Exhibit 10.7.1
(Translated from Portuguese)
MEMORANDUM OF UNDERSTANDING
By this present Agreement entered into by, on the one side, AURORA GOLD
MINERACAO LTDA, a company with its Office at Xx. xxx Xxxxxxxx, xx 000, xxxxx 0,
xx. 215-A, parte, CEP: 22640-100, Barra da Tijuca, Rio de Janeiro, RJ,
hereinafter referred to as AURORA, in this act represented by its attorney Xxxx
Xxxxxxxx Xxxxxxxxxx xx Xxxxxxx, Brazilian, single, lawyer, registered at the
Brazilian Bar Association (RJ) under no. 80412 and registered at CPF/MF under
no. 000.000.000-00; and on the other side, XXXXX XXXXXX XXXXXXX XX XXXXX,
Brazilian, divorced, businesswoman, bearing the Identity Card No. RG
3717073/SSPA, and duly enrolled in the Individual Taxpayer's Register under no.
110. 808.762-00, with address at Av. Primeiro xx Xxxx, no 000, Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx, xxxxx of Rio Grande do Sul, CEP 96202-000, hereinafter
referred to as GARIMPEIRA, and collectively referred to as "CONTRACTING
PARTIES", AURORA and GARIMPEIRA have decided amongst themselves as righteous and
agreed upon the following:
OBJECT: Hereinafter named Garimpo Piranhas, this object is made up of Processes
DNPM no. 855.892/96 to 856.289/96, being titleholder Xxxxx Xxxxxx Xxxxxxx xx
Xxxxx, and 853.597/93 to 853.638/93, ESTATE of Sebastiao Xxxxxxx xx Xxxxx, in
this act represented by the spouse of the deceased and executrix XXXXX XXXXXX
XXXXXXX XX XXXXX, by authorization issued by His Justice of the ___th Family and
Probate Court of the District of___________, State of _________, on ________,
which is part of his estate of which she is the executrix, according to annex A
of this instrument.
A. WHEREAS GARIMPEIRA is the titleholder of certain mineral rights located in
the region of Garimpo Piranhas, in the Municipality of Itaituba, PA, which
rights refer to PLG Processes DNPM no. 855.892/96 to 856.289/96 and 853.597/93
to 853.638/93, with assured priority, and being the said mineral rights, for the
better understanding, specified in Annex A of this instrument, in two blocks
with distinct titles, and hereinafter referred to as GARIMPO.
B. WHEREAS AURORA wishes to explore and assess the gold potential and have an
option to acquire title to the mineral rights of GARIMPO, and for such purpose
has been granted access to information gathered on site by GARIMPEIRA, who
agrees to this, with the knowledge that the work done is at AURORA's expense and
risk.
C. WHEREAS AURORA has the necessary technological and economic means to develop
gold mineral reserves and carry out exploration work in the GARIMPO.
D. WHEREAS the CONTRACTING PARTIES wish to enter into and celebrate an Agreement
for the Assignment and Transfer of Mineral Rights, and for such purpose AURORA
will appoint a person of trust to act on its behalf by means of a specific
agreement which model is hereto attached, annex B. In order to preserve the
negotiation, the parties agree to execute this temporary instrument, hereinafter
referred to as "Memorandum of Understanding", hereinafter named "ME", and having
as its object the establishment of the right and obligations of the CONTRACTING
PARTIES among themselves and any third party. A definitive Agreement for the
Assignment and
1
Transfer of Mineral Rights shall be celebrated by the parties at a later stage,
following the terms and conditions outlined in the clauses ahead.
E. WHEREAS AURORA, in order to maintain the Assignment and the Option to
celebrate a definitive Assignment and Transfer Option of Mineral Rights
Agreement, agrees to carry out a due diligence within 180 (one hundred and
eighty) days and for such purpose shall sign a Power of Attorney according to
the attach model, annex C, and, therefore, the CONTRACTING PARTIES have decided
to enter into and celebrate this "Memorandum of Understanding", according to the
following terms and conditions:
1 - EVALUATION AND STATEMENT OF INTEREST
1.1 - In view of item B of this MOU, AURORA hereby undertakes to pay GARIMPEIRA
the equivalent of R$ 8,000.00 (eight thousand reals) for the 6 (six) months of
validity of this MOU, of which in this act are advanced, namely, R$ 20,000.00
(twenty thousand reals) as deposit, for the sole and exclusive right to appraise
duly and in detail the GARIMPO.
