EXHIBIT 10.10.1
MEMORANDUM OF UNDERSTANDING
By this present Agreement entered into by, on the one side,
AURORA GOLD MINERACAO LTDA, a company with its Office at Av. das Americas, n
degrees 700, Bl. 8, lj. 215-A, parte, CEP: 22640-100, Barra da Tijuca, Rio de
Janeiro, RJ, 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 under no. 000.000.000-00, hereinafter
referred to as AURORA; and on the other side,
XXXXXXXX XXXXXXX XXXXXX, Brazilian, married, miner, bearer of ID card no.
1930529 SSP-PA, registered at CPF under no. 000.000.000-00, with address at Rua
3(a), n degrees 380, bairro Alvorada II, Manaus - AM, CEP 69042-030, in this act
represented by its attorney XXXXXXX XXXXXX XX XXXXX, Brazilian, married, miner,
bearer of ID card no. 1261237-5 SSP/AM, registered at CPF under no.
000.000.000-00, resident and domiciled at 2(a) Travessa do Bairro da Floresta, n
degrees 637, in the municipality of Itaituba, PA, CEP 68180-380, hereinafter
referred to as LICENSEE; and jointly as CONTRACTING PARTIES.
OBJECT: Hereinafter referred to as Garimpo Santa Lucia, located in the basin of
the Surubim River, made up of Applications for Mining Permissions according to
the list below:
BLOCK I: Requests for Mining Permit belonging to XXXXXXXX XXXXXXX XXXXXX, DNPM
no. 854.001/93, 854.002/93, 854.003/93, 854.004/93, 854.005/93, 854.006/93,
854.007/93, 854.008/93, 854.009/93, 854.010/93, 854.011/93, 854.012/93,
854.013/93, 854.014/93, 854.015/93, 854.016/93, 854.017/93, 854.018/93,
854.019/93, 854.020/93, 854.021/93, 854.022/93, 854.023/93, 855.024/93,
854.025/93, 854.026/93, 854.027/93, 854.028/93, 854.029/93, 854.030/93,
854.031/93, 854.032/93.
A. WHEREAS the LICENSEES are the titleholders of mineral rights located in the
region of Garimpo Santa Lucia, which rights refer to the above-mentioned PLG
Processes, with assured priority, 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
shall have access to information gathered on site by the LICENSEE, 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 necessary for the
development of those same activities in the GARIMPO.
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D. WHEREAS the CONTRACTING PARTIES wish to enter into and celebrate an Agreement
for the Assignment and Transfer of Mineral Rights of the GARIMPO, 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 referred
to as "MOU", and having as its object the establishment of the rights 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 at a later stage, following the terms and conditions
outlined in the clauses ahead.
E. WHEREAS AURORA, in order to maintain the negotiations and eventually
celebrate a definitive agreement based on this MOU, shall submit a technical due
diligence within 90 days.
Therefore, the CONTRACTING PARTIES have decided to enter into and celebrate this
MEMORANDUM OF UNDERSTANDING which shall be subject to the following terms and
conditions:
1. EVALUATION AND STATEMENT OF INTEREST
1.1 In view of that specified in item B of this MOU, AURORA undertakes hereby
to pay the LICENSEES the sum of US$ 20,000.00 (twenty thousand reals) as a
deposit to have the sole and exclusive right to duly and in detail appraise
the GARIMPO.
1.2 The payment of the DEPOSIT shall be effected within five days of the
signing of this MOU, with the signing of this instrument being proof of
payment, while the subsequent payments shall be made through a bank deposit
in favour of ALDILENA XXXXXXX XX XXXXX, savings account with Banco
Bradesco, account n degrees 0000000-6, at Branch n degrees 759-5, which the
LICENSEE indicates to AURORA.
1.3 The LICENSEE, as from the date of the execution hereof and within the term
of 90 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 the 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 the LICENSEE of its decision at least five days prior to the
expiration of the abovementioned period.
