EXECUTION COPY
EXHIBIT 4.13
Purchase Agreement
relating to
Arctic Platinum Avoin Yhtio
among
Outokumpu Nickel B.V.
and
Outokumpu Mining Oy
and
Gold Fields Exploration B.V.
and
Gold Fields Finland Oy
Dated September 4, 2003
i
TABLE OF CONTENTS
1. INTERPRETATION...................................................... 1
2. SALE AND PURCHASE................................................... 5
3. CONSIDERATION....................................................... 6
4. CONDITIONS.......................................................... 7
5. CLOSING............................................................. 7
6. ADJUSTMENT OF PURCHASE PRICE CONSIDERATION.......................... 10
7. WARRANTIES.......................................................... 11
8. LIMITATIONS AND WARRANTIES.......................................... 13
9. INDEMNITIES......................................................... 14
10. CONFIDENTIALITY AND ANNOUNCEMENTS................................... 15
11. ASSIGNMENT AND GUARANTEE............................................ 17
12. ENTIRE AGREEMENT.................................................... 17
13. VARIATION AND WAIVER................................................ 17
14. COSTS............................................................... 18
15. NOTICE.............................................................. 18
16. INTEREST ON LATE PAYMENT............................................ 19
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17. COUNTERPARTS........................................................ 19
18. LANGUAGE............................................................ 19
19. SEVERANCE........................................................... 20
20. AGREEMENT SURVIVES CLOSING.......................................... 20
21. THIRD PARTY RIGHTS.................................................. 20
22. GOVERNING LAW AND JURISDICTION...................................... 20
1
PURCHASE AGREEMENT
THIS AGREEMENT is dated on September 4, 2003 (the "EFFECTIVE DATE")
BETWEEN:
OUTOKUMPU NICKEL B.V., a company incorporated and registered
in the Netherlands with company number 172876 whose
registered office is at Rotterdam, The Netherlands (the
"PARENT"); and
OUTOKUMPU MINING OY, a company incorporated and registered in
Finland with company number 0773284-5 whose registered office
is at Xxxxxxxxxxxxxx 0X, XXX 00000, Xxxxx, Xxxxxxx (the
"SELLER"); and
GOLD FIELDS EXPLORATION B.V., a corporation incorporated and
registered in The Netherlands with company number 27123830
whose registered office is at Xxxxxxxxxxx 00, 0000 XX
Xxxxxxxxx, xxx Xxxxxxxxxxx ("GFE"); and
GOLD FIELDS FINLAND OY, a company incorporated and registered
in Finland with company number 1606318-8 whose registered
office is at Gold Fields Finland Oy, x/x Xxxxxxx & Xxxxxxxx,
X.X. Xxx 0000, 00000 Xxxxxxxx, Xxxxxxx (the "BUYER").
WHEREAS:
(A) The Seller is a wholly owned subsidiary of the Parent and owns the
legal and beneficial title to the Purchased Interests of the Arctic Platinum
Avoin Yhtio (the "PARTNERSHIP"), a Partnership incorporated and registered in
Finland with company number 1606745-3, whose registered office is at Helsinki,
Finland.
(B) The Buyer is a wholly-owned subsidiary of GFE.
(C) The Seller has agreed to sell and the Buyer has agreed to purchase all
of the Purchased Interests on the terms of this Agreement.
THE PARTIES HERETO HAVE AGREED AS FOLLOWS:
1. INTERPRETATION
1.1 In this Agreement the definitions and rules of interpretation
in this Clause apply.
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BUSINESS DAY means a day (other than Saturday or
Sunday) when banks in Helsinki and
Johannesburg are open for business.
BUYER'S WARRANTIES means the warranties of the Buyer
set out in Schedule 3.
CASH CONSIDERATION has the meaning given in Clause 3.1
(a).
CLAIMS means all losses, damages, expenses,
liabilities (whether accrued,
actual, contingent, latent or
otherwise), claims and demands of
whatever nature or kind including
all legal fees and coste on an
attorney and client basis.
CLOSING means the closing of the sale and
purchase of the Purchased Interests
in accordance with this Agreement.
CLOSING AGENDA means a document in agreed form
identifying the documents to be
delivered by the parties at Closing.
CLOSING DATE has the meaning given in Clause 5.2.
CONDITIONS means the conditions to the
completion of the Transaction by the
parties hereto, as set out in
Schedule 1.
EFFECTIVE DATE has the meaning given in the
Preamble.
ENCUMBRANCE means any mortgage, pledge, charge,
privilege, priority, hypothecation,
encumbrance, assignment, lien,
attachment, execution, seizure,
set-off or other security interest
of any kind or any other agreement
or arrangement having the effect of
conferring security upon or with
respect to, or any segregation of or
other preferential arrangement with
respect to, any present or future
assets, revenues or rights or any
other rights exercisable by third
parties.
GFE'S WARRANTIES means the warranties of GFE set out
in Schedules 3.
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GFL means Gold Fields Limited, a company
formed and existing under the laws
of South Africa.
GFL SHARES means issued and outstanding
ordinary shares in the share capital
of GFL.
INTELLECTUAL PROPERTY means trade marks, service marks,
trade names, patents, domain names,
copyrights, industrial designs,
applications for the registrations
thereof and other industrial and
intellectual property.
LIBOR means British Bankers Association
Libor Rates, which appears at 1l:00
a.m. London time. These rates are
displayed and published at Reuters
pages LIBOR01 and LIBOR02 (or such
other pages that may replace pages
LIBOR01 and LIBOR02 on Reuters for
the purposes of displaying London
Interbank offered rates) for a
period which is closest to the
duration of the period in respect of
which the interest is being
calculated, on the first date of
such period.
PARTNERSHIP has the meaning given in the
Preamble.
