Dated 10 July 2002 America Mineral Fields, Inc. and America Mineral Fields International Limited and AMF Holdings Limited and Anglo American Corporation of South Africa Limited and Ambase Prospects (Congo) Limited and Congo Mineral Developments...

Exhibit 3.10

CONFORMED COPY

Dated 10 July 2002

America Mineral Fields, Inc.

and

America Mineral Fields International Limited

and

AMF Holdings Limited

and

Anglo American Corporation of South Africa Limited

and

Ambase Prospects (Congo) Limited

and

Congo Mineral Developments Limited

DEED OF TERMINATION AND RELEASE

LINKLATERS
Xxx Xxxx Xxxxxx
Xxxxxx XX0X 0XX

Telephone: (00-00) 0000 0000
Facsimile:  (00-00) 0000 0000
Ref: CREK/RZZC

DEED OF TERMINATION AND RELEASE

This Deed is entered into on 10 July 2002 between:

(1) AMERICA MINERAL FIELDS, INC. a company incorporated in the Yukon Territory, Canada (registered no. 24583) whose registered office is at Suite 000-000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx X0X 0X0, Xxxxxx (“AMF”);

(2) AMERICA MINERAL FIELDS INTERNATIONAL LIMITED, a company incorporated in the British Virgin Islands (registered no. 174173) whose registered office is at Citco Building, Wickhams Cay, P.O. Box 662, Road Town, Tortola, British Virgin Islands (“AMFI”);

(3) AMF HOLDINGS LIMITED, a company incorporated in the British Virgin Islands (registered no. 280960) whose registered office is at Arawak Xxxxxxxx, P.O. Box 173, Road Town, Tortola, British Virgin Islands (“AMFL”);

(4) ANGLO AMERICAN CORPORATION OF SOUTH AFRICA LIMITED, a company incorporated in the Republic of South Africa (registered no. 01-05309-06) whose registered office is at 00 Xxxx Xxxxxx, Xxxxxxxxxxxx 0000, Xxxxxxxx xx Xxxxx Xxxxxx (“AAC”);

(5) AMBASE PROSPECTS (CONGO) LIMITED, a company incorporated in the British Virgin Islands (registered no. 281216), whose registered office is at 9 Columbus Centre, Pelican Drive, Road Town, Tortola, British Virgin Islands (“AACL”); and

(6) CONGO MINERAL DEVELOPMENTS LIMITED, a company incorporated in the British Virgin Islands (registered no. 271751), whose registered office is at 00 Xxxx Xxxxxx, Xxxx Xxxx, Xxxxxxx, Xxxxxxx Virgin Islands (the “Company”) (the “Parties”),

for themselves and on behalf of the additional persons identified below.

Recitals:

The Parties wish to make provision for the termination of certain obligations relating to the Kolwezi Tailings Project.

Agreement:

1 Interpretation

1.1 In this Deed, the following words and expressions shall have the meanings set out below:

“AAC Releasees” means AAC, AACL and all their respective Affiliates, successors, assigns and present and former directors, alternate directors, officers and employees;

“AAC Releasors” means AAC, AACL and all their respective Affiliates, successors and assigns;

“Affiliate” means in relation to a Party:

(a) any Person in which that Party holds fifty per cent. (50%) or more of the ordinary voting shares or which holds fifty per cent. (50%) or more of that Party’s ordinary voting shares;

(b) any Person which, directly or indirectly, is Controlled by or Controls, or is under Common Control with, a Party; or

(c) any Person or group of Persons being directors or executive officers of any Person referred to in (a) or (b) above,

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but, for the avoidance of doubt, for the purposes of Clause 4 the Persons referred to in (c) above shall include only directors or executive officers of Persons referred to in (a) or (b) at the time of any alleged breach of that Clause;

“agreed form” means, in relation to any document, such document in the form agreed between the Parties and signed by their respective solicitors or attorneys for the purposes of identification;

“AMF Releasees” means AMF, AMFI and AMFL and all their respective Affiliates, successors, assigns and present and former directors, alternate directors, officers and employees;

“AMF Releasors” means AMF, AMFI and AMFL and all their respective Affiliates, successors and assigns;