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2 ASSIGNMENT AND TRANSFER OF RIGHTS
2.1 - In accordance with item 1.3. of this MOU, having AURORA notified the
LICENSEE of its interest to acquire the GARIMPO, the parties hereby shall
celebrate within 5 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 at 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:
Payment Date
a. US$ 20,000 01.09.2006
b. US$ 50,000* 01.03.2007
c. US$ 60,000* 01.03.2008
d. US$ 70,000* 01.03.2009
e. US$ 500,000* 01.09.2009
Total US$ 700,000
* The payment of the above-mentioned installments shall be made
provided that the mineral rights authorization is obtained and the
assignment of the mineral rights is endorsed. In case of delay, the payment
(b) shall be postponed, with the rest to follow the time intervals defined
above and provided such payment condition may be reached.
2.1.1 In addition to the price herein established, AURORA shall pay to the
LICENSEE a participation in the mining results which might be
obtained in any of the mineral 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 2.1.2.
2.1.2 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
indicated above or as stipulated by the LICENSEE.
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.
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2.1.4 AURORA is entitled to the right to redeem the payment obligation on
the participation in the mining results, item 2.1.1, upon payment
of the equivalent in local currency to US$ 1,000,000 (one million US
dollars).
2.2 The LICENSEE agrees to transfer the mineral rights referring to GARIMPO
immediately upon the interest by AURORA is confirmed and against payment of
the amount (a) indicated in item 2.1 and upon confirmation of its priority.
2.3 The LICENSEE shall hereby, under the terms of this instrument, and in the
best form of the law, permit AURORA to execute in the GARIMPO for an
initial period of 3 (three) months as from the date of this MOU, and an
additional 48 (forty-eight) months 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, The LICENSEE may develop works therein provided that work in the
said mining site does not interfere with AURORA's research activities.
2.4 Regarding the ownership, the LICENSEE declares to be the legitimate and
sole owner of the areas 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 the LICENSEE, 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 due to the LICENSEE.
2.5 For such purpose, the LICENSEE agrees to the best of his ability to provide
AURORA with technical, legal and operational support, as well as undertake
to endeavour his 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.
2.6 AURORA may, after the registration of the assignment and transfer of
rights, transfer to any third parties, the mineral rights granted to it
under this Agreement, provided there is an inclusion of a clause in this
regard.
2.7 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 the
LICENSEE 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 the LICENSEE in due course a
detailed technical report which shall include all and any information
gathered to date.
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2.8 Each of the CONTRACTING PARTIES herein shall be liable for any and all
environmental damages resulting from their activities carried out in the
GARIMPO. In this regard, the LICENSEE 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.
2.9 At any time during the period of this MOU, AURORA may exercise the right
referred to in clause 1.3 above, by means of an express notification to the
LICENSEE in this regard, from which the transfer of the mineral rights
shall be effected and the definitive agreement signed within 5 (five) days,
and for this purpose the LICENSEE hereby xxxxx xxxxxx to the representative
of AURORA to enable him to submit the respective transfer to the DNPM,
according to annex C.
2.9.1 According to the provision in clause 2.9 above, the payment indicated
in item (a) shall be due within 5 (five) days after the
registration of the transfer of the mineral rights by the DNPM.
3. CONFIDENTIALITY
3.1 The terms of this Agreement as well as all and any technical and financial
information referring to the GARIMPO 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 being linked to the stock market and
disclosure is required by law.
4. COMMUNICATION
4.1 Any notice and communication 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.
5. REPRESENTATIONS AND WARRANTIES
5.1 Each of the 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 shall not result in a default
under any agreement or instrument to which the parties are a party, as well
as will not infringe any
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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 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 between 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 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 between the CONTRACTING PARTIES, until a
definitive Agreement is executed which is expected to occur by 01.09.2006.
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,
and governed by Law 8.953/94.
7. GOVERNING LAW AND DISPUTE RESOLUTION
7.1 This agreement shall be governed by the laws of Brazil.
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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,
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.
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, for all legal effect.
Itaituba - PA, May 26, 2006.
AURORA GOLD MINERACAO LTDA.