PARTNERSHIP AGREEMENT means the partnership agreement
dated 4 March 2000 between GFE
(later duly assigned to the Buyer)
and the Seller.
PAYMENT SHARES has the meaning given in Clause
3.1(b)
PERSON means any individual, partnership,
limited partnership, joint venture,
syndicate, sole proprietorship,
company or corporation with or
without share capital,
unincorporated association, trust,
trustee, executor, administrator or
other legal representative,
regulatory body or agency,
government or governmental agency,
authority or entity however
designated or constituted.
PURCHASED INTERESTS means the 49% interest in the
Partnership owned by the Seller.
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SELLER'S WARRANTIES means the warranties set out in
Schedule 2.
SHARE CONSIDERATION has the meaning given in Clause
3.1(b).
TAXES means all forms of taxation
including, in particular, transfer
taxes on the sale of property
(whether real or personal, tangible
or intangible) and any charge, tax,
duty, levy, impost, withholding or
liability wherever chargeable
imposed for support of national,
state, federal, municipal or local
government or any other Person in
any jurisdiction and any penalty,
fine, surcharge, interest, charges
or costs payable in connection with
any such Taxes.
TECHNICAL INFORMATION means all geological, geochemical
and geophysical, mine technological
as well as mineral processing data
related to the Interest Area, as
defined in the Partnership Agreement
held or owned by the Seller at time
of the establishment of the
Partnership, and which is or has
been critical to the Partnership
activities before July 1, 2003.
TRANSACTION means the transaction contemplated
by this Agreement.
USD AND $ means the currency of the United
States of America.
WARRANTIES means the Seller's Warranties, GFE's
Warranties and the Buyer's
Warranties.
YEAR-END ACCOUNTS means the accounts prepared under
Clause 6.2.
1.2 Article, Clause and Schedule headings do not affect the
interpretation of this Agreement.
1.3 Words in the singular include the plural and in the plural
include the singular.
1.4 A reference to one gender includes a reference to the other
gender.
1.5 A reference to a law is a reference to it as it is in force for
the time being taking account of any amendment, extension,
application or re-enactment
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and includes any subordinate legislation for the time being in
force made under it.
1.6 Writing or written includes faxes but not e-mail.
1.7 Documents in agreed form are documents in the form agreed by
the parties to this Agreement and initialled by them for
identification.
2. SALE AND PURCHASE
2.1 The Seller shall sell, and the Buyer shall buy, the Purchased
Interests on the terms of this Agreement.
2.2 From the Effective Date until the earlier of the Closing Date
and the date this Agreement is otherwise terminated in
accordance with its terms, neither the Seller nor the Parent
shall enter into any discussions with any other Persons with
respect to the sale or transfer of the Purchased Interests.
2.3 The Seller:
(a) has the right to sell the Purchased Interests on the terms set
out in This Agreement;
(b) shall at its own cost, transfer to the Buyer the full legal
and beneficial title to the Purchased Interests; and
(c) shall sell the Purchased Interests free from all Encumbrances.
2.4 The Purchased Interests shall be sold with all rights and
liabilities that attach, excluding those in 2.5(b) below, or
may in the future attach, to them, including the rights and
liabilities described in the Partnership Agreement.
2.5 Post Closing:
(a) the Seller shall not have any rights or liabilities,
whatsoever, arising from the terms of the Partnership
Agreement except for any liabilities:
(i) that are based on the Partnership's or the Seller's
actions or failures to act prior to the Closing Date,
provided that the Buyer has not expressly assumed
such liability. For the avoidance of doubt, the Buyer
purchasing the Purchased Interests and entering into
this Purchase Agreement will not be regarded as an
expressly assumed liability; or
(ii) that arise as a result of fraud or wilful misconduct
of the part of the Seller; and
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(b) notwithstanding anything in this Agreement to the contrary,
the parties expressly confirm the terms of Subsection 11.2(c)
of the Partnership Agreement and that the Seller shall remain
liable for its share of any liability under the Partnership,
whether accruing before or after Closing, which arise out of
Operations (as defined in the Partnership Agreement) conducted
prior to Closing.
2.6 It is expressly agreed and acknowledged by the parties, that
no Intellectual Property held or owned by the Seller shall be
transferred in this Transaction to the Buyer other than
Intellectual Property held or owned by the Seller in its
capacity as a partner in the Partnership.
2.7 The Buyer is not obliged to complete the purchase of any of
the Purchased Interests unless the purchase of all the
Purchased Interests is completed simultaneously.
2.8 The Seller is not obliged to complete the sale of any of the
Purchased Interests unless the sale of all the Purchased
Interests is completed simultaneously.
3. CONSIDERATION
3.1 The total consideration paid for the Purchased Interests shall
be the sum of 31,000,000 USD comprised of:
(a) 23,000,000 USD (the "CASH CONSIDERATION") to be paid by the
Buyer to the Seller, or as the Seller may direct, at Closing;
and
(b) that number of GFL Shares (the "PAYMENT SHARES"), having a
deemed value of 8,000,000 USD, that is equal to quotient
determined by:
(i) multiplying 8,000,000 by the Rand/US$ noon rate of
exchange on a day before the Closing Date, as
published by the South African Reserve Bank; and
(ii) dividing the product of (i) above by the average
closing price of the GFL Shares as quoted on the
Johannesburg Stock Exchange, South Africa for the
three days prior to the date of closing (the "SHARE
CONSIDERATION").
3.2 The Cash Consideration payable for the Purchased Interests
will be subject to adjustment as provided in Article 6.
3.3 The parties agree that the aggregate consideration payable by
the Buyer for the Purchased Interests will be the aggregate of
the Cash Consideration and the deemed value of the Share
Consideration and, in respect of the Cash Consideration, will
be the actual amount paid following completion of adjustments
pursuant to Article 6.
