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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 10-K/A
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 [FEE REQUIRED]
For the fiscal year ended December 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OF 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
For the transition period from ___________ to ____________
Commission file number 0-22572
OM GROUP, INC.
(Exact name of Registrant as specified in charter)
Delaware 52-1736882
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
50 Public Square, 3800 Terminal Tower, Cleveland, Ohio 44113-2204
(Address of principal executive offices) (Zip Code)
216-781-0083
Registrant's telephone number, including area code
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class Name of each exchange on which registered
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Common Stock, par value $0.01 per share New York Stock Exchange
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Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
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Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of the Regulation S-K is not contained herein, and will not be contained, to
the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [X]
The aggregate market value of Common Stock, par value $.01 per share, held
by non-affiliates (based upon the closing sale price on the NYSE) on March 11,
1998 was approximately $983,655,959.
As of March 11, 1998, there were 22,073,626 shares of Common Stock, par
value $.01 per share, outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the proxy statement for the annual meeting of stockholders to be
held on May 5, 1998 are incorporated by reference.
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Part IV
Item 14 *10.18 Employment Agreement between OM Group, Inc. and **
James M. Materna dated January 1, 1993.
*10.19 Employment Agreement between Mooney Chemicals, **
Inc. and Eugene Bak dated August 19, 1991.
*10.20 Amendment to Employment Agreement between Mooney **
Chemicals, Inc. and Eugene Bak dated September 1, 1992.
*10.21 Retirement Benefit Agreement, Eugene Bak,
dated January 1, 1995 (filed as Exhibit to
the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1995 and
incorporated herein by reference).
*10.22 Employment Agreement between OM Group, Inc. **
and Thomas E. Fleming dated August 19, 1991.
*10.23 Amendment to Employment Agreement between OM **
Group, Inc. and Thomas E. Fleming dated
August 19, 1991.
*10.24 Employment Agreement between Mooney Chemicals, **
Inc. and H. Burnham Tinker dated August 19, 1991.
*10.25 Amendment to Employment Agreement between OM **
Group, Inc. and H. Burnham Tinker dated
August 19, 1991.
*10.26 Employment Agreement between OM Group, Inc.
and Michael J. Scott (filed as Exhibit to the
Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994 and
incorporated herein by reference).
*10.27 Employment Agreement between OM Group, Inc.
and J.R. Hwang (filed as Exhibit to the
Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994 and
incorporated herein by reference).
*10.28 Employment Agreement between OM Group, Inc.
and Terry L. Guckes (filed as Exhibit to the
Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996 and
incorporated herein by reference).
*10.29 Employment Agreement between OM Group, Inc. **
and Antti Aaltonen.
*10.30 Employment Agreement between OM Group, Inc.
and John R. Holtzhauser and Amendment
thereto (filed as Exhibit to the Company's
Annual Report on Form 10-K for the fiscal
year ended December 31, 1994 and
incorporated herein by reference).
10.31 Stock Purchase Agreement between SUSI
Corporation and OM Group, Inc. dated
December 20, 1996 (filed as Exhibit to the
Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996 and
incorporated herein by reference).
10.32 Agreement and Plan of Merger between Auric
Corporation and OM Group, Inc. dated December 19,
1997.
+10.33 Joint Venture Agreement among OMG B.V.,
Groupe George Forrest S.A., La Generale Des
Carrieres Et Des Mines and OM Group, Inc. to
partially or totally process the slag
located in the site of Lumbumbashi,
Democratic Republic of Congo.
+10.34 Agreement for Sale of concentrate production
between Kokkola Chemicals Oy and La Generale
Des Carriers Et Des Mines dated April 21,
1997.
+10.35 Long Term Slag Sales Agreement between La
Generale Des Carrieres Et Des Mines and J.V. Groupement
Pour Le Traitment Du Terrill De Lubumbashi (filed
as an annex to Exhibit 10.33 of the Company's Annual
Report on Form 10-K for the fiscal year ended
December 31, 1997).
+10.36 Long Term Cobalt Alloy Sales Agreement between J.V.
Groupement Pour Le Traitement Du Terril De
Lubumbashi and OMG Kokkola Chemicals Oy (filed
as an annex to Exhibit 10.33 of the Company's Annual
Report on Form 10-K for the fiscal year ended
December 31, 1997).
+10.37 Tolling Agreement between Groupement Pour Le
Traitement Du Terril De Lubumbashi and Societe
De Traitement Du Terril De Lubumbashi (filed as
an annex to Exhibit 10.33 of the Company's Annual
Report on Form 10-K for the fiscal year ended
December 31, 1997.
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Part IV
Item 14 + Portions of Exhibit have been omitted and
filed separately with the Securities and
Exchange Commission in reliance on Rule
246-2 and the Company's request for
confidential treatment.
* Indicates a management contract, executive
compensation plan or arrangement.
** These documents were filed as exhibits to the
Company's Form S-1 Registration Statement
(Registration No. 33-60444) which became
effective on October 12, 1993, and are
incorporated herein by reference.
*** Filed as Exhibit 99(b) to the OM Group, Inc.
Form S-8 Registration Statement filed on
February 1, 1994, and incorporated herein by
reference.
(21) List of Subsidiaries (filed as a separate section of
this report)
(23) Consent of Ernst & Young LLP (filed as a separate
section of this report)
(24) Power of Attorney (filed as a separate section of this
report)
(27) Financial Data Schedule (filed as a separate section of
this report)
(b) There were no reports filed on Form 8-K during the last quarter
of 1997.
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Exhibit 10.33
JOINT VENTURE AGREEMENT
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BETWEEN
OMG B.V.
GROUPE GEORGE FORREST S.A.
AND
LA GENERALE DES CARRIERES ET DES MINES
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THE PRESENT AGREEMENT IS ESTABLISHED IN ITS ENTIRETY BY ALL
THE ELEMENTS HEREINAFTER SPECIFIED AND AS REFERRED TO IN THE
RESPECTIVE ARTICLES
I. DEFINITIONS
II. SPECIAL PROVISIONS
1. Formation of a Joint Venture
2. Representations, Warranties, Title to Assets
3. Capital Contributions and. Financing of the Project
4. Management
5. Preliminary Activities
6. Related Agreements
7. Liabilities and Commitments of the Parties
8. Term and Termination
9. Withdrawal Option
10. Buffer Stock
11. Additional Guarantees
12. Developments
III. GENERAL PROVISIONS
1. Hierarchical Order of the Agreements
2. Amendments
3. Restrictions on Transfers
4. Arbitration and Applicable Laws
5. Confidentiality
6. Force Majeure
7. Notices
8. No Waiver
9. Severability and Headings
10. Sovereign Immunity
11. Appendices
12. Further Engagements
13. General Clauses
14. Authorizations and Entering into Force
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The Present Agreement is concluded between:
1.OMG B.V. a company organized and existing under the laws of the Netherlands,
having its registered office at ROTTERDAM, being a 100 per cent controlled
subsidiary of OM Group Inc., a company organized and existing under the laws
of the state of DELAWARE (USA) and having its registered office at 3800
Terminal Tower, CLEVELAND 44113 OHIO (USA), which shall be together with its
subsidiary jointly and severally responsible for the obligations of the
subsidiary, OMG B.V. hereinafter referred to as OMG;
2.GROUPE GEORGE FORREST S.A., a company organized and existing under the laws
of Luxembourg and having its registered office at 25 rue de la Chapelle,
Luxembourg, hereinafter referred to as GGF; and
3.LA GENERALE DES CARRIERES ET DES MINES, a corporation organized and existing
under the laws of the Democratic Republic of Congo and having its registered
office at boulevard Kamanyola, P.O. Box 450, LUBUMBASHI, DEMOCRATIC REPUBLIC
OF CONGO, hereinafter referred to as GECAMINES, or GCM.
Whereas the Parties have concluded a Frame Agreement signed in February 1996
where they have agreed on the general outlines of the establishment of a Joint
Venture to partially or totally process the slag in the site of LUBUMBASHI;
Whereas OMG, GGF and GECAMINES have initiated studies to determine the
economical and technical feasibility of a Cobalt Slag Processing Operation in
LUBUMBASHI, DEMOCRATIC REPUBLIC OF CONGO;
Whereas the Parties intend to invest in the Processing Plant if the feasibility
proves to be positive;
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Whereas for the purpose of carrying out the activities of the Project, the
Parties wish to form:
(a) a Joint Venture Company under the laws of JERSEY in the form of a private
limited liability company or in any other country and/or in such other form
as agreed by the parties (the Joint Venture, hereinafter referred to as
J.V.);
(b) a Slag Processing Company in the form of a Private Company with Limited
Responsibility (SPRL) existing under the laws of the DEMOCRATIC REPUBLIC OF
CONGO, the shares of which shall be primarily owned by the J.V. (hereinafter
referred to as Slag Processing Company of Lubumbashi or Processing Company
or S.T.L.);
Whereas the Parties wish to formalize their Agreement as to the formation and
operation of a J.V. as well as to carry out activities such as feasibility
studies, building of the Plant, Processing of Slag, Purchase of Slag, Sales of
Processed Materials, transportation as well as management related to the
project;
NOW THEREFORE in consideration of the premises and of the Contracts and
Agreements contained in this Agreement, the Parties hereby agree as follows:
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I. DEFINITIONS
The terms defined hereinafter shall for all purposes of this Agreement and
related Contracts have the meanings hereinafter specified, unless otherwise
specified:
AGREEMENT means this document signed by the Parties and its appendices forming
an integral part of the present Agreement as well as its possible amendments.
BUYER means OMG KOKKOLA CHEMICALS Oy (KCO), a subsidiary of the OMG Group,
buying Cobalt Alloy in the Long Term Cobalt Alloy Sales Agreement.
PURCHASER means the J.V. purchasing Slag in the Long Term Slag Sales Agreement.
COBALT BEARING ALLOY or TREATED MATERIAL means the main end product of the
Processing Company (sometimes also called "Cobalt Alloy") containing cobalt and
copper.
YEAR means calendar year beginning on 1st of January and ending on 31st of
December.
UMPIRE means a person appointed by mutual agreement of the J.V. and the Buyer or
GECAMINES in accordance with the Long Term Slag Sales Agreement or Long Term
Cobalt Alloy Sales Agreement.
CIF means "cost, insurance and freight" as defined in INCOTERMS, 1990 edition.
TOLLING AGREEMENT means the Agreement concluded between the J.V. and the
Processing Company for the purpose of processing Slag into Cobalt bearing Alloy.
LONG TERM COBALT ALLOY SALES AGREEMENT means the Agreement whereby the J.V.
undertakes to sell Cobalt Alloy to the Buyer and the latter undertakes to buy
Cobalt Alloy from the J.V.
LONG TERM SLAG SALES AGREEMENT means the Agreement whereby GECAMINES undertakes
to sell Slag to the J.V. and the latter undertakes to buy Slag from GECAMINES.
DATE OF DELIVERY means the date on which the J.V. takes and becomes the owner of
the Site Slag according to the terms of the ex-site delivery clause.
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DDU means "delivery duty unpaid" as defined in INCOTERMS, 1990 edition
EXW means "ex works delivery" clause as defined in INCOTERMS, 1990 edition.
SUPPLIER means the GENERALE DES CARRIERES ET DES MINES supplying Slag in the
Long Term Slag Sales Agreement.
J.V. means a private limited liability company having its registered office in
JERSEY.
BUSINESS DAY means a day which is not a Saturday, a Sunday or a public holiday
in Finland, The Netherlands or the Democratic Republic of Congo.
KCO means OMG KOKKOLA CHEMICALS Oy, a subsidiary of the OMG Group located in
KOKKOLA, REPUBLIC OF FINLAND and established under the laws of the REPUBLIC OF
FINLAND.
LMB means the LONDON METAL BULLETIN.
LME means the LONDON METAL EXCHANGE.
SUPPLY LOT means a part of each delivered supply of Cobalt Alloy containing
approximately 100 tons of Cobalt Alloy as divided by the BUYER in KOKKOLA for
weighing, sampling, analysis and moisture content determination.
EXPEDITION LOT means the tonnage of one container of Cobalt Alloy dispatch from
the Processing Plant.
USED LOTS means the Lot or Lots of Cobalt Alloy taken into usage by the BUYER
for a period of one month.
MONTH means calendar month.
PARTIES means the Parties to this Agreement.
QUOTATIONAL PERIOD means the Period defined in Article 5 of the Long Term Slag
Sales Agreement or in Article 6.2 in the Long Term Cobalt Alloy Sales Agreement.
WEIGHTS AND MEASURES
1 (metric) ton = 2,204.6 pounds avoirdupois
1 dmt or ts = 1 dry metric ton
1 wmt or th = 1 wet metric ton
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TAKEN INTO USAGE means the taking of the Cobalt Alloy either directly from the
ordinary commercial raw material Stock or alternatively from the Buffer Stock as
a complement of the KOKKOLA Processing Plant.
PROJECT means the conception and building of a Processing Plant in LUBUMBASHI
for the purpose of exploiting the Slag Site of LUBUMBASHI as well as the proper
operation of the Processing Plant, the trading operations including related
operations and the distribution of the profits.
PROCESSED SLAG means the Slag resulting from the operations in the Processing
Plant
SLAG means cobalt bearing slag located in the Site in THE DEMOCRATIC REPUBLIC OF
CONGO and to be used as feeding stock in the Processing plant.
SITE or SLAG SITE means the area in the Democratic Republic of Congo where the
Slag is located and available to be delivered to the J.V. pursuant to this
Agreement (called Terril de LUBUMBASHI, originating from the residues of the
WATER JACKET ovens of GECAMINES and namely including the zones I, J, Ki, K2 and
TAS G-L having an average cobalt content of 1,85% as described in further detail
in appendix 1 of the Frame Agreement attached as Appendix 1 to this Agreement).
PROCESSED SLAG SITE means the area in the Democratic Republic of Congo where the
processed slag will be stocked.
PROCESSING COMPANY means the Company to be set up by the J.V. in the Democratic
Republic of Congo in the form of a SPRL for the purposes of operating the
Processing Plant.
COMMERCIAL STOCK means the ordinary stock of Cobalt Alloy enabling the regular
supply of OMG-KCO plant taking into account the periodicity of maritime
arrivals.
BUFFER STOCK means the Cobalt Alloy Stock to be established at OMG in KOKKOLA,
FINLAND in accordance with article 10 of the J.V. Agreement and to be kept
separate from the Ordinary Commercial Cobalt Alloy Stock of OMG KOKKOLA
Chemicals Oy.
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USD means the lawful currency of the UNITED STATES OF AMERICA.
PROCESSING PLANT means the Plant to be located in LUBUMBASHI in the DEMOCRATIC
REPUBLIC OF CONGO. The Plant shall be operated by the Processing Company for the
purpose of processing Slag into Cobalt bearing Alloy.
SELLER means the J.V. selling Cobalt Alloy in the Long Term Cobalt Alloy Sales
Agreement.
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II. SPECIAL PROVISIONS
1. FORMATION OF THE JOINT VENTURE
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1.1. The Parties hereby agree to promptly establish a Joint Venture Company in
the form of a private limited liability company to be named GROUPEMENT DU
TRAITEMENT DU TERRIL DE LUBUMBASHI (GTL) or such other name as agreed by the
Parties.
The By-laws of the J.V. shall be prepared and signed by the Parties in such
time as unanimously agreed by them.
1.2 The primary goals of the J.V. are:
i) to establish a Processing Company, a subsidiary to the J.V., to be
registered under the laws of the DEMOCRATIC REPUBLIC OF CONGO and to
be named Societe de Traitement du Terril de LUBUMBASHI (S.T.L.).
ii) to conclude and ensure the best possible follow-up of Agreements such
as:
- The Long Term Slag Sales Agreement
- The Long Term Cobalt Alloy Sales Agreement
- The Tolling Agreement (related to the processing of
the Slag by the Processing Company)
iii) to conclude the Agreement of the Parties concerning the Capital
contributions, the loans and other financing of the Project as well as
optimizing and distributing the profits.
iv) to organize the management and follow-up of the Project.
2. REPRESENTATIONS, WARRANTIES, TITLE TO ASSETS
- ----------------------------------------------------
2.1. Capacity of the Parties
Each of the Parties represents and warrants as follows:
a) that it is a legal entity duly incorporated in its
country of constitution,
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b) that it has the corporate capacity to enter into and perform this
Agreement,
that all corporate and other actions required to authorize the party to
enter into and perform this Agreement have been taken;
c) that the Party shall not breach any other agreement or contract by entering
into or performing this Agreement; that this Agreement is valid and binding
upon in accordance with its terms.
3. CAPITAL CONTRIBUTIONS AND FINANCING OF THE PROJECT
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3.1. The pre-feasibility study undertaken by OMG has estimated that the total
investment of the Project will be at about 115 USD million. The total
amount shall be decided by the Parties after the completion of the
feasibility studies.
The total capital to be considered below shall therefore be in the order of
USD 115 millions (or such other figure as determined by the Parties after
the completion of the feasibility study), possibly further increased to
obtain the working capital necessary to start the operations.
To that effect, the J.V. shall issue ordinary shares in one or more calls
for Parties to subscribe, such as described in article 3.2. below and the
Parties shall undertake to subscribe such issued ordinary shares as
described below in this article.
i) OMG undertakes to subscribe 51 per cent of any issued ordinary shares
of the J.V.
