EXHIBIT 10.25
JOINT OPERATING AGREEMENT
MADE BETWEEN
BOGOSO GOLD LIMITED
AND
PRESTEA GOLD RESOURCES LIMITED
DATED
JANUARY 31, 2002
JOINT OPERATING AGREEMENT PAGE (i)
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Section 1 - Definitions and Interpretation
2 - Scope of Agreement
3 - Consultations and Cooperation
4 - Safety and Environment
5 - Infrastructure Mitigation Plan
6 - Default
7 - Dispute Resolution
8 - Representations and Warranties
9 - General
Schedule A - Lease Area
B - Infrastructure Mitigation Plan
JOINT OPERATING AGREEMENT PAGE 1
--------------------------------------------------------------------------------
AGREEMENT made January 31, 2002 between Bogoso Gold Limited, a company
incorporated under the laws of Ghana ("BGL"), and Prestea Gold Resources
Limited, a company incorporated under the laws of Ghana ("PGR").
RECITALS
A. The Parties entered into an agreement dated May 21, 2001 (the "Letter
Agreement") pursuant to which, among other things, it was agreed that
PGR would surrender a mining lease held by it and the Parties would
procure the issue of two new mining leases covering the same area, of
which one would permit underground mining and the other surface mining
for gold and related minerals.
B. Subsequent to such date, PGR surrendered its existing lease, the
Government of Ghana issued the BGL Lease and PGR Lease (as defined
below) and GSR entered into and completed an agreement with Barnato
Exploration Limited, all as provided for in the Letter Agreement.
C. Subsequent to such date PGR and PGL entered into an agreement dated
November 16, 2001 (the "Investment Agreement") confirming the
understandings of the Letter Agreement.
D. The Investment Agreement was amended and supplemented by letters dated
December 4, 2001 and January 31, 2002.
E. BGL has advanced to PGR $2,099,999.00 of the $2,100,000.00 which it
undertook pay to PGR as the First Option Payment (as defined in the
Investment Agreement).
F. BGL has commenced mining on the Prestea property at the area known as
Buesichem and intends to commence mining activities on the central
portion of the Prestea property in the areas known as North Shaft and
Plant around mid-2002 once the necessary approvals have been obtained
from the Environmental Protection Agency and the Mines Department.
G. The Parties are entering into this joint operating agreement as
provided for in the Investment Agreement as so amended and
supplemented.
IN CONSIDERATION OF THE MUTUAL COVENANTS IN THIS AGREEMENT, THE PARTIES AGREE AS
FOLLOWS:
ARTICLE 1
DEFINITIONS AND INTERPRETATIONS
1.1 As used in this Agreement:
"AFFILIATE" means any legal entity, wherever incorporated or constituted, which
directly or indirectly controls, is controlled by, or is under common control
with a Party and, for this purpose, "control" means the ownership of or right to
exercise control of more then fifty percent (50%) of the voting rights at a
general meeting of shareholders or other equivalent constitutional meeting and,
through such ownership or right, to elect at least a majority of the
JOINT OPERATING AGREEMENT PAGE 2
--------------------------------------------------------------------------------
Board or other persons with substantially equivalent power to manage and direct
the affairs of such legal entity.
"AGREEMENT" means this joint operating agreement and all schedules and
instruments in amendment or confirmation of it; "hereof", "hereto", and
"hereunder" and similar expressions mean and refer to this Agreement and not to
any particular Article, Section, Subsection or other subdivision; "Article",
"Section", "Subsection" or other subdivision of this Agreement followed by a
number means and refers to the specified Article, Section, Subsection or other
subdivision of this Agreement;
"APPLICABLE LAW" means all applicable laws of the Republic of Ghana, including,
without limitation, the PNDCL 153;
"BGL" means Bogoso Gold Limited, registration no. 29,939, a company incorporated
according to the laws of the Republic of Ghana.