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3.4 The consideration for the sale of the Purchased Interests is
exclusive of any stamp duty or other transfer taxes or charges
which are or may be payable in connection with the
Transaction, which taxes and charges shall be paid by the
Buyer, in accordance with Finnish law.
4. CONDITIONS
4.1 If the Conditions, as set out in Schedule 1, have not been
satisfied or waived by the date and time provided in Clause
4.2, this Agreement shall cease to have effect immediately
after that time on that date except for.
(a) the following provisions:
(i) Article 1 (Interpretation);
(ii) this Article;
(iii) Article 10 (Confidentiality and Announcements);
(iv) Article 12 (Entire Agreement);
(v) Article 13 (Variation and Waiver);
(vi) Article 14 (Costs);
(vii) Article 15 (Notice);
(viii) Article 18 (Language); and
(ix) Article 22 (Governing Law and Jurisdiction); and
(b) any rights or liabilities that have accrued under this
Agreement prior to such date.
4.2 The parties shall use all reasonable endeavours to satisfy or
waive the Conditions as soon as practicable and in any event
no later than 6.00 p.m. GMT 15 September 2003, or where a
later date has been agreed in writing by the Seller and the
Buyer, on that date.
5. CLOSING
5.1 Closing shall take place on the Closing Date:
(a) at the Seller's office at Espoo; or
(b) at any other place or places agreed in writing by the Seller
and the Buyer.
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5.2 Closing Date means:
(a) the Business Day later of:
(i) 15 September 2003; and
(ii) 10 September 2003 at 13.00 GMT; or
(b) where a later or earlier date has been agreed in writing by
the Seller and the Buyer, on that date.
5.3 At Closing, the Seller shall:
(a) transfer the Purchased Interests to the Buyer in such form as
is necessary for the Buyer to establish legal and beneficial
ownership to the Purchased Interests in accordance with
Finnish law;
(b) deliver the resignation letters of the Seller's appointees to
the Management Committee (as defined in the Partnership
Agreement) of the Partnership as requested by the Buyer;
(c) deliver to the Buyer a release and indemnification, in an
agreed upon form, in respect of any liability that may accrue
to the Buyer, either independently or as a result of its
having acquired the Purchased Interests, arising or that may
arise as a result of any action or failure to act by the
Seller or by the Seller's nominees (the "SELLER'S NOMINEES")
to the Management Committee, prior to 1 July 2003; and
(d) deliver all other documents identified in the Closing Agenda
as documents to be delivered by the Seller at Closing.
5.4 At Closing the Buyer shall:
(a) pay the Cash Consideration to such account of the Seller as
the Seller has notified the Buyer;
(b) direct GFL to issue and deliver the Payment Shares that
comprise the Share Consideration, registered in the name of
the Seller, to the Seller, on the following account:
Firstrand Bank Limited, Johannesburg
South Africa General Depot
Clients acc ZA0000003322
Citibank London
F/o: Nordea Bank Finland Plc
A/c no:6008308969,
or at the direction of the Seller;
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(c) deliver to the Seller a letter of release duly executed by the
Buyer and in the agreed form in respect of any liability (the
"RELEASED LIABILITY") that, subject to Clause 2.5(b), may
accrue to the Seller or the Seller's Nominees, arising or that
may arise from any action or failure to act by the Seller or
the Seller's Nominees:
(i) that occurred or ought to have occurred, as
applicable, after 1 July 2003; and
(ii) that is made known to the Buyer by notice (the
"LIABILITY NOTICE") in writing from the Seller on or
before the Closing Date specifying (in reasonable
detail) the nature of and the amount of the Released
Liability and that is accepted by the Buyer; and
(iii) that arises or that may arise in respect of the
Seller's or the Seller's Nominee's obligations in
respect of the Partnership Agreement,
provided that the Seller and the Seller's Nominees shall not
be released in respect of any Released Liability that arises
as a result of fraud or wilful misconduct on the part of the
Seller or the Seller's Nominees; and
(d) deliver all other documents identified in the Closing Agenda
as documents to be delivered by the Buyer at Closing.
5.5 At Closing, if one of the parties does not comply in any
material respect with Clauses 4.1., 5.3 or 5.4, as applicable,
the other party may, without prejudice to any other rights it
has:
(a) proceed to Closing;
(b) defer Closing to a date no later than the earlier of 28 days
after the date on which Closing would otherwise have taken
place; or
(c) terminate this Agreement, provided that any such termination
shall be without prejudice to any claims the party has in
respect of the failure of the other party to have complied
with its obligations under any of the foregoing provisions.
5.6 The Closing may be deferred under Clause 5.5 only once but,
with that exception, Clause 5.5 applies to a Closing deferred
under that Clause as it applies to a Closing that has not been
deferred.
5.7 As soon as possible after Closing, the Seller shall send to
the Buyer (at the Buyer's registered office) all records,
correspondence, documents, files, memoranda and other papers
relating to the Partnership (or copies thereof) which are not
kept at any of the offices of the Partnership.
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6. ADJUSTMENT OF PURCHASE PRICE CONSIDERATION
6.1 The Cash Consideration will:
(a) be increased by the amount by which the Year-End Accounts
show, including the VAT receivables (alv), that the Seller has
contributed the expenses of the Partnership according to the
Called Sums in line with the Partnership Agreement in excess
of its proportionate interest in the Partnership, and the
Buyer shall pay to the Seller the amount of such increase;
(b) be reduced by the amount by which the Year-End Accounts show,
including the VAT receivables (alv), that the Seller has
contributed the expenses of the Partnership according to the
Called Sums in line with the Partnership Agreement below its
proportionate interest in the Partnership, and the Seller
shall refund the Buyer the amount of such lacking
contribution; and
(c) be adjusted to reimburse the Seller for all expenses incurred
by the Seller in respect of the Operations (as that term is
defined in the Partnership Agreement) between the July 1, 2003
and the Closing, which expenses are agreed upon, in advance,
by the Buyer and are not otherwise adjusted under this Clause
6. For greater certainty, the financial cut-off of the
Partnership will take place on July 1, 2003.