“Claims” means any and all claims, causes of action, liabilities, rights and obligations (including those which arise hereafter upon a change in the relevant law), whether known or unknown, whether arising in equity or under common law or statute or by reason of breach of contract or in respect of any tortious or negligent act or omission (whether or not loss or damage caused thereby has yet been suffered) or otherwise, and whether in existence now or coming into existence at some time in the future, and whether or not in the contemplation of the Parties on the date hereof;

“Common Control” means the circumstances where two or more Persons are Controlled by the same Person or its Affiliates;

“Control” means:

(a) the power (whether directly or indirectly) and whether by the ownership of share capital, the possession of voting power, contract or otherwise to appoint and/or remove all or such of the board of directors or other governing body of a Person as are able to cast a majority of the votes capable of being cast by the members of that board or body, or otherwise to control or have the power to control the policies and affairs of that Person; or

(b) the holding and/or the ownership of the beneficial interest in, and/or the ability to exercise the voting rights applicable to, shares or other securities in any Person which confer in aggregate on the holders thereof (whether directly or indirectly) more than fifty per cent. (50%) of the voting rights exercisable at general meetings of that Person,

and “Controlled by” shall have a corresponding meaning;

“Damages” means any and all reliefs or recoveries of whatever nature or description that may be sought in relation to any Claim. This includes monetary damages of every description, such as economic loss, property loss, any other item of loss or injury, statutory or penal damages; attorneys’ fees; pre-judgment or post-judgment or other interest, injunctive or declaratory relief; equitable relief of every kind; expenses and costs of court;

“Dispute” means any dispute, difference, disagreement, controversy or claim arising under, out of, in connection with or relating (in any manner whatsoever) to this Deed (including (without limitation) any dispute or difference as to the interpretation or performance of any provision of this Deed or regarding its breach, existence, termination or validity) or any Claims released hereunder;

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“Facilities” means all plant and equipment, including, without limitation, the haulage roads and all buildings, factories and other structures, fixed installations and improvements and all other assets, moveable or immovable, for the processing, transportation, handling, storage, administration, offices, infrastructure or housing which have been acquired by the Company or have been or are to be used or acquired by or on behalf of the Company or any of its Affiliates specifically for or in relation to the development of the Kolwezi Tailings;

“Kolwezi Agreements” means the Subscription and Joint Venture Agreement dated 19 June 1998, a Deed of Amendment dated on or about 2 September 1998, any subsequent deeds of amendment thereto and a Project Implementation Deed dated 31 May 2001 all between the Parties;

“Kolwezi Tailings” means the tailings deposit of Kingamyambo, Musonoi Valley, Kasobantu and the new tailings still to be produced by the Kolwezi concentrator insofar as these are the property of Gécamines;

“Kolwezi Tailings Project” means all actions and things done prior to the date of this Deed by the Parties (or any of them), or their respective Affiliates and present and former agents, directors, alternate directors, officers, employees, consultants and sub-contractors (or any of them), whether or not in accordance with or as required or anticipated by the Kolwezi Agreements, in furtherance of or in connection with (i) the carrying into effect or compliance with the provisions of the Kolwezi Agreements or (ii) the development and operation of the Kolwezi Tailings in the Democratic Republic of Congo; and

“Project Assets” means:

(a) for the purposes of Clause 3, the Kolwezi Tailings and the Facilities; and

(b) for the purposes of Clause 4, the surface rights (but not the sub-surface rights) in respect of, and facilities and tailings (including the Facilities and the Kolwezi Tailings) located on, the land bound by the co-ordinates listed in Annexure “A” (in the agreed form) to this Deed.

1.2 The words “include” and “including” are to be construed without limitation.

2 Termination of Kolwezi Agreements

The Parties hereby terminate the Kolwezi Agreements (including the Clauses listed in the last three lines of Clause 2.2 of the Subscription and Joint Venture Agreement dated 19 June 1998 and in Clause 6.2(b)(iii) of the Project Implementation Deed dated 31 May 2001) and any documents entered into by one or more of the AAC Releasors with one or more of the AMF Releasors or CMD (but, for the avoidance of doubt, not any agreement with a third party) pursuant or in relation to them, including, without limitation, any deed of undertaking entered into or guarantee given by any one or more of the AAC Releasors pursuant to them.

