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EXHIBIT NUMBER 10.17
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QINGHAI LITHIUM LIMITED
CONTRACT
QINGHAI INSTITUTE OF SALT LAKES,
CHINESE ACADEMY OF SCIENCES
PACIFIC LITHIUM LIMITED
30 September, 1998
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JOINT VENTURE CONTRACT FOR QINGHAI LITHIUM LIMITED
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CHAPTER 1: GENERAL PROVISIONS
In accordance with the "Law of the People's Republic of China on
Chinese-Foreign Equity on Joint Ventures" and other relevant Chinese laws,
decrees and regulations, Qinghai Institute of Salt Lakes, Chinese Academy of
Sciences, and Pacific Lithium Limited of New Zealand, adhering to the principle
of equality and mutual benefit and through friendly consultations, agree to
establish a joint venture company Qinghai Lithium Ltd. Qinghai Lithium
Limited is to be established according to the following contract.
CHAPTER 2: PARTIES OF THE JOINT VENTURE COMPANY
ARTICLE 1
The Parties to this contract are as follows:
- Qinghai Institute of Salt Lakes, (hereinafter referred to as Party A),
research unit established in accordance with the laws of People's Republic of
China, registered in China, and its legal address is at 18 # Xining Road,
Xining City, Qinghai Province, China. The postal code is 810008.
LEGAL REPRESENTATIVE: Peihua Ma
POSITION: Executive Deputy Director
NATIONALITY: The People's Republic of China
Tel: x00 000 0000000 Fax: x00 000 0000000
- Pacific Lithium Limited. (hereinafter referred to as Party B), a corporation
established in accordance with the law of New Zealand, registered in New
Zealand, and its legal address is at 0xx Xxxxx, 00 Xxxxxx Xx, Xxxxxxxx, Xxx
Xxxxxxx.
LEGAL REPRESENTATIVE: R.T. Johannink
POSITION: Managing Director
NATIONALITY: New Zealand
Tel: x00 0 000 0000 Fax: x00 0 000 0000
CHAPTER 3: ESTABLISHMENT OF JOINT VENTURE COMPANY
ARTICLE 2
In accordance with the "Law of the People's Republic of China on
Chinese-Foreign Equity Joint Ventures" and other relevant Chinese law, decrees
and regulations, both parties agree to establish the joint venture limited
liability company (hereinafter referred to as Qinghai Lithium Limited or QLL) in
the People's Republic of China.
ARTICLE 3
Upon registration with the appropriate agency, QLL shall be a legal entity
within the People's Republic of China. All activities of the joint venture
company shall be governed and protected by the laws, decrees, and pertinent
rules and regulations of the People's Republic of China.
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ARTICLE 4
QLL shall be a limited liability company, with the liability of each party
limited to its contributed capital, which is stipulated in the contract or any
revised version thereof. The profits, risks and losses of the joint venture
company shall be shared by the parties in accordance with their respective
share-holding.
CHAPTER 4: THE PURPOSE, SCOPE AND SCALE OF THE BUSINESS
ARTICLE 5
The objective of the parties is for QLL to fully implement the new
technologies of Party A, for the development and utilization of the salt lakes
resources, in conjunction with the advanced technologies owned by Party B in
processing fine lithium salts and its experience in the world market, so as to
exploit the resources of East Taijinaier Salt Lake located in Qinghai Province.
The principal aim is to produce and sell lithium, potassium, borate, magnesium
and other salts and all other commercially viable chemicals and to gain a
significant share of the world market.
