déclarés itself not competent (except if, with


respect to the arbitration court referred to in section 19.2 the latter has declared


itself incompétent because of connection pursuant to section 19.3, in which case


the arbitration court referred to in section 19.3 will be competent), will be of the


sole compétence of the courts of Vancouver (Canada) and conducted in English,


with simultaneous translation in French. \


 18


18. CONDITIONS OF TRADE





18.1 KMC shall be entitled to a free choice of suppliers, contractors or sub-contractors


without any conditions or restrictions other than those resulting from the


provisions of the législation on trading companies.


1 8.2 Howevcr, it shall firstly give preference to DRC organisations and companies,


provided always that these entities guarantee the same quality, security and supply


periods as those offered by other compétitive companies.








19. ENVIRONMENT AL PROTECTION


19.1 The activities of KMC will be carried on in compliance with environmental


standards intemationally accepted as good mining practice, provided that such


standards are in practice adhered to by Gecamines in ail its operations, prior to the


Signature Date, it being recorded that GeCamines does not expect KMC to adhéré


to environmental standards which are more onerous in any way than those of


Gecamines. In addition, KMC undertakes:





19.1.1 to take adéquate measures, for the duration of this Convention, to protect


the environment and the public infrastructures used beyond normal


industrial use, in compliance with the rules and uses intemationally


accepted in the mining industry, as far as these may e applied in the DRC,


and with the laws in force;


19.1.2 to mitigate, by adéquate measures, the damage which could be caused to


the environment and to the public infrastructure used beyond normal


industrial use;


19.1.3 to comply with the législation in force conceming dangerous waste,


damage to natural resources and protection of the environment;


19.1.4 to restore used sites and the excavated plots of land in compliance with the


rules and uses intemationally accepted in the mining industry, as far as


these may be applied in the DRC;


19.1.5 to comply with the provisions of the Forest Guide, in particular those


relating to the réclamation along banks, rivers and slopes; and


19.1.6 to set up a System for the purification or treatmcnt of used residual water


from the mines and plants, which are released from the areas foreseen in


the works program.





19.2 Following the completion, and adoption by the Board of KMC, of a bankable


feasibility study, and the design of the exploitation envisaged to be provided for


therein, Gecamines shall ensure the orderly removal of ail dwellings which are


likciy to be affected by the future Mining Operations. KMC shall fund the cost of


the relocation of the relevant inhabitants, which shall be deducted from the gross


operating income for purposes of determining the Net Taxablejnc


 19


20. LANGUAGE


The English and French languages shal) be the official languages to be used under


this Agreement and shall be used by the parties in ail notices, communications,


statements and any technical or commercial documentation to be prepared and


presented under this Agreement; provided that in the case of inconsistency


between the English and French versions, the English language version shall


always prevail.


21. DURATION


This Agreement shall endure for 25 (twenty five) years after the Signature Date


and may be extended upon ternis to be mutually agreed, subject however to


extension in the case of force majeure as referred to in clause 29.


22. FORCE MAJEURE


22.1 In case of Force Majeure (as such term is hereinafter defined) the party materially


affected or which could be materially affected by Force Majeure (the “Affected


Party”) shall give to the other parties to this Agreement prompt written notice


describing such event of Force Majeure.


22.2 As from the occurrence of an event of Force majeure, the obligations of the


Affected Party shall be suspended during the whole continuance of such event of


Force Majeure and for an additional pcriod, sufficient to permit the Affected


Party, acting with ail required diligence, to place itself to the same situation as


before the occurrence of such event of Force Majeure.





22.3 AH time periods and ail dates subséquent to the date of occurrence of the event of


Force Majeure shall be adjusted to take into account the extension and delay





arising out of such event of Force Majeure.


22.4 The Affected Parties shall use ail diligence, reasonably possible to eliminate such


even of Force Majeure as quickly as possible, but such requirement shall not entail


the seulement of strikes or other industrials disputes against the judgement of the


Affected Party.





22.5 For purposes of this clause the term Force Majeure means any sudden or


unforeseen or insurmountable even outside the control of the Affected Party,


excluding lack of funds, but including without limitation: strikes, lockouts or other


industrial disputes, acts of a public enemy, riots, acts of public violence, pillage,


rébellion, revoit, révolution, civil war, coup d’Etat or any event of political


character which materially affects or could materially affect the success of the


Project, fire, storm, flood, explosion, govemment restriction, failure to obtain any


approval required from public authorities inclusive of environmental protection


agencies.





22.6 In case of Force Majeure, the parties hereto will consult with each other as to how


to limit the damage caused by the Force Majeure.