3 Mutual Release

3.1 The AAC Releasors and the Company hereby (i) irrevocably fully finally and forever release, acquit and discharge the AMF Releasees from and waive any and all Claims which the AAC Releasors and the Company may have (whether alone or jointly with any other party or parties) against the AMF Releasees arising under, out of, in connection with or in relation to the Kolwezi Agreements, or any of the obligations contained therein, or otherwise relating to the Kolwezi Tailings Project or the Project Assets and finally and

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forever release, acquit and discharge them from and waive any and all Damages directly or indirectly arising from any such Claims, and (ii) agree and covenant not to xxx or prosecute or bring, take or aid any action, proceeding or arbitration of any kind arising out of or in relation to the Kolwezi Agreements or otherwise relating to the Kolwezi Tailings Project or the Project Assets against the AMF Releasees in respect of any Claims or for any Damages.

3.2 For the purposes of Clause 3.1, AMF, AMFI and AMFL contract for themselves and as trustees for and on behalf of each of their respective Affiliates, successors, assigns and present and former directors, alternate directors, officers and employees.

3.3 The AMF Releasors and the Company hereby (i) irrevocably fully finally and forever release, acquit and discharge the AAC Releasees from and waive any and all Claims which the AMF Releasors and the Company may have (whether alone or jointly with any other party or parties) against the AAC Releasees arising under, out of, in connection with or in relation to the Kolwezi Agreements, or any of the obligations contained therein, or otherwise relating to the Kolwezi Tailings Project or the Project Assets and finally and forever release, acquit and discharge them from and waive any and all Damages, directly or indirectly arising from any such Claims, and (ii) agree and covenant not to xxx or prosecute or bring, take or aid any action, proceeding or arbitration of any kind arising out of or in relation to the Kolwezi Agreements or otherwise relating to the Kolwezi Tailings Project or the Project Assets against the AAC Releasees in respect of any Claims or for any Damages.

3.4 For the purposes of Clause 3.3, AAC and AACL contract for themselves and as trustees for and on behalf of each of their respective Affiliates, successors, assigns and present and former directors, alternate directors, officers and employees.

3.5 The provisions of Clauses 3.1, 3.2, 3.3 and 3.4 shall not apply to any Claims arising under or out of the provisions of Clause 4 of this Deed, any Claims arising under or out of the Licence Agreement between the Parties dated the same date as this Deed or any Damages arising directly or indirectly from such Claims and shall not apply so as to inhibit or prevent any Party from enjoying or enforcing its proprietary rights in or to any property (including any intellectual property) or from pursuing any Claims (or seeking any Damages arising from such Claims) in respect thereof that may arise after the date of this Deed.

4 Exclusivity

4.1 The AAC Releasors hereby covenant with the AMF Releasees that (subject to the matters specified in Clause 4.2), for a period of seven years from the date of this Deed, they will not (and will procure that their Affiliates will not) unilaterally or in conjunction with any third party, acquire the Project Assets (or any part of them) or otherwise have any involvement with the development of the Project Assets or participate in any financial exploitation of the Project Assets.

4.2 Nothing in this Deed shall preclude any of the AAC Releasors or any of their Affiliates from having any involvement in or undertaking any activity in relation to any assets in the Democratic Republic of the Congo (including, for the avoidance of doubt, any copper or cobalt mines in the Kolwezi district) other than the Project Assets or from exercising or enjoying any easement, right or way, servitude, “servitude de passage” or similar right granted to it in respect of any land in the Kolwezi district.