1.2 - The payment of the DEPOSIT is made hereby, with the signing of this
instrument as proof of payment, while the subsequent payments shall be made
through a bank deposit in favour of XXXXX XXXXXX XXXXXXX XX XXXXX, chequing
account no. 0000000-9 with Branch 0412-0 of Bradesco S/A, in the city of Rio
Grande, RS, which GARIMPEIRA will indicate to AURORA.
1.3 - GARIMPEIRA, as from the date of the execution hereof and within the term
of 180 (one hundred and eighty) days, undertakes not to assign, transfer,
encumber or lien the mineral rights comprised in the GARIMPO, which, according
to the terms and conditions set forth in this instrument, agrees to make
available for AURORA to inspect and examine all and any data it might have
access to in regard to GARIMPO. During this period, AURORA shall make site
visits, examine the data and decide to exercise its option to acquire the
GARIMPO. In case AURORA decides to exercise its option to acquire the GARIMPO,
it shall notify GARIMPEIRA of its decision at least five days prior to the
expiration of the abovementioned period.
2 - ASSIGNMENT AND TRANSFER OF RIGHTS
2.1 - In accordance with item 1.3. of this MOU, having AURORA notified
GARIMPEIRA of its interest to acquire the GARIMPO, the parties hereby shall
celebrate within 30 days an Agreement for the Assignment and Transfer of Rights
and Other Covenants, which shall establish and govern the terms and conditions
of the transfers, as well as to register such agreement before the DNPM,
provided it agrees to pay as price for the assignment of the mineral rights and
the possession rights, the values established as follows:
Date Payment US$
I 30 JUN 2006 30,000.00
II 21 JUL 2006 * 70,000.00
III 21 JUL 2007 ** 120,000.00
IV 21 JUL 2008 180,000.00
V 21 JUL 2009 1,600,000.00
Total US$2,000,000.00
2
* The payment of this instalment and others shall be made provided registration
of the transfer of rights in question has been made.
** The payment of this instalment and others shall be made provided survey
authorization for the mineral rights in question has been obtained.
2.1.1 In addition to the price herein established, AURORA shall pay to
GARIMPEIRA a monthly participation in the mining results which might be obtained
in any of the mining rights in the GARIMPO, in a value equivalent to 1.5% (one
and half percent) of the monthly net results of the primary gold production, as
defined below in item 2.1.3, in any of the mineral rights in question.
2.2.2 The participation in the mining results shall be paid by the 10th (tenth)
business day of the month subsequent to the production month, and the payment
shall be made through a bank deposit as stipulated by GARIMPEIRA.
2.1.3 For the purposes specified above, the production net result shall
correspond to the value of the gross revenue AURORA obtains from the sale of the
gold produced by AURORA and originating from the Garimpo, being deducted the
values corresponding to (i) transportation cost from the mine to the refinery;
(ii) refining cost; (iii) any and all direct taxes of any nature incurring upon
the commercialization of the gold; and (iv) "financial compensation" as provided
for in Law 7790 of December 28, 1989.
2.2 - GARIMPEIRA agrees to transfer the mineral rights referring to GARIMPO
immediately upon the interest by AURORA is confirmed and against payment of
amount (I) and upon confirmation of its priority.
2.2.1 GARIMPEIRA shall, under the terms of this instrument, hereby and in the
best form of the law, permit AURORA to execute in the GARIMPO, for a period of
44 (forty-four) months as from the date of this MOU, and in case the GARIMPO is
acquired, assessment work and geological survey which it deems necessary to
ascertain the existence of possible primary deposits which may be economically
explored. It should be noted that during the geological assessment of the
GARIMPO, GARIMPEIRA may develop works therein provided that work in the said
mining site does not interfere with AURORA's research activities.
2.2.2 - Regarding the ownership, GARIMPEIRA declares to be the legitimate and
sole owner of the area comprising the GARIMPO, and therefore, the mining
results, right to rental or any indemnifications are included in the prices
established in clause 2.1. above. In case of absence of authorizations or
eventual problems with access or title to the surface areas, these shall be
resolved by GARIMPEIRA, and in the absence of a solution, AURORA is authorized
to resolve such matters and shall deduct all and any cost incurred from the
values to GARIMPEIRA.