Additionally OMG undertakes to subscribe ** per cent of any ordinary
shares of the J.V. Company issued prior to the end of 1999 (or such other
date as agreed by the Parties) ** as further determined in article
3.1.iii below and described in further details in the Option Agreement
attached as Appendix 5 to this Agreement.
ii) GGF undertakes to subscribe 29 per cent of any issued ordinary shares
of the J.V. Company.
** Confidential treatment has been requested with respect to certain
information contained within this document. Confidential portions are
omitted and filed separately with the Securities and Exchange Commission
pursuant to Rule 24b-2 of the Securities and Exchange Act of 1934.
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iii) GCM undertakes initially to subscribe one ordinary share of the J.V.
Company.
Additionally GCM undertakes to progressively purchase ** per cent minus
one share of the total outstanding issued ordinary share capital of the J.V.
Company from OMG ** from the date of the subscription till the date of
the subscription till the date of purchase of such shares by GCM.
For the payment of these purchases GCM ** in compensation for the first
Slag sales under the Long Term Slag Sale Agreement.
J.V. shall act as the paying agent for the purchase and sales of such
shares **
GCM will be paid for the supplied Slag by the J.V. only after the shares
representing ** per cent of the total outstanding ordinary share capital
of the J.V. Coin an have been fully purchased and paid up **.
3.2. The financing as described above shall take place in several separate
installments and in such a manner as decided by the Parties or by the Board
of Directors.
The Parties shall contribute to any capital increase in proportion to their
respective capital contribution obligations as mentioned in Article 3.1.
above or in any other manner as agreed by the Parties.
The preliminary expenses made by the Parties for the Project may be used by
them as a capital contribution, such as specified in Article 5 below.
If any Party (the defaulting party) were unable to participate in any of the
basic capital contributions, duly decided by the Parties or the Board of
Directors of the J.V. within the limits of the overall funding obligations
of the Parties, the other Parties shall have the option to increase their
respective share in the capital of the J.V in proportion to their
shareholdings.
** Confidential treatment has been requested with respect to certain information
contained within this document. Confidential portions are omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of
the Securities and Exchange Act of 1934.
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3.3. The Parties agree Chat apart from the obligation to provide with the
capital contributions mentioned in article 3.1. above, the Project is
intended to be self-financing to the maximum extent possible.
To the extent the revenues of the J.V. are insufficient to meet with all
the obligations (including operation expenses and financial charges), the
Parties shall then seek to obtain additional financing from an outside
financing source to be primarily secured by the proceeds from the sales of
the Treated Materials to KCO or by parent guarantees to be provided by the
Parties in proportion to their respective contributions to the J.V.
3.4. Any additional capital increase or a parent loan, which go beyond the
initial capital can only be requested if so decided by the General Meeting
or the Board in accordance with the Articles of the J.V.
In the event that a Party (or several Parties) is not able or willing to
participate in any additional capital contribution, this shall not prevent
the other Parties (or other Party) to increase their capital contributions
and accordingly increase their capital share in the J.V.
Failure by any Party to participate in a capital contribution increasing
the capital beyond the total amount of capital as defined in art. 3.l.
above, cannot be regarded as a default of the failing Party or Parties.
3.5. All the net revenues of the J.V., after payment of all operation costs and
expenses, financial costs, taxes if any and contributions to any applicable
reserve funds as may be required by the law, shall be paid out as
distributions by the J.V. to the Parties in proportion to their capital
participation.
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4. MANAGEMENT
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4.1. After the signing of this Agreement at the latest, the Parties shall
establish a temporary Management Committee composed of 6 members and their
respective alternates.
Each Party shall nominate two representatives thereto.
A Project Manager shall be appointed by OMG to supervise the implementation
and technical execution of the project until the building of the Processing
Plant has been completed.
4.2. The Project shall be administrated by this temporary Management Committee
until the J.V. has been formally established and its Board of Directors has
been elected and nominated.
OMG shall nominate three representatives and 3 alternates to the Board of
Directors, whereas GGF shall nominate 2 representatives and 2 alternates
and GCM shall nominate 1 representative and 1 alternate.
The Chairman of the Board shall be elected among the representative members
of OMG.
Two Vice-Presidents shall be elected. The first Vice- President position
shall be devolved to the representative of GECAMINES and the second one
shall be devolved to one of the GGF representatives.
4.3. The quorum of the Board of Directors is constituted by the presence of at
least four directors. The decisions of the Board of Directors shall require
the affirmative vote of at least four directors.
4.4. The quorum of the General Meeting is constituted upon the presence of
representatives of the Parties possessing at least 66 per cent of the
capital of the J.V.
All decisions of the General Meeting shall require the affirmative vote of
representatives of the Parties possessing at least 66 per cent of the
shares in the J.V. save the decisions which are taken based on the special
procedure envisaged in art 4.5. below where the affirmative vote of 50 per
cent of the shares shall be sufficient.
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In any case the following matters In the General Meeting shall require the
affirmative vote of the representatives of the Parties possessing at least 66
per cent of the Capital of the J.V.
a) the approval of the annual budget;
b) the increase of the J.V. capital;
c) An outside financing in excess of 5 percent of the amount of the capital;
d) winding-up or liquidation of the J.V. Partnership;
e) the final decision to commence the investment, construction and processing
Operations as envisaged in Article 5.4. below;
f) all decisions in relation to. the matters listed above shall also be
subject to the specific majorities when they relate to the Processing
Company and/or to the instructions to be given by the J.V. to the Board of
Directors of the Processing Company.
g) revision or amendment of any of the Agreements listed in Article 6.
4.5. The Parties agree that the management of the J.V. shall vest in the Board
which may exercise all powers of and do all acts and things on behalf of
the J.V., save such as are required by the local law to be exercised or
done by the J.V. in the General Meeting. Nevertheless, in the event that
the Board of Directors is unable to take a decision in a matter which is
outside of the day to day management of the J.V. and which indecision may
threaten to damage the development of the Project or the security of the
manufacturing of the Slag or the deliveries of Treated Material, such
matters shall be taken to the General Meeting, which shall have the
exclusive right to decide upon those matters with an exceptional majority
of 50 per cent. Before the date of such General Meeting, the Parties will
use their best endeavors to decrease the discrepancies between their points
of view.
4.6. The J.V. shall reimburse the Parties the travel and out of pocket expenses
incurred by the Board of Directors or their representatives to attend the
Board meetings.
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4.7. All programs and budgets shall be established on a calendar year basis,
unless otherwise mutually agreed.
4.8. STL shall be managed by a Managing Board that shall appoint and elect the
General Director.
OMG shall nominate 3 representatives to the Managing Board, whereas GGF
shall nominate 2 representatives and GCM shall nominate l representative.
The Chairman of the Board shall be elected among the GGF representatives.
Two Vice-Presidents shall be designated and nominated.
The first position shall be devolved to the GECAMINES representative and
the second position shall be devolved to one of the OMG representatives.
5. PRELIMINARY ACTIVITIES
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5.1. Before deciding on the commercial exploitation of the Slag deposit, such
further investigations and studies (referred to as preliminary activities)
are necessary to determine the feasibility of the investment, the
construction and processing activities.
5.2. The costs and expenses incurred by the Parties prior to the setting up of
the J.V. and approved by the Board of Directors (and by an independent
auditor, if necessary) shall be considered as a contribution against the
obligation of the Parties to provide with the capital contribution of the
J.V. pursuant to Article 3.1. of this Agreement.
5.3. The technical and administrative services needed to carry out the
preliminary activities shall as far as possible be rendered by the Parties
or their affiliated companies on such terms and conditions considered
reasonable and acceptable by the Board of Directors.
5.4. Upon completion of the preliminary activities and after the analysis of the
cobalt contents of the Slag deposit in accordance with Article 3 of the
Frame Agreement, the Parties shall take their final decision as to whether
they begin to invest, construct and initiate the Processing operations.
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That decision shall be taken no later than six months after the signing of
this Agreement, provided OMG and/or GGF have not made use of the right to
withdraw.
6. RELATED AGREEMENTS
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6.1. Slag Supply
A Long Term Slag Sales Agreement shall be concluded between GCM on the one
hand, and the J.V. on the other hand, whereby the J.V. shall have the
exclusive right to purchase the Slag located on the well known site of
LUBUMBASHI on terms and conditions as set out in the Frame Agreement and in
further details in the Long Term Slag Sales Agreement attached as Appendix
2 to this Agreement.
To ensure uninterrupted and unhindered continuity of Slag deliveries to the
J.V. and to the Processing Company in accordance with the terms of the
Frame Agreement and of the Long Term Slag Sales Agreement, GCM agrees as
detailed in the above mentioned agreements, to accept that a Cobalt Alloy
Buffer Stock be created by the J.V. in KOKKOLA FINLAND with a six month
supply of KCO.
The J.V. shall enter in the accounts and manage the fluctuations of that
stock.
6.2. Cobalt Alloy Sales
OMG undertakes that KCO shall undertake to purchase from the J.V. all or
part of the Cobalt Alloy produced in the Processing Plant in accordance
with the terms and conditions set up in the Long Term Cobalt Alloy Sales
Agreement attached as Appendix 3 to this Agreement.
6.3. Management of STL
The Board of Directors of the J.V. shall determine the by-laws of STL as
well as the possible Management Agreement determining the management rules
of STL in more detail.
<PAGE> 17
17
6.4. Construction of the Processing Plant
GGF's affiliates, the SPRL Entreprises Generales MALTA FORREST (EGMF) for
earth moving and civil works, and NEW BARON & LEVEQUE INTERNATIONAL S.A.
(NBLI) for site supervision, building, commissioning as well as certain
engineering activities related to steel structure, piping, electricity and
instrumentation and certain procurement and follow-up activities, shall be
designated as nominated subcontractors.
These companies shall provide the J.V. with a cost plus fee bid.
On the basis of that bid, the Board of Directors of the J.V. shall decide
either to award the Contract to the EGMF and NBLI or to call for tenders to
third parties. In the latter case the companies EGMF and NBLI shall have
the right of first refusal.
All the principles, terms and conditions for the above mentioned
subcontracts are described separately in the Construct ion Agreement.
6.5. Transportation Services
The J.V. shall appoint GEORGE FORREST INTERNATIONAL S.A. to organize:
1. the handling of the Slag and Processed Slag if required after
completion of the feasibility study.
2. the transportation of Cobalt-bearing Alloy from the Processing Plant
to the port of KOKKOLA in Finland, unloading excluded but the
supervision and related transport insurance included.
That company shall submit a bid to the J.V.
On the basis of that bid, the Board of Directors of the J.V. shall decide
either to appoint the company or to call for bids from third parties. In
such case GFI S.A. shall have the right of first refusal.
<PAGE> 18
18
6.6. Tolling Agreement
The Processing Company, STL, shall enter into a Tolling Agreement with the
J.V. whereby the J.V. shall grant STL the right to process all of the Slag
acquired by the J.V. from GCM on terms and conditions as set out in the
Tolling Agreement attached as Appendix 4 to this Agreement.
7. LIABILITIES AND COMMITMENTS OF THE PARTIES
- -----------------------------------------------
7.1. The Parties' liability for the J.V.'s debts and liabilities are limited to
the capital invested in the J.V.. The J.V. shall be the owner of its assets
and shall be the obligor in respect to its liabilities.
The Parties shall not be liable for the debts or liabilities of the J.V.,
except to the extent any such debts or liabilities shall have been
expressly guaranteed by such Party.
7.2. In order to protect the environment in LUBUMBASHI and subject to the
limitations set out above the Parties undertake to construct, operate and
maintain their Processing Plant in the Democratic Republic of CONGO in an
orderly way and corresponding to the rules for protecting the environment
applicable in the European Union.
8. TERM AND TERMINATION
- -------------------------
8.1. This Agreement shall remain in full force and effect for as long as:
- the J.V. shall hold any rights,
- the assets of the J.V. are not disposed of,
- a final settlement after liquidating the J.V. has not
been made.
8.2. The Parties may at any time terminate this Agreement by mutual agreement in
writing.
In the case of termination by mutual agreement, the Parties shall agree as
to the terms of the dissolution/liquidation of the J.v.
<PAGE> 19
19
8.3. The non-defaulting Parties of the J.v. shall be entitled to vote for the
exclusion of a defaulting Party, if the exclusion is voted unanimously by
the members representing the non-defaulting Parties after having heard the
explanations from the defaulting Party in one of the following cases:
- that Party would materially infringe one of the provisions of this
Agreement or related agreements and would not have remedied such breach as
required in Article 13.1 of the general provisions;
- that Party would be in default of its obligation related to investment
needs as defined in Article 3, providing the terms of Article 13.1. of the
General Provisions have been first made use of.
The non-defaulting Parties may, acting together, either choose to terminate
this Agreement or to acquire all the shares of the defaulting Party and the
defaulting party has the obligation to sell all its shares at a price
defined in article 8.5. below, deducting the possible damages.
8.4. In addition to the terms and conditions of Article 8.3., the non-affected
Parties shall be entitled to vote for the exclusion of any Party affected
by the occurrence of the following cases:
i) any Party becoming insolvent or having a temporary receiver
appointed of its assets or an execution of distress or warrant of
distress levied upon its assets, or if they have a consequence on the
execution of this Agreement.
ii) an order being made or a resolution being passed for winding-up or
liquidation of any Party except that where any such event is only for
the purposes of acquisition or amalgamation with another and the
relevant company emerging is and agrees to be bound by the terms of
this Agreement, providing an endorsement be made and that such an
event shall not endanger the completion of operations to the
satisfaction of the non-affected Parties.
iii) the shares of the social capital of a Party have been acquired to
an extent exceeding 26 percent of the social capital of that Party by
a competitor of any of the other Parties.
<PAGE> 20
20
8.5. In the event of the exclusion of any Party due to Article 8.3 or 8.4 of the
Special Provisions or to Article 13.1 of the General Provisions, as well as
in the event of a voluntary withdrawal, the remaining Parties shall be
entitled (but not obligated) to purchase all the shares, (but not less than
all the shares) of the excluded or withdrawing Party. That purchase shall
be in proportion to the shares already held, unless otherwise agreed by the
non-defaulting Parties. The purchase price shall be set at the book value.
The book value shall be calculated on the capital of the J.V. including the
equity capital, retained earnings and reserves less any and all long and
short term liabilities.
In case any of the Parties would not agree upon the book value, the Parties
shall appoint an independent internationally accepted auditing firm to make
such a valuation. Such a valuation shall be binding to all Parties.
Should the Parties not agree upon the auditing firm, the valuation shall be
decided in an arbitration pursuant to Article 4 of the General Provisions
of the Agreement.
9. WITHDRAWAL OPTION
- --------------------
It is absolutely essential for the Parties that the results from the preliminary
activities will give sufficient evidence that:
i) the cobalt content of the Slag as to quantity and quality will be to the
satisfaction of the Parties as defined in Articles 2 of the Long Term Slag
Sales Agreement in the Appendix 2 hereto.
ii) the commercial exploitation is viable to the satisfaction of the
Parties, in accordance to the feasibility studies, construction and
investment calculations related to the processing as well as the other
activity plans to be completed in accordance with Article 5.1 above.
<PAGE> 21
21
The Parties shall have a period of consideration of 6 months starting on
the date of entering into force of this Agreement. Should the conditions
defined in sub-articles i) and ii) not be fulfilled within the said period
to the satisfaction of any of the Parties, that Party shall have the right
to withdraw from this Agreement without any liability to pay any
compensation or reimbursement of costs to other Parties or any
reimbursement of its own expenses.
10. BUFFER STOCK
- ----------------
The Long Term Slag and Cobalt Alloy Sales Agreements set out that the J.V.
shall constitute and maintain a Cobalt Alloy Buffer Stock in KOKKOLA,
FINLAND containing the equivalent of 6 months of delivery to KCO.
The J.V. shall arrange for the accounts and manage the fluctuations of the
Buffer Stock.
11. ADDITIONAL GUARANTEES
- -------------------------
GECAMINES undertakes :
(i) to guarantee for the J.V. an unhindered access right to the Site,
either by not alienating to a third party or assigning to the J.V. the
ownership of the strip of land through which access to the Site is
made and such as mutually agreed, as well as the exclusive rights to
the Slag.
(ii) to support the obtaining of guarantees from the Government of the
Democratic Republic of Congo such as a guaranty for a favorable fiscal
treatment, guarantees concerning the expatriation of the profits, the
non-expatriation of the Plant and a guarantee that in the case
GECAMINES would be privatized, all its obligations resulting from this
Agreement, would remain in force.
(iii) to support the obtaining of other authorizations, permissions, fiscal
exemptions, export licenses, etc. on behalf of the Processing Company
and/or the J.V.
<PAGE> 22
22
(iv) to give all the necessary assistance to insure a continuous supply of
electricity and water to the Plant.
12. DEVELOPMENTS
- ----------------
Given the possible developments in the processing technology in the coming years
and during the validity period of this Agreement, the Parties shall examine the
possibility to improve the quality of the production with the view to increase
its value added.