ARTICLE 6
The business scope of the joint venture company is the production and
marketing of:
a. lithium
b. potassium
c. borate
d. magnesium
e. other fine chemicals
f. assuming research and development of salt lake products
ARTICLE 7
The site of the joint venture company's (QLL) production activities is
located near East Taijinaier Salt Lake and will be established over three
distinct phases. The scope of each phase is as follows:
PHASE I (BEGINNING 1998-BEGINNING 2000):
i. construct 100,000 m(2) of solar pond;
ii. optimize their operation and
iii. establish pilot plants for the production of technical grade lithium
carbonate (99.5% - 50-100 tonnes) and boric acid (50-100 tonnes)
PHASE II (BEGINNING 2000 - END 2001):
i. construct 700,000 - 1,400,000m(2) of new solar ponds;
ii. upscale Phase I plant operation to produce 1000-2000 tonnes of lithium
carbonate (technical grade) and 1200-2400 tonnes of boric acid.
iii. construct a facility to produce 20,000 tonnes of potassium sulphate;
iv. produce lithium carbonate of a minimum of 99.9% quality, as well as
lithium hexaflorophosphate, lithium metal and lithium bromide. Volumes
to be specified at a later date.
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PHASE III (AFTER 2002 -):
i. upscale Phase II operation to produce 10,000 - 15,000 tonnes of lithium
carbonate (technical grade) and 12,000-14,000 tonnes of boric acid;
ii. produce 100,000 - 200,000 tonnes of potassium sulphate;
iii. produce lithium carbonate of a minimum of 99.9% quality; as well as
lithium hexaflorophosphate, lithium metal and lithium bromide. Volumes
to be specified at a later date.
CHAPTER 5: TOTAL AMOUNT OF INVESTMENT AND THE REGISTERED CAPITAL
ARTICLE 8
The total amount of investment of QLL for Phase I is 1.50 million USD.
ARTICLE 9
The registered capital of the joint venture company is 1.50 million USD, of
which Party A shall pay 0.75 million USD, accounting for 50% shareholding. The
payment of Party A includes USD in cash, USD of production equipment and USD of
intellectual property. Party B shall pay 0.75 million USD, accounting for 50%
shareholding, which includes USD in cash and USD of intellectual property. The
value of intangible assets shall be determined in accordance with Article 10.
Where Renminbi are used, the exchange price to be applied shall be the
medium price indicated by State Administration of Foreign Exchange Control of
China on the due date of payment. Accordingly changes of foreign exchange rate,
both parties shall increase or decrease the contributed equipment to maintain
the proportion of the contributed capital. All the assets contributed by both
parties are to be evaluated by the Qinghai Administrative Bureau of State Owned
Property and banks at provincial level to verify the amount and date of payment.
ARTICLE 10
Party A shall contribute its assets and first payment to the joint venture
company as per a Cashflow and Investment Schedule that is to be determined
during September 1998. Party B shall contribute its assets and first payment to
the joint venture company as per a Cashflow and Investment Schedule that is to
be determined during September 1998. The date of payments shall conform to the
date of the money order received by the Bank of China.
A Cash flow and Investment Schedule for the joint venture company shall be
determined at the time of signing this joint venture contract (Appendix 1) and
shall dictate the deposit of funds by Party A and Party B to the Joint Venture
Company. The Schedule shall also outline the value of both parties production
equipment and intellectual property which may form part of QLL. Should either
party fail to meet its obligations to the Cashflow and Investment Schedule, that
Party shall give up its share-holding in the registered capital of the joint
venture company.
ARTICLE 11
Both parties shall re-invest to the joint venture company in proportion to
their share-
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holding at Phase II and Phase III with the expansion in production scale and
development. At Phase II, other Chinese or foreign companies may be invited to
take up to 50% of the company.
ARTICLE 12
Upon payment of investment in either cash or the materials stipulated in
Article 9, an accountant registered in China will be invited by QLL to verify
the payments and provide a verification report to QLL. On receiving the report,
QLL shall issue a Share Certificate to each party which shall include the date
and amount of their respective share-holding.
ARTICLE 13
During the term of the joint venture company, no party shall be allowed to
reduce the capital which has been contributed to the joint venture company.
Should any party of the joint venture company intend to assign all or part of
its contributed investment to a third party, consent shall be obtained from the
other parties as well as the examining and approving authority.
ARTICLE 14
During the term of the joint venture company, no party shall be allowed to
mortgage any part of the investment to a third party without unanimous approval
of the board of directors.