6.2 For the purposes of this Article the Year-End Accounts means
the accounts prepared for the Partnership for the financial
years ending June 30, 2003.
6.3 Any adjustment to the Cash Consideration to be paid under this
Article 6 must be paid on the later of Closing or that date
which is 14 days from the date on which the parties are deemed
to have accepted the Year-End Accounts and Closing Accounts as
accurate, or the parties have resolved all disagreements in
respect of the Year-End Accounts.
6.4 Any adjustment to the Cash Consideration to be paid under this
Article 6 must be paid together with an amount equal to
interest on the amount to be paid, calculated at the rate of
2% per annum above LIBOR, from the Closing Date until the date
payment is made.
6.5 Subject to Clause 6.6, the Buyer and the Seller shall each pay
the charges of their own accountants.
6.6 The costs of the auditor in respect of the Year-End Accounts
and Closing Accounts (including any costs associated with the
auditor participating in
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the resolution of any dispute regarding the Year-End Accounts)
will be shared equally by the Buyer and the Seller.
7. WARRANTIES
7.1 The Seller enters into this Agreement on the basis of, and in
reliance on, the Buyer's Warranties and the GFE Warranties, as
set out in Schedule 3 hereto. Each of the Buyer and GFE,
acting separately, covenant, warrant and represent to the
Seller that each Buyer's Warranty as it relates to the Buyer
and each of the GFE Warranties as they relate to GFE and GFL,
will be true, accurate and not misleading in any way on the
Dosing.
7.2 The Buyer enters into this Agreement on the basis of, and in
reliance on, the Seller's Warranties, as set out in Schedule 2
hereto. The Seller and the Parent, jointly and severally
covenant, warrant and represent to the Buyer that the Seller's
Warranties will be true, accurate and not misleading in any
way on the Closing.
7.3 Except as expressly provided in the Seller's Warranties, any
information supplied by or on behalf of the Seller to the
Buyer or its directors, officers, employees, agents or
advisers in relation to the business, operations, financial or
other affairs of the Partnership or the Seller shall not
constitute a representation or warranty or guarantee as to the
accuracy thereof by the Seller, and the Buyer hereby waives
any claims which it might otherwise have against the Seller in
respect thereof.
7.4 Except as expressly provided in the Buyer's Warranties and the
GFE Warranties, any information supplied by or on behalf of
the Buyer or GFE to the Seller or its directors, officers,
employees, agents or advisers in relation to the business,
operations, financial or other affairs of the Buyer or of GFE
shall not constitute a representation or warranty or guarantee
as to the accuracy thereof by the Buyer or by GFE, and the
Seller hereby waives any claims which it might otherwise have
against the Buyer or against GFE in respect thereof.
7.5 Except as expressly disclosed by GFE, the Buyer or the Seller
to any one of the other of them in the period between the
Effective Date and the Closing Date (inclusive) with respect
to any events which have taken place during such period, the
Warranties are deemed to be repeated by the Seller, by GFE and
by the Buyer at Closing; any reference made to the Effective
Date (whether express or implied) in relation to any Warranty
will be construed, in relation to any such repetition, as a
reference to the Closing Date, and the covenants,
representations and warranties of each of the Buyer, GFE, the
Seller and the Parent, referred to in Clauses 7.1 and 7.2
hereof, will apply to the Warranties as repeated at the
Closing.
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7.6 No investigation made by any party hereto or their
representatives shall affect the right of such party to rely
on any representation or Warranty made by the other party in
this Agreement or in any document contemplated by this
Agreement or derogate from the acknowledgements of reliance in
Clauses 7.1 and 7.2.
7.7 Neither the Seller nor the Parent shall be under any liability
in respect of any claim under the Seller's Warranties if the
facts or circumstances giving rise to such claim are disclosed
to the Buyer and to GFE by notice (the "SELLER'S WARRANTY
NOTICE") in writing, prior to the Closing Date, which notice
discloses, in reasonable detail, the nature and the amount of
the claim and the Seller's Warranty Notice is accepted by the
Buyer, or if the claim is otherwise provided for or stated to
be an exception under the terms of this Agreement.
7.8 Neither the Buyer nor GFE shall be under any liability in
respect of any claim under the Buyer's Warranties or the GFE
Warranties if the facts or circumstances giving rise to such
claim are disclosed to the Seller and to the Parent, by notice
(the "BUYER'S WARRANTY NOTICE") in writing, prior to the
Closing Date, which notice discloses, in reasonable detail,
the nature and the amount of the claim and the Buyer's
Warranty Notice accepted by the Seller, or if the claim is
otherwise provided for or stated to be an exception under the
terms of this Agreement.
7.9 None of the parties are entitled to recover damages or
otherwise obtain restitution more than once in respect of the
same loss.
7.10 If at any time before or at Closing a party hereto becomes
aware that a Warranty made by it has been breached, is
untrue, inaccurate or misleading, or has a reasonable
expectation that any of those things might occur, it must
promptly:
(a) notify the other party in sufficient detail to enable such
other parry to make an accurate assessment of the situation;
and
(b) if requested by the other party, use its best endeavours to
prevent or remedy the notified occurrence.
7.11 If at any time before or at Closing it becomes apparent that
any Warranty has, in any material respect, been breached, or
is in any material respect untrue, inaccurate or misleading,
or if it becomes apparent that any Warranty was, in any
material respect, untrue, inaccurate or misleading as at the
date of this Agreement, the party for whose benefit such
Warranty has been made may (without prejudice to any other
rights it may have in relation to the breach):
(a) rescind this Agreement by notice to the other; or
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(b) proceed to Closing.
