EXHIBIT 4.10.1
AGREEMENT
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THIS AGREEMENT made as of this 15 day of November, 2001 BETWEEN:
CRYSTALLEX INTERNATIONAL CORPORATION, a corporation
incorporated under the laws of the Canada,
(hereinafter called "Crystallex")
- and -
STANDARD BANK LONDON LIMITED, a bank organized and existing
under the laws of England, in its capacity as agent for the
lenders under the Amended and Restated Loan Agreement, dated
as of October 22, 1998, amended as of October 12, 2001 and as
it may be further amended (the "MSG Loan Agreement"), among
Standard Bank London Limited, as Lender and Agent, Crystallex,
Minera San Xxxxxxxx X.X., a corporation organized and existing
under the laws of Uruguay and an indirect subsidiary of
Crystallex, as Borrower ("MSG"), and other parties,
(hereinafter called "Standard").
WHEREAS, Crystallex and Standard wish to enter into this Agreement to
provide for the orderly disposition of the common shares of Crystallex owned by
Standard, including common shares of Crystallex acquired by Standard subsequent
to the date hereof;
NOW THEREFORE in consideration of the mutual promises herein provided
and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. The above recital is true and correct and is hereby incorporated into
this Agreement. Unless otherwise specifically stated herein, all
reference to monetary amounts shall be in United States ("US") dollars.
2. As at the date of this Agreement, Standard represents to Crystallex
that Standard owns 3,076,615 common shares of Crystallex, 1,826,615 of
which are designated for the purposes of this Agreement as Tranche A
Shares (the "Tranche A Shares") and 1,250,000 of which are designated
for the purposes of this Agreement as Tranche B Shares (the "Tranche B
Shares"). Any common shares of Crystallex acquired by Standard
subsequent to the date hereof are designated for the purposes of this
Agreement as Tranche C Shares, regardless of whether acquired on the
same date or dates (the "Tranche C Shares"). The Tranche A Shares,
Tranche B Shares and Tranche C Shares are collectively referred to
herein as the "Shares."
(1)
3. All Shares shall be valued at their Exercise Price, and it is
understood that as at the date of issuance and for the purposes of this
Agreement, the Tranche A Shares and the Tranche B Shares are valued in
the aggregate at $5,586,011.65. The "Exercise Price" shall be
determined in accordance with the terms of the Loan Repayment Rights
Agreement, dated as of May 17, 1999, among Crystallex, Standard and MSG
(the "LRRA"). Crystallex agrees to pay interest on the Exercise Price
of the Shares, commencing on the earlier of the date such Shares are
received by Standard or the Agent (as hereinafter defined), or on such
balance thereof as may remain, from time to time, unrecovered by the
sale of the Shares and the distribution of proceeds to Standard as
hereinafter provided, at the rate per annum equal to LIBOR plus 2% from
the respective dates of issuance of the Shares, until such sum shall be
recovered in full by Standard. Such interest shall be paid commencing
on January 31, 2002 and thereafter on the last day of each calendar
month. LIBOR shall be determined in accordance with the definition in
Schedule "A" attached hereto.
4. The Tranche A Shares and the Tranche B Shares shall forthwith upon
execution of this Agreement, and thereafter the Tranche C Shares shall
upon issuance, be deposited with Xxxxxxx Xxxxx Barney (the "Agent"), as
agent for Standard, to be sold by the said Agent on Standard's behalf
and acting upon the instructions of any one of Xxxxxx Xxxxx, Xxxxxx
Xxxxxxx, Xxxxx Xxxxxxxxx or Xxxxx XxXxxxxx, who are hereby designated
by Standard to act on its behalf, as follows:
(a) Standard may sell all or any portion of the Shares at any time in
the US or Canada pursuant to and in accordance with: (i) the LRRA
and (ii) any exemption from (A) registration under the US
securities laws, including Rule 144 or Regulation S (collectively,
"US Securities Laws), and the provisions relating to such
exemptions in any Registration Rights Agreement between Crystallex
and Standard relating to the distribution and sale of Shares in
compliance with US Securities Laws (a "US RRA"), and (B) the
obligation to file a prospectus under the Canadian securities laws
("CA Securities Laws"), and the provisions relating to such
exemptions in any Registration Rights Agreement between Crystallex
and Standard relating to the distribution and sale of Shares in
compliance with CA Securities Laws (a "CA RRA"), which CA RRA may
be included in or form part of the US RRA.