CHAPTER 6: RESPONSIBILITIES OF EACH PARTY TO QLL
ARTICLE 15
Party A shall be responsible for the following matters:
1) Applications for approval, registration, business license and other matters,
relating to the establishment of the joint venture company, from relevant
departments in China;
2) The construction of large-scale solar ponds, design and construction of the
workshops and production facilities at East Taijinaier Salt Lake;
3) Assisting the joint venture company in purchasing or leasing equipment,
materials, raw materials, items for office use, means of transportation and
communication facilities;
4) Assisting the joint venture company in recruiting Chinese employees;
5) Assisting foreign employees with applications for entry visas, work licenses
and processing their traveling requirements;
6) Responsible for handling any other matters entrusted by the joint venture
company.
Party B shall be responsible for the following matters:
1) Assisting the joint venture company in purchasing machinery, equipment
and materials outside China;
2) Assisting the joint venture company in the development of its products for
the world market and their marketing;
3) Assisting the joint venture company in recruiting foreign employees;
4) Ensuring the integration of advanced processing technologies into the
facilities of the QLL for the production of the lithium carbonate
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5) Responsible for any other matters entrusted by the joint venture
company.
ARTICLE 16
During the term of the joint venture company and 10 years after, both
parties shall keep confidential all commercial and technical information and
technologies, either independently developed or purchased by the JV. No party
shall disclose any information or data relating techniques to a third party
without the consent of the original party.
Party A shall have the right of first refusal to repurchase intellectual
property sold by it to QLL, pursuant to Article 9, and Party B shall have the
right of first refusal to repurchase all intellectual property sold by it to
QLL, pursuant to Article 9, and Party B shall have the right of first refusal to
repurchase all intellectual property. The rights of first refusal shall be
exerciseable if the joint venture is terminated for any reason.
ARTICLE 17
Both parties acknowledge the individual ownership of any patents, proprietary
processes, copyright, licenses, trade secrets, intellectual property, customer
or market information and it shall not infringe, copy, use or dispute the
ownership of the same.
ARTICLE 18
Both parties shall exchange any such information as is necessary for the
other to develop the processes set out above or specific markets within and
outside of the People's Republic of China.
CHAPTER 7: THE TERM OF THE JOINT VENTURE COMPANY
ARTICLE 19
The term of the joint venture company will be 30 years, and the date of the
business license is the date of the establishment of the joint venture company.
An extension of the term for up to 5 years can be applied if both parties agree
and the board of directors approves unanimously 6 months before the expiration
of the term.
CHAPTER 8: SELLING OF THE PRODUCTS
ARTICLE 20
In order to ensure the success of the joint venture company, the joint
venture company shall give the top priority to exporting and earning foreign
currency. The products may be exported directly or through agents designated by
the joint venture company. Party B has the first right to act as a sales agent
for QLL.
CHAPTER 9: THE BOARD OF DIRECTORS
ARTICLE 00
XXX shall establish a Board of Directors. The board of directors shall
consist of 6 directors, of whom 3 directors shall be appointed by Party A, and 3
by Party B. The date of registration of the joint venture company shall be the
date of the establishment of the Board of Directors of QLL.
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ARTICLE 22
The Board of Directors shall have a chairman and a vice-chairman to be
appointed by the Board of Directors respectively. The first term of office for
the chairman, vice-chairman and directors is 2 years, and thereafter, 1 year.
The term of office for the chairman, vice-chairman and directors may be renewed
if agreed to unanimously by the appointors of the Directors. In case of a
vacancy of any Director, the original appointor of that director, shall appoint
a replacement.
ARTICLE 23
The highest authority within QLL shall be its Board of Directors whom shall
determine or decide all major issues relating to the company's activities. As
for the following issues, unanimous approval amongst the directors shall be
required for the following issues;
i. amendment of the association of the joint venture company; termination and
dissolution of the joint venture company; merger, affiliation and
consolidation of the joint venture company with another company (either
foreign or domestic);
ii. increase or assignment of the registered capital of QLL; establishment of
branches or subsidiaries;
iii. determination of annual management strategy; approval of medium and long
period development;
iv. ratification of financial budgets, reports and accounting statements; and
determination of the method of annual profit sharing;
v. nomination, employment and/or dismissal of the general manager and deputy
general managers.