7.12 If at any time before or at Closing it becomes apparent that a
party has committed a material breach of any material term of
this Agreement, the other party may (without prejudice to any
other rights it may have in relation to the breach):
(a) rescind to Agreement by notice to the other party; or
(b) proceed to Closing.
7.13 Except as expressly provided in Clauses 7.11 or 7.12, a
party's sole remedy for breach of a Warranty given by the
other party, or for a material breach of any material term of
this Agreement, shall be limited to direct damages and, except
as expressly provided in Clauses 7.11 or 7.12, no party shall
have the right to rescind or otherwise terminate this
Agreement for breach of Warranty, a non-material term of this
Agreement, undertaking or any other cause whatsoever.
7.14 Each of the Warranties is separate and, unless specifically
provided, is not limited by reference to any other Warranty or
anything in this Agreement.
8. LIMITATIONS ON WARRANTIES
8.1 This Article 8 limits the liability of each of the parties in
relation to any claim made against such party in connection
with the Seller's Warranties or the Buyer's Warranties, as the
case may be (in this Clause referred to as a "WARRANTY
CLAIM").
8.2 The joint and several liability of the Seller and the Parent
for all Warranty Claims against the Seller and the Parent,
when takes together, will not exceed the Cash Consideration.
8.3 The liability of the Buyer for all Warranty Claims against the
Buyer will not exceed the Cash Consideration.
8.4 A party shall not be liable for any Warranty Claims unless:
(a) the amount of the Warranty Claim, or of a series of connected
Warranty Claims of which that Warranty Claim is one, exceeds
$100,000; and
(b) the amount of all Warranty Claims that are not excluded under
Clause 8.4(a), when taken together, exceeds $1,000,000.
8.5 Subject to Clauses 8.2 and 8.3, where the limits in Clause 8.4
are exceeded, the whole amount of the Warranty Claim, or
series of Warranty Claims, is recoverable (and not just the
amount by which the limits are exceeded).
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8.6 Neither the Seller nor the Parent is liable for any Warranty
Claim unless the Warranty Claim:
(a) relates to matters disclosed in Schedule 2; or
(b) relates to any matter specifically provided for in the
Year-End Accounts.
8.7 The Buyer is not liable for any Warranty Claim unless the
Warranty Claim relates to matters disclosed in Schedule 3.
8.8 A party is not liable for a Warranty Claim unless the person
making the Warranty Claim has given such party notice (the
"WARRANTY NOTICE") of the Warranty Claim specifying
(in reasonable detail) the nature of and the amount claimed
under the Warranty Claim, within a period of two years from
the Closing Date except in respect of:
(a) Warranty Claims arising as a result of the assessment or
re-assessment of any Taxes including, but not limited to,
income tax, sales tax, value added tax, all interest and
penalties associated therewith and any other similar claims in
which case the Warrant Notice must be given within a period of
six years from the Closing Date; or
(b) Warranty Claims arising as a result of environmental damage or
breaches of environmental legislation or other requirements,
in which case the Warranty Notice must be given within a
period of three years from the Closing Date, or, if the
decision to mine ("DIM") has been made by the Partnership or
its legal successor prior to the above three years has lapsed,
within two weeks after the DTM.
9. INDEMNITIES
9.1 Subject to Clause 2.5(b), the Buyer will indemnify and save
harmless the Seller and the directors, officers, employees and
agents of the Seller from and against any and all third party
Claims relating to obligations or commitments arising under
the Partnership Agreement after the Closing Date, except for
third party Claims:
(a) that arise as a result of fraud, negligence or wilful
misconduct on the part of the Seller; or
(b) that are based on the Partnership's or the Seller's actions or
failures to act prior to the Closing Date;
and provided that such third party Claims have been expressly
assumed by the Buyer. For the avoidance of doubt, the Buyer
purchasing the Purchased Interests and entering into this
Purchase Agreement will not be regarded as an expressly
assumed liability.
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9.2 The Seller and the Parent will, jointly and severally,
indemnify and save harmless the Buyer and the directors,
officers, employees and agents of the Buyer from and against
any and all Claims made by the Partnership and any third
party, against the Buyer or the Partnership relating to
liabilities that are based on the Partnership's or the
Seller's actions or failures to act prior to the Closing Date
and not expressly assumed by the Buyer.
9.3 A party (the "INDEMNIFYING PARTY") is not liable to indemnify
the other party (the "INDEMNIFIED PARTY") under this Article 9
unless the Indemnified Party has given the Indemnifying Party
notice of the claim for indemnification specifying (in
reasonable detail) the nature of, and the amount claimed
under, the claim for indemnification within 90 days of
becoming aware of the circumstances giving rise to such claim;
provided that a failure to notify within such 90 day period
shall not relieve the Indemnifying Party of liability under
this Article except to be extent that the Indemnifying Party
is prejudiced by such failure to notify.
9.4 Where notice of a claim for indemnification is given under
Clause 9.3 but arbitration proceedings have not been issued
and served within the period of six months from the date on
which the underlying third party Claim is determined, the
claim for indemnification will be deemed to be withdrawn.
9.5 The amount of any claim for indemnification under this
Article 9 shall be reduced by the amount of any tax gains
obtained by the Indemnified Party as a result of the
circumstances giving rise to such claim.
9.6 Nothing in this Article 9 applies to a claim for
indemnification that arises or is delayed as a result of
negligence, dishonesty, fraud, wilful misconduct or wilful
concealment by the Indemnifying Party.