XXXXXXXX XXXXXXX XXXXXX
PP XXXXXXX XXXXXX XX XXXXX
Witnesses:
1) 2)
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Annex A
TO THE DIRECTOR OF THE NATIONAL DEPARTMENT OF MINERAL PRODUCTION (DNPM)
Process DNPM N degrees:
854.001/93 854.012/93* 854.023/93*
854.002/93* 854.013/93* 855.024/93*
854.003/93* 854.014/93* 854.025/93*
854.004/93* 854.015/93* 854.026/93*
854.005/93* 854.016/93* 854.027/93*
854.006/93* 854.017/93* 854.028/93*
854.007/93* 854.018/93* 854.029/93*
854.008/93* 854.019/93* 854.030/93*
854.009/93* 854.020/93* 854.031/93*
854.010/93* 854.021/93* 854.032/93*
854.011/93* 854.022/93*
XXXXXXXX XXXXXXX XXXXXX, Brazilian, married, miner, bearer of ID card no.
1930529 SSP-PA, registered at CPF under no. 000.000.000-00, with address at Rua
3(a), n degrees 380, bairro Alvorada II, Manaus - AM, CEP 69042-030, in this act
represented by XXXX XXXXXXXX XXXXXXXXXX XX XXXXXXX, Brazilian, single, lawyer,
registered at the Brazilian Bar Association (RJ) under no. 80412 and registered
at CPF under no. 000.000.000-00, hereby informs that he wishes to carry out
survey for primary gold ore and that, according to article 8, paragraph 2 of
Decree 98.813, regulating Law 7805 of 20/07/89, also requests the TRANSFORMATION
OF THE SUM OF THE INDIVIDUAL MODULES OF THE MINING PERMITS INTO ONE SOLE SURVEY
PERMIT, totalling 300.00 hectares. Therefore, under the terms of article 22 of
Resolution DNPM no. 178 of April 12, 2004, attaches the Forms for Application
for Mineral Survey (Annex I), Site Location containing areas of the mining
permissions originally requested (Annex II), Detail Site with configuration of
the desired area (Annex III), Sole Survey Site (Annex IV), proof of payment of
the tax for Survey Request (Annex V) and ART duly paid (Annex VI) (the originals
are attached to process 854.001/93).
The Applicant takes this opportunity, under the terms of article 25 of
Resolution DNPM no. 178 of April 12, 2004, to request that the desired survey
area includes the free spaces (areas) existing within the configuration given in
Annex III.
Under these terms, requests your approval.
Rio de Janeiro, May 22, 2006
XXXXXXXX XXXXXXX XXXXXX
PP XXXX XXXXXXXX X XXXXXXX
*ORIGINAS IN THE PROCESS DNPM 854.001/93
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Annex B
TO THE DIRECTOR OF THE NATIONAL DEPARTMENT OF MINERAL PRODUCTION (DNPM)
DNPM N degrees
854.001/93 854.012/93 854.023/93
854.002/93 854.013/93 855.024/93
854.003/93 854.014/93 854.025/93
854.004/93 854.015/93 854.026/93
854.005/93 854.016/93 854.027/93
854.006/93 854.017/93 854.028/93
854.007/93 854.018/93 854.029/93
854.008/93 854.019/93 854.030/93
854.009/93 854.020/93 854.031/93
854.010/93 854.021/93 854.032/93
854.011/93 854.022/93
XXXXXXXX XXXXXXX DANTAS, Brazilian, married, miner, bearer of ID card no.
1930529 SSP-PA, registered at CPF under no. 000.000.000-00, with address at Rua
3(a), n degrees 380, bairro Alvorada II, Manaus - AM, CEP 69042-030, in this act
represented by its attorney XXXXXXX XXXXXX XX XXXXX, Brazilian, married, miner,
bearer of ID card no. 1261237-5 SSP/AM, registered at CPF under no.
000.000.000-00, resident and domiciled at 2(a) Travessa do Bairro da Floresta, n
degrees 637, in the municipality of Itaituba, PA, CEP 68180-380, hereinafter
referred to as ASSIGNOR; and XXXXXXXXXX, hereinafter referred to as ASSIGNEE,
hereby inform and request the followings:
On 01.09.06, 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. Therefore, the parties hereby
present resolve to apply for the filing and registry of the requests for
assignment and registration of the transfer.