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5	Variation
	No variation of this Deed shall be valid unless it is in writing and signed by or on behalf of each of the parties to it. The expression “variation” shall include any variation, supplement, deletion or replacement however effected.
6	Assignment
	No Party shall nor shall it purport to assign, transfer, charge or otherwise deal with all or any of its rights under this Deed nor grant, declare, create or dispose of any right or interest in it without the prior written consent of the other parties hereto.
7	Confidentiality
7.1	Save as set out in Clause 7.2 below, the Parties shall procure that the subject matter of this Deed shall not be disclosed to any third party by or on behalf of any of the Parties without the prior written consent of all of them.
7.2	Any Party may announce or disclose information which would otherwise be prohibited by the terms of Clause 7.1 if and to the extent:
	7.2.1	it is required in order to secure finance for the Company, AMF and/or any of its Affiliates from a third party or it is necessary or desirable to provide such information to third parties providing or contemplating providing equity, quasi-equity and/or debt finance to the Company, AMF and/or any of its Affiliates;
	7.2.2	such announcement has previously been agreed in writing by all the other Parties;
	7.2.3	it is required by law or by any relevant securities exchange or regulatory body;
	7.2.4	it is required for the purposes of giving effect to this Deed;
	7.2.5	it is disclosed on a confidential basis to employees, directors, consultants and legal and professional advisers of each party who need to know the same for the purpose of implementing the arrangements contemplated in this Deed and who are informed of the confidential nature of the information; or
	7.2.6	such information has already come into the public domain other than through a disclosure by that Party or one of its Affiliates which breached a term of this Deed.
8	Governing Law and Jurisdiction
	The Parties agree that the courts of England are the most convenient forum in which to resolve any Dispute. This Deed shall be governed by and construed in accordance with English law and each of the Parties hereby submits to the exclusive jurisdiction of the courts of England to determine any Dispute.
9	Appointments of Process Agents
9.1	Service of process in England in any legal action or proceedings arising out of this Deed may be effected upon AMF by delivery to St George’s House, 00 Xxxxxxx Xxxxxx, Xxxxxx X0X 0XX. Service upon AMF shall be deemed completed when such process is delivered to the said address (or changed address notified to AACL in accordance with this Clause 9.1) whether or not it is forwarded to or received by AMF. AMF may notify AACL, in writing, of any change in the said address provided that such notification shall be effective to

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	amend the preceding provisions of this Clause 9.1 only if the change is to a full and accurately described address (including post code) in England.
9.2	AMFI hereby irrevocably appoints AMF of St George’s House, 00 Xxxxxxx Xxxxxx, Xxxxxx X0X 0XX as its agent to accept service of process in England in any legal action or proceedings arising out of this Deed, service upon whom shall be deemed completed when such process is delivered to AMF at the said address (or changed address notified to AACL in accordance with this Clause 9.2) whether or not it is forwarded to or received by AMFI. AMFI shall notify AACL, in writing, of any change in the address of the process agent of AMFI within 28 days of such change.
9.3	AMFL hereby irrevocably appoints AMF of St George’s House, 00 Xxxxxxx Xxxxxx, Xxxxxx X0X 0XX as its agent to accept service of process in England in any legal action or proceedings arising out of this Deed, service upon whom shall be deemed completed when such process is delivered to AMFL at the said address (or changed address notified to AACL in accordance with this Clause 9.3) whether or not it is forwarded to or received by AMFL. AMFL shall notify AACL, in writing, of any change in the address of the process agent of AMFL within 28 days of such change.
9.4	AAC hereby irrevocably appoints Anglo American Services (UK) Ltd of 00 Xxxxxxx Xxxxx Xxxxxxx, Xxxxxx XX0 0XX (“AASL”) as its agent to accept service of process in England in any legal action or proceedings arising out of this Deed, service upon whom shall be deemed completed when such process is delivered to AASL at the said address (or changed address notified to AMFL in accordance with this Clause 9.4) whether or not it is forwarded to or received by AAC. AAC shall notify AMFL, in writing, of any change in the address of the process agent of AAC within 28 days of such change.
9.5	AACL hereby irrevocably appoints Anglo American Services (UK) Ltd of 00 Xxxxxxx Xxxxx Xxxxxxx, Xxxxxx XX0 0XX as its agent to accept service of process in England in any legal action or proceedings arising out of this Deed, service upon whom shall be deemed completed when such process is delivered to AASL at the said address (or changed address notified to AMFL in accordance with this Clause 9.5) whether or not it is forwarded to or received by AACL. AACL shall notify AMFL, in writing, of any change in the address of the process agent of AACL within 28 days of such change.
9.6	The Company hereby irrevocably appoints AMF of St George’s House, 00 Xxxxxxx Xxxxxx, Xxxxxx X0X 0XX as its agent to accept service of process in England in any legal action or proceedings arising out of this Deed, service upon whom shall be deemed completed when such process is delivered to AMF at the said address (or changed address notified to AACL in accordance with this Clause 9.6) whether or not it is forwarded to or received by the Company. The Company shall notify AACL, in writing, of any change in the address of the process agent of the Company within 28 days of such change.
9.7	If any process agent ceases to be able to act as such or to have an address in England, the relevant Party irrevocably agrees to appoint a new process agent in England acceptable to AACL or AMFL (as the case may be) and to deliver to AACL or AMFL (as the case may be) within 14 days a copy of a written acceptance of appointment by the process agent.
9.8	Nothing in this Deed shall affect the right of any Party to serve process in any other manner permitted by law.