10. CONFIDENTIALITY AND ANNOUNCEMENTS
10.1 Except as required by any regulatory agency or authority
having jurisdiction, each party must keep confidential the
existence of this Agreement and all information about the
other party's group (as the group is comprised immediately
before Closing) and about the Partnership and use the
information only for the purposes contemplated by this
Agreement.
10.2 Neither party is required to keep confidential or to restrict
its use of:
(a) knowledge of the existence of this Agreement after Closing;
(b) information is or becomes public knowledge other than as a
direct or indirect result of the information being disclosed
in breach of this Agreement;
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(c) information that the parties agree in writing is not
confidential;
(d) information about the other party's group or the Partnership
that it finds out about from a source not connected with that
group or the Partnership and that is not under any obligation
of confidence; and
(e) information that is known to such party before the date of
this Agreement and that is not under any obligation of
confidence.
10.3 The Buyer does not have to keep confidential or restrict its
use of information about the Partnership after Closing.
10.4 The Seller does not have to keep information about this
Agreement confidential or restrict its use of that information
if the Conditions have not been satisfied or waived by the
date and time provided in Clause 4.2.
10.5 Either party (the "DISCLOSING PARTY") may disclose any
information that it is retired to keep confidential under this
Article:
(a) to such employees, professional advisers, consultants, or
officers of its group (the "DISCLOSED PARTY") as are
reasonably necessary to advise on this Agreement, or to
facilitate the Transaction, if the Disclosing Party obtains
from the Disclosed Party an agreement that the Disclosed Party
will keep the information confidential as if it was the
Disclosing Party, or
(b) with the other party's written consent; or
(c) to the extent that the disclosure is required:
(i) by law; or
(ii) by a regulatory body, tax authority or securities
exchange; or
(iii) to make any filing with, or obtain any authorisation
from, a regulatory body, tax authority or securities
exchange; or
(iv) to protect the disclosing party's interest in any
legal proceedings, but will use reasonable endeavours
to consult the other party and to take into account
any reasonable requests it may have in relation to
the disclosure before making it.
10.6 Each party shall supply the other party with any information
about itself, its group or its Agreement as the other may
reasonably require for the purposes of satisfying the
requirements of a law, regulatory body or securities exchange
to which the requiring party is subject.
10.7 This Article shall continue to have effect for the period of
two years from the Closing Date.
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11. ASSIGNMENT AND GUARANTEE
11.1 Except as provided otherwise, no party may assign, or grant
any security interest over, any of its rights under this
Agreement or any document referred to in it.
11.2 Each party that has rights under this Agreement is acting on
its own behalf.
11.3 The Buyer has the express right to assign all of its interest
under this Agreement to an affiliated Finnish company, without
the consent of the Seller, Otherwise, such an assignment
requires a prior written consent of the Seller, which shall
not be unreasonably withheld.
12. ENTIRE AGREEMENT
12.1 This Agreement and the documents delivered pursuant to the
Closing Agenda, constitute the whole agreement between the
parties and supersede any arrangements, understanding or
previous agreement, either oral or in writing, between any of
them relating to the Transaction and the Seller shall not have
any obligation or liability from and after the Closing Date to
the Buyer or the Partnership with respect to any arrangement,
understanding, previous agreement or representation or
warranty (express or implied by law) relating to the
Partnership or its business assets, liabilities (actual or
contingent), geological data, environmental or other claims or
capital except pursuant to this Agreement and the documents
delivered pursuant to the Closing Agenda.
12.2 Each party acknowledges that in entering into this Agreement,
and any documents referred to in it, it does not rely on, and
shall have no remedy in respect of, any statement,
representation, assurance or warranty of any Person other than
expressly set out in this Agreement or those documents.
13. VARIATION AND WAIVER
13.1 A variation of this Agreement must be in writing and signed by
or on behalf of all parties.
13.2 A waiver of any right under this Agreement is only effective
if it is in writing and it applies only to me Person to which
the waiver is addressed and the circumstances for which it is
given.
13.3 A Person that waives a right in relation to one person, or
takes or fails to take any action against that person, does
not affect its rights against any other Person.
13.4 Unless specifically provided otherwise, rights arising under
this Agreement are cumulative and do not exclude rights
provided by law.
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14. COSTS
14.1 Unless otherwise provided, all costs in connection with the
negotiation, preparation, execution and performance of this
Agreement, and any documents referred to in it, will be borne
by the party that incurred the costs.
15. NOTICE
15.1 A notice given under this Agreement:
(a) must be in writing in the English language (or be accompanied
by a properly prepared translation into English);
(b) must be sent for the attention of the person, and to the
address, or fax number, given in this Clause (or such other
address, fax number or person as the party may notify to the
others, such notice to take effect five days from the notice
being received); and
(c) must be:
(i) delivered personally; or
(ii) sent by fax; or
(iii) sent by registered airmail.
The addresses for service of notice are.
OUTOKUMPU MINING OY END OUTOKUMPU NICKEL B.V.:
Address: Xxxxxxxxxxxxxx 0 X, XXX 00000, Espoo, Finland
For the attention of: Corporate General Counsel
Fax number: x000 0 000 0000
GOLD FIELDS EXPLORATION B.V. AND GOLD FIELDS FINLAND OY:
Address: Gold Fields Finland Oy
Xxxxxxxx 00
00000 Xxxxxxxxx
For the attention of: Company Secretary
Fax number x000 00 000 000
With a copy to: Gold Fields Limited
00 Xx Xxxxxxx Xxxx
- 00 -
Xxxxxxxx, 0000
Xxxxx Xxxxxx
For the attention of: Xxxx Xxxxx, Director
Xxxxx Xxxxxx, Director
Fax number: x00 00 000 0000
15.2 A notice is deemed to have been received:
(a) if delivered personally, at the time of delivery:
(b) if the case of fax, at the time of transmission; or
(c) in the case of registered airmail, five days from the date of
posting.