2.2.3 - For such purpose, GARIMPEIRA agrees to the best of its ability to
provide to AURORA with technical, legal and operational support, as well as
undertake to endeavour its best efforts to give AURORA any information it might
have access to with respect to the GARIMPO, and to take all actions necessary
for the expeditious registration of the documents needed in order for the
Agreement to be implemented, with AURORA being responsible for the financial
expenses incurred to obtain such results.
3
2.3 - AURORA may, after the registration of the assignment and transfer of
rights, transfer to any third parties, in whole or in part, the mineral rights
granted to it under this Agreement, provided there is an inclusion of a clause
in this regard.
2.4 - At any time, AURORA shall be entitled to terminate the Agreement and drop
the GARIMPO PROJECT, by means of a notice, fax, cable or advice to GARIMPEIRA to
this effect, being henceforth free of any and all payment commitments yet to be
due. If AURORA decides to exercise its option to terminate the Agreement, it
shall deliver to GARIMPEIRA in due course a detailed technical report which
shall include all and any information gathered to date.
2.5 - Each of the CONTRACTING PARTIES herein will be liable for any and all
environmental damages resulting from their activities carried out in the
GARIMPO. In this regard, GARIMPEIRA is responsible for the environmental damages
caused to the GARIMPO up to the signing of this agreement. In case of
non-compliance of such obligations, AURORA is authorized to provide for eventual
recovery work, deducting the expenses incurred from the amounts payable
according to above item 2.1.
3. CONFIDENTIALITY
3.1. The fact that the Agreement has been executed as well as its contents and
any technical and financial or other information pursuant to the GARIMPO
constitutes confidential information of the CONTRACTING PARTIES and shall not be
disclosed, divulged or made known to any third party or published without
previous written consent of the non-disclosing party. Exception to the
confidentiality obligation will be the case in which any of the CONTRACTING
PARTIES needs to disclose said information as a result of it being linked to the
stock market and disclosure is required by law.
4. COMMUNICATION
4.1. Any notice and communication related to the GARIMPO shall be given in
writing and shall be deemed to be effectively given upon personal delivery, or
by registered letter or upon receipt of transmission by fax or cable, provided
there is an acknowledgement of receipt.
5. REPRESENTATIONS AND WARRANTIES
5.1. Each of the CONTRACTING PARTIES herein represents and warrants to each
other that:
(a) They have the power, capacity and authority to enter into and perform the
Agreement and all transactions contemplated herein;
(b) There are no provisions in their By-laws, statutes or agreements of which
they are a party or object which may prevent the celebration and execution of
this Agreement;
(c) The celebration of the Agreement will not result in a default under any
agreement or instrument to which the parties are a party, as well as will not
infringe any applicable laws, regulations, suits,
4
decree or rule which they might obey or any arrangement, waiver, or agreement of
which constitute a party;
(d) There are no pending liabilities, warranties, pledge, or any other
obligations which might in any way interfere with the mineral rights object of
the Agreement, and said rights are free and clear of any claims, liens or
encumbrances;
(e) in respect of item 2.1, with regard to the mineral rights herein referred,
there are no contractual obligations in respect to royalties, finder's fee
and/or any other contribution to any landowners, occupiers or third parties;
(f) There are no pending environmental liabilities.
6. AMENDMENTS AND PREVIOUS EVENTUAL AGREEMENTS AND GENERAL DISPOSITIONS
6.1. This MOU represents and comprises all the understanding and commitments
agreed amongst the CONTRACTING PARTIES, and replaces or overlaps any and all
previous agreements and negotiations, verbal or written, with regard to the
issues herein addressed.
6.2. By this MOU the signatories, their successors and any authorized assignees
are obliged to comply with the terms and conditions set forth herein.
6.3. This MOU shall not be amended, in its parts or as a whole, except when
previously agreed amongst the parties, and provided that such changes are done
upon a written consent, executed and signed by the representative of each party.
6.4. No tolerance by any of the CONTRACTING PARTIES with regard to future
non-compliance of this instrument shall constitute an amendment or novation of
the conditions agreed upon herein.