<PAGE> 23
23
III. GENERAL PROVISIONS
- --------------------------
1. HIERARCHICAL ORDER OF THE AGREEMENTS
- --------------------------------------------
This Agreement is part of the Agreements concluded between the Parties.
The aim of these Agreements is to set up the terms and conditions of the
purchase of the Slag located at the Site, the setting up of the J.V. and of
the Processing Company and selling the Cobalt-bearing Alloy to KCO for
further processing.
These Agreements are :
(i) JOINT VENTURE AGREEMENT
(ii) LONG TERM SLAG SALES AGREEMENT
(iii) LONG TERM COBALT ALLOY SALES AGREEMENT
(iv) TOLLING AGREEMENT
Although each Agreement mentioned above can be interpreted independently
and according to its own terms, it is to be noted that it is part of a
larger contractual arrangement and that it has to be interpreted in light
of the other Agreement.
In the event of a conflict, the Agreements listed above shall be
interpreted in the above order so that a prior Agreement shall always
supersede a later one.
2. AMENDMENTS
- ------------------
Any amendments or additions to this Agreement shall be valid only if made
in writing and signed by duly authorized representatives of the Parties
hereto.
Should an amendment or modification to this Agreement have an effect to the
other Agreements, the Parties undertake to change or modify these other
Agreements in order to avoid any conflicts between this Agreement and the
other Agreements.
<PAGE> 24
24
3. RESTRICTIONS ON TRANSFERS
- ----------------------------
3.1. A Party shall not have the right to sell, assign, transfer, pledge or
otherwise dispose of the shares it holds in the J.V. unless priorily
consented in writing by all the other Parties.
3.2. The provisions of Article 3.1. shall not be applicable in the case of a
transfer, sale or assignment of the shares by a Party to its affiliate
company provided that the transfer, sale or assignment is total and is
imposed by legitimate reorganization needs of the Party concerned.
For the purposes of this Agreement, an affiliate company shall mean any
company or entity which is a subsidiary or a parent of the transferor Party
or which directly or indirectly controls or is controlled by the transferor
Party.
3.3. Any transfer described or permitted in accordance with Articles 3.1 and 3.2
shall be subject to the transferee giving its written undertaking to be
bound by all the terms, conditions and undertakings of this Agreement and
the relating Agreements.
3.4. Any transfer other than in accordance with Article 3.1. and 3.2. shall not
be possible without the prior written consent of all Parties.
4. ARBITRATION AND APPLICABLE LAWS
- ----------------------------------
In the event the Parties are unable to settle a dispute in connection with
this Agreement out of court, they agree the dispute shall be submitted to
the French section of the tribunals of Brussels which shall give a verdict
pursuant to the Belgian laws.
<PAGE> 25
25
5. CONFIDENTIALITY
- ------------------
5.1. Unless otherwise provided in this Article, all reports, records, data or
any other information of any kind whatsoever developed or acquired by any
Party in connection with the activities of the J.V. and/or the Processing
Company in the DEMOCRATIC REPUBLIC OF CONGO controlled by the J.V., shall
be treated as confidential and no Party shall reveal or otherwise disclose
such confidential information to third parties without the prior consent of
the other Parties.
The above restrictions shall not apply to the disclosure of confidential
information to any affiliate companies or any private or public financing
institutions, any contractors or subcontractors, employees or consultants
of the Parties or of the J.V. or the Processing Company or to any third
party to which a Party envisage the transfer, the sale, assignment,
encumbrance or other disposition of all of its participation in the J.V. in
accordance to the terms of the Article 3 above.
However, this shall only be applicable provided the confidential
information shall only be disclosed to third parties having a legitimate
need for this information and the persons or company to whom such
disclosure is made shall first undertake in writing to protect the
confidential nature of such information, to the same extent as the Parties
are obligated under this Article.
In addition, the above restrictions shall not apply to any Government or
governmental Department or Agency which has the right to require the
disclosure of such confidential information.
These restrictions shall also not apply to such confidential information
which comes into the Public Domain, except the fault from any Party.
This confidentiality obligation shall survive for a period of 5 years
commencing at the termination/dissolution of this Agreement.
The above mentioned restrictions are not valid for information retained by
GECAMINES related to the Site.
<PAGE> 26
26
6. FORCE MAJEURE
- ----------------
6.1. The obligations of any Party shall be suspended to the extent that the
performance of its obligations is prevented or delayed, in whole or in part
by :
accidental act, bad weather, floods, slides, mine disasters or major
accidents, cave-ins, strikes, lock-out, labor disputes, labor shortage,
demonstrations, riots, sabotage, laws, rules or regulations of agency or
governmental bodies or any other event beyond such Party's reasonable
control.
The obligations shall also be suspended in the event of governmental
actions or inactions, restraints of governmental or other competent
authorities, inability to obtain or unavoidable delay in obtaining
necessary materials, facilities and equipment in the open market,
suspension or refusal of access to the deposit Slag Site, interruption or
unavoidable delay in communication or transportation, or any other cause,
whether similar or not to those specifically listed, which shall be beyond
the reasonable control of the Party.
6.2. In the event of such occurrences, the Party affected shall give written
notice to the other Parties as soon as possible after the occurrence of the
event causing the delay or prevention, setting out full particulars and
estimating the duration of the delay or prevention.
The Party affected shall use all possible diligence to remedy the situation
causing the delay as quickly as possible.
The requirement that any such delay shall be remedied with all possible
diligence shall not require a Party to settle strikes, lock out or other
labor conflicts contrary to its wishes and this type of difficulty shall be
handled within the discretion of the Party concerned.
In the event the situation of force majeure would remain enforce for more
than 6 months, the Parties shall meet to analyze the situation en envisage
the termination of this Agreement.
<PAGE> 27
7. NOTICES
- ----------
7.1. All notices required under this Agreement shall be in writing and directed
to the respective Parties at the following addresses :
If to OMG :
OMG EUROPE GMBH
Mr Kari MUURAISKANGAS
Morsenbraicherweg 200
D - 40470 DUSSELDORF
GERMANY
Tel : 00.49.211.96.18.80
Fax : 00.49.211.61.46.29
If to GGF :
c/o G.F.I. S.A.
Managing Director
Parc Industriel
B - 4400 IVOZ-RAMET
BELGIUM
Tel : 00.32.4.338.91.79
Fax : 00.32.4.338.91.86
If to GECAMINES :
Mr General Director
Boulevard du Souverain 30
1000 BRUSSELS
BELGIUM
Tel : 00.32.2.676.89.98
Fax : 00.32.2.676.80.41
Fax Technical Direction : 00.32.2.676.80.48
Any notice shall be deemed to have been given to any Party if personally
delivered to a designated officer of the Party to whom the notice is addressed,
or if sent by registered mail, postage prepaid, with return receipt, and
properly addressed as set forth herein, or if sent by fax or telex to an
authorized representative with evidence of transmission receipt.
The notice shall be effective as of the moment of personal delivery, or in the
case of mailing, as of the date shown on the return receipt, or in the case of
fax or telex, as of the date faxed or telexed.
Any Party may, at any time, change the address to which notices or
communications shall be given by written notice to the other Parties.
<PAGE> 28
8. NO WAIVER
- ------------
The failure of a Party at any time to require the performance of any
provision of this Agreement shall not affect its right to execute that
provision and a waiver by such Party upon a breach thereof shall not be
interpreted as a waiver by such Party of any later non execution of such
provision or as a waiver by such Party of any other provision of this
Agreement.
9. SEVERABILITY AND HEADINGS
- ----------------------------
9.1. If any provision of this Agreement or its related Appendices should be null
and void, such a nullity shall not invalidate all the other provisions in
this Agreement or related Appendices. The Parties of this Agreement shall
endeavor to negotiate so as to replace any null and void provision as well
as any other affected provision.
9.2. The headings in this Agreement are considered for convenience only and
shall not have any effect or limit in interpreting the provisions of this
Agreement.
10. SOVEREIGN IMMUNITY
- -----------------------
To the extent that a Party may be entitled to claim in any jurisdiction in
which legal proceedings may at any time be commenced with respect to this
Agreement, for itself or its activities, properties or assets any immunity
either :
- - from jurisdiction of any court or arbitration
- - from attachment prior to judgment, from execution of a judgment or set-off
- - from any other legal process, and to the extent where such immunity could be
granted by that jurisdiction,
<PAGE> 29
LONG TERM SLAG SALES AGREEMENT
BETWEEN:
GECAMINES
AND:
J. V. GROUPEMENT POUR LE TRAITEMENT DU TERRIL DE
LUBUMBASHI
<PAGE> 30
2
THE PRESENT AGREEMENT IS ESTABLISHED IN ITS ENTIRETY BY ALL THE ELEMENTS
HEREINAFTER SPECIFIED AND AS REFERRED TO IN THE RESPECTIVE ARTICLES
I DEFINITIONS
II SPECIAL PROVISIONS
1 SCOPE
2 QUALITY AND QUANTITY
3 DELIVERY AND TITLE
4 PRICING
5 QUOTATIONAL PERIOD
6 BUFFER STOCK
7 PAYMENT
8 INVOICING CURRENCY AND PAYMENT PROCEDURES
9 WEIGHING, SAMPLING AND ANALYZING
10 TERM AND TERMINATION OF THE AGREEMENT
11 TAXES AND OTHER CHARGES AND FEES
12 HARDSHIP
13 LIABILITIES
14 COVENANTS
III GENERAL DISPOSALS
1 HIERARCHICAL ORDER OF THE AGREEMENTS
2 AMENDMENTS
3 RESTRICTIONS ON TRANSFERS
4 ARBITRATION AND APPLICABLE LAWS
5 CONFIDENTIALITY
6 FORCE MAJEURE
7 NOTICES
8 NO WAIVER
9 SEVERABILITY AND HEADINGS
10 SOVEREIGN IMMUNITY
11 APPENDICES
12 FURTHER ENGAGEMENTS
13 GENERAL CLAUSES
14 ENTERING INTO FORCE
<PAGE> 31
3
The Present Agreement is concluded between:
LA GENERALE DES CARRIERES ET DES MINES, a public company organized and existing
under the laws of the Democratic Republic of Congo, having its registered office
at Boulevard Kamanyola, B.P. 450, Lubumbashi (Democratic Republic of Congo)
(hereinafter referred to as the SUPPLIER or GECAMINES, or GCM)
on the one hand;
AND
J. V. GROUPEMENT POUR LE TRAITEMENT DU TERRIL DE LUBUMBASHI,
having its registered office at JERSEY, (hereinafter referred
to as the PURCHASER or GTL)
on the other hand;
WHEREAS the SUPPLIER is the owner of Slag produced in its water-jacket ovens in
Lubumbashi, the Democratic Republic of Congo, and containing among others
cobalt;
WHEREAS the PURCHASER intends to form a subsidiary company (hereinafter referred
to as the Processing Company) in the Democratic Republic of Congo to establish a
Plant in Lubumbashi for the main purpose of processing all or part of the Slag
existing in the Site. The enriched product obtained after processing is
hereafter referred to as Cobalt Alloy;
WHEREAS the SUPPLIER, in its position as the owner of the Slag on the Site, is
willing to sell the Slag on a long term basis as and when this Agreement shall
become effective and according to the terms and conditions set out hereafter;
WHEREAS the Parties estimated in May 1995 that the total quantity of Slag
located in the Site was approximately 13 million tons, out of which at least
some 4 million dry tons were estimated to correspond to the specifications of
the Frame Agreement signed on the 14th of February 1996 and therefore suitable
for processing;
NOW THEREFORE THE PARTIES HAVE AGREED AS FOLLOWS:
<PAGE> 32
4
I. DEFINITIONS
The terms defined hereinafter shall for all purposes of this Agreement and
related Contracts have the meanings hereinafter specified, unless otherwise
specified :
AGREEMENT means this document signed by the Parties and its appendices forming
an integral part of the present Agreement as well as its possible amendments.
BUYER means OMG KOKKOLA CHEMICALS Oy (KCO), a subsidiary of the OMG Group,
buying Cobalt Alloy in the Long Term Cobalt Alloy Sales Agreement.
PURCHASER means the J.V. purchasing Slag in the Long Term Slag
Sales Agreement.
COBALT BEARING ALLOY or TREATED MATERIAL means the main end product of the
Processing Company (sometimes also called "Cobalt Alloy") containing cobalt and
copper.
YEAR means calendar year beginning on 1st of January and ending on 31st of
December.
UMPIRE means a person appointed by mutual agreement of the J.V. and the Buyer or
GECAMINES in accordance with the Long Term Slag Sales Agreement or Long Term
Cobalt Alloy Sales Agreement.
CIF means "cost, insurance and freight" as defined in INCOTERMS, 1990 edition.
TOLLING AGREEMENT means the Agreement concluded between the J.V. and the
Processing Company for the purpose of processing Slag into Cobalt bearing Alloy.
LONG TERM COBALT ALLOY SALES AGREEMENT means the Agreement whereby the J.V.
undertakes to sell Cobalt Alloy to the Buyer and, the latter undertakes to buy
Cobalt Alloy from the J.V.
LONG TERM SLAG SALES AGREEMENT means the Agreement whereby GECAMINES undertakes
to sell Slag to the J.V. and the latter undertakes to buy Slag from GECAMINES.
<PAGE> 33
5
DATE OF DELIVERY means the date on which the J.V. takes and becomes the owner of
the Site Slag according to the terms of the ex-site delivery clause.
DDU means "delivery duty unpaid" as defined in INCOTERMS, 1990 edition
EXW means "ex works delivery" clause as defined in INCOTERMS, 1990 edition.
SUPPLIER means the GENERALE DES CARRIERES ET DES MINES supplying Slag in the
Long Term Slag Sales Agreement.
J.V. means a private limited liability company having its registered
office in JERSEY .
BUSINESS DAY means a day which is not a Saturday, a Sunday or a public holiday
in Finland, The Netherlands or the Democratic Republic of Congo.
KCO means OMG KOKKOLA CHEMICALS Oy, a subsidiary of the OMG Group located in
KOKKOLA, REPUBLIC OF FINLAND and established under the laws of the REPUBLIC OF
FINLAND.
LMB means the LONDON METAL BULLETIN.
LME means the LONDON METAL EXCHANGE.
SUPPLY LOT means a part of each delivered supply of Cobalt Alloy containing
approximately 100 tons of Cobalt Alloy as divided by the BUYER in KOKKOLA for
weighing, sampling, analysis and moisture content determination.
EXPEDITION LOT means the tonnage of one container of Cobalt Alloy dispatch from
the Processing Plant.
USED LOTS means the Lot or Lots of Cobalt Alloy taken into usage by the BUYER
for a period of one month.
MONTH means calendar month.
PARTIES means the Parties to this Agreement.
<PAGE> 34
6
QUOTATIONAL PERIOD means the Period defined in Article 5 of the Long Term Slag
Sales Agreement or in Article 6.2 in the Long Term Cobalt Alloy Sales Agreement.
WEIGHTS AND MEASURES
1 (metric) ton = 2,204.6 pounds avoirdupois
1 dmt or ts = 1 dry metric ton
1 wmt or th = 1 wet metric ton
TAKEN INTO USAGE means the taking of the Cobalt Alloy either directly from the
ordinary commercial raw material Stock or alternatively from the Buffer Stock as
a complement of the KOKKOLA Processing Plant.
PROJECT means the conception and building of a Processing Plant in LUBUMBASHI
for the purpose of exploiting the Slag Site of LUBUMBASHI as well as the proper
operation of the Processing Plant, the trading operations including related
operations and the distribution of the profits.
PROCESSED SLAG means the Slag resulting from the operations in the Processing
Plant
SLAG means cobalt bearing slag located in the Site in THE DEMOCRATIC REPUBLIC OF
CONGO and to be used as feeding stock in the Processing plant.
SITE or SLAG SITE means the area in the Democratic Republic of Congo where the
Slag is located and available to be delivered to the J.V. pursuant to this
Agreement (called Terril de LUBUMBASHI, originating from the residues of the
WATER JACKET ovens of GECAMINES and namely including the zones I, J, K1, K2 and
TAS G-L having an average cobalt content of 1,85% as described in further detail
in appendix 1 of the Frame Agreement attached as Appendix 1 to this Agreement).
PROCESSED SLAG SITE means the area in the Democratic Republic of Congo where the
processed slag will be stocked.
PROCESSING COMPANY means the Company to be set up by the J.V. in the Democratic
Republic of Congo in the form of a SPRL for the purposes of operating the
Processing Plant.
COMMERCIAL STOCK means the ordinary stock of Cobalt Alloy enabling the regular
supply of OMG-KCO plant taking into account the periodicity of maritime
arrivals.
<PAGE> 35
7
BUFFER STOCK means the Cobalt Alloy Stock to be established at OMG in KOKKOLA,
FINLAND in accordance with article 10 of the J.V. Agreement and to be kept
separate from the Ordinary Commercial Cobalt Alloy Stock of OMG KOKKOLA
Chemicals Oy.
USD means the lawful currency of the UNITED STATES OF AMERICA.
PROCESSING PLANT means the Plant to be located in LUBUMBASHI in the DEMOCRATIC
REPUBLIC OF CONGO. The Plant shall be operated by the Processing Company for the
purpose of processing Slag into Cobalt bearing Alloy.