15.3 If deemed receipt under 15.2 hereof is not within five
business hours (meaning 9 a.m. to 5.30 p.m. local time in the
place of receipt on a Business Day), deemed receipt shall be
when business next starts in the place of receipt.
15.4 To prove service it is sufficient to prove that the notice was
transmitted by fax to the fax number of the party or, in the
case of post, that the envelope containing the notice was
properly addressed and posted.
16. INTEREST ON LATE PAYMENT
16.1 Where a sum is required to be paid under this Agreement but is
not paid on the data the parties agreed, the person due to pay
the sum must also pay an amount equal to interest on that sum
for the period beginning with that date and ending with the
date the sum is paid (and the period will run after as well
as before judgement).
16.2 The rate of interest will be 2% per annum above LIBOR, it will
accrue on a daily basis and be compounded quarterly.
17. COUNTERPARTS
17.1 This Agreement may be executed in any number of counterparts,
each of which is an original and which together have the same
effect as if each party had signed the same document.
18. LANGUAGE
18.1 If this Agreement is translated into any language other than
English, the English language text will prevail.
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19. SEVERANCE
19.1 If any provision of this Agreement (or part of a provision) is
found by any arbitrator, court or administrative body of
competent jurisdiction to be invalid, unenforceable or
illegal, the other provisions will remain in force.
19.2 If any invalid, unenforceable or illegal provision would be
valid, enforceable or legal if some part of it were deleted,
the provision will apply with whatever modification is
necessary to give effect to the commercial intention of the
parties.
20. AGREEMENT SURVIVES CLOSING
20.1 This Agreement (other than obligations that have already been
fully performed) remains in full force after Closing.
21. THIRD PARTY RIGHTS
21.1 Subject to Clause 21.2, this Agreement and the documents
referred to in it are made for the benefit of the parties to
them and their successors and permitted assigns and are not
intended to benefit, or be enforceable by, anyone else.
21.2 The right of the parties to terminate, rescind, or agree to
any amendment, variation, waiver or settlement under this
Agreement is not subject to the consent of any Person that is
not a party to the agreement.
22. GOVERNING LAW AND JURISDICTION
22.1 This Agreement and any disputes or claims arising out of or in
connection with its subject matter are governed by and
construed in accordance with the law of Finland.
22.2 Any dispute arising out of or in connection with this
Agreement, including any question regarding its existence,
validity or termination, shall be referred to and finally
resolved by arbitration under the London Court of
International Arbitration Rules (the "RULES"), which Rules are
deemed to be incorporated by reference into this clause. The
number of arbitrators shall be one, the seat, or legal place,
of arbitration shall be London, England and the language to be
used in the arbitral proceedings shall be English.
- 21 -
This Agreement has been entered into on the Effective Date.
Signed by
-------------
For and on behalf of Director
OUTOKUMPU NICKEL B.V. Xxx Xxxxx
Signed by
-------------
For and on behalf of Director
OUTOKUMPU MINING OY Xxx Xxxxx
Signed by
---------------
For and on behalf of Director
GOLD FIELDS EXPLORATION B.V.
Signed by XX XXXXX
-------------
For and on behalf of Director
GOLD FIELDS FINLAND OY
Signed by
---------------
For and on behalf of Director
GOLD FIELDS FINLAND OY
22
SCHEDULE 1
CONDITIONS FOR THE BENEFIT OF THE SELLER
The obligations of the Seller to complete the Transaction are subject to the
following conditions:
1. WARRANTY NOTICE
That the Seller has received and reviewed the Buyer's Warranty Notice,
if any, provided by the Seller in accordance with Clause 7.8 hereof
and has agreed to waive any claim in respect of the warranty that is
the subject of the Buyer's Warranty Notice.
CONDITIONS FOR THE BENEFIT OF THE BUYER
The obligations of the Buyer to complete the Transaction are subject to the
following conditions:
1. REGULATORY APPROVAL
That the Buyer has received all necessary regulatory and other third
party approvals to the Transaction.
2. TITLE
That the Seller has established, to the Buyer's satisfaction, that it
has good and marketable title to the Purchased Interest and that it can
transfer the Purchased Interest as contemplated by this Agreement.
3. WARRANTY NOTICE
That the Buyer has received and reviewed the Seller's Warranty Notice,
if any, provided by the Seller in accordance with Clause 7.7 hereof and
has agreed to waive any claim in respect of the warranty that is the
subject of the Seller's Warranty Notice.
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SCHEDULE 2
SELLER'S WARRANTIES
1. THIS AGREEMENT
1.1 Each of the Seller, the Parent and the Partnership is duly
incorporated, organised and subsisting under the laws of its
respective jurisdiction of incorporation, is duly qualified to
carry on its business and is in good standing is each
jurisdiction in which, the conduct of its business or the
ownership, leasing or operation of its property and assets
requires such qualification, and has all requisite corporate
power and authority to carry on its business, to own, lease
and operate its property and assets.
1.2 Each of the Seller and the Parent has the power and authority
to enter into and perform this Agreement, and this Agreement
constitutes (or will constitute when executed) valid, legal
and binding obligations on the Seller in accordance with the
terms of the Agreement and the documents.
1.3 Compliance with the terms of this Agreement will not breach or
constitute a default under any of the following:
(a) any provision of the constitutional documents of the Seller or
the Parent; or
(b) the Partnership Agreement; or
(c) any agreement or instrument to which the Seller or the Parent
is a party or by which, it is bound, provided the Conditions
in accordance with the Schedule 1 have been obtained or
fulfilled; or
(d) any order, judgment, decree or other restriction applicable to
the Seller.
1.4 The Seller has obtained all necessary corporate authorisations
and approvals in accordance with applicable law with respect
to all matters requiring an authorisation or approval in
connection with this Agreement and the Transaction.