6.5. This MOU and its annexes, which after being signed by the CONTRACTING
PARTIES and the witnesses will make an integral part of this instrument,
represent the whole agreement entered into by the Parties, and shall govern and
regulate their activities, according to the terms and conditions set forth
hereto.
6.6. The terms set forth in this agreement are valid and binding and shall
regulate and govern the business amongst the CONTRACTING PARTIES, until a
definitive Agreement is executed which is expected to occur by 30JUN06.
6.7. The CONTRACTING PARTIES declare and warrant that they will grant an
extrajudicial, executive power to this agreement, with full force, according to
the terms established in item II, article 621 of the Code of Civil Procedure,
Law no. 8953/94.
7. GOVERNING LAW AND DISPUTE RESOLUTION
7.1. This agreement shall be governed by the laws of Brazil.
7.2. The Parties hereby agree that any and all dispute arising from this
agreement shall be resolved at the Main Court of the city of Itaituba, Para,
with the waiver of any other, prevailing over any
5
others. However, the parties are entitled to solve any dispute by means of
arbitration at the court of the city of Itaituba, Para, provided that they have
reached this decision by mutual agreement.
IN WITNESS WHEREOF, the parties execute this instrument in three counterparts of
identical tenor and form, in the presence of the witnesses below, who also
subscribe this instrument, for all legal effect.
Itaituba, PA, December 21, 2005
(Signature)
XXXXX XXXXXX XXXXXXX XX XXXXX
(Signature)
AURORA GOLD MINERACAO LTDA
Witnesses
1) (Signature)
2) (Signature)
Seal and stamp of notaries public authenticating the signatures of Xxxxx Xxxxxx
Xxxxxxx xx Xxxxx and Xxxx Xxxxxxxx Xxxxxxxxxx xx Xxxxxxx.
6
PRIVATE AGREEMENT FOR THE ASSIGNMENT AND TRANSFER OF MINERAL RIGHTS AS FOLLOWS:
By this present Agreement entered into by, on the one side: XXXXX XXXXXX XXXXXXX
XX XXXXX, Brazilian, divorced, businesswoman, bearing the Identity Card No. RG
3717073/SSPA, and duly enrolled in the Individual Taxpayer's Register under no.
000.000.000-00, with address at Av. Primeiro xx Xxxx, no 000, Xxxxxx Xxxxxxxxxx,
Xxx Xxxxxx, xxxxx of Rio Grande do Sul, CEP 96202-000, hereinafter referred to
as ASSIGNOR, and xxxxxxxxxxxxxxxxxxxxxxxx hereinafter referred to as ASSIGNEE.
WHEREAS the ASSIGNOR is the titleholder of PLG Processes DNPM no. 855.892/96 to
856.289/96 and 853.597/93 to 853.638/93, hereinafter referred to as Mineral
Rights, which are free and clear of any claims, liens or encumbrances;
WHEREAS the ASSIGNOR wishes to assign to the ASSIGNEE the Mineral Rights, and
the latter being in agreement with such transfer, the Parties agree to execute
this Agreement of Assignment and Transfer of Mineral Rights, in accordance with
the following clauses and conditions:
1. By this present private agreement entered into, and as prescribed by law, the
ASSIGNOR assigns and transfer to the ASSIGNEE the Mineral Rights, as they are in
fact assigned and transferred in a definitive manner.
2. It is up to the ASSIGNEE to verify with the DNPM the correctness, validity
and legal status of the Mineral Rights now being assigned, and it is agreed that
this present instrument will automatically loose any legal effect with regard to
any of the Mineral Rights which for any reason is denied or declined by the
DNPM, and as such nothing shall be alleged against the ASSIGNOR, and the parties
shall mutually endeavour their best efforts to obtain the registration of the
assignment now being agreed upon.
3. It is the responsibility of the ASSIGNEE, independently of the registration
of the Mineral Rights referred to herein, to pay all and any taxes or expenses.
4. The ASSIGNOR hereby grants the ASSIGNEE, with regard to the Mineral Rights,
full representation powers with the DNPM - National Department of Mineral
Production, the Ministry of Mines and Energy, the State Secretary for
Environment of the State of Para, and IBAMA - the Brazilian Institute of
Environmental and Renewable Natural Resources, with full powers to request and
apply for the registration of the assignment, provide declarations and
clarifications, to sign, present or withdraw any document, to meet requirements,
make payments, receive the correspondent receipts, to ratify or rectify, or to
compromise as well as to practice any and all acts necessary for the good
compliance of the powers herein granted.