(b) Notwithstanding the provisions of Paragraph 4(a), and so long as
Crystallex is not in breach of any of its obligations under this
Agreement, the LRRA, a US RRA or a CA RRA, Standard agrees that it
will not sell Shares pursuant to paragraph 4(a) during any period
of time that it is able to sell all Shares permitted to be sold
pursuant to Paragraph 7: (i) in the US on the American Stock
Exchange ("AMEX") pursuant to a registration or registrations
("Registration") of any or all of the Shares in accordance with US
Securities Laws and the US RRA, which Registration is then in
effect and does not identify Standard as an "underwriter" in
connection with any sale of the Shares by Standard (which the
parties recognize is not in effect on the date hereof, and may not
become effective in the future), or
(2)
(ii) in Canada on the Toronto Stock Exchange ("TSE") (A) pursuant
to a then current Prospectus (as defined in the LRRA) (which the
parties recognize is not in effect on the date hereof, and may not
become effective in the future), or (B) by holding the Shares for
a period of 40 days or more prior to the sale thereof whether or
not there is a current Prospectus, and in either case in
accordance with the CA Securities Laws, a CA RRA, if any, and any
applicable US Securities Laws, and (as to sales of Shares on the
TSE) such Shares may be sold in the volume and within such periods
of time as provided in Paragraph 7 and without adversely
affecting, in the judgement of Standard, the market for or selling
price of the Shares on the TSE. It is the express intent of
Standard that no Shares will be sold under circumstances where
Standard is an "underwriter" as to such sale under the US
Securities Laws or where Standard has similar status under the CA
Securities Laws.
(c) The Agent shall provide to the parties a report within three (3)
days of the settlement date of each sale transaction and a monthly
report with respect to Shares sold and proceeds realized and
distributed pursuant to Paragraph 5. Proceeds shall be deemed to
be received by Standard on the date of delivery by the Agent to
Standard.
(d) It is understood and agreed that Shares are owned exclusively by
Standard, will be sold for the account of Standard, and the
proceeds of disposition shall be distributed only upon the
instructions of Standard and in accordance with such instructions.
(e) Crystallex shall, within five (5) business days after request
therefor by Standard, provide Standard with an opinion of counsel
to Crystallex acceptable to Standard, as to (i) the effectiveness
of any registration (or equivalent) of Shares in the US or Canada,
(ii) whether Standard may sell any Shares in Canada under the
Prospectus or on a basis exempt from the prospectus requirement of
CA Securities Laws and without any other restriction after holding
such Shares for a period of 40 days following issuance of such
Shares.
5. It is understood that the Agent shall first sell the Tranche A Shares
and shall then sell the Tranche B Shares, on a "first in first out"
basis. If the Tranche C Shares are received by Standard on more than
one date, such Tranche C Shares shall be sold on the same "first in
first out" basis. If, upon sale pursuant to any provision of this
Agreement, the proceeds per share for any Shares exceed the aggregate
of the issue price thereof and any interest accrued and unpaid in
accordance with paragraph 3 hereof, such excess proceeds (the "Excess
Proceeds") shall be held in trust by the Agent in an interest bearing
account pending disposition of the balance of the Shares in the same
Tranche. The balance of the proceeds in addition to the Excess Proceeds
shall be paid forthwith to Standard. If, upon sale pursuant to any
provision of this Agreement, the proceeds per Share shall be less than
the said aggregate of the issue price and any interest accrued and
unpaid in accordance with paragraph 3 hereof, the proceeds shall be
paid in full to Standard and, to the extent that there are Excess
Proceeds available, such Excess Proceeds shall be paid to
(3)
Standard to be applied to any deficit. In the event, upon disposition
of all the Shares, there is a deficit in payment to Standard under the
provisions of this paragraph 5, Crystallex shall forthwith pay to
Standard the amount of such deficit, in cash or, subject to the consent
of Standard, by the issuance of further shares of Crystallex, subject
to Crystallex obtaining any necessary regulatory approvals and
complying with the provisions of this any other agreements between
Crystallex and Standard, including any US RRA or CA RRA. In the event,
upon disposition of all the Shares and application of the above
provisions of this paragraph 5, there remain any Excess Proceeds, such
Excess Proceeds shall be forthwith paid to Standard and Standard shall
apply such Excess Proceeds to any obligations then owed to it pursuant
to the MSG Loan Agreement.
6. Mineras Bonanza C.A. ("Bonanza"), an indirect subsidiary of Crystallex,
owes to Standard certain monies pursuant to the Credit Agreement, dated
as of August 11, 2000, as amended, among Bonanza, Standard and other
parties (the "Bonanza Credit Agreement"), which obligation is secured
by assets owned by Bonanza and Revemin II C. A. ("Revemin"), another
indirect subsidiary of Crystallex, situate in the Bolivar State of
Venezuela, including assets known as the Tomi Mine and Revemin Mill. It
is agreed that Crystallex shall, promptly at the request of Standard,
cause the aforesaid assets as described in the Bonanza Credit Agreement
and related security agreements among Bonanza, Revemin and Standard to
be further assigned and pledged to Standard as security for any deficit
in payment to Standard under paragraph 5 after disposition of all of
the Shares. Standard and Crystallex shall, and Crystallex shall cause
Bonanza and Revemin to, promptly execute any documentation prepared by
counsel to Standard and reasonably acceptable to Crystallex, and take
all action reasonably required to provide and perfect such security. In
the event that Crystallex, Bonanza and/or Revemin fail to complete the
actions described herein within 30 days following the request therefor
by Standard, the provisions of and restrictions in paragraph 7 shall,
at the option of Standard and upon notice to Crystallex, be null and
void and of no further effect.