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10 Miscellaneous

This Deed may be executed in any number of counterparts each of which when executed and delivered is an original, but all the counterparts together constitute the same document.

IN WITNESS whereof this Deed has been executed and delivered on the date first stated above:

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SIGNED and delivered as a DEED by AMERICA MINERAL FIELDS, INC., a company incorporated in the Yukon Territory, Canada, by E DENIS, being a person who, in accordance with the laws of that territory is acting under the authority of the Company		}		E DENIS
SIGNED and delivered as a DEED by AMERICA MINERAL FIELDS INTERNATIONAL LIMITED, a company incorporated in the British Virgin Islands by A GODEFROID and B R XXXXX, being a person who, in accordance with the laws of that territory is acting under the authority of the Company		}		A GODEFROID B R XXXXX
SIGNED and delivered as a DEED by AMF HOLDINGS LIMITED, a company incorporated in the British Virgin Islands by A GODEFROID and B R XXXXX, being a person who, in accordance with the laws of that territory is acting under the authority of the Company		}		A GODEFROID B R XXXXX
SIGNED and delivered as a DEED by ANGLO AMERICAN CORPORATION OF SOUTH AFRICA LIMITED, a company incorporated in the Republic of South Africa by T XXXXXX, being a person who, in accordance with the laws of that territory is acting under the authority of the Company		}		T XXXXXX

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SIGNED and delivered as a DEED by AMBASE PROSPECTS (CONGO) LIMITED, a company incorporated in the British Virgin Islands by T XXXXXX, being a person who, in accordance with the laws of that territory is acting under the authority of the Company		}		T XXXXXX
SIGNED and delivered as a DEED by CONGO MINERAL DEVELOPMENTS LIMITED, a company incorporated in the British Virgin Islands by B R XXXXX, being a person who, in accordance with the laws of that territory is acting under the authority of the Company		}		B R BRYOR

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Annexure A
Project Assets Co-ordinates
KINGAMYAMBO

Name			Y			X			Direction			Distance
			Stand/Erf Number
30			437033,305			312052,908
31			437035,902			312258,038			0 : 43 : 31,2			205,146
32			437440,220			312575,061			51 : 54 : 00,9			513,787
33			437449,409			312850,732			1 : 54 : 32,9			275,824
34			438000,753			312869,111			88 : 05 : 26,7			551,650
35			438395,882			313443,427			34 : 31 : 40,6			697,112
36			439379,111			313576,668			82 : 16 : 57,5			992,216
37			439540,296			313160,709			158 : 49 : 06,8			446,097
38			439262,727			312957,030			233 : 43 : 44,2			344,281
39			439219,036			312840,519			200 : 33 : 20,8			124,434
40			439222,677			312578,369			179 : 12 : 15,4			262,175
41			439294,193			312331,639			163 : 50 : 07,8			256,886
42			439306,111			311890,684			178 : 27 : 06,5			441,116
30			437033,305			312052,908			274 : 04 : 57,4			2278,588

Area: 257,9068 Ha.

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MUSONOI POLYGON

		GAUSS CO-ORDINATES						GEOGRAPHIC CO-ORDINATES
			Y			X			Longitude East			Latitude South
1			437.240.000			317.300.000			25º 25’ 33”			10º 40’ 16,6”
2			433.198.531			320.184.984			25º 23’ 53,3”			10º 38’ 13,3”
3			434.227.260			322.599.978			25º 24’ 10”			10º 37’ 13,3”
4			435.604.257			324.655.625			25º 25’ 16,6”			10º 36’ 26,8”
5			438.108.720			324.721.003			25º 26’ 31,6”			10º 36’ 06,6”
6			441.730.254			323.458.385			25º 28’ 20”			10º 36’ 56,6”
7			441.921.554			321.817.040			25º 28’ 36,6”			10º 37’ 30”
8			441.720.000			315.440.000			25º 29’ 10”			10º 41’ 15”
9			441.000.000			314.880.000			25º 28’ 3,3”			10º 41’ 56,6”
00			000.000.000			000.000.000			25º 26’ 23,3”			10º 39’ 43,3”

Area : 5.130 Ha.

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