5. This present instrument is irrevocable and the signatories, their heirs or
successors, are obliged to comply with the terms and conditions set forth
herein, and any previous document signed between the parties with the object
being the assignment and transfer of the Mineral Rights referred herein shall be
null and void.
7
6. The Parties hereby agree that any and all dispute arising from this agreement
shall be resolved at the Main Court of the city of Itaituba, Para, with the
waiver of any other, prevailing over any others.
IN WITNESS WHEREOF, the parties execute this instrument in 3 (three)
counterparts of identical tenor and form, in the presence of the witnesses
below, who also subscribe this instrument.
Belem, June 30, 0000
XXXXXXX XXXXXXX XX XXXXX XXX
xxxxxxxxxxx
WITNESSES:
1)
8
TO THE DIRECTOR OF THE NATIONAL DEPARTMENT OF MINERAL PRODUCTION (DNPM)
DNPM no. 855.892/96 to 856.289/96 and 853.597/93 to 853.638/93
XXXXX XXXXXX XXXXXXX XX XXXXX, Brazilian, divorced, businesswoman, bearing the
Identity Card No. RG 3717073/SSPA, and duly enrolled in the Individual
Taxpayer's Register under no. 000.000.000-00, with address at Av. Primeiro xx
Xxxx, no 000, Xxxxxx Xxxxxxxxxx, Xxx Xxxxxx, xxxxx of Rio Grande do Sul, CEP
96202-000, for herself and as executrix of the estate of Sebasti o Xxxxxxx xx
Xxxxx, hereinafter referred to as ASSIGNOR, and xxxxxxxxxxxxxxxxxxxxx
hereinafter referred to as ASSIGNEE, hereby inform and request the following:
On 21 DEC 05, the ASSIGNOR, applicant of the above-mentioned mineral rights,
executed with the ASSIGNEE an "Agreement of Assignment of Mineral Rights",
transferring to the latter the aforesaid mineral rights, in accordance with the
document submitted to this DNPM as per annex I, and as such, the parties hereby
present resolve to apply for the filing and registry of the requests for
assignment and registration of the transfer.
Requesting your approval,
Belem, June 30, 2005
XXXXX XXXXXX XXXXXXX XX XXXXX
xxxxxxxxxxxxxxx
9
POWER OF ATTORNEY
By this present Power of Attorney, XXXXX XXXXXX XXXXXXX XX XXXXX, Brazilian,
divorced, businesswoman, bearing the Identity Card No. RG 3717073/SSPA, and duly
enrolled in the Individual Taxpayer's Register under no. 000.000.000-00, with
address at Av. Primeiro xx Xxxx, no 000, Xxxxxx Xxxxxxxxxx, Xxx Xxxxxx, xxxxx of
Rio Grande do Sul, CEP 96202-000, for herself and as executrix of the estate of
Sebasti o Xxxxxxx xx Xxxxx, appoints as her attorney Xxxx Xxxxxxxx Xxxxxxxxxx xx
Xxxxxxx, Brazilian, single, lawyer, registered at the Brazilian Bar Association
(RJ) under no. 80412 and registered at CPF/MF under no. 000.000.000-00, to
represent her as titleholder of certain mineral rights in areas located in the
region named Garimpo do Novo Porto, in the Municipality of Itaituba, state of
Para, comprising of Applications for Mining Permits specified as follows: DNPM
no. 855.892/96 a 856. 289/96 and 853.597/93 to 853.638/93 with ample and general
powers to: Take all necessary steps to look up and copy Requests for Mining
Permits at the NATIONAL DEPARTMENT OF MINERAL PRODUCTION - DNPM, the Ministry of
Mines and Energy, the Brazilian Institute of Environmental and Renewable Natural
Resources, SECTAM, and at federal, state, municipal or Federal District
agencies, Notary Public offices, Government Registries in general, with powers
also to sub-establish this Power of Attorney which is valid until 30JUN06.
Itaituba, December 21, 2005
(Signature)
XXXXX XXXXXX XXXXXXX XX XXXXX
Seal and stamp of Notary Public authenticating the above signature
10