APPROVAL BY MAJORITY OF DIRECTORS SHALL BE REQUIRED FOR THE FOLLOWING
MATTERS:
i. the amount of expenditure funds to be raised annually for the joint venture
company;
ii. amending and defining the legal structure of the joint venture company;
iii. drawing up the rules on remuneration and health and safety of employees in
accordance with the relevant regulations of the People's Republic of China;
iv. nomination and dismissal of senior administrative personnel who shall be
recommended by general manager and approved by the board of directors in
addition to determining their salary and welfare;
v. inspection and ratification of annual operation report submitted by the
general manager;
vi. determination of funding for contingencies, expansion funds and bonuses from
net profit of the joint venture company for employees;
vii. appointment and removal of sales agents for QLL.
ARTICLE 24
The chairman of the board is the principal legal representative of the joint
venture company. Should the chairman be unable to exercise his/her
responsibilities for some reasons, s/he shall authorize the vice-chairman or any
other directors (when the vice-chairman is absent) to represent the joint
venture company.
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ARTICLE 25
The Board of Directors shall meet at least once every year. The meeting
shall be convened and presided over by the chairman of the board. The chairman
may convene an interim meeting based on a proposal made by 4 or more directors.
The meeting shall be held at the location of the joint venture company, or an
appropriate location as determined from time to time. Other methods such as
teleconference, and fax can be adopted. The quorum of the meeting is 5
directors. The minutes of the meeting is invalid when the quorum is less than 5
directors. Minutes of the meetings shall be placed on file. The minutes shall be
written in English and Chinese and shall be signed by every director attending
the meeting.
CHAPTER 10: BUSINESS MANAGEMENT OFFICE
ARTICLE 00
XXX shall establish a business management office which shall be responsible
for its daily management. The management office shall have one general manager
and two deputy general managers, whose term of office shall be two years. The
vice-chairman and other members of the board can be the general manager and
deputy general manager at the same time if they are appointed by the Board.
ARTICLE 27
The responsibility and function of the general manager is to implement the
decisions of the board and organize and conduct daily management of the joint
venture company. Within the limits authorized by the board of directors, the
general manager shall represent the joint venture company in order to exercise
his responsibilities. The deputy general managers shall assist the general
manager in his work.
ARTICLE 28
Within the power authorized by the board of directors, the management office
has the right to determine the following matters:
i. Planning of quarterly and annual production, budget, sales and other matters
relating to the company's day-to-day operation;
ii. Signing, amending and canceling any contracts for sales and purchases;
signing the contracts of loan or credit for the joint venture;
iii. Developing and implementing all administrative rules and regulations;
iv. Management of all staff according to relevant employment regulations.
CHAPTER 11: LABOR MANAGEMENT
ARTICLE 29
Labor contract covering the recruitment, dismissal, salaries, labor
insurance, welfare, rewards, penalty and other matters concerning the staff and
workers of the joint venture company shall be drawn up by the general manager
and approved by the board of directors in accordance with the "regulations of
the People's Republic of China on Labor Management in Chinese-Foreign Equity
Joint Ventures and their Implementation".
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ARTICLE 30
The labor contracts shall be drawn up between the joint venture company and
individual employees. QLL has the autonomy to recruit and dismiss employees
directly subject to Article 23.
CHAPTER 12: TAXES, FINANCE AND AUDIT
ARTICLE 31
The joint venture company shall pay taxes in accordance with Chinese law and
other relevant regulations. Employees of QLL shall pay individual income tax
according to the "Individual Income Tax Law of the People's Republic of China."
ARTICLE 32
The finance and accounting of the joint venture shall be in accordance with
the "Accounting Regulations on Finance and Accounting of the People's Republic
of China for Chinese-Foreign Equity Joint Venture" issued by the Ministry of
Finance of China and any other relevant Chinese laws or regulation.
ARTICLE 33
The fiscal year of the joint venture company shall begin from January 1 and
end on December 31 (a calendar year). All vouchers, receipts, accounting
statements and reports, account books shall be written in Chinese, and Renminbi
shall be the accounting unit. A monthly report summarizing the above shall be
prepared in English and provided to Party B. For the foreign currency accounts,
actual and projected revenue and expenditure indicated by cash, bank deposit,
assets and liabilities, detailed minutes and reports shall be required in both
English and Chinese.
