Exhibit 10.3.2 - English Translated Version of Portuguese Document
MEMORANDUM OF UNDERSTANDING
By this present Agreement entered into by, on the one side, SUPPLYCONSULT, a
company with its Head Office in Germany at Xxxxxxxxx Xxxxx 0, 00000, Xxxxxxxx,
hereinafter referred to as "SUPPLY", in this act represented by its Director,
Xxxx X. Xxxxxx, bearing the passport no. 0000000000 issued by the Federal
Republic of Germany, and on the other side, CIDINES DA XXXXX XXXXXXX, Brazilian,
single, bearing the Identity Card No. 33943-62 issued by SSP-PA, and duly
enrolled in the Individual Taxpayer's Register under no. CIC 000.000.000-00,
with address at 00 Xxx, Xxxxxx Xxxx, Bairro Bella Vista, no. 680, in the city of
Itaituba, state of Para, hereinafter referred to as 'PERMITTEE", and
collectively referred to as "CONTRACTING PARTIES", SUPPLY and PERMITTEE have
decided amongst themselves as righteous and agreed upon the following:
A. WHEREAS PERMITTEE is the beneficial titleholder of certain mineral rights
located in the region of Xxxxx Surubim, known as GARIMPO OURO MIL, in the
Municipality of Itaituba, state of Para, under the Process DNPM no. 850415/2004
and with the exploration licence requirement filed before the DNPM on 00XXX0000,
those certain mineral rights hereinafter referred to as GARIMPO OURO MIL, being
the said mineral rights, for their better understanding, specified in Attachment
A hereto.
B. WHEREAS SUPPLY is interested in acquiring the mineral rights to GARIMPO OURO
MIL, and for such purpose shall be granted access to information gathered on
site by the ASSIGNORS.
C. WHEREAS SUPPLY (ASSIGNEE) has the necessary technological means to survey and
develop the economic potential of the gold mineral reserves as well as the
required resources to carry out exploration work in GARIMPO OURO MIL.
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 SUPPLY
agrees to enter in a process of incorporating a Brazilian legal entity of which
SUPPLY will be either a partner or the newly incorporated company shall act as
Purchaser's appointee of the mineral rights comprised in the GARIMPO OURO MIL.
In order to preserve the negotiations, the parties agree to execute this
instrument, hereinafter referred to as "MEMORANDUM OF UNDERSTANDING", 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 Transfer of Mineral Rights shall be celebrated by the parties in
a later stage, following the terms and conditions outlined in the clauses ahead.
E. WHEREAS SUPPLY, in order to maintain the negotiations and eventually to
celebrate a definitive Assignment and Transfer Option of Mineral Rights
Agreement, agrees to carry
out a due diligence within 60 (sixty) days; and for such purpose 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 SUPPLY hereby commits itself to pay to the PERMITTEE R$12,000.00 (twelve
thousand Reals) for the right to thoroughly evaluate the area comprised in the
GARIMPO OURO MIL.
1.2 The PERMITTEE, as from the date of the execution hereof and within the term
of 60 (sixty) days, undertakes not to assign, transfer, encumber or lien the
mineral rights comprised in GARIMPO OURO MIL, and, according to the terms and
conditions set forth in this instrument, agrees to make available for SUPPLY to
inspect and examine all and any data it might have access to in regard to
GARIMPO OURO MIL. During this period, SUPPLY shall make site visit, examine the
data and decide to exercise its option to acquire GARIMPO OURO MIL. In case
SUPPLY decides to exercise its option to acquire GARIMPO OURO MIL, it shall
notify the PERMITTEE of its decision at least five (5) days prior to the
expiration of the abovementioned period.
1.3 In case SUPPLY, during the time established in item 1.2 or even after that,
finds out that GARIMPO OURO MIL, hereto represented by the DNPM requirement
registration no. 850415/2004 - which is under exam of priority by the DNPM - is
not a priority exploration license, the PERMITTEE shall be held liable to obtain
such rights from any third party within a period of 30 (thirty) days, at its
sole expenses, and with no onus to SUPPLY. In this case, SUPPLY is entitled to
take all the necessary steps to grant priority over the said Mineral Rights and
shall deduct any and all expense arising from this action from the remaining
payments to be made to the PERMITTEE or to terminate this agreement or any other
it might have signed without incurring in any expense and it also shall receive
back any and all amounts already paid to the PERMITTEE.