 20


23. BREACH





Subjcci lo clause 24 below. if any of the parties to this Agreement commit a


materiai breach of conlract, the olher parties shall hâve the right to deinand that


such breach bc reincdied wilhin reasonablc specified period of time. If such breach


is not rcmedied wilhin such period of lime, the complaining parly shall hâve the


right to terminale this Agreement by giving 60 (sixty) days written notice to the


defaulting party. However, if the defaulting party contests such materiai breach of


this Agreement. no terminalion shall occur unless and until an alleged unremedied


materiai breach shall hâve been judged by a final award of arbitration in


accordance wilh clause 17 of this Agreement.


24. RIGHT TO EARLY TERMINATION BY TREMALT LIMITED


24.1 TREMALT LIMITED may terminale this Agreement on 30 (thirty) days written


notice forwarded to both Gecamines and KMC at ils own élection and without


being obliged to givc rcasons for such tçrmination. In such event and to give full


effect lo this right, TREMALT LIMITED will cede free of charge its shares in


KMC to Gecamines and will procure the résignation of the persons who hâve been


electcd Managing Direclor. Directors, General Managers and Consultants.


Furthcrmore. ail advances which have by then made by TREMALT LIMITED to


KMC as being part of KMC's debl in favour of TREMALT LIMITED, will


immediately be repayable and any feasibility study (if in existence at lhat time)


will romain the property of KMC.


24.2 From transmission of the abovementioned notice. TREMALT LIMITED shall be


liberated of any further obligation lo make advances or finance the expenses.


including salaries of employées to parlicipalc in any increase of capital and/or to


render to Gecamines any further paymenis of the Project Fecs and/or Pre-Option


Fees due. and TREMALT LIMITED shall not be held liable for the payaient


thereof or for any damages towards any party whatsoever. Any Project Fees


already paid by TREMALT LIMITED to Gecamines at that time will remain the


latter’s.


25. LIQUIDATION


Should the shareholders agrée on the dissolution or the liquidation of KMC, the


provisions of the statules of KMC conccrning liquidation will apply in accordance


with the laws of the Démocratie Republic of the Congo.


26. INSTITUT DRC DU COBALT


In the event of the création, on Gecamines' initiative, of an Institut DRC du


Cobalt, whose object would bc the study and promotion of the international cobalt


market. KMC will become one of its founding members.


 21


27. CONF1DENTIALITY


27.1 The parties shall, savc as required by virtue of the fact that any of them is a listed














Company at any stage and savc as required by any regulatory authorities, keep


secret and conlldential and shall not wilhout prier wrilten permission of the other


27.1.1 parties hereto, publish, disclosc, divulge or communicate to third parties or make


public disclosures of:


the commercial ternis and conditions of this Agreement;


27.1.2 any information relating lo any activitics carried on or proposed to be


carried on pursuant lo this Agreement;


27.1.3 any information or interprétations thercof relating to the results of


prospecling, assay, analysis, or aeromagnetic surveys hcrein contemplated


or the minéralisation of the Concession Area and other areas contemplated


in this agreement. the feasibility or terms of a mining venture in the


27.2 Concession Area, proposed methods of mining, or geological. technical,


financial or other data and interprétations thereof relating to Minerais in


the Concession Area.


The parties shall take ail neccssary action, including legal proceedings, to compel


compliance with this clause 35 by their shareholders, directors, officers.


28. employées, agents, contractons and représentatives.


SEVERAB1L1TY


If any provision of this Agreement should be or bccome void, illégal or


unenforccablc, the parties shall negotiate in good faith to amend the agreement to


29. achieve the parties’ stated intention, but if this is not possible then such provision


shall be severed and the remaining provisions of this Agreement shall remain of


fui) force and cffect.


COSTS


TREMAL'l LIMITED shall bear the cost of and incidental lo the negotiation,


30. préparation, execution and implémentation of this Agreement.


SUPREMACY OF THIS AGREEMENT


30.1 The provisions of this Agreement shall take preccdence over the notarial status '


document, l’ounding documents, or other form of constitution of K.MC.


30.2 The parties shall procure that the notarial status document, founding documents, or


other form of constitution of KMC. reflect the provisions of this Agreement and in


the evenl of any conllict belvvcen any of the foregoing documents and this


Agreement the provisions of this Agreement will prevail and the foregoing


documents shall be deemed amended accordingly.


 22


31. GENERAL


31.1 This document consiilules lhe sole record of the agreement between the parties in


regard lo the subject malier lhereof.


31.2 No party shall be bound by any express or implied term, représentation, warranty.


promise or the like, not recorded herein.


3)3 No addition to. variation or consensual cancellation of this Agreement shall be of


any force or efiecl unless in writing and signed by or on behalf of ail the parties.