ARTICLE 34
The business management office shall prepare a quarterly accounting
statement and prepare all fiscal accounting statements and reports at the end of
each calendar year. The annual fiscal accounting statement shall be written in
Chinese and English and submitted to the board of directors for approval.
ARTICLE 35
Internal financial audited accounts shall be carried out each quarter by the
venture company. External financial auditing shall be conducted by a registered
auditor in China. Party B may engage a registered auditor outside of China to
undertake a financial audit. All the expenses associated with an external audit
shall be borne by Party B.
ARTICLE 36
The profits shall be distributed to the respective parties once a year. The
proposal for the distribution and amount of profit of each party shall be
published within the first three months of the following fiscal year. Profit
shall not be distributed before the losses of the previous financial year have
been recovered. Remaining profits from previous year may be distributed together
with those of the current financial year.
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ARTICLE 37
After payment of taxes, the net profit shall be distributed in USD, in
accordance with the parties' respective share-holding in QLL. The Products of
the joint venture company may be distributed as profit.
CHAPTER 13: FOREIGN EXCHANGE CONTROL
ARTICLE 38
All matters concerning foreign exchange for QLL shall be handled according
to the Interim Regulations on Foreign Exchange control of the People's Republic
of China.
ARTICLE 39
All foreign currency (USD) income generated by QLL must be deposited in Bank
of China. All payments by QLL in foreign currency are to be effected from its
USD account. The Foreign Exchange Account of QLL must guarantee the following:
i. importation of required machinery, transportation vehicles, equipment
capital and operating expenses and materials;
ii. salaries of the foreign administrative personnel and overseas traveling cost
of QLL employees;
iii. repayment of foreign exchange loans and associated interests of the joint
venture company;
ARTICLE 40
The joint venture company shall give priority to repatriation of profits of
Party B with foreign exchange income earned from export sales.
CHAPTER 14: TERMINATION AND LIQUIDATION
ARTICLE 41
If unanimously approved by the board of directors, the joint venture company
can be terminated before the date of expiration. The termination shall be
decided by the board 90 days prior to the termination and submitted to the
relevant Government authority for approval.
ARTICLE 42
Each party has the right to terminate the joint venture company in one of
the following situations:
i. expiration of duration of the joint venture company;
ii. inability to continue operations due to heavy losses;
iii. inability to continue operations due to the fact that one of the
contracting parties fails to fulfill the obligations prescribed by the
contract and its articles;
iv. inability to continue operations due to force majeure.
ARTICLE 43
Upon receiving approval of the joint venture company's termination, the
joint venture
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company shall liquidate its assets immediately. Subject to the rights of refusal
in Article 16, the board of directors shall establish procedures and principles
governing the liquidation and nominate candidates for the committee overseeing
the liquidation process. It shall report to the Government department in charge
of the joint venture company for supervision of its liquidation. The liquidation
committee shall be responsible for all activity relating to the company
liquidation.
ARTICLE 44
After liquidation, the liquidation committee shall submit a report to the
relevant Government authorities and implement procedures for canceling QLL's
registration. Two sets of account books and documents shall be made available to
Party A and B.
CHAPTER 15: LIABILITIES FOR BREACH OF THE CONTRACT
ARTICLE 45
Should all or part of the contract and its appendices be unable to be
fulfilled, owing to the lack of performance by one party, the breaching party
shall bear the costs incurred to that date. Should both parties bear equal
responsibility of the failure of QLL, the costs incurred to that date shall be
borne equally.
CHAPTER 16: FORCE MAJEURE
ARTICLE 46
Should any of the parties to the contract be prevented from executing
contract by force majeure, such as earthquake, typhoon, flood, fire, war or
other unforeseen events, and their occurrence and consequences are unavoidable,
the said party shall immediately notify the other party by cable or fax and
within 15 days thereafter provide the detailed information of the event.