We remain,
Requesting your approval,
Belem, September 01, 2006
XXXXXXXX XXXXXXX XXXXXX
PP XXXXXXX XXXXXX XX XXXXX
XXXXXXXXXXXX
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PRIVATE AGREEMENT FOR THE ASSIGNMENT AND TRANSFER OF MINERAL RIGHTS
AS FOLLOWS:
By this private agreement and as prescribed by law, the parties: XXXXXXXX
XXXXXXX XXXXXX, Brazilian, married, miner, bearer of ID card no. 1930529 SSP-PA,
registered at CPF under no. 000.000.000-00, with address at Rua 3(a), n degrees
380, bairro Alvorada II, Manaus - AM, CEP 69042-030, in this act represented by
its attorney XXXXXXX XXXXXX XX XXXXX, Brazilian, married, miner, bearer of ID
card no. 1261237-5 SSP/AM, registered at CPF under no. 000.000.000-00, resident
and domiciled at 2(a) Travessa do Bairro da Floresta, n degrees 637, in the
municipality of Itaituba, PA, CEP 68180-380, hereinafter referred to as
ASSIGNOR; and XXXXXXXXXX, hereinafter referred to as ASSIGNEE.
WHEREAS the ASSIGNOR is the titleholder of PLG Processes DNPM no. 854.001/93 to
854.032/93, 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 are 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 corresponding 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.
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 Rio
de Janeiro, 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, September 01, 2006
XXXXXXXX XXXXXXX XXXXXX
PP XXXXXXX XXXXXX XX XXXXX XXXXXXXXXXXX
Witnesses:
1) 2)
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Annex C
SUBSTITUTION OF POWER OF ATTORNEY
By this present instrument, XXXXXXX XXXXXX XX XXXXX, Brazilian, married, miner,
bearer of ID card no. 1261237-5 SSP/AM, registered at CPF under no.
000.000.000-00, resident and domiciled at 2(a) Travessa do Bairro da Floresta, n
degrees 637, in the municipality of Itaituba, PA, CEP 68180-380, transfers to
XXXX XXXXXXXX XXXXXXXXXX XX XXXXXXX, Brazilian, single, lawyer, registered at
the Brazilian Bar Association (RJ) under no. 80412 and registered at CPF under
no. 000.000.000-00, the powers received from XXXXXXXX XXXXXXX XXXXXX, Brazilian,
married, miner, bearer of ID card no. 1930529 SSP-PA, registered at CPF under
no. 000.000.000-00, with address at Rua 3(a), n degrees 380, bairro Alvorada II,
Manaus - AM, CEP 69042-030, to represent him in the condition of title holder of
certain mineral rights in areas located in the location named Garimpo Santa
Lucia, in the state of Para, made up of Applications for Mining Permit specified
as follows: DNPM n degrees 854.001/93, 854.002/93, 854.003/93, 854.004/93,
854.005/93, 854.006/93, 854.007/93, 854.008/93, 854.009/93, 854.010/93,
854.011/93, 854.012/93, 854.013/93, 854.014/93, 854.015/93, 854.016/93,
854.017/93, 854.018/93, 854.019/93, 854.020/93, 854.021/93, 854.022/93,
854.023/93, 855.024/93, 854.025/93, 854.026/93, 854.027/93, 854.028/93,
854.029/93, 854.030/93, 854.031/93, 854.032/93, with ample powers to take all
necessary steps to receive, transfer and assign, whether free or in payment,
request for transformation into Mineral Survey Licenses, including assigning the
mineral rights, and so practice such acts, and contact the NATIONAL DEPARTMENT
OF MINERAL PRODUCTION - DNPM, the Ministry of Mines and Energy, the Brazilian
Institute of Environmental and Renewable Natural Resources, SECTAM, and any
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, therefore, is signed in an irrevocable manner.
Itaituba, May 22, 2006
XXXXXXX XXXXXX XX XXXXX
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