"BGL LEASE" means the mining lease dated June 29, 2001 issued by the Government
to BGL pursuant to Section 45 of the PNDCL 153 whereby BGL has been granted
exclusive mining rights over the Lease Area to mine for a period of 30 years for
gold and associated mineral substances lying and being under the surface to a
vertical depth 150.37 metres below sea level (the "150 Metre Depth") and
includes all necessary consents and ratifications to perfect BGL's title
thereunder;
"BUSINESS DAY" means any day other than a Saturday, Sunday or official public
holiday in the city of Accra, Ghana or in the city of Denver, U.S.A.
"CHIEF INSPECTOR OF MINES" means the chief inspector of mines appointed from
time to time by the Minister in accordance with the Minerals and Mining Law,
1986, as amended.
"DAY" means a calendar day;
"DECOMMISSIONING" means closure of the Plant in compliance with the requirements
of Article 5.
"DOLLARS" OR "$" means the currency which is, from time to time, legal tender
for the payment of all private and public debts in the United States of America.
"EFFECTIVE DATE" means January 31, 2002.
"FINANCIAL YEAR" means a period of twelve (12) months ending on December 31 or
such other date as may be determined by the Parties from time to time.
"FORCE MAJEURE" means any cause, whether foreseeable or unforeseeable, beyond a
Party's reasonable control, including, without limitation, labour disputes
(however arising and whether or not employee demands are reasonable or within
the power of such Party to grant); acts of God; laws, regulations, orders,
proclamations, instructions or requests of any government or governmental
entity; judgments or orders of any court; inability to obtain on reasonably
acceptable terms any public or private license, permit or other authorization;
curtailment or suspension of activities to remedy or avoid an actual or alleged,
present or prospective violation of federal, state or local environmental
standards; acts of war or
JOINT OPERATING AGREEMENT PAGE 3
--------------------------------------------------------------------------------
conditions arising out of or attributable to war, whether declared or
undeclared; riot, civil strife, insurrection or rebellion; fire, explosion,
earthquake, storm, flood, sinkholes, drought or other adverse weather condition;
delay or failure by suppliers or transporters of materials, parts, supplies,
services or equipment; contractor' or subcontractors' shortage of, or inability
to obtain, labour, transportation, materials, machinery, equipment, supplies,
utilities or services; accidents; breakdown of equipment, machinery or
facilities; or any other cause whether similar or dissimilar to the foregoing.
"GOVERNMENT" means the duly constituted government of the Republic of Ghana or
any political subdivision thereof, whether Central, Regional, District or local,
or any judicial body, agency or instrumentality of any such government or
political subdivision (and is deemed to include, for the purposes of any
required approvals to be obtained hereunder, the Bank of Ghana);
"INFRASTRUCTURE MITIGATION PLAN" means an infrastructure mitigation plan,
complying with the requirements of Schedule B, designed to set out the broad
understanding of the Parties as to how surface infrastructure to be impacted by
the surface mining operations to be conducted by BGL under the BGL Lease will be
mitigated to ensure that there is no significant adverse impact on the
operations of PGR pursuant to their rights under the PGR Lease;
"AGREEMENT " means this joint operating agreement and all schedules and
instruments in amendment or confirmation of it; "hereof', "hereto", and
"hereunder" and similar expressions mean and refer to this Agreement and not to
any particular Article, Section, Subsection or other subdivision; "Article",
"Section", "Subsection" or other subdivision of this Agreement followed by a
number means and refers to the specified Article, Section, Subsection or other
subdivision of this Agreement;
"LEASE AREA" means the area of approximately 129.05 square kilometers, as more
particularly described in Schedule A;
"LICENCE" means any licence, permit, approval, right, privilege, concession or
franchise issued, granted, conferred or otherwise created by the Government;
"MINING LEASE", "MINERAL OPERATIONS", "MINING OPERATIONS", "MINERAL RIGHT" and
"MINERALS" shall have the meanings given to such terms in PNDCL 153;
"MINISTER" means the Minister responsible for mines in the Republic of Ghana;
"MANAGEMENT COMMITTEE" means the management committee as described in Section 4.