2. ASSIGNMENT AND TRANSFER OPTION OF MINERAL RIGHTS
2.1 Having SUPPLY notified the PERMITTEE of its interest to acquire the GARIMPO
OURO MIL, the parties hereby shall celebrate an Agreement for the Assignment and
Transfer of Mineral Rights and Other Covenants, within a period of 90 (ninety)
days, 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 to the PERMITTEE as price for the assignment of the mineral rights
and the possession rights, the values established as follows:
Dates (subject to change) Payment
US$
I Upon celebration of the definitive agreement 30,000
II Within 6 months of the execution of the definitive agreement 70,000
III Within 18 months of the execution of the definitive agreement 120,000
IV Within 30 months of the execution of the definitive agreement 180,000
V Within 42 months of the execution of the definitive agreement 1,500,000
Total US$1,900,000
2.1.1. The values due shall be paid in Brazilian currency (reals) within five
days upon the funds remittance. For the currency conversion and calculation, it
shall be made according to the average buying and selling commercial exchange
rate in effect on the effective date of the funds entrance, or in the absence
thereof, the buying and selling commercial exchange rate as informed by the
Central Bank on the date previous to the payment.
2.1.2. In addition to the price herein established, SUPPLY shall pay the
PERMITTEE a NSR (royalty) of 1.5% (one and a half percent) of the gold sales
which might be obtained by the PERMITTEE from the mining activities in the
GARIMPO OURO MIL, being deducted the values corresponding to any and all direct
taxes of any nature incurring upon the commercialization of gold. The PERMITTEE
is entitled, at any time, to a back-in right of 100% in respect to the NSR, upon
payment in reals of the equivalent of US$1,000,000 according to the terms and
conditions set forth above.
2.2 The PERMITTEE agrees to, immediately after confirming priority over the
Mineral Rights comprised in the GARIMPO OURO MIL - which proven shall be
presented to SUPPLY - assign and transfer the said rights, upon payment by
SUPPLY to the PERMITTEE of the amount established in (I) above as well as
confirmation of such priority.
2.3 The payments herein set forth shall be done through a bank deposit in favour
of Cidines da Xxxxx Xxxxxxx, account no. 20517-6, Branch 0759-5, of Banco
Bradesco.
2.4 All the productive activities are concentrated in a segment of the Highway
BR-163 which links the cities of Cuiaba and Santarem, comprising the area of
interest of the CONTRACTING PARTIES. Therefore, the Parties shall take all the
necessary actions, jointly or separately and in the most convenient way, in
order to keep the GARIMPO OURO MIL in good standing and conditions, as well as
out of any restrictions or informal miners. Being the PERMITTEE the legitimate
and sole owner of the area comprising the GARIMPO OURO MIL, sharing in the
mining results, right to rental or any indemnifications are included in the
royalty established in clause 2.1 above. For such purpose, the PERMITTEE agrees
to the best of its ability to provide to SUPPLY with technical, legal and
operational support, as well as undertake to endeavour its best efforts to give
SUPPLY any information it might have access to with respect to the GARIMPO OURO
MIL, and to take all the actions necessary for the expeditious registration of
the documents needed in order for the Agreement to be implemented, with SUPPLY
being responsible for the financial expenses incurred to obtain such results.
2.5 SUPPLY may, before or after the registration of the Exploration Agreement
Deed, 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.
2.6 At any time before the Option exercise and without onus to it, SUPPLY will
be entitled to terminate the Agreement and drop the GARIMPO OURO MIL project,
provided it notifies the PERMITTEE in writing - by fax or communication notice -
of its intention, being henceforth free of any and all payment commitments yet
to be due. If
SUPPLY decides to exercise its option to terminate the Agreement, it shall
assign back to the PERMITTEE the Mining Rights object of this agreement together
with a detailed technical report which shall include all and any information
gathered to date, within 15 days.