31.4 No indulgence which any of the parties ("the granlor”) may grant to any other or


others of them ("the grantee') shall constitute a waiver of any of the rights of the


grantor, who shall not lhereby be precluded front cxercising any rights against the


grantee which might hâve arisen in the past or which may arise in the future.


3 ] 5 lhe parties underlake at ail limes lo do ail such things. to perfomi ail such acts and


to take ail such steps and lo procure lhe doing of ail such things, the performance


of ail such actions and lhe laking of ail such steps as may be open to them and


necessary for or incidental lo the pulting inlo effect or maintenance or the ternis,


conditions and iniport of this Agreement and furthermore to act in good faith


towards each other and to co-operale with each other to lhe fullest extent.


31 6 Ail required formai ilies. underlakings. obligations, rights and other commitments


made pur.suant lo this Agreement are accepted as material by the parties hereto.


32. DOMICILIUM


32.1 Any notice or other document lo be served under this Agreement may be delivered


or sent by prepaid first class or registered post or telex or facsimile to the other


party to be served at lhe address sel oui below or at such other address as il may


hâve nolil'icd lo lhe other parties in accordance with this clause:


32.1.1 GECAMINES La Generale des Carrières et des Mines


419 Avenue Kamanyola


B.P. 450. Lubumbashi


For attention:


Monsieur L'Administrateur Directeur General


Facsimile No: 090032 26768041


Téléphone No: 090032 26768040.


TREMALT LIMI I ED 6 BOULEVARD GOERGES-FAVON


Cl 1-1204 GENEVA


SWITZERLAND


P O BOX 5726


CI 1-1211 GENEVA 11


SWITZERLAND





TEL: 44/22/321 6800


FAX: 44/22/321 6862


 23


32.2 Any party hereto shall be enlilled to change ils address as set out in clause j.2











from lime lu lime, providcd thaï any new address selccted by il shall bc an address


other lhan a box number. and any such change shall only be effective upon receipt


of notice in wriling by lhe other part ofsuch change.


32.3 Ail notices, demands, communications, legal process or payments intended for


either party shall be given. made or served as such party's address for the time


being.


32.4 A notice sent by onc party lo anoiher party shall bc deemed to be received:


32.4.1 on lhe same day, if delivered by hand;


32.4.2 on the same day. if sent by télex or facsimile;


32.4.3 on the recorded date of delivery by post, which in lhe absence of proof to


the contrat? shall bc dccmcd lo be 10 (len) business days after the date of


posling.


32.5 Nolwithslanding anything lo lhe contrary herein containcd a wrilten notice or


communication aclualiy received by a party shall be an adéquate written notice or


communication to il nolwithslanding that it was not sent to or delivered at its


chosen address.








THUS DONE AND SIGNED for and on bchalfof GECAMINES al Kinshasa on this


day of January 2001 in lhe présence of lhe undersigned wilnesses:





ASW1TNESSES:























GECAMINES





THUS DONE AND SIGNED for and on bchalfof TREMALT LIMITED on ihis 1 lIh


day of January 2001 in lhe présence of lhe undersigned wilnesses:








TREMALT LTD














F»


 ANNEXURE "F"











TAILINGS TO BE TRANSFERRED FROM GECAM1NES








1. Kakanda Tailings


2. Kambove Tailings
















































































i


 ANNEXURE “K”


«


ps IDENTIFIED CONCESSIONS (MINING AND QUARRY)


[MINING CONCESSIONS AND QUARRY PERMITS]





P 1. C14


2. C15


3. C17


P 4. C18


5. C19


6. C21


Ü 7. C33


8. Laena & Kakontwe Quarry Rights


*











n





i





s





si





 ANNEXURE UL"





MINERAL DEPOSITS AND QUARR1ES








(1) aüKasôte-cfeposteV (21) ail Saafi deposits;'


(2) alUMftke 2 déposés; {22) ail Kiwana II deposits;





(3) ail Guluwe deposits; (23) -aH-Lvita-deposils;


(4) ail Kakanda North & South deposits; (24) ail Kahumbwe-deposils;


(5) ail Bangwe deposits; (25) al! Disele deposits;


(6) ailKabolela North JL Soulh-doposils; (26) ail Lufomboshi deposits;


(7) ail Milebi deposits; (27) alLSignal deposits;


(8) aîHvtTndtgtMeposiUr- (28) ail Mifongwj-dcposits;


(9) ail Shangulowe deposits; (29) '-nit‘Sw8mbo deposits,


(10) allShnTTOtobV^CdcpoSils; (30) ail Kufumabsambo deposits;


(11) ail Kababankola deposits; (31) ail Kasanapi deposits;


(12) all-Mukondodeposits; (32) ail Kazilangwe deposits;


(13) ail Chimbedia deposiLs; (33) ail Kalabi deposits;


(14) ait Tarataïa deposits; (34) ail Kabdela deposits;


(15) ail Kamoya (1,2 & 3) deposits; (35) ^ali Mende deposits;.