Documentation or evidence issued by a relevant public notary organization for
detailing the reasons for the parties' inability to execute all or part of the
contract, or the necessity to delay the execution of the contract. Both parties
shall consult with each other to determine the effect of the non performance of
QLL.
CHAPTER 17: APPLICABLE LAW
ARTICLE 47
The formation of this contract, its interpretation, execution and settlement
of any disputes shall be governed by the relevant law of the People's Republic
of China.
CHAPTER 18: SETTLEMENT OF DISPUTES
ARTICLE 48
Any disputes arising from execution of, or in connection with the contract,
shall be settled through consultations between both parties. In case a
settlement can not be reached through consultation, the disputes shall be
submitted to the China International Economic and Trade Arbitration Commission
under China International Trade promotion in accordance with its rules. The
arbitration award is final and binding upon both parties.
ARTICLE 49
During the arbitration, the joint venture contract shall be executed
continuously by
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both parties except for matters in disputes.
CHAPTER 19: LANGUAGE
ARTICLE 50
The contract shall be prepared in ten original copies in Chinese and
English respectively. Both language versions are to be identical. In the event
of any discrepancy between the two above-mentioned versions, the Chinese version
shall take precendence.
CHAPTER 20: EFFECTIVENESS OF THE CONTRACT AND MISCELLANEOUS
ARTICLE 51
The contract and its appendices shall come into force on the date of
approval by Department of Foreign Economic Trade Co-operation of Qinghai
Province, the People's Republic of China.
ARTICLE 52
The appendixes are to be read as part of the joint venture contract;
i. Cashflow and Investment Schedule
ii. Articles of Association for Qinghai Lithium Limited
ARTICLE 53
The contract is signed in Xining City, Qinghai Province, of the People's
Republic of China, by authorized representatives of both parties:
EXECUTED AS A DEED
DATED SEPTEMBER 1998
Signed for and on behalf of
QINGHAI INSTITUTE OF SALT LAKES
By: Peihua Ma
/s/ Peihua Ma
Title: Executive Director
Signed for and on behalf of
PACIFIC LITHIUM LIMITED
By : Xxxxxxx XX Xxxxxxxx Mennolt H Regtien
/s/ Xxxxxxx X X Xxxxxxxx /s/ Mennolt H Regtien
Title : Chief Executive Officer General Manager-Business Development
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APPENDIX I: CASHFLOW AND INVESTMENT SCHEDULE
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The cashflow schedule will set out the expenditure over each quarter until the
completion of Phase I of the JV project. A preliminary version of this was set
out in the Memorandum and Co-operation Agreement between QSIL and PLL signed in
April 1998.
Investment by QISL and PLL shall be made in accordance with the scheduled
expenditure.
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Date Item (Capital/Working) Expenditure Party A Party B
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Q3,1998 Geological Survey, Solar pond 150,000 150,000
design and construction
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Solar pond and brine-collecting
Facilities construction, 500,000 200,000 300,000
Q4 1998 Purchase of solar pond
And experiment equipment,
Public facilities and setup of
Qinghai Lithium Limited.
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Operation of solar pond, 400,000 200,000 200,000
Q1 1999 Construction of boron and
lithium workshop and living
and public facilities
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Operation of solar pond, 300,000 150,000 150,000
Q2 1999 Construction of boron and
Lithium workshop
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X0 0000 Operation of solar pond
And workshop 150,000 50,000 100,000
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TOTAL INVESTMENT US$1,500,000 750,000 750,000
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Marks: The investment includes cash, fixed assets such as production equipment
and intellectual property, whose value shall be evaluated and determined by
relative authorities.
Dated: 30 September, 1998
Signed for and on behalf of
QINGHAI INSTITUTE OF SALT LAKES
BY: Peihua Ma
/s/ Peihua Ma
Title: Executive Director of QISL
Signed for and on behalf of
PACIFIC LITHIUM LIMITED
By: Xxxxxxx XX Xxxxxxxx Mennolt H Regtien
/s/ Xxxxxxx XX Xxxxxxxx /s/ Mennolt H Regtien
Title: Chief Executive Officer General Manager-Business Development