7. The Agent shall sell during each Monthly Period (as hereinafter
defined) during the term of this Agreement, commencing with the Monthly
Period that begins on December 1, 2001, as many Shares as possible up
to a maximum of, but no more than the aggregate number of Shares (as to
the Tranche A Shares and Tranche B Shares, in the order provided in
Paragraph 5 hereof) as shall equal the product of 10,000 and the number
of available trading days in such Monthly Period, except as may
otherwise be agreed by the parties in writing in regard to any Tranche
C Shares. For example, if there are 20 trading days in a Monthly
Period, 1,000,000 Tranche C Shares have been issued and the parties
have agreed that up to a maximum of 50,000 Tranche C Shares may be sold
in any Monthly Period, the Agent shall sell up to but no more than
200,000 Tranche A Shares and Tranche B Shares in the aggregate, and up
to but no more than 50,000 Tranche C Shares, during such Monthly
Period. The parties agree that a formal accounting of the sale of
Shares shall be provided quarterly, not later than the of the month
following the end of such quarter, the first formal accounting to be
provided on or before July 10, 2002. The performance of the Agent
hereunder shall be finally reconciled on a quarterly basis. For the
purposes of this Agreement, "Monthly Period" shall mean a period of
time
(4)
beginning at the opening of trading for Shares on the AMEX or TSE on
the first day of a calendar month and ending at the close of trading
for Shares on the AMEX or TSE on the last day of the said calendar
month.
8. This Agreement, and any addenda hereto, and the LRRA, are the sole
agreements between the parties relating to the orderly disposition of
Shares and shall replace and supersede any previous agreements, oral or
written between the parties with respect to the orderly disposition of
Shares.
9. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which when taken
together shall be deemed to constitute one and the same agreement.
10. Delivery of this Agreement by the parties may be made by facsimile
transmission. A copy of this Agreement duly executed in several
counterparts by the parties hereto and delivered by facsimile
transmission shall constitute a valid and binding Agreement. Original
documents may, but need not, be delivered to each of the parties within
seven (7) business days from the date of execution.
11. It is understood and agreed that the parties hereto will keep
confidential (except for such disclosure to affiliated parties,
solicitors, accountants, etc. or as may be appropriate in the
furtherance of the orderly disposition of the Shares and except for
such disclosures as may be required by law) all information with
respect to the issuance and disposition of the Shares pursuant to this
Agreement.
12. This Agreement is governed by and will be construed in accordance with
the laws of the State of New York applicable therein. Any litigation
based hereon, or arising out of, under, or in connection with this
Agreement or any course of conduct, course of dealing, statements
(whether oral or written) or actions of the parties, shall be brought
and maintained in the Courts of the State of New York or in the United
States District Court for the Southern District of New York. Each party
to this Agreement hereby expressly and irrevocably submits to the
jurisdiction of such Courts for the purpose of any such litigation as
set forth above and irrevocably agrees to be bound by any final
judgment rendered thereby in connection with such litigation.
13. This Agreement shall not be assignable by either of the parties without
the express written consent of the other party.
14. This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns.
15. In the event that any provision of this Agreement is invalid or
unenforceable under any applicable statute or rule of law, the such
provision shall be deemed inoperative to the extent that it may
conflict therewith and shall be deemed modified to conform with such
statute or rule of law. Any provision hereof which may prove invalid or
unenforceable under any law shall not affect the validity or
enforceability of any other provision hereof.
(5)
16. Any provision of this Agreement may be amended and the observance
thereof may be waived (either generally or in a particular instance and
either retroactively or prospectively), only with the written consent
of the Company and Standard. Any amendment or waiver effective in
accordance with this Section 16 shall be binding upon Standard and the
Company.
IN WITNESS WHEREOF the parties have executed this Agreement on the dates set
forth below their signatures, but this Agreement shall be effective for all
purposes as of the day and year first above written.
CRYSTALLEX INTERNATIONAL
CORPORATION
Per: /s/ Xxxxxx X. Xxxx
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Authorized Officer
Dated: Executive Vice-President
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STANDARD BANK LONDON LIMITED
Per: /s/ Xxxxx XxXxxxxx
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Authorized Officer
Dated: XX Xxxxxxx
Head of Mining Finance
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(6)
SCHEDULE "A"
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LIBOR, for the purposes of this Agreement means, relative to any interest
period, the offered rate of interest per annum which appears on Telerate Page
3750 (or such other page or service in replacement thereof as may be utilized by
banks generally from time to time for the purpose of displaying London
inter-bank offered rates for deposits denominated in dollars) as at 11:00 a.m.
(London, U.K., time) for the number of months (or different period) comprising
the applicable interest period, calculated at the date which is two business
days prior to the first day of the said interest period; provided, however, that
in the event that no such display rate is available at such time, the rate of
interest shall be fixed upon the agreement of Standard and Crystallex based upon
Standard's quotation for offers of dollar deposits to leading banks in the
London inter-bank market for a comparable interest period and in an amount
comparable to the balance remaining unrecovered by Standard under the terms of
this Agreement, and LIBOR shall equal the average (rounded upward to the nearest
four decimal places) of such quoted rates.