(16) ail Kambove deposits; (36) -alLKakontwe-goaffles;


(17) ail Likasi-deposits; (37) ^alltuera-ptrames;


(18) ail Sesa deposits; (38) Kepisi.


(19) ail Kazibia deposits;


(20) ail Kamfundwa deposits;











»


 PREMIER AVENANT A


L’ACCORD DE CREATION DE LA JOINT VTNTURE


KABABANKOLA MINING COMPANY. SPRL


LA GENERALE DES CARRIERES ET DES MINES, Société d’Etat à caractère industriel


et commercial, ayant son siège social à Lubumbashi, sis n° 419, avenue Kamanyola, Province


du Katanga. République Démocratique du Congo


ET


TREMALT LIMITED, Société Privée dûment constituée suivant les lois des Les Vierges


Britanniques et ayant son siège social à Akara Building, 24 de Castro Street, Road Town,


Tortola


Vu l’accord intitulé « agrcement for the formation of a joint venture company » conclu entre


les parties à Kinshasa, en RDC en date du 11 janvier 2001,


Attendu que ledit accord a été renforcé par la Convention Minière entre la République


Démocratique du Congo, la Société Kababankola Mining Company, Trerr.alt Limited et la


Générale des Garn îtes et des Mines, dûment approuvée par ie décret présidentiel Nr 034/2001


du 18 Juin 2001 ;


Vu la lettre Nr C/'B/MINTÎS-HYDRO/Ol/^l 1/02 du 19 mars 2002 du Ministre des Mines et


Hydrocarbures daiêe du 19 mars 2002, laquelle justifie une révision de l’accord du 11 janvier


2001 cité ci-avant suivant le prescrit de l’article 28 dudit accord ,


IL EST CONVENU CE QUI SUIT :


Article 1 :


Les annexes « F », « K » et « L » de l’accord du 11 janvier 2001 sont annulées et remplacées


par les nouvelles annexes « B », « C » et « D » qui accompagnent le présent avenant et en font


partie intégrante. °


.Article 2 :


Toutes les références aux annexes « F », « K » et « L » doivent être lues respectivement


«3 », « C » et « D ».








.Ainsi fait ce 09 avn) 2002 à Lubumbashi en double original chaque partie retenant le sien.








LA GENERALE DES CARRIERES TREMALT LIMITED


S








Vice-President du Comité de Gest/on YUMBA MONO A


President du C mité di(Gestion


Provisoire Pro\ isoire j


 AVENANT No. 2 A L’ACCORD DE CREATION DE


LA JOINT VENTURE KABABANKOLA MINING COMPANY , SPRL


LA GENERALE DES CARRIERES ET DES MINES , Société d’Etat à caractère


industriel et commercial, ayant son siège social à Lubumbashi sis n° 419, avenue


Kamanyola, Province du Katanga, République Démocratique du Congo


(GECAMINES), d’une part ;


ET


TREMALT LIMITED, Société Privée dûment constituée suivant les lois des Isles


Vierges Britanniques et ayant son siège social à Akara Building, 24 de Castro Street,


Road Town, Tortola, d’autre part ;








Vu la convention intitulée « Agreement for’the formation of a joint venture


company » conclu entre les parties à Kinshasa, en République Démocratique du


Congo le 11 janvier 2001, lequel a été modifié par l’Avenant n° 1 conclu entre les


parties en date du 9 avril 2002, à Lubumbashi ;


Vu la Convention Minière conclue entre la République Démocratique du Congo, la


Société Kababankola Mining Company SPRL, Tremalt Limited et la Générale des


Carrières et des Mines en date du 7 mars 2001, laquelle convention a été approuvée


par le Décret Présidentiel n° 034/2001 en date du 18 juin 2001 ;


Vu 1’ avenant n° 1 à la Convention Minière précitée conclue entre les mêmes parties


en date du 15 Avril 2002 et approuvé par le Décret n° 002/2003 du 13 Janvier 2003 ;


Attendu que les parties conviennent que la Gecamincs reprend ses droits aux


dividendes, dans la société Kababankola Mining Company SPRL, qu’elle avait jadis


cédés au Gouvernement de la République Démocratique du Congo ;





IL EST CONVENU CE QUI SUIT


Article unique





L’Article 6.1.12 de la convention intitulée « Agreement for the formation of a joint


venture company» est abrogé dans son intégralité.








Fait à Lubumbashi, le 15 jour du mois de janvier 2003





LA GENERALE DES CARRIERES TREMALT LIMITED


ET DES MINES