SELLER means the J.V. selling Cobalt Alloy in the Long Term Cobalt Alloy Sales
Agreement.
<PAGE> 36
8
II. SPECIAL PROVISIONS
----------------------
1. SCOPE
-----
The Parties agree that, according to this Agreement, the Slag located in the
Site corresponding to the specifications set out in article 2 hereafter shall be
reserved and intended to the usage of the PURCHASER and of the Processing
Company, in accordance with the terms and conditions set out in this Agreement .
Hence, subject to the terms and conditions of this Agreement:
(i) the SUPPLIER undertakes to sell the Slag available in the Site and
corresponding to the quantities and specifications set out in Article 2
hereafter to the PURCHASER.
(ii) the PURCHASER undertakes to buy the Slag available in the Site and
corresponding to the quantities and specifications set out in Article 2
hereafter from the SUPPLIER.
The SUPPLIER agrees not to sell the Slag available in the Site and corresponding
to the quantities and specifications set out in Article 2 below, to any other
buyer than the PURCHASER during the validity period of this Agreement and except
with prior written consent of the PURCHASER.
In support of the right to take the Slag in the Site, the SUPPLIER hereby
irrevocably and unconditionally guarantees to the PURCHASER and the Processing
Company a free and unhindered access to the Site during the validity period of
this Agreement.
In order to safeguard the effectiveness of this access, the SUPPLIER agrees
either not to alienate to a third party or to transfer to the J.V. the use of
the strip of land through which access to the Site is made and such as mutually
agreed.
<PAGE> 37
9
2. OUALITY AND QUANTITY
---------------------
2.1. The Slag shall be delivered EXW the Site.
2.2. Information on the quality and quantity of the Slag is based at this stage
on information given by the SUPPLIER. This Agreement covers the tonnages of the
Slag in stock zones I, J, K1, K2 and TAS-GL (a map of the stock zones is
attached as Appendix 1 forming an integral part of this Agreement) :
This represents at least 4 million dry tons of Slag having the following average
analysis (and is attached as Appendix 2 and forming an integral part of this
Agreement) :
-Co: 1.85%
-Cu: 1.39%
-Zn: 7.49%
The quantity of Slag mentioned in Appendix 2 should be sufficient for the
production of Cobalt Alloy containing 5,000 tons of Cobalt per year for a period
of 15 years.
2.3. Should the total tonnage of Slag corresponding to the minimal
specifications be higher than the total quantities indicated above, the
PURCHASER shall have the right of first refusal to buy the excess of the Slag at
terms and conditions to be set out.
In case GECAMINES wants to utilize other part of the stock than what is defined
in Article 2.2, the PURCHASER shall have the right of pre-emption to use it
within 3 months after the written notice addressed by GECAMINES to the
PURCHASER.
The purchase conditions on all or part of that part of the stock shall be
negotiated in the event the pre-emption right is used.
<PAGE> 38
10
2.4. The SUPPLIER has delivered a preliminary map indicating the cobalt contents
of the different zones of the Site. Such map is only preliminary, and shall not
have any value of evidence with regard to the cobalt content of the Slag in the
different zones of the Site.
The PURCHASER shall have the right to take samples in order to analyze the
cobalt content of the Slag. Should an essential part of the Slag have a cobalt
content below the allowed average content, and the J.V. find that the project is
not economically viable, according to the feasibility studies, the J.V. shall
have the right at its full and independent discretion, to terminate this
Agreement by means of a written notice delivered to the SUPPLIER at the latest 6
months after entering into force of this Agreement.
2.5. The SUPPLIER undertakes to sell to the PURCHASER the quantity of Slag
needed to produce the Cobalt Alloy as determined annually by the PURCHASER. That
annual production shall be realized according to the agreed processing
conditions and shall not be superior to 5,000 tons of cobalt contained in the
Cobalt Alloy without the approval of the SUPPLIER.
Nevertheless, the Slag sale shall not be less than what is needed to produce
4,000 tons of cobalt contained in the Cobalt Alloy.
2.6. The PURCHASER shall, either on its own initiative or at the request of
GECAMINES or KCO, organize at least once a year a meeting of these 3 parties in
order to analyze the market conditions and coordinate the commercial policies.
2.7. The PURCHASER shall include in the Long Term Cobalt Alloy Sales Agreement
to be signed with KCO that:
- - KCO shall not receive more than 5,000 tons of cobalt per year, with a minimum
guaranteed supply of 4,000 tons of cobalt contained in the Cobalt Alloy,
according to this Agreement.
- - In case the PURCHASER, after the building up of the Buffer Stock containing
2,500 tons of Cobalt, produces through the Processing company more than 4,000
tons per year, the quantity exceeding 4,000 tons shall be offered at the KCO
market conditions, that shall have the right of first refusal.
<PAGE> 39
11
2.8. The annual quantity of 5,000 tons of Cobalt mentioned above does not
include the quantity comprised in the Buffer Stock and can possibly be revised
after negotiation among the Parties, depending among others on the Processing
capacities in the Democratic Republic of Congo and/or in Finland as well as on
the Cobalt market situation.
3. DELIVERY AND TITLES
-------------------
The quantities specified in Article 2 above shall be delivered EXW Site.
All risk of loss, damage and destruction with regard to each delivery of Slag
shall pass from the SUPPLIER to the PURCHASER along with its title as and when
the delivered Slag has been loaded at the Site by the Processing Company.
4. PRICING
-------
4.1. PAYABLE METALS
The PURCHASER shall pay to the SUPPLIER only for the Cobalt and Copper contained
in the Slag excluding all other materials.
The Cobalt and Copper prices shall be determined separately.
The Slag payment shall be based on the weighing and analyzing of the Slag
carried out at the Processing plant according to a procedure to be determined by
the Parties according to Article 9.
Zinc and lead in form of oxides as well as Processed Slag shall be returned free
of charge to GECAMINES that shall become the owner of them and shall remove them
at its own expense as quickly as possible.
<PAGE> 40
12
4.2. PRICE REFERENCES
The base price for Cobalt applicable for this Agreement ** a combination
of ** of 99.3 cobalt (low) and ** of 99,8 cobalt (low) as published by
LMB over the Quotational period.
The Parties agree to meet to determine a new base price in case the reference
99.3 and/or 99.8 would disappear or would not be representative any more.
The base price for copper is ** over the Quotational Period.
4.3. BASIS PRICE FORMULA
The price to be paid for the Cobalt contents in the Slag shall be as follows,
where P is the prevailing Cobalt price :
(i) In the event that the price of Cobalt (P) is more than or equal to **
USD/lb:
Payable cobalt percentage = **
The percentage of Cobalt payable may, however, not exceed ** of the
reference price.
(ii) In the event that the price of Cobalt (P) is lower than ** USD/lb, the
Parties shall meet to renegotiate the pricing formula **.
The price formulas under (i) and (ii) above are the minimum. The Parties agree
to meet within six months after the beginning of the processing for a possible
review of the price formulas, taking into account the following elements : total
investment expenditure, financing costs, electricity costs, tax treatment, yield
of the processing and quality of the Cobalt Alloy.
The Parties agree that as and when OMG GGF have been fully reimbursed and repaid
the capital invested in the Project including the interests accrued and the
financial charges, the above ricing formula be modified, **.
** Confidential treatment has been requested with respect to certain information
contained within this document. Confidential portions are omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of
the Securities and Exchange Act of 1934.
<PAGE> 41
13
4.4. PRICE FOR COPPER
The PURCHASER shall pay to the SUPPLIER for copper in the Slag ** of the base
price defined in Article 4.2.
5. QUOTATIONAL PERIOD
------------------
The Quotational Period for Cobalt and Copper is the month following the delivery
month of Cobalt Alloy at Kokkola, Finland.
6. BUFFER STOCK
------------
6.1. ESTABLISHMENT AND QUANTITY
To safeguard that KCO shall get an uninterrupted and sufficient feedstock of
Cobalt Alloy to the KOKKOLA Plants, GECAMINES allows the PURCHASER to build up a
Buffer Stock of Cobalt Alloy in KOKKOLA besides the Commercial Stock to back up
for any supply interruption.
Therefore GECAMINES agrees to sell to the J.V. and the J.V. agrees to purchase
the quantity of Slag necessary for building up the Buffer Stock. The total
cobalt quantity contained in the Buffer Stock shall be 2,500 tons.
The monthly amount of Cobalt Alloy exceeding the monthly agreed tonnage taken
into usage by KCO shall be used for building up the Buffer Stock until the
quantity of 2,500 tons of Cobalt contents has been reached.
In the event that the cobalt content in the Buffer Stock decreases during the
term of this Agreement, either as a result of an interruption of deliveries or
insufficient deliveries, the excess quantity above the agreed monthly supply
shall be used for rebuilding the Buffer Stock until the minimum cobalt content
of 2,500 tons has been reached again.
** Confidential treatment has been requested with respect to certain information
contained within this document. Confidential portions are omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of
the Securities and Exchange Act of 1934.
<PAGE> 42
14
Nevertheless, the Parties agree that the total amount of Cobalt contained in the
Buffer Stock, i.e. 2.500 tons, be reduced by 400 tons per year from the year
2006 so that the quantity of Cobalt be reduced to 2.100 tons at the end of the
year 2006, and so on, provided, however, that the J.V. has entirely reimbursed
and repaid OMG and GGF in form of dividends or other distributions the total
value of the investment in the Project including all interest and financial
charges. In case not, the reduction of the Buffer Stock shall be postponed
accordingly.
In the event of an interruption of supplies during the reduction periods
hereinabove referred and as a result the level of the Buffer Stock falls short
of the above formula, then the annual reduction shall be postponed until the
minimum level of the Buffer Stock has first been met as follows :
End 2006 : 2.100 tons of Cobalt
End 2007 : 1.700 tons of Cobalt
End 2008 : 1.300 tons of Cobalt
End 2009 : 900 tons of Cobalt
End 2010 : 500 tons of Cobalt
End 2011 : 100 tons of Cobalt
End 2012 : Liquidation of the Buffer Stock.
As regard to any other situation than those mentioned hereinabove, the Parties
will meet to find a joint understanding.
6.2. MANAGEMENT OF THE BUFFER STOCK
KCO shall be responsible towards the J.V. for the management and the risks of
the Buffer Stock, and shall bear all costs linked to it. KCO shall permit the
SUPPLIER and the PURCHASER to check all records containing the necessary
information as to the status and consumption of the Buffer Stock.
The transfer of title related to the Cobalt Alloy of the Buffer Stock shall
pass from the J.V. to KCO as taken into usage.
<PAGE> 43
15
6.3. PAYMENT FOR THE SLAG TAKEN OUT FOR BUILDING-UP OF THE BUFFER STOCK
The regulations as set out in this article are not prejudicing the above
article 6.1, al. 6 and following.
The PURCHASER shall pay for the Slag only after KCO has taken Cobalt Alloy into
usage. The payments shall be made as set out in Art. 6.2 of the Long Term
Cobalt Alloy Sales Agreement.
If GECAMINES so wish and if the PURCHASER is able to find a bank to finance such
a transaction, the PURCHASER may use the Buffer Stock as a collateral for a bank
loan to be used as an advance payment for the Slag to GECAMINES. The loan costs
including interest and charges are at the expense of GECAMINES. The total amount
of such loans including estimated interests related to such loans and bank
charges shall not, however, exceed at any time the value of the Slag used for
the building of the Buffer Stock, as estimated by the PURCHASER and approved by
the bank. The advance payment, bank charges and interests shall be deducted from
the price to be paid by the J.V. to GECAMINES as and when KCO takes into usage
Cobalt Alloy from the Buffer Stock.
KCO shall always have the right, and at its full discretion, to prepay the Slag
corresponding to the cobalt tonnage of the Buffer Stock.
7. PAYMENT
-------
The payments by the PURCHASER to the SUPPLIER for the Cobalt and Copper in the
Slag are based on the delivery of the Slag to the PURCHASER.
The payments by the PURCHASER shall be made within thirty calendar days from end
of each Quotational Period.
<PAGE> 44
16
8. INVOICING CURRENCY AND PAYMENT PROCEDURES
-----------------------------------------
8.1 USD
All bills and payments shall be in USD.
8.2 METHOD OF PAYMENT
Payments by the PURCHASER to the SUPPLIER shall be made by bank transfer to the
SUPPLIER's account.
9. WEIGHING, SAMPLING AND ANALYZING
--------------------------------
The PURCHASER and the SUPPLIER shall confer and, before dispatch of the first
consignment, shall adopt and record mutually acceptable methods of weighing,
sampling and analyzing. Such methods shall be accurate and reliable. They shall
be appropriate and, based on internationally recognized industrial standards
provide efficient and practical ways of determining accurate weights, obtaining
representative samples, and producing accurate analyses of Slag supplies.
10. TERM AND TERMINATION OF THE AGREEMENT
-------------------------------------
10.1. This Agreement shall remain in force for a period of 20 years after its
effective entering into force.
10.2. The Parties may at any time terminate this Agreement by mutual agreement
in writing.
In the case of termination by mutual agreement, the Parties shall agree as
to the terms of the dissolution.
<PAGE> 45
17
10.3. It is expressly agreed between the Parties that should any of the
following events take place, this Agreement shall not terminate nor the rights
of the PURCHASER to purchase the Slag as stipulated in this Agreement:
(i) Should GECAMINES go into bankruptcy,
(ii) Should GECAMINES become insolvent,
(iii) Should GECAMINES have a receiver appointed of its assets,
(iv) Should an order being made or a resolution being passed for winding-up or
liquidate GECAMINES,
(v) Should any other similar event take place as regard to GECAMINES.
10.4. If deemed necessary by the PURCHASER that the SUPPLIER shall take some
special measures to guarantee that the Slag (or what is left from it) can be
used on a continuous basis by the Processing Company, the Parties shall meet to
envisage the necessary safeguard measures. These possible measures shall prior
to their execution be submitted to the agreement of the Parties in order to
comply with the terms and conditions of this Agreement and the related
agreements.
10.5. This Agreement may also be terminated with no damages by the J.V. if:
(i) the samples clearly indicate that the cobalt contents falls short of the
average of 1,85%; or
(ii) it is clear that the Plant cannot operate in a profitable way on a long
term basis; or
(iii)the taxation system in The Democratic Republic of Congo as applicable to
the Processing Company and the Plant abruptly changes in a manner
prejudicing the economic performance of the Processing Company and the
profitability of the Plant.
Such a termination shall be effectuated by a written notice from the
PURCHASER to the SUPPLIER indicating the date of such termination.
<PAGE> 46
18
11. TAXES AND OTHER CHARGES AND FEES
--------------------------------
Any taxes, State fees or other charges on the Slag shall be for the account of
the SUPPLIER, with the exception of the C.C.A.
The PURCHASER shall for the benefit of the Project and of the Processing Company
and the Plant apply for and take benefit of all possible tax reliefs under tax
and investment laws of the Democratic Republic of Congo such as, but not limited
to, tax incentives, lower tax rates, relief of export and import duties and
C.C.A. as well as exemption from withholding taxes for interest and dividend
payments.
In case of any adversary changes in the tax regime with respect to the Cobalt
Alloy and/or with the operation of the Plant or the Processing Company, the
Parties agree to meet.
12. HARDSHIP
--------
If at any moment unanticipated events by the Parties will fundamentally alter
the balance of this Agreement, resulting in an excessive burden to one of the
parties in fulfilling its contractual obligations vis-a-vis the other Party,
this aggrieved Party may proceed as follows:
- - The aggrieved party may request a review of this Agreement within a reasonable
delay after it has got the knowledge of the said change in circumstances and its
effects on the economy of this Agreement.
- - The request shall mention the reasons causing such review.
- - The Parties shall confer within thirty calendar days of receipt of the notice
in view to revise this Agreement on an equitable basis to avoid the excessive
burdens for any of the Parties.
A request to review does not have any suspension effects as to the execution of
this Agreement.
<PAGE> 47
19
13. LIABILITIES
-----------
In the event of a breach to this Agreement, each Party shall be liable for all
direct damage as well as cost, charges and expenses caused through that breach,
which shall be compensated in full.
However, any loss or damage which is an indirect or consequential result of the
nonfulfillment of obligations under or in connection with this Agreement are
excluded unless resulting from a willful or intentional act from the defaulting
Party.
All direct damages and claims can only be set off or deducted from the agreed
price if and when the disagreement has been finally settled or solved
otherwise.
14. COVENANTS
---------
The SUPPLIER shall covenant:
(i) to guarantee an unhindered access right to the Site either by not
alienating to a third party or by transferring to the J.V. the use of the
strip of land through which access to Site is made as mutually agreed, as
well as the exclusive rights to use the slag.
(ii) to support the obtaining from the Government of the Democratic Republic of
Congo of a favorable tax treatment.
(iii) to provide its full support in order to obtain all other necessary
approvals, permissions, tax exemptions and export licenses, etc. for the
Processing Company and/or the PURCHASER;
<PAGE> 48
20
III. GENERAL DISPOSALS
-----------------
1. HIERARCHICAL ORDER OF THE AGREEMENTS
-------------------------------------
This Agreement is part of a number of Agreements concluded between the Parties.