2.7 The CONTRACTING PARTIES will be liable for a jointly follow-up before the
DNPM in regard to the Mineral Rights comprised in GARIMPO OURO MIL, especially
regarding exploration permit requests, as well as undertake to endeavour their
best efforts in order to keep the exploration license with respect to DNPM
process no. 850415/2004, with SUPPLY bearing all expenses incurred for such
purpose.
2.8 Each of the CONTRACTING PARTIES herein will be liable for any and all
environmental damages resulting from their activities carried out in the GARIMPO
OURO MIL. In this regard, the PERMITTEE will be responsible for the
environmental damages it had caused and previously present in GARIMPO OURO MIL.
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 OURO
MIL constitute 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 is being linked to
the stock market and disclosure is required by law.
4. NOTICES
4.1. Any notice related to this agreement 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. Such notices shall be sent to each party
representative herein established.
5. REPRESENTATIONS AND WARRANTIES
5.1. Each of the PARTIES herein represents and warrants to each other that:
(a) they are corporations duly incorporated and validly existing and in good
standing under the laws of their countries, and have the power, capacity and
authority to enter into and perform the Agreement and all transactions
contemplated herein;
(b) there are no actions 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, 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 significantly 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 the mineral rights herein referred to, 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 CONDITIONS
6.1. This agreement represents and comprises all the understanding and
commitments agreed amongst the 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 agreement the signatories, their successors and any PERMITTEE
assignees are obliged to comply with the terms and conditions set forth herein.
6.3. This agreement 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 PEMITTEE representative
of each party.
6.4. None of the CONTRACTING PARTIES is allowed to accept any payment default of
the amounts foreseen herein, and in case any of payment defaults, it shall not
be understood by the non-defaulting party as a future standard procedure.
6.5. This agreement 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. No other business carried amongst the parties, except for the one
established herein, shall be accepted as valid unless it proves to be an
amendment to this agreement.
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 15JAN2006.
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 Rio de Janeiro,
State of Rio de Janeiro, with the waive of any other, prevailing over any
others. However, the parties are entitled to solve any dispute by means of
arbitration at the court of the city of Rio de Janeiro, provided that they have
reached this decision by mutual agreement.
IT 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, for all legal effect.
Itaituba, Pa, October 18, 0000
/x/ "XXXXXXX XX XXXXX XXXXXXX" /s/"XXXX XXXXXX"
------------------------------ ----------------
(Signature) (Signature)
CIDINES DA XXXXX XXXXXXX XXXX X. XXXXXX
PERMITTEE PARTY SUPPLYCONSULT
Witnesses
1) (Signature) signature not legible
2)
Stamp and signature of Notary Public dated 20OCT2005 in Itaituba, authenticating
the signature of Ruy Xxxxxxx de Mendon a signing for Cidines da Xxxxx Xxxxxxx.
Stamp and signature of Notary Public dated 27OCT2005 in Rio de Janeiro,
authenticating the signature of XXXX X. XXXXXX.
ANNEX A
Essential Data of PROCESS DNPM 850415/04
Essential Data
File: 850415; Year: 2004; Active: Yes
Applicant: CIDINES DA XXXXX XXXXXXX
Location: OURO MIL
Last Event: REQ SURVEY/REQ COMPLETE SURVEY PROTOCOL 00XXX0000
Last Diploma -
Date of Protocol: 00XXX0000
Last Load: -
Hectares Requested: 10000 - Actual Hectares: 10000
Substance Class
GOLD ORE metal containing mineral substances
Municipality: District State
ITAITUBA ITAITUBA PA
Active Polygonal
Version / Seq: 1 Location: DNPM Listing
Anchoring Point: Anchoring Point registered on January 2000
Latitude: + 7deg 2' 35.8"
Longitude: 56deg 14' 17.1"
Anchoring Vector - Distance of the First Vertex: 20553m Angle: 70deg 4'
Quadrant: NW
Polygonal - Area Informed: 10000 Ha Calculated Area: 10000 Ha Number of
Vertices: 4
Vectors:
Distance Direction
10000.00 S
10000.00 W
10000.00 N
10000.00 E