2. INTEREST IN THE PARTNERSHIP
2.1 The Purchased Interests are comprised of a 49% interest in the
Partnership and are fully paid.
2.2 The Seller is the sole legal, registered and beneficial holder
of the Purchased Interests with good and marketable title
thereto. The Purchased Interests are not subject to any
Encumbrance and no commitment has been given to create any
Encumbrance affecting the Purchased Interests.
- 24 -
3. OTHER
3.1 The Seller undertakes to pay to Rautaruukki Oyj an agreed lump
sum fee related to the decision to mine platinum on certain
areas currently held by the Partnership in accordance with the
terms and conditions of an agreement between the Seller and
Rautaruukki Oyj.
3.2 To the best of the Seller's knowledge, the Year-End Accounts
of the Partnership are complete and correct in all respects
and present a true and fair view of the results of operation,
the financial condition, prospects, the assets and the
liabilities of the Seller.
3.3 As far as the Seller is aware, the claims, claim applications,
mining concessions, applications for mining concession, or
other mineral property, or any direct or indirect right or
interest therein or relating thereto ("MINERAL INTERESTS")
have been validly obtained and are in good standing with
respect to the performance of all obligations (including,
without limitation, the proper and full payment of all
applicable state fees, landowner fees, Taxes, charges and
assessments, and submitting of all the reports to the Finnish
Ministry of Trade and Industry) applicable under all laws of
Finland (including, without limitation, applicable mining,
environmental and real estate laws and regulations) and are
owned by and duly registered in the name of the Partnership
free and clear of any Encumbrances, royalties or underlying
interests, with the exception of the exploitation fees
(loubintamaksut).
3.4 As far as the Seller is aware, there are no adverse claims or
challenges to the ownership of, or title to, the Mineral
Interests, or to the ownership of, or title to, substances on
the claims, therein or therefrom nor there is any basis
therefor.
3.5 Seller, as a partner in the Partnership, has not assigned or
encumbered or promised to assign or encumber the Mineral
Interests or the rights which derive therefrom and the Seller
has not acquired, with respect to third parties, any
obligation whatsoever which would prevent the Buyer from
entering into this Agreement.
3.6 The Seller has transferred all Technical Information relating
to the Partnership, its activities or property to the
Partnership free and clear of any and all Encumbrances.
3.7 The representations and warranties contained in this Schedule
2 shall survive the execution of this Agreement, the
consummation of the Transaction contemplated in this
Agreement, and any termination of the Partnership Agreement or
this Agreement. The breach of any representation, warranty or
covenant contained in this Agreement may be waived by the
Buyer, either in whole or in part, at any time without
- 25 -
prejudice to the Buyer's rights in respect of any other or
continuing breach of the same or any other representation,
warranty or covenant. No waiver by the Buyer of any breach of
any representation, warranty or covenant shall be binding
unless in writing. Any waiver shall be limited to the specific
purpose for which it is given.
3.8. The Seller acknowledges and agrees that the Payment Shares
have not been and will not be registered under the US
Securities Act of 1933 (the "Securities Act") and may not be
offered or sold within the United States, or to or for the
account or benefit of US persons, except in accordance with
Regulation S under the Securities Act ("Regulation S") or
pursuant to an exemption from the registration requirements of
the US Securities Act. The Seller represents, warrants and
agrees that neither it, nor any of its affiliates nor any
Person acting on its or their behalf, has engaged or will
engage in any directed selling efforts (as defined in
Regulation S) with respect to the Payment Shares. Terms used
in this paragraph 3.8 have the meanings given to them by
Regulation S under the US Securities Act.
- 26 -
SCHEDULE 3
BUYER'S WARRANTIES
1. THIS AGREEMENT
1.1 The Buyer has power and authority to enter into and perform
this Agreement and the other documents referred to in it.
1.2 This Agreement and the other documents referred to in it
constitute (or will constitute when executed) valid, legal and
binding obligations on the Buyer in accordance with the terms
of the Agreement and the documents.
1.3 Compliance with the terms of this Agreement and the
Partnership Agreement will not breach or constitute a default
under any of the following:
(a) any provision of the constitutional documents of the Buyer, or
(b) any agreement or instrument to which the Buyer is a party, or
(c) any order, judgment, decree or other restriction applicable to
the Buyer.
1.4 The Buyer has obtained all necessary corporate authorisations
and approvals in accordance with applicable law with respect
to all matters requiring an authorisation or approval in
connection with this Agreement and the Transaction, including,
subject to Clause 2.5(b), the assumption of the Seller's
liabilities and obligations under the Partnership Agreement
from the July 1 2003,
2. BUYER
2.1 The Buyer is duly incorporated, organised and subsisting under
the laws of Finland, is duly qualified to carry on its
business and is in good standing in each jurisdiction in which
the conduct of its business or the ownership, leasing or
operation of its property and assets requires such
qualification, and has all requisite corporate power and
authority to carry on its business and to own, lease and
operate its property and assets.
GFE'S WARRANTIES
3. GFL SHARES
3.1. All necessary corporate action and other necessary steps and
proceedings will have been taken prior to the Closing by GFL
so as to validly issue, sell and deliver the Payment Shares to
the Seller at Closing.
- 27 -
Upon their issuance, the Payment Shares will be validly
issued, listed on the Johannesburg Securities Exchange (JSE)
and outstanding as fully paid and non-assessable shares
registered in the name of Seller.
3.2. The Buyer represents warrants and agrees that neither it, nor
any of its affiliates nor any Person acting on its or their
behalf has engaged or will engage in any directed selling
efforts (as defined in Regulation S) with respect to the
Payment Shares. Terms used in this paragraph 3.8 have the
meanings given to them by Regulation S under the US
Securities Act.