The aim of these Agreements is to set up the terms and conditions of the
purchase of the Slag located at the Site, the setting up of the J.V. and of the
Processing Company and selling the Cobalt bearing Alloy to KCO for further
processing.
These Agreements are:
(i) Joint Venture Agreement
(ii) Long Term Slag Sales Agreement
(iii) Long Term Cobalt Alloy Sales Agreement
(iv) Tolling Agreement.
Although each Agreement mentioned above can be interpreted independently and
according to its terms, it is to be noted that it is part of a larger
contractual arrangement and that it has to be interpreted in light of the other
Agreements.
In the event of a conflict, the Agreements listed above shall be interpreted in
the above order so that a prior Agreement shall always supersede a later one.
2. AMENDMENTS
----------
Any amendments and additions to this Agreement shall be valid only if made in
writing and signed by duly authorized representatives of the Parties hereto.
<PAGE> 49
21
Should an amendment or modification to this Agreement have an effect on the
other Agreements, the Parties undertake to change or modify these other
Agreements in order to avoid any conflicts between the various Agreements.
3. RESTRICTIONS ON TRANSFERS
-------------------------
3.1. A Party shall not have the right to sell, assign, transfer, mortgage,
pledge, charge or otherwise deal with the rights and obligations it holds
in this Agreement.
3.2. The provisions of Article 3.1 shall not be applicable in case of a
transfer, sale or assignment of participation by a Party to an affiliate
company provided that the transfer, sale or assignment is total and imposed
by legitimate reorganisation needs of the Party concerned.
For the purposes of this Agreement, an affiliate company shall mean any
company or entity which is a subsidiary or a parent of the transferor Party
or which directly or indirectly controls or is controlled by the transferor
Party.
3.3. Any transfer beyond the terms and conditions of Article 3.1. and 3.2 shall
not be possible without the prior written consent by all the Parties.
3.4. Any transfer described or permitted in accordance with Articles 3.1 and 3.2
shall be subject to the transferee giving its written undertaking to be
bound by all the terms, conditions and undertakings of this Agreement and
the relating Agreements.
<PAGE> 50
22
4. ARBITRATION AND APPLICABLE LAWS
-------------------------------
In the event the Parties are unable to settle a dispute in connection with this
Agreement out of court, they agree the dispute shall be submitted to the French
section of the tribunals of Brussels which shall give a verdict pursuant
to the Belgian laws.
5. CONFIDENTIALITY
---------------
5.1. Unless otherwise provided in this Article, all reports, records, data or
any other information of any kind whatsoever developed or acquired by any
Party in connection with the activities of the J.V. and/or the Processing
Company in the Democratic Republic of Congo controlled by the J.V., shall
be treated as confidential and no Party shall reveal or otherwise disclose
such confidential information to third parties without the prior consent of
the other Parties.
The above restrictions shall not apply to the disclosure of confidential
information to any affiliate companies or any private or public financing
institutions, any contractors or subcontractors, employees or consultants
of the Parties or of the J.V. or the Processing Company or to any third
party to which a Party envisage the transfer, the sale, assignment,
encumbrance or other disposition of all of its participation in the J.V. in
accordance to the terms of the Article 3 above.
However, this shall only be applicable provided the confidential
information shall only be disclosed to third parties having a legitimate
need for this information and the persons or company to whom such
disclosure is made shall first undertake in writing to protect the
confidential nature of such information, to the same extent as the Parties
are obligated under this Article.
In addition, the above restrictions shall not apply to any Government or
governmental Department or Agency which has the right to require disclosure
of such confidential information.
These restrictions shall also not apply to such confidential information
which comes into the Public Domain, except the fault from any Party.
<PAGE> 51
23
This confidentiality obligation shall survive for a period of 5 years
commencing at the termination/dissolution of this Agreement.
The above mentioned restrictions are not valid for information retained
by GECAMINES related to the Site.
6. FORCE MAJEURE
-------------
6.1. The obligations of any Party shall be suspended to the extent that the
performance of its obligations is prevented or delayed, in whole or in part
by:
- accidental act, bad weather, floods, slides, mine disasters or major
accidents, cave-ins, strikes, lock-out, labor disputes, labor shortage,
demonstrations, riots, sabotage, laws, rules or regulations of agency or
governmental bodies.
The obligations shall also be suspended in the event of governmental
actions or inactions, restraints of governmental or other competent
authorities, inability to obtain or unavoidable delay in obtaining
necessary materials, facilities and equipment in the open market,
suspension or refusal of access to the deposit Slag Site, interruption or
unavoidable delay in communication or transportation, or any other cause,
whether similar or not to those specifically listed, which shall be beyond
the reasonable control of the Party.
6.2. In the event of such occurrences, the Party affected shall give written
notice to the other Parties as soon as possible after the occurrence of the
event causing the delay or prevention, setting out full particulars and
estimating the duration of the delay or prevention.
The Party affected shall use all possible diligence to remedy the situation
causing the delay as quickly as possible.
The requirement that any such delay shall be remedied with all possible
diligence shall not require a Party to settle strikes, lock out or other
labor conflicts contrary to its wishes and this type of difficulty shall be
handled within the discretion of the Party concerned.
<PAGE> 52
24
In the event the situation of force majeure would remain enforce for more
than 6 months, the Parties shall meet to analyze the situation en envisage
the termination of this Agreement.
7. NOTICES
-------
7.1. All notices required under this Agreement shall be in writing and directed
to the respective Parties at the following addresses:
If to GECAMINES: Mr Umba Kyamitala
General Director
Boulevard du Souverain 30
B-1000 BRUSSELS
BELGIUM
Tel. 00.32-2-676 89 98
Fax. 00.32-2-676 80 41
Fax Technical Direction:
00.32-2-676 80 48
If to J.V.:
Any notice shall be deemed to have been given to any Party if personally
delivered to a designated officer of the Party to whom the notice is addressed,
or if sent by registered mail, postage prepaid, with return receipt, and
properly addressed as set forth herein, or if sent by fax or telex to an
authorized representative with evidence of transmission receipt.
The notice shall be effective as of the moment of personal delivery, or in the
case of mailing, as of the date shown on the return receipt, or in the case of
fax or telex, as of the date faxed or telexed.
<PAGE> 53
LONG TERM COBALT ALLOY SALES AGREEMENT
--------------------------------------
BETWEEN
- -------
THE J.V. GROUPEMENT POUR LE TRAITEMENT DU
TERRIL DE LUBUMBASHI
AND
- ---
OMG KOKKOLA CHEMICALS OY
<PAGE> 54
THE PRESENT AGREEMENT IS ESTABLISHED IN ITS ENTIRETY BY ALL
THE ELEMENTS HEREINAFTER SPECIFIED AND AS REFERRED TO IN THE
RESPECTIVE ARTICLES
I. DEFINITIONS
II. SPECIAL PROVISIONS
1. Scope and Quantity
2. Specifications of the Cobalt Alloy
3. Duration
4. Buffer Stock
5. Delivery and Title
6. Payment
7. Weighing, Sampling and Analysis
8. Invoicing Currencies and Payment Procedures
9. Hardship
10. Liabilities
III. GENERAL DISPOSALS
1. Hierarchical Order of the Agreements
2. Amendment
3. Restrictions on Transfers
4. Arbitration and Applicable Laws
5. Confidentiality
6. Force Majeure
7. Notices
8. No Waiver
9. Severability and Headings
10. Sovereign Immunity
11. Further Engagements
12. General Clauses
13. Entering into Force
<PAGE> 55
3
The Present Agreement is concluded between :
SELLER :
J . V. "GROUPEMENT POUR LE TRAITEMENT DU TERRIL DE LUBUMBASHI",
having its registered office in Jersey on the one hand; and
BUYER :
OMG KOKKOLA CHEMICALS OY, having its registered office at P.O. Box 286,
FIN-67101 KOKKOLA, Finland (hereinafter referred to as the BUYER or KCO) on the
other hand.
Whereas the SELLER intends to invest in a Plant to be located in Lubumbashi, the
Democratic Republic of Congo, for the exclusive purpose of processing Slag
presently available in the Site in the Democratic Republic of Congo to be
processed into Cobalt Alloy which will be sold to the BUYER, and
Whereas the Parties wish to enter into this Agreement whereby the SELLER
undertakes to sell Cobalt Alloy, and the BUYER undertakes to buy Cobalt Alloy
according to the terms and conditions herein set forth.
THEREFORE THE PARTIES HAVE AGREED AS FOLLOWS :
<PAGE> 56
4
I. DEFINITIONS
The terms defined hereinafter shall for all purposes of this Agreement and
related Contracts have the meanings hereinafter specified, unless otherwise
specified :
AGREEMENT means this document signed by the Parties and its appendices forming
an integral part of the present Agreement as well as its possible amendments.
BUYER means OMG KOKKOLA CHEMICALS Oy (KCO), a subsidiary of the OMG Group,
buying Cobalt Alloy in the Long Term Cobalt Alloy Sales Agreement.
PURCHASER means the J.V. purchasing Slag in the Long Term Slag
Sales Agreement.
COBALT BEARING ALLOY or TREATED MATERIAL means the main end product of the
Processing Company (sometimes also called "Cobalt Alloy") containing cobalt and
copper.
YEAR means calendar year beginning on 1st of January and ending on 31st of
December.
UMPIRE means a person appointed by mutual agreement of the J.V. and the Buyer or
GECAMINES in accordance with the Long Term Slag Sales Agreement or Long Term
Cobalt Alloy Sales Agreement.
CIF means "cost, insurance and freight" as defined in INCOTERMS, 1990 edition.
TOLLING AGREEMENT means the Agreement concluded between the J.V. and the
Processing Company for the purpose of processing Slag into Cobalt bearing Alloy.
LONG TERM COBALT ALLOY SALES AGREEMENT means the Agreement whereby the J.V.
undertakes to sell Cobalt Alloy to the Buyer and the latter undertakes to buy
Cobalt Alloy from the J.V.
LONG TERM SLAG SALES AGREEMENT means the Agreement whereby GECAMINES undertakes
to sell Slag to the J.V. and the latter undertakes to buy Slag from GECAMINES.
DATE OF DELIVERY means the date on which the J.V. takes and becomes the owner
of the Site Slag according to the terms of the ex-site delivery clause.
<PAGE> 57
5
DDU means "delivery duty unpaid" as defined in INCOTERMS, 1990 edition
EXW means "ex works delivery" clause as defined in INCOTERMs, 1990 edition.
SUPPLIER means the GENERALE DES CARRIERES ET DES MINES supplying Slag in the
Long Term Slag Sales Agreement.
J.V. means a private limited liability company having its registered office
in JERSEY.
BUSINESS DAY means a day which is not a Saturday, a Sunday or a public holiday
in Finland, The Netherlands or the Democratic Republic of Congo.
KCO means OMG KOKKOLA CHEMICALS Oy, a subsidiary of the OMG Group located in
KOKKOLA, REPUBLIC OF FINLAND and established under the laws of the REPUBLIC OF
FINLAND.
LMB means the LONDON METAL BULLETIN.
LME means the LONDON METAL EXCHANGE.
SUPPLY LOT means a part of each delivered supply of Cobalt Alloy containing
approximately 100 tons of Cobalt Alloy as divided by the BUYER in KOKKOLA for
weighing, sampling, analysis and moisture content determination.
EXPEDITION LOT means the tonnage of one container of Cobalt Alloy dispatch from
the Processing Plant.
USED LOTS means the Lot or Lots of Cobalt Alloy taken into usage by the BUYER
for a period of one month.
MONTH means calendar month.
PARTIES means the Parties to this Agreement.
QUOTATIONAL PERIOD means the Period defined in Article 5 of the Long Term Slag
Sales Agreement or in Article 6.2 in the Long Term Cobalt Alloy Sales Agreement.
<PAGE> 58
6
WEIGHTS AND MEASURES
1 (metric) ton = 2,204.6 pounds avoirdupois
1 dmt or ts = 1 dry metric ton
1 wmt or th = 1 wet metric ton
TAKEN INTO USAGE means the taking of the Cobalt Alloy either directly from the
ordinary commercial raw material Stock or alternatively from the Buffer Stock as
a complement of the KOKKOLA Processing Plant.
PROJECT means the conception and building of a Processing Plant in LUBUMBASHI
for the purpose of exploiting the Slag Site of LUBUMBASHI as well as the proper
operation of the Processing Plant, the trading operations including related
operations and the distribution of the profits.
PROCESSED SLAG means the Slag resulting from the operations in the Processing
Plant
SLAG means cobalt bearing slag located in the Site in THE DEMOCRATIC REPUBLIC OF
CONGO and to be used as feeding stock in the Processing plant.
SITE or SLAG SITE means the area in the Democratic Republic of Congo where the
Slag is located and available to be delivered to the J.V. pursuant to this
Agreement (called Terril de LUBUMBASHI, originating from the residues of the
WATER JACKET ovens of GECAMINES and namely including the zones I, J, Kl, K2 and
TAS G-L having an average cobalt content of 1,85% as described in further detail
in appendix 1 of the Frame Agreement attached as Appendix 1 to this Agreement).
PROCESSED SLAG SITE means the area in the Democratic Republic of Congo where the
processed slag will be stocked.
PROCESSING COMPANY means the Company to be set up by the J.V. in the Democratic
Republic of Congo in the form of a SPRL for the purposes of operating the
Processing Plant.
COMMERCIAL STOCK means the ordinary stock of Cobalt Alloy enabling the regular
supply of OMG-KCO plant taking into account the periodicity of maritime
arrivals.
BUFFER STOCK means the Cobalt Alloy Stock to be established at OMG in KOKKOLA,
FINLAND in accordance with article 10 of the J.V. Agreement and to be kept
separate from the Ordinary Commercial Cobalt Alloy Stock of OMG KOKKOLA
Chemicals Oy.
<PAGE> 59
7
USD means the lawful currency of the UNITED STATES OF AMERICA.
PROCESSING PLANT means the Plant to be located in LUBUMBASHI in the DEMOCRATIC
REPUBLIC OF CONGO. The Plant shall be operated by the Processing Company for the
purpose of processing Slag into Cobalt bearing Alloy.
SELLER means the J.V. selling Cobalt Alloy in the Long Term Cobalt Alloy
Sales Agreement.
<PAGE> 60
8
II. SPECIAL PROVISIONS
------------------
1. SCOPE AND QUANTITY
- ---------------------
The SELLER undertakes to sell and deliver to the BUYER and the BUYER undertakes
to buy from the SELLER a minimum annual of 4,000 tons of cobalt and a maximum
annual 5,000 tons of Cobalt contained for the exclusive usage of the Buyer.
The annual quantity of 5,000 tons of Cobalt mentioned above does not include the
quantity contained in the Buffer Stock and could possibly be reviewed after
negotiation between the Parties, depending among others on the Slag
availability, the processing capacity in the Democratic Republic of Congo and/or
in Finland as well as on the Cobalt market situation.
The annual quantity to be delivered shall be agreed by the Parties in the annual
plans to be concluded and agreed three months prior to the beginning of each
year.
In case the SELLER produces through the Processing Company more than 4,000 tons
per year, after the building up of the Buffer Stock, the quantity exceeding
4,000 tons shall be offered in priority to the BUYER at market conditions, and
the latter shall have the right of first refusal.
The J.V. can only sell to other users that tonnage of Cobalt which exceeds 4,000
tons.
2. SPECIFICATIONS OF THE COBALT ALLOY
- --------------------------------------
The Cobalt Alloy to be delivered to KOKKOLA, Finland shall have the following
specifications on a dry basis:
**
** Confidential treatment has been requested with respect to certain information
contained within this document. Confidential portions are omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of
the Securities and Exchange Act of 1934.
<PAGE> 61
9
3. DURATION
- -----------
This Agreement is concluded for a period of 20 years.
This Agreement shall automatically be prolonged in so far that at the end of the
year 2016 there is still Slag with an average Cobalt content of 1,85% and
capable of being provided on economic viable terms and provided that the Long
Term Slag Sales Agreement shall be prolonged for an equivalent period of time.
This Agreement shall automatically be terminated:
(i) in case there shall no more be Slag available corresponding to the
minimal required quantities and qualities,
(ii) in case of liquidation of the J.V. with no successor,
(iii) in case the BUYER disappears with no successor. Should any of the above
mentioned event take place, no damages or interests shall be paid
whatsoever.
4. BUFFER STOCK
- ---------------
4.1. ESTABLISHMENT AND QUANTITY
To guarantee to the SELLER and BUYER an uninterrupted and sufficient feedstock
of Cobalt Alloy to the KOKKOIA Plants, GECAMINES allows the SELLER and the BUYER
to build up a Buffer Stock of Cobalt Alloy in KOKKOLA, in addition to the
commercial stock to alleviate the problem caused by possible disturbances in the
deliveries.
For that reason GECAMINES undertakes to sell to the J.V. and
the J.V. undertakes to buy from GECAMINES the quantity of Slag
necessary for building up the Buffer Stock. The Cobalt
contained in the Buffer Stock shall be 2,500 tons.
The monthly amount of cobalt contained in the Cobalt Alloy exceeding the agreed
monthly tonnage taken into usage by KCO shall be used for building up the Buffer
Stock until the 2,500 tons of Cobalt Contained in the Cobalt Alloy have been
reached.
<PAGE> 62
10
In the event that the cobalt content in the Buffer Stock decreases during the
validity period of this Agreement, because of interruption or slowing down of
the deliveries the excess quantity above the agreed monthly supply shall be used
for rebuilding the Buffer Stock until the cobalt content of 2,500 tons has been
reached again.
Nevertheless, the Parties agree that the total amount of cobalt contained in the
Buffer Stock, i.e. 2.500 tons, may be reduced by 400 tons per year from the year
2006 so that the quantity of cobalt contents will be reduced to 2.100 tons at
the end of the year 2006, and so on, provided, however, that 0MG and GGF have
been entirely reimbursed and repaid by the J.v. in form of dividends or other
distributions the total value of their investments in the Projects including all
the interests accrued and financial charges. In case not, the reduction of the
Buffer Stock shall be postponed accordingly.
If during the reduction period hereinabove referred there will be disturbances
in the deliveries and as a result the Buffer Stock level falls short of the
above formula, then the annual reductions shall be postponed until the minimum
level of the Buffer Stock has first been met.
End 2006 : 2.100 tons of cobalt
End 2007 : 1.700 tons of cobalt
End 2008 : 1.300 tons of cobalt
End 2009 : 900 tons of cobalt
End 2010 : 500 tons of cobalt
End 2011 : 100 tons of cobalt
End 2012 : Liquidation of the Buffer Stock.
With regard to any situation other than what is regulated hereinabove, the
Parties will meet to find a joint understanding.
4.2. MANAGEMENT OF THE COBALT ALLOY BUFFER STOCK
KCO shall be responsible towards the J.V. for the management of the Buffer
Stock, the risks, and shall bear all costs linked to it. KCO shall permit
GECAMINES and the SELLER to check all records containing the necessary
information as to the status and consumption of the Buffer Stock.
The transfer of title related to the Cobalt Alloy of the Buffer Stock shall pass
from the J.V.. to KCO as taken into usage.
<PAGE> 63
11
4.3. PAYMENT FOR THE SLAG TAKEN OUT FOR BUILDING UP OF THE
BUFFER STOCK
KCO shall pay for the Cobalt Alloy delivered to build up the Buffer Stock as
follows :
(i) KCO shall pay the J.V. for the tolling and transportation costs from the
Democratic Republic of Congo to KOKKOIA at the end of the month following the
delivery at KOKKOLA. These costs shall be agreed upon in the annual budget.
(ii) The balance of the Cobalt and Copper price contained in the Alloy shall be
payable as and when taken into usage from the Buffer Stock.
KCO is aware that the J.V. shall have the right to use the
Buffer Stock as a security for a loan provided that the J.V.
is able to borrow money to pay GECAMINES for the Slag (as
further described in art. 4.3 and 6.3 of the Long Term Slag
Sales Agreement).
The quantity of Cobalt and Copper contained in the Alloy and taken out from the
Buffer Stock shall be priced in the same way as normal lots of Cobalt Alloy
taken into usage by KCO.
5. DELIVERY AND TITLES
- ----------------------
The SELLER shall deliver the Cobalt Alloy, except the Buffer Stock, DDU KOKKOLA
Finland, packed in drums, in bags or otherwise, as agreed in due course between
the SELLER and the BUYER.
GECAMINES, the SELLER and the BUYER shall agree before the end of each calendar
year on the quantity of Cobalt Alloy to be delivered to KCO for the following
year. The delivery shall be made monthly in approximately even supplies.
The transfer of titles and risks shall pass from the SELLER to the BUYER DDU
KOKKOLA.
<PAGE> 64
12
6. PRICING
6.1. PRICE DETERMINATION
The BUYER shall pay to the SELLER only for the Cobalt and Cop- per contents of
each direct shipment or taken out from the Buffer Stock. The price of Cobalt and
Copper shall be determined separately for each Used Lot of Cobalt Alloy as
follows:
(a) Cobalt Price Formula
The reference price of Cobalt to be applicable in the Agreement shall be
** the combination of ** of the 99.3 (low) Cobalt base price and ** of
the Cobalt 99,8 (low) base price both as published by LMB during the
Quotational Period.
The Parties shall agree to meet to determine a new base price in case the
99,3 or 99,8 references disappear or are no more representative.
The price for the Cobalt contained shall be ** of the base price
established as a combination of ** of 99,3 (low) and ** of 99,8 (low).
If the cobalt contents in the Cobalt Alloy exceed ** for a period of at
least ** consecutive months, the Parties will meet to raise the **
ceiling referred to in the above paragraph.
In the event that the Cobalt is taken into usage from the Buffer Stock, the
processing and transport costs already paid by the BUYER earlier shall be
deducted from the above mentioned cobalt price formula.
b) Copper Price Formula
The Copper base price shall be the ** over the Quotational Period.
The price paid for the Copper contained shall be ** of the base price.
** Confidential treatment has been requested with respect to certain
information contained within this document. Confidential portions are
omitted and filed separately with the Securities and Exchange Commission
pursuant to Rule 24b-2 of the Securities and Exchange Act of 1934.
<PAGE> 65
13
6.2. QUOTATIONAL PERIOD
In case of direct delivery, the Cobalt and Copper Quotational Period is the
month following the month of the delivery of Cobalt Alloy to KOKKOLA, FINLAND.
In case of taken into Usage from the Suffer Stock, the Cobalt and Copper
Quotational Period is the month following the month of the Taken into Usage.
6.3. PAYMENT
The payment by the BUYER to the SELLER for each delivery, except for the
deliveries to the Buffer Stock, shall be made as follows:
The payments by the BUYER shall be made within twenty calendar days from the
end of each Quotational Period.
The price payable for all Lots delivered to KCO during any one month shall
be calculated based on the relevant average cobalt and copper contents of
each shipment and on the weight as determined by KCO.
The BUYER shall notify the SELLER no later than ten days after the end of
the Quotational Period applicable to the supplied Lots the following:
(i) weight of supplied Lots during the preceding month
(ii) the average Cobalt and Copper contents of the supplied Lots and
(iii) the price payable for the supplied Lots taking into account the
applicable reference price set out in Article 5 above.
In case the averages of the final analysis of Cobalt and Copper contents are
not available at the time of payment, the BUYER shall make a preliminary
payment based on weights and analysis preliminary determined.
When the final analysis is available, such payment shall be adjusted to
reflect the final weights and analysis by crediting or debiting the
difference in the next payment to be made by the BUYER to the SELLER.
<PAGE> 66
14
6.4. TAXES AND DUTIES
Any and all taxes, customs duties, Government charges or other duties paid or
levied on the Cobalt Alloy in Finland shall be paid by the BUYER. All taxes,
customs duties, Government char- ties or other duties on Cobalt Alloy outside of
Finland shall be paid by the SELLER.
7. WEIGHING, SAMPLING AND ANALYSIS
- ----------------------------------
The BUYER, the SELLER and GECAMINES shall confer and before the first dispatch
shall adopt and record mutually agreed methods of weighing, sampling and
analyzing. Such methods shall be accurate and reliable. They shall be
appropriate and, based on internationally recognized and industrial standards,
provide efficient economic and practical ways of determining accurate weights,
obtaining representative samples, and producing accurate analyses of Cobalt
Alloy.
8. INVOICING CURRENCIES AND PAYMENT PROCEDURES
- -----------------------------------------------
8.1. USD
All bills and payments shall be in USD.
8.2. METHOD OF PAYMENT
Payments by the BUYER to the SELLER shall be made by bank transfer to the
SELLER's account.
<PAGE> 67
15
9. HARDSHIP
- -----------
If at any moment unanticipated events by the Parties fundamentally alter the
balance of this Agreement, resulting in an excessive burden to one of the
parties in fulfilling its contractual obligations vis-a-vis the other Party,
this aggrieved Party may proceed as follows:
- The aggrieved Party may request a review of this Agreement within three
months after it has got the knowledge of the said change in
circumstances and its effects on the economy of this Agreement.
- The request shall mention the reasons causing such review.
- The Parties shall confer within thirty calendar days of receipt of the
notice in view to revise this Agreement on an equitable basis to avoid
the excessive burdens for any of the Parties.
The request to review does not have any suspension effects as to the
execution of this Agreement.
10. LIABILITIES
- ----------------
In the event of a breach to this Agreement, each Party shall be liable for all
direct damage as well as costs, charges and expenses resulting from that breach.
These damages shall be compensated in full.
However, any loss or damage which is an indirect or consequential result of the
nonfulfillment of obligations under or in connection of this Agreement is
excluded unless resulting from a willful or intentional act from the defaulting
Party.
All direct damages and claims can only be set off or deducted from the agreed
price as and when the disagreement thereof between the Parties has been finally
settled or solved otherwise.
<PAGE> 68
16
III. GENERAL DISPOSALS
-----------------
1. HIERARCHICAL ORDER OF THE AGREEMENTS
------------------------------------
This Agreement is part of the Agreements concluded between the Parties.
The aim of these Agreements is to set up the terms and conditions of the
purchase of the Slag located at the Site , the setting up of the J.V. and of the
Processing Company and selling the Cobalt-bearing Alloy to KCO for further
processing.
These Agreements are:
(i) JOINT VENTURE AGREEMENT
(ii) LONG TERM SLAG SALES AGREEMENT
(iii) LONG TERM COBALT ALLOY SALES AGREEMENT
(iv) TOLLING AGREEMENT
Although each Agreement mentioned above can be interpreted independently and
according to its own terms, it is to be noted that it is part of a larger
contractual arrangement and that it has to be interpreted in light of the other
Agreement.
In the event of a conflict between the listed Agreements, they shall be
interpreted in the above order so that a prior Agreement shall always supersede
a later one.
2. AMENDMENTS
----------
Any amendments or additions to this Agreement shall be valid only if made in
writing and signed by duly authorized representatives of the Parties hereto.
<PAGE> 69
17
Should an amendment or modification to this Agreement have an effect on the
other Agreements, the Parties undertake to change or modify these other
Agreements in order to avoid any conflicts between this Agreements and the other
Agreements.
3. RESTRICTIONS ON TRANSFERS
- ----------------------------
3.1. A Party shall not have the right to sell, assign, transfer, mortgage,
pledge, charge or otherwise deal with the rights and obligations it holds
in this Agreement.
3.2. The provisions of Article 3.1. shall not be applicable in the case of a
transfer, sale or assignment of participation by a Party to an affiliate
company provided that the transfer, sale or assignment is total and is
imposed by legitimate reorganization needs of the Party concerned.
For the purposes of this Agreement, an Affiliate Company shall mean any
company or entity which is a subsidiary or a parent of the transferor Party
or which directly or indirectly controls or is controlled by the transferor
Party.
3.3. Any transfer beyond the terms and conditions of Article 3.1. or 3.2. shall
not be possible without the prior written consent of all the Parties.
3.4. Any transfer described or permitted in accordance with Articles 3.2 and 3.3
shall be subject to the transferee giving its written undertaking to be
bound by all the terms, conditions and undertakings of this Agreement and
relating Agreements.
4. ARBITRATION AND APPLICABLE LAWS
- ----------------------------------
In the event the Parties are unable to settle a dispute in connection with
this Agreement out of court, they agree the dispute shall be submitted to
the French section of the tribunals of Brussels which shall give a verdict
pursuant to the Belgian laws.
<PAGE> 70
18
5. CONFIDENTIALITY
- ------------------
5.1. Unless otherwise provided in this Article, all reports, records, data or
any other information of any kind whatsoever developed or acquired by any
Party in connection with the activities of the J.V. and/or the Processing
Company in the DEMOCRATIC REPUBLIC OF CONGO controlled by the J.V., shall
be treated as confidential and no Party shall reveal or otherwise disclose
such confidential information to third parties without the prior consent of
the other Parties.
The above restrictions shall not apply to the disclosure of confidential
information to any affiliate companies or any private or public financing
institutions, any contractors or subcontractors, employees or consultants
of the Parties or of the J.V. or the Processing Company or to any third
party to which a Party envisage the transfer, the sale, assignment,
encumbrance or other disposition of all of its participation in the J.V. in
accordance with the terms of the Article 3 above.
However, this shall only be applicable provided the confidential
information shall only be disclosed to third parties having a legitimate
need for this information and the persons or company to whom such
disclosure is made shall first undertake in writing to protect the
confidential nature of such information, to the same extent as the Parties
are obligated under this Article.
In addition, the above restrictions shall not apply to any Government or
governmental Department or Agency which has the right to require the
disclosure of such confidential information.
These restrictions shall also not apply to such confidential information
which comes into the Public Domain, except the fault from any Party.
This confidentiality obligation shall survive for a period of 5 years
commencing at the termination/dissolution of this Agreement.
The above mentioned restrictions are not valid for information retained by
GECAMINES related to the Site.
<PAGE> 71
19
6. FORCE MAJEURE
- ----------------------
6.1. The obligations of any Party shall be suspended to the extent that the
performance of its obligations is prevented or delayed, in whole or in part
by:
- accidental act, bad weather, floods, slides, mine disasters or major
accidents, cave-ins, strikes, lock-out, labor disputes, labor shortage,
demonstrations riots, sabotage, laws, rules or regulations of agency or
governmental bodies.
The obligations shall also be suspended in the event of governmental
actions or inactions, restraints of governmental or other competent
authorities, inability to obtain or unavoidable delay in obtaining
necessary materials, facilities and equipment in the open market,
suspension or refusal of access to the deposit Slag Site, interruption or
unavoidable delay in communication or transportation, or any other cause,
whether similar or not to those specifically listed, which shall be beyond
the reasonable control of the Party.
6.2. In the event of such occurrences, the affected Party shall give written
notice to the other Party as soon as possible after the occurrence of the
event causing the delay or prevention, setting out full particulars and
estimating the duration of the delay or prevention.
The Party affected shall use all possible diligence to remedy the situation
causing the delay as quickly as possible.
The requirement that any such delay shall be remedied with all possible
diligence shall not require a Party to settle strikes, lock out or other
labor conflicts contrary to its wishes and this type of difficulty shall be
handled within the discretion of the Party concerned.
In the event the situation of force majeure would remain enforce for more
than 6 months, the Parties shall meet to analyze the situation en envisage
the termination of this Agreement.
<PAGE> 72
20
7. NOTICES
- ----------------
7.1. All notices required under this Agreement shall be in writing and directed
to the respective Parties at the following addresses:
-If to J.V.
-If to KCO
OMG EUROPE GMBH
Mr Kari MUURAISKANGAS
Morsenbraicherweg 200
D - 40470 DUSSELDORF
GERMANY
Tel: 00.49.211.96.18.80
Fax: 00.49.211.61.46.29
Any notice shall be deemed to have been given to any Party if personally
delivered to a designated officer of the Party to whom the notice is addressed,
or if sent by registered mail, postage prepaid, with return receipt, and
properly addressed as set forth herein, or if sent by fax or telex to an
authorized representative with evidence of transmission receipt.
The notice shall be effective as of the moment of personal delivery, or in the
case of mailing, as of the date shown on the return receipt, or in the case of
fax or telex, as of the date faxed or telexed.
A Party may, at any time, change the address to which notices or communications
shall be given by written notice to the other Party.
<PAGE> 73
21
8. NO WAIVER
- -----------------
The failure of a Party at any time to require the performance of any provision
of this Agreement shall not affect its right to execute that provision and a
waiver by such Party upon a breach thereof shall not be interpreted as a waiver
by such Party of any later non execution of such provision or as a waiver by
such Party of any other provision of this Agreement.
9. SEVERABILITY AND HEADINGS
- -----------------------------
9.1. If any provision of this Agreement or its related Appendices should be null
and void, such a nullity shall not invalidate all the other provisions in
this Agreement or related Appendices. The Parties of this Agreement shall
endeavor to negotiate so as to replace any null and void provision as well
as any other affected provision.
9.2. The headings in this Agreement are considered for convenience only and
shall not have any effect or limit in interpreting the provisions of this
Agreement.
10. SOVEREIGN IMMUNITY
- --------------------------
To the extent that a Party may be entitled to claim in any jurisdiction in which
legal proceedings may at any time be commenced with respect to this Agreement,
for itself or its activities, properties or assets any immunity either:
-from jurisdiction of any court or arbitration
-from attachment prior to judgment, from execution of a judgment or set-off
<PAGE> 74
22
- from any other legal process, and to the extent where such immunity could
be granted by that jurisdiction, the Parties hereby irrevocably agree not
to claim and hereby waive such immunity in respect of suit, jurisdiction of
any court, attachment prior to judgment, set-off, execution of a judgment
and from other legal process, as well as any immunity whatsoever.
11. FURTHER ENGAGEMENTS
- -----------------------
11.1. The Parties respectively agree to execute and deliver such further
instruments, papers and documents and to take the necessary measures that
may reasonably be necessary or as may reasonably be requested for the
purpose of carrying out the provisions of this Agreement.
11.2. This Agreement shall be binding upon to the benefit of the Parties hereto
and their respective duly authorized representatives, providing they have
agreed to be bound.
12. GENERAL CLAUSES
- ------------------------
12.1. A Party shall be entitled to terminate this Agreement in the event of a
material breach of any provision by the other Party.
However, the termination can only occur in the event it has not been
remedied within thirty days from the date of a written notice to the
defaulting Party.
A material breach shall be considered one which endangers the successful
completion of operations and the general equilibrium of this Agreement.
12.2. The responsibilities and liabilities of the Parties. according to this
Agreement shall survive after the expiry or termination.
<PAGE> 75
23
The expiry or termination of the Agreement or liabilities arising under
this Agreement shall not affect the Parties' obligations expressly stated
in this Agreement to survive, or expressly contemplated in the event of
such expiry or termination.
13. ENTERING INTO FORCE
- --------------------------
This Agreement shall become effective when it has been signed by the duly
authorized representatives of the Parties and provided that the Joint Venture
Agreement has become effective.
In witness whereof the Parties have signed this Agreement drafted in French and
translated into English (French version being binding) in two original copies,
one for each party, by their duly authorized representatives.
Place, date
For J.V.
For OMG-KCO.
<PAGE> 76
TOLLING AGREEMENT
between
GROUPEMENT POUR LE TRAITEMENT DU TERRIL DE LUBUMBASHI
and
SOCIETE DE TRAITEMENT DU TERRIL DE LUBUMBASHI
<PAGE> 77
2
THE PRESENT AGREEMENT IS ESTABLISHED IN ITS ENTIRETY BY ALL
THE ELEMENTS HEREINAFTER SPECIFIED AND AS REFERRED TO IN THE
RESPECTIVE ARTICLES
I. DEFINITIONS
II. SPECIAL PROVISIONS
1. Appointment
2. Conditions Precedent
3. Period of Agreement
4. Processing and Quality Control
5. Basis of Operations
6. Liability
7. Price and Payment
8. Legal Requirements
9. Representations, Warranties and Covenants
10. Breach
III. GENERAL PROVISIONS
1. Hierarchical Order of the Agreements
2. Amendment
3. Restrictions on Transfers
4. Arbitration and Applicable Laws
5. confidentiality
6. Force Majeure
7. Notices
8. No Waiver
9. Severability and Headings
10. Sovereign Immunity
11. Further Engagements
12. General Clauses
13. Entering into Force
<PAGE> 78
3
This Agreement is concluded between
GROUPEMENT POUR LE TRAITEMENT DU TERRIL DE LUBUMBASHI (hereinafter referred to
as GTL) organized and existing under the laws of JERSEY, having its registered
office in Jersey;
and SOCIETE DE TRAITEMENT DU TERRIL DE LUBUMBASHI (hereinafter referred to as
STL S.P.R.L.) _a Private Company with Limited Responsibility organized and
existing under the laws of the Democratic Republic of Congo, having its
registered office at Lubumbashi.
WITNESSETH THAT
Whereas OM GROUP Inc., GROUPE GEORGE FORREST S.A. and La GENERALE DES CARRIERES
ET DES MINES have established the J.V. which again established STL for the
purpose of building and operating plant mentioned hereinafter;
Whereas STL shall operate a Processing Plant in the Democratic Republic of Congo
for the purpose of processing Slag into Cobalt Alloy;
Whereas GECAMINES has concluded a Long Term Slag Sales
Agreement with the J.V.;
Whereas the J.V. has concluded a Long Term Cobalt Alloy Sales Agreement with 0MG
KOKKOLA CHEMICALS OY , whereby the J.V. shall sell agreed quantities of Cobalt
Alloy on a long term basis to 0MG KOKKOLA CHEMICALS OY;
Whereas GTL wishes to enter into a Tolling Agreement with STL and appoint STL to
process the Slag on its behalf in the Democratic Republic of Congo and STL has
agreed to accept such appointment;
Now therefore in consideration of the premises and of the
covenants and agreements contained in this Agreement, the
Parties hereby agree as follows:
<PAGE> 79
4
I. DEFINITIONS
The terms defined hereinafter shall for all purposes of this Agreement and
related Contracts have the meanings hereinafter specified, unless otherwise
specified:
AGREEMENT means this document signed by the Parties and its appendices forming
an integral part of the present Agreement as well as its possible amendments.
BUYER means OMG KOKKOLA CHEMICALS Oy (KCO) , a subsidiary of the 0MG Group,
buying Cobalt Alloy in the Long Term Cobalt Alloy Sales Agreement.
PURCHASER means the J.V. purchasing Slag in the Long Term Slag
Sales Agreement.
COBALT BEARING ALLOY or TREATED MATERIAL means the main end product of the
Processing Company (sometimes also called "Cobalt Alloy") containing cobalt and
copper.
YEAR means calendar year beginning on 1st of January and ending on 31st of
December.
UMPIRE means a person appointed by mutual agreement of the J.V. and the Buyer or
GECAMINES in accordance with the Long Term Slag Sales Agreement or Long Term
Cobalt Alloy Sales Agreement.
CIF means "cost, insurance and freight" as defined in INCOTERMS, 1990 edition.
TOLLING AGREEMENT means the Agreement concluded between the J.V. and the
Processing Company for the purpose of processing Slag into Cobalt bearing Alloy.
LONG TERM COBALT ALLOY SALES AGREEMENT means the Agreement whereby the J.V.
undertakes to sell Cobalt Alloy to the Buyer and the latter undertakes to buy
Cobalt Alloy from the J.V.
LONG TERM SLAG SALES AGREEMENT means the Agreement whereby GECAMINES undertakes
to sell Slag to the J.V. and the latter undertakes to buy Slag from GECAMINES.
DATE OF DELIVERY means the date on which the J.V. takes and becomes the owner of
the Site Slag according to the terms of the ex-site delivery clause.
DDU means "delivery duty unpaid" as defined in INCOTERMS, 1990
edition
<PAGE> 80
5
EXW means "ex works delivery" clause as defined in INCOTERMS, 1990 edition.
SUPPLIER means the GENERALE DES CARRIERES ET DES MINES supplying Slag in the
Long Term Slag Sales Agreement.
J.V. means a private limited liability company having its registered office in
JERSEY.
BUSINESS DAY means a day which is not a Saturday, a Sunday or a public holiday
in Finland, The Netherlands or the Democratic Republic of Congo.
KCO means 0MG KOKKOLA CHEMICALS Oy, a subsidiary of the OMG Group located in
KOKKOLA, REPUBLIC OF FINLAND and established under the laws of the REPUBLIC OF
FINLAND.
LMB means the LONDON METAL BULLETIN.
LME means the LONDON METAL EXCHANGE.
SUPPLY LOT means a part of each delivered supply of Cobalt Alloy containing
approximately 100 tons of Cobalt Alloy as divided by the BUYER in KOKKOLA for
weighing, sampling, analysis and moisture content determination.
EXPEDITION LOT means the tonnage of one container of Cobalt Alloy dispatch from
the Processing Plant.
USED LOTS means the Lot or Lots of Cobalt Alloy taken into usage by the BUYER
for a period of one month.
MONTH means calendar month.
PARTIES means the Parties to this Agreement.
QUOTATIONAL PERIOD means the Period defined in Article 5 of the Long Term Slag
Sales Agreement or in Article 6.2 in the Long Term Cobalt Alloy Sales Agreement.
WEIGHTS AND MEASURES
1 (metric) ton = 2,204.6 pounds avoirdupois
1 dint or ts = 1 dry metric ton
1 wmt or th = 1 wet metric ton
TAKEN INTO USAGE means the taking of the Cobalt Alloy either directly from the
ordinary commercial raw material Stock or alternatively from the Buffer Stock as
a complement of the KOKKOLA Processing Plant.
<PAGE> 81
6
PROJECT means the conception and building of a Processing Plant in LUBUMBASHI
for the purpose of exploiting the Slag Site of LUBUMBASHI as well as the proper
operation of the Processing Plant, the trading operations including related
operations and the distribution of the profits.
PROCESSED SLAG means the Slag resulting from the operations in the Processing
Plant
SLAG means cobalt bearing slag located in the Site in THE DEMOCRATIC REPUBLIC OF
CONGO and to be used as feeding stock in the Processing plant.
SITE or SLAG SITE means the area in the Democratic Republic of Congo where the
Slag is located and available to be delivered to the J.V. pursuant to this
Agreement (called Terril de LUBUMBASHI, originating from the residues of the
WATER JACKET ovens of GECAMINES and namely including the zones I, J, K1, K2 and
TAS G-L having an average Cobalt content of 1,85% as described in further detail
in appendix 1 of the Frame Agreement attached as Appendix 1 to this Agreement).
PROCESSED SLAG SITE means the area in the Democratic Republic of Congo where the
processed slag will be stocked.
PROCESSING COMPANY means the Company to be set up by the J.v. in the Democratic
Republic of Congo in the form of a SPRL for the purposes of operating the
Processing Plant.
COMMERCIAL STOCK means the ordinary stock of Cobalt Alloy enabling the regular
supply of OMG-KCO plant taking into account the periodicity of maritime
arrivals.
BUFFER STOCK means the Cobalt Alloy Stock to be established at OMG in KOKKOLA,
FINLAND in accordance with article 10 of the J.V. Agreement and to be kept
separate from the Ordinary Commercial Cobalt Alloy Stock of OMG KOKKOLA
Chemicals Qy.
USD means the lawful currency of the UNITED STATES OF AMERICA.
PROCESSING PLANT means the Plant to be located in LUBUMBASHI in the DEMOCRATIC
REPUBLIC OF CONGO. The Plant shall be operated by the Processing Company for the
purpose of processing Slag into Cobalt bearing Alloy.
SELLER means the J.V. selling Cobalt Alloy in the Long Term Cobalt Alloy Sales
Agreement.
<PAGE> 82
7
II. SPECIAL PROVISIONS
1. APPOINTMENT
- --------------
GTL hereby grants to STL the right to process all of the Slag to be purchased by
GTL from time to time from GECAMINES and STL accepts such appointment.
STL undertakes to exclusively process the Slag for GTL and shall not process the
Slag for any third party without the consent of GTL. GTL shall not unreasonably
withhold such an agreement.
STL, in performing its functions and activities under this Agreement, shall be
considered as an independent contractor and not an agent of GTL. STL shall not
be entitled to represent or hold itself out as representing the J.V.
2. CONDITIONS PRECEDENT
- -----------------------
This Agreement is subject to the fulfillment of the following conditions
precedent;
(i) that any governmental approvals which may be required for or prior to
the implementation of this Agreement, are duly obtained;
(ii) that the Long Term Slag Supply Agreement has been duly signed and
concluded between GTL and GECAMINES;
(iii) that the Long Term Cobalt Alloy Sales Agreement has been duly signed
and concluded between GTL and KCO.
3. PERIOD OF AGREEMENT
- ----------------------
This Agreement shall be in force for a period of 20 years and shall take effect
commencing at its conclusion.
<PAGE> 83
8
4. PROCESSING AND QUALITY CONTROL
- ---------------------------------
The Slag to be processed by STL will be available EXW Site according to the
instructions given GTL. The Slag shall meet following specifications:
Co: 1,85%
Cu: 1,39%
Zn: 7,49
The Cobalt Alloy to be produced shall meet following specifications:
**
GTL shall be entitled through their employees, representatives or other
appointees to have access to and to inspect the Plant of STL for the purposes of
checking that the Cobalt Alloy meet the above mentioned specifications.
Should the Cobalt Alloy fail to meet the required specifications with the
result, that the transportation of the Treated Material to KOKKOLA, FINLAND is
not economically feasible, then all costs, direct or indirect, relating to such
failure shall be borne by STL.
5. BASIS OF OPERATION
- ---------------------
Ownership to the Slag and to the Cobalt Alloy shall at all times remain with
GTL.
Zinc and lead in form of Oxides as well as Processed Slag shall be returned free
of charge to GECAMINES who shall become their owner. GECAMINES shall remove them
at its own expense as quickly as possible.
STL shall take care of the transportation of the Slag from the Site to the Plant
as well as the transportation of the Processed Slag from the Plant to the place
designated by GTL.
STL shall bear all risks linked to the Slag when loaded for the transportation
at the Site.
The risk linked to the Cobalt Alloy shall pass from STL to GTL at its delivery
to GTL, packed in bags (or otherwise if so agreed), EXW the Plant.
** Confidential treatment has been requested with respect to certain information
contained within this document. Confidential portions are omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of
the Securities and Exchange Act of 1934.
<PAGE> 84
9
6. LIABILITY
- ------------
STL shall be responsible for all damage resulting from a failure or omission
occurring during operations for which it is responsible.
STL shall indemnify the J.V. and KCO against all requests for indemnification or
other requests from third parties.
In order to protect the environment and subject to the limitations set out
above, the Parties undertake to build, operate and maintain the Processing Plant
in the Democratic Republic of Congo in an orderly way and corresponding to the
rules for protecting the environment applicable in the European Union.
7. PRICE AND PAYMENT
- --------------------
As consideration for the processing of the Slag into Cobalt Alloy (and all
related services), GTL shall pay to STL a tolling fee based on **.
The payment procedure shall be determined later, **.
GTL and STL shall meet ** to discuss of the adjustment of the agreed
price.
8. LEGAL REQUIREMENTS
- ---------------------
STL shall obtain and maintain in force all permits and consents required in the
Democratic Republic of Congo in connection with the Processing of Slag and its
transportation to the Plant.
Such authorizations shall remain valid as long as the above mentioned services
are performed by STL, which shall at all times operate in conformity with the
authorizations, licenses, permits and national legislation of the Democratic
Republic of Congo.
** Confidential treatment has been requested with respect to certain
information contained within this document. Confidential portions are
omitted and filed separately with the Securities and Exchange Commission
pursuant to Rule 24b-2 of the Securities and Exchange Act of 1934.
<PAGE> 85
10
9. REPRESENTATIONS, WARRANTIES AND COVENANTS
- --------------------------------------------
STL will arrange for and obtain and maintain in force all permits and consents
required or to be obtained in connection with the processing and transportation
of the Slag and/or the exportation of the Cobalt Alloy as contemplated in this
Agreement in the Democratic Republic of Congo.
STL will possess the business, professional and technical expertise to handle,
process and safely and lawfully dispose of the Slag and Cobalt Alloy and process
waste respectively in the Democratic Republic of Congo.
STL will maintain the equipment, the Plant and human resources required to
perform its obligations under this Agreement.
STL is duly licensed and authorized by all relevant authorities in the
Democratic Republic of Congo to handle Slag, Treated Material and process waste.
STL shall, at all times while services hereunder are being performed, continue
to remain so licensed and authorized, and STL shall at all times operate in
conformity with the requirements of all applicable permits, licenses,
authorizations and national legislation of the Democratic Republic of Congo.
10. BREACH
- ----------
Should either Party fail to observe any of the provisions or perform any of the
terms or conditions of this Agreement, or be placed under judicial management or
be wound up, whether compulsorily or voluntarily, and/or fail to remedy such
breach or failure within a period of 90 days of notice to it, then without
prejudice to any other rights which might thereupon be available to it, the
other Party shall have the right to proceed against the defaulting Party for the
recovery of incurred damages.
<PAGE> 86
11
III. GENERAL PROVISIONS
1. HIERARCHICAL ORDER OF THE AGREEMENTS
- ---------------------------------------
This Agreement is part of the Agreements concluded between the Parties and other
parties.
The aim of these Agreements is to set up the terms and conditions of the
purchase of the Slag located at the Site, the setting up of the J.V. and of the
Processing Company and selling the Cobalt-bearing Alloy to KCO for further
processing.
These Agreements are:
(i) JOINT VENTURE AGREEMENT
(ii) LONG TERM SLAG SALES AGREEMENT
(iii) LONG TERM COBALT ALLOY SALES AGREEMENT
(iv) TOLLING AGREEMENT
Although each Agreement mentioned above shall be interpreted independently and
according to its own terms, it is to be noted that it is part of a larger
contractual arrangement and each Agreement shall be interpreted in light of the
other Agreements.
In case of a conflict this Agreement and the listed Agreements shall be
interpreted in the above order so that a prior Agreement shall always supersede
a later one.
2. AMENDMENTS
- -------------
Any amendments or additions to this Agreement shall be valid only if made in
writing and signed by duly authorized representatives of the Parties hereto.
Should an amendment or modification to this Agreement have an effect to the
other Agreements, the Parties undertake to change or modify these other
Agreements in order to avoid any conflicts between this Agreement and the other
Agreements.
<PAGE> 87
12
3. RESTRICTIONS ON TRANSFERS
- ----------------------------
A Party shall not have the right to sell, assign, transfer, mortgage, pledge,
charge or otherwise deal with its rights and obligations as defined in this
Agreement.
4. ARBITRATION AND APPLICABLE LAWS
- ----------------------------------
In the event the Parties are unable to settle a dispute in connection with this
Agreement out of court, they agree upon that the dispute shall be submitted to
the French section of the tribunals of Brussels which shall give a verdict
pursuant to the Belgian laws.
5. CONFIDENTIALITY
- ------------------
5.1. Unless otherwise provided in this Article, all reports, records, data or
any other information of any kind whatsoever developed or acquired by
any Party in connection with the activities of the J.V. and/or the
Processing Company in the Democratic Republic of Congo controlled by the
J.V. shall be treated as confidential and no Party shall reveal or
otherwise disclose such confidential information to third parties without
the prior written consent of the other Parties.
The above restrictions shall not apply to the disclosure of confidential
information to any affiliate companies or any private or public financing
institutions, any contractors or subcontractors, employees or consultants
of the Parties or of the J.V. or the Processing Company or to any third
party to which a Party envisage the transfer, the sale, assignment,
encumbrance or other disposition of all of its participation in the J.V. in
accordance with the terms of Article 3 above.
However, this shall only be applicable provided that the confidential
information shall only be disclosed to third parties having a legitimate
need for this information and the persons or company to whom such
disclosure is made shall first undertake in writing to protect the
confidential nature of such information, to the same extent as the Parties
are obligated under this Article.
In addition, the above restrictions shall not apply to any Government or
Governmental Department or Agency which has the right to require the
disclosure of such confidential information.
<PAGE> 88
13
These restrictions shall also not apply to such confidential information
which comes into the Public Domain, except the fault from any Party.
This confidentiality obligation shall survive for a period of 5 years
commencing at the termination/dissolution of this Agreement.
The above mentioned restrictions are not valid for information retained by
GECAMINES related to the Site.
6. FORCE MAJEURE
- ----------------
6.1. The obligations of any Party shall be suspended to the extent that the
performance of its obligations is prevented or delayed, in whole or in
part by:
accidental act, bad weather, floods, slides, mine disasters or major
accidents, cave-ins, strikes, lockout, labor disputes, labor shortage,
demonstrations, riots, sabotage, laws, rules or regulations of agency
or governmental bodies.
The obligations shall also be suspended in the event of governmental
actions or inactions, restraints of governmental or other competent
authorities, inability to obtain or unavoidable delay in obtaining
necessary materials, facilities and equipment in the open market,
suspension or refusal of access to the deposit slag site, interruption or
unavoidable delay in communication or transportation, or any other cause,
whether similar or not to those specifically listed, which shall be beyond
the reasonable control of the Party.
6.2. In the event of such occurrences, the Party affected shall give written
notice to the other Parties as soon as possible after the occurrence of
the event causing the delay or prevention, setting out full particulars
and estimating the duration of the delay or prevention.
The Party affected shall use all possible diligence to remedy the situation
causing the delay as quickly as possible.
The requirement that any such delay shall be remedied with all possible
diligence shall not require a Party to settle strikes, lock out or other
labor conflicts contrary to its wishes and this type of difficulty shall be
handled within the discretion of the Party concerned.
In the event the situation of force majeure would remain enforce for more
than 6 months, the Parties shall meet to analyze the situation en envisage
the termination of this Agreement.
<PAGE> 89
14
7. NOTICES
- ----------
All notices required under this Agreement shall be in writing and directed
to the respective Parties at the following addresses:
- If to GTL
- If to STL
Any notice shall be deemed to have been given to any Party if personally
delivered to a designated officer of the Party to whom the notice is
addressed, or if sent by registered mail, postage prepaid, with return
receipt, and properly addressed as Bet forth herein, or if sent by fax or
telex to the above mentioned address with evidence of transmission
receipt.
The notice shall be effective as of the moment of personal delivery, or in
the case of mailing, as of the date shown on the return receipt, or in the
case of fax or telex, as of the date faxed or telexed.
Any Party may, at any time, change the address to which notices or
communications shall be given by written notice to the other Parties.
8. NO WAIVER
- ------------
The failure of a Party at any time to require the performance of any provision
of this Agreement shall not affect its right to execute that provision and a
waiver by such Party upon a breach thereof shall not be interpreted as a waiver
by such Party of any later non execution of such provision or as a waiver by
such Party of any other provision of this Agreement.
<PAGE> 90
15
9. SEVERABILITY AND HEADINGS
- ----------------------------
9.1. If any provision of this Agreement or its related Appendices
should be null and void, such a nullity shall not invalidate all the other
provisions in this Agreement or related Appendices. The Parties of
this Agreement shall endeavor to negotiate so as to replace any null
and void provision as well as any other affected provision.
9.2. The headings in this Agreement are considered for convenience only and
shall not have any effect or limit in interpreting the provisions of this
Agreement.
10. SOVEREIGN IMMUNITY
- ----------------------
To the extent that a Party may be entitled to claim in any jurisdiction in
which legal proceedings may at any time be commenced with respect to this
Agreement, for itself or its activities, properties or assets any immunity
either:
- from jurisdiction of any court or arbitration from attachment prior
to judgment, from execution of a judgment or set-off,
- from any other legal process, and to the extent where such immunity
could be granted by that jurisdiction, the Parties hereby irrevocably
agree not to claim and hereby waive such immunity in respect of suit,
jurisdiction of any court, attachment prior to judgment,
set-off, execution of a judgment and from other legal process, as
well as any immunity whatsoever.
11. FURTHER ENGAGEMENTS
- -------------------------
11.1. The Parties respectively agree to execute and deliver such further
instruments, papers and documents and to take the necessary measures that
may reasonably be necessary or as may reasonably be requested for the
purpose of carrying out the provisions of this Agreement.
11.2. This Agreement shall be binding upon to the benefit of the Parties hereto
and their respective duly authorized representatives, providing they have
agreed to be bound.
<PAGE> 91
16
12. GENERAL CLAUSES
- -------------------
12.1. Any Party shall be entitled to terminate this Agreement in the event of a
material breach of any provision by any other Party.
However, the termination can only occur in the event it has not been
remedied within thirty days from the date of a written notice to the
defaulting Party or Parties.
A material breach shall be considered one which endangers the successful
completion of operations and the general equilibrium of this Agreement.
12.2. The responsibilities and liabilities of the Parties according to this
Agreement shall survive after the expiry or termination.
The expiry or termination of the Agreement or liabilities arising under
this Agreement shall not affect the Parties obligations expressly stated
in this Agreement to survive, or expressly contemplated in the event of
such expiry or termination.
13. ENTERING INTO FORCE
- -----------------------
This Agreement shall become effective when it has been signed by the duly
authorized representatives of the Parties and provided that the Joint Venture
Agreement has become effective.
IN WITNESS WHEREOF the Parties have signed this Agreement written in French,
along with an English translation, the French text being the authentic text, in
2 original copies, one for each party, by their duly authorized representatives.
Signed at ... on the .. day of .... 1997
<PAGE> 1
Exhibit 10.34
COMMERCIAL CONTRACT No. CO/265/97 March 1997
Between:
1 LA GENERALE DES CARRIERES ET DES MINES a corporation duly incorporated
under the laws of Zaire.
And: OMG KOKKOLA CHEMICALS OY, a corporation duly incorporated under the laws of
Finland (hereafter called "Buyer") of the second part.
IT HAS BEEN AGREED AS FOLLOWS:
1 DEFINITION AND INTERPRETATION
1.1 DEFINITIONS
Wherever used in this agreement unless the context otherwise requires:
"Year" means calendar year commencing on 1 January and ending on 31
December that year.
"Concentrate Co-Cu or "Concentrate" "means the material defined in Clause 4
hereafter.
"Agreement" means this Agreement.
"Business Day" means a day which is not a Saturday, Sunday or a public
holiday in Finland or Zaire.
"Delivered lot" means a lot of concentrate containing approximately 500 wmt
from Kipushi or Luiswishi.
"Received lot" means the concentrate received by OMG in Kokkola containing
approximately 500 wmt.
"Payable metals" are cobalt, copper or all other metals which are
economically recoverable and agreed by both parties.
"Month" means calendar month.
"Quotational period" explained in Clause 8.2 hereunder.
<PAGE> 2
2
"Project" defines Luiswishi project.
"Average Cobalt Content" is defined in Clause 4 hereafter.
"Average Copper Content" is defined in Clause 4 hereafter.
"Ton" and "metric ton" means 2204,62 pounds avoirdupois
"WMT" means wet metric ton.
"DMT" means dry metric ton.
"USD" shall mean lawful money of the United States of America
2 SUBJECT
Gecamines will deliver to OMG the monthly quantity of concentrate, defined
in article 6 hereinafter according to the specifications defined in
articles 3 and 4 hereafter, to 0MG Kokkola Chemicals in Finland.
3 MATERIAL TO BE DELIVERED
Cobalt and copper metal content in the concentrate are defined in article 4
hereinafter.
4 SPECIFICATIONS
Gecamines agrees to sell and deliver and OMG agrees to purchase Co-Cu
concentrate having the following characteristics assayed on a dry basis:
**
The parties can agree to modify the characteristics and possible conditions
and add other payable metals.
5 DURATION
This agreement is in force for two years commencing on the date of
starting the production and deliveries (Article 17). OMG has the option to
continue the contract until this material can be replaced by cobalt
smelter alloy.
6 QUANTITY
Gecamines shall deliver to OMG and OMG shall purchase from Gecamines
300-400 t cobalt content in concentrate in accordance with the
specifications in article 4,
7 DELIVERY
The delivery term to OMG in Kokkola, Finland (DDU Incoterms edition 1990).
Freight, charges, transportation and insurance to be charged from OMG. OMG
will choose the transportation agent as well as the way of packing (big
bags or bulk) after consulting Gecamines.
** Confidential treatment has been requested with respect to certain
information contained within this document. Confidential portions are
omitted and filed separately with the Securities and Exchange Commission
pursuant to Rule 24b-2 of the Securities and Exchange Act of 1934.
<PAGE> 3
3
8 PRICE
The price of concentrate is based on metal content and fixed according
the following formulas
8.1 PRICE DETERMINATION
OMG shall pay to Gecamines for the Cobalt and Copper in the
concentrate. The price will be determined separately for each received
Lot DDU Kokkola.
8.1.1 COBALT PRICE (PCO)
Payable cobalt price for received lot is determined according the
following formula:
**
8.1.2 Copper Price (PCu)
Payable copper price for each received lot is determined according the
following formula.
**
8.1.3 PRICE OF OTHER RECOVERABLE METALS
**
8.2 QUOTATIONAL PERIOD
The applicable Quotational Period for cobalt, copper and other metals
is the month of arrival in Kokkola.
** Confidential treatment has been requested with respect to certain
information contained within this document. Confidential portions are
omitted and filed separately with the Securities and Exchange Commission
pursuant to Rule 24b-2 of the Securities and Exchange Act of 1934.
<PAGE> 4
4
8.3 PAYMENT
After reception in Kokkola OMG will make the payment for received lots.
Weighing and sampling is done according to the procedure described in
article 9.2 for the quantities and that described in 8.1 and 8.2 for the
currency in use. In any case the final payment shall be made in 30 days
after QP. The title is passed from Gecamines to OMG at arrival in
Kokkola. An advance net payment will be negotiated before the first
shipments.
8.4 TAXES AND DUTIES
Any and all taxes, and duties in Zaire relating to this Agreement shall
be paid by Gecamines.
Any and all taxes, and duties paid outside Zaire relating to this
Agreement shall be paid by OMG.
8.5 ACCOUNT
OMG will credit "Project Luiswishi" by opening an account at a bank
approved by the parties of this project
9 WEIGHING, SAMPLING AND ASSAYING
9.1 WEIGHING, SAMPLING AND MOISTURE DETERMINATION IN KIPUSHI OR
LUISWISHI
To be used for transportation and insurance invoicing purposes, only:
(a) OMG and Gecamines shall confer and, before the first shipment,
shall adopt and record mutually acceptable methods of weighing, sampling
and analysing.
(b) The Co-Cu concentrate will be weighed, sampled and analysed in
Kipushi or Luiswishi at Gecamines costs. The shipment shall be divided
in lots of approximately 500 tons. Each lot shall form a separate and
complete delivery for all purposes under this Agreement
(c) Sampling and analysing will be made using mutually agreed methods.
Such weight and moisture content will be provisional for all purposes of
this agreement. After weighing, sampling and analysing Gecamines will
pass the results to OMG by telecopy.
9.2. WEIGHING, SAMPLING AND MOISTURE DETERMINATION AT DISCHARGING PORT:
(a) OMG and Gecamines shall mutually agree the methods of weighing,
sampling and analysing before the first shipment. These shall be
appropriate, based on internationally approved methods, defining exact
weights, samples and analyses.
(b) The Co-Cu concentrate will be weighed and sampled at the discharging
port at OMG's cost. Each received lot means a separate and complete
delivery under this agreement.
<PAGE> 5
5
(c) Sampling and analyses are made according mutually agreed
analytical methods.
Weighing and moisture will be determined according this contract. In
case of arbitration demanded by either of the parties the procedure will
be according art. (9.3). A total of five sets of samples shall be drawn
from each lot and distributed as follows:
- one set of samples for the OMG
- one set of samples for Gecamines
- one set of samples for eventual umpire analysis kept by OMG
- one set of samples for eventual umpire analysis kept by Gecamines one
set of samples for reserve kept by OMG
During these operations Gecamines shall have the right to be represented
at its own expense.
After getting results OMG and Gecamines shall exchange the assays. If
the assays are not ready in 30 calendar days, the analysis that is at
disposal will be used for final invoicing. The invoice will be sent by
telecopy to OMG and the original by courier They shall be final and
binding for both parties of this agreement.
For each lot of 500 tonnes WMT Gecamines will calculate the amount of
cobalt, copper and other elements applicable for each lot preparing an
invoice in accordance with the shipment. The invoice shall be sent by
telecopy to OMG and the original by courier.
9.3 UMPIRE ASSAYING
This process is applicable for the samples taken at the port of arrival.
The analyses should be made independently by OMG and Gecamines. The
exchange of assays will be made by telecopy.
If the difference of assays for Co, Cu and Ni of the two parties is not
higher than 0.20 % the arithmetic mean of these two results will be
accepted final.
In the event of greater difference and if either of parties demand, an
umpire assay may be made on the samples reserved by two independent
laboratories, mutually approved.
The reference assayers cannot act as representative agent of OMG or
Gecamines at the weighing, sampling and moisture determination
operations and/or carry out, for any or both parties, the analysis for
the assay exchange.
Should the umpire assay fall between the results of the two parties or
coincide with either, the arithmetical mean of the umpire assay and the
assay of the party which is the nearer one to the umpire shall be taken
as the agreed assay.
<PAGE> 6
6
Should the umpire assay be the exact mean. of the two parties then the
umpire result shall be final. The cost of the umpire assay shall be
borne equally by both parties when the umpire assay is the exact mean of
the exchanged results.
Should the umpire assay fall outside the exchanged results, the assay of
the party which is nearer the umpire shall be taken as agreed assay. The
cost of this assay shall be borne by the other party.
10 FORCE MAJEURE
In the event of any strike, act of God, war, lockout, flood, accident,
lack transport facilities or any other reason beyond the control of the
parties which prevent the parties to fulfill the obligations of the
agreement, the party involved should immediately inform the other party
in writing of such event and of the estimated duration of fulfilling the
obligations. If these circumstances or the Force Majeure situation
should persist more than 3 months the parties shall meet and consider
the cancelling this agreement.
11 FAIR CLAUSE
In case or events not foreseen by the parties, regardless of the
agreement, one of the parties may demand additional charge to be able to
fulfil its obligation in accordance with this agreement, this party has
to request in writing for a possible modification of this agreement. The
demand should, without delay, include the reason for the request,
explain the situation of the party and the economical consequences to
this agreement.
At default of notifying the party will loose the wright to present the
request in accordance with this article.
12 NOTICES
All notices, requests for information, complaints and other
communication which are required or may be given under this Agreement
shall be in writing delivered personally or sent by registered mail or
telecopy at the following addresses or to other such address as a party
may notify the other party in writing:
If for Gecamines
La Generale des Carrieres et des Mines
Monsieur le President Delegue General
B.P. 450
Lubumbashi
Republic of Zaire
Telephone: +32 2 67 68 045
Telceopy: + 32 2 67 68 047
Brussels
Telephone: +32 2 67 68 983
Telecopy: +32 2 67 68 984
<PAGE> 7
7
Or if for
OMG Kokkola Chemicals Oy
Att: The President
P.O. Box 286, FIN-67101 Kokkola
Finland
Telephone: +35868280111
Telecopy: +358 6 8280 373
13 ASSIGNMENT OF THE AGREEMENT
This agreement as well as all rights and obligations for each party
arising thereof cannot be transferred, assigned, or pledged to a third
party without written permission of the other party before notice with
the exception where assigning company controls the majority. This
permission cannot be withheld unreasonably
14 AMENDMENTS
This present Agreement can only be modified by means of clauses duly
signed by both parties.
15 GOVERNING LAW AND JURISDICTION
Any dispute, occurred between the Parties and resulting from
misinterpretation or execution of the present agreement, shall be
preferably settled amicably. If it is not the case, it will be referred
to the Commercial Arbitration court in Paris which will make a ruling
based on French Law.
16 INTERPRETATION
A) The titles of various articles and paragraphs have no effect in the
interpretation of this agreement.
B) If any period specified in this agreement shall expire in non
business day, the expiring date is the following business day.
17 The agreement shall come into effect after the production has
started, which should be November, 1997.
In Lubumbashi 4 April, 1997
This agreement has been executed in two copies, one for each party.
FOR GECAMINES
YAWILI NYI ZONGIA UMBA KYAMITALA
DELEQUE GENERAL ADJOINT PRESIDENT DELEQUE GENERAL
FOR 0MG KOKKOLA CHEMICALS OY
ANTTI AALTONEN
PRESIDENT