"MINING COMMENCEMENT DATE" means the date as of which BGL commences mining
operations on the BGL Lease in the area marked as "Plant Deposit" on Schedule A;
"OPTION" means the option granted by PGR to BGL to acquire shares in PGR, as
provided in Section 6 of the Investment Agreement;
"PARTIES" means, collectively, BGL and PGR and "Party" means any one of them.
"PERSON" shall be broadly interpreted and includes an individual, body
corporate, partnership, joint venture, trust, association, unincorporated
organization, the Government
JOINT OPERATING AGREEMENT PAGE 4
--------------------------------------------------------------------------------
(including any agency, authority, tribunal or commission) or any other entity
recognized by law;
"PGR" means Prestea Gold Resources Limited a company incorporated according to
the laws of the Republic of Ghana.
"PGR LEASE" means the mining lease dated June 29, 2001 issued by the Government
to PGR pursuant to Section 45 of the PNDCL 153, whereby PGR has been granted
mineral rights over the Lease Area for a period of 30 years for gold and other
associated mineral substances lying and being under the 150 Metre Depth and
includes all necessary consents and ratifications to perfect PGR's title
thereunder;
"PLANT" means PGR's existing processing plant located on the Lease Area;
"PNDCL 153" means the Minerals and Mining Law, 1986 (PNDCL 153) of Ghana, as
amended;
"PARTIES" means, collectively, BGL and PGR and "Party" means any one of them.
"PRESTEA ASSETS" means all assets owned by SGMC which are located on the
property covered by the PGR Lease;
"PRESTEA MINING AREA" means the area shown on Schedule A and marked as "Prestea
Mining Area";
"SGMC" means The State Gold Mining Corporation Limited;
1.2 Any reference in this Agreement to gender shall include all genders,
and words importing the singular number only shall include the plural
and vice versa.
1.3 The division of this Agreement into Articles, Sections, Subsections and
other subdivisions and the insertion of headings are for convenience of
reference only and shall not affect or be utilized in the construction
or interpretation of this Agreement.
1.4 Any Article, Section, Subsection or other subdivision of this Agreement
or any other provision of this Agreement which is, or becomes, illegal,
invalid or unenforceable shall be severed from this Agreement and be
ineffective only to the extent of such illegality, invalidity or
unenforceability and shall not affect or impair the remaining
provisions hereof.
1.5 This Agreement constitutes the entire agreement between the Parties
pertaining to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral
or written, of the Parties.
1.6 This Agreement may only be amended, modified or supplemented by a
written agreement signed by all of the Parties.
1.7 No waiver of any of the provisions of this Agreement by any Party shall
be deemed to constitute a waiver of such provision by any other Party
or a waiver by such Party of any other provision, (whether or not
similar), nor shall such waiver constitute a
JOINT OPERATING AGREEMENT PAGE 5
--------------------------------------------------------------------------------
continuing waiver unless otherwise expressly provided in writing duly
executed by the Party to be bound thereby.
1.8 Where the word "including" or "includes" is used in this Agreement it
means "including (or includes) and without limitation".
1.9 Any references herein to any law, by-law, rule, regulation, order or
act of any government, governmental body or other regulatory body shall
be construed as a reference thereto as enacted at the date hereof as
such law, by-law, rule, regulation, order of or act may be amended,
re-enacted or superseded from time to time.
ARTICLE 2
SCOPE OF AGREEMENT
2.1 This Agreement sets out the protocols and procedures to be observed by
BGL and PGR in the day-to-day operations of the surface and underground
mining operations on the Lease Area with effect from the Effective Date
and grants to BGL certain rights the exercise of which is necessary for
purposes of conducting mining upon the BGL Lease. The matters to be
discussed and agreed to by the Parties pursuant to this Agreement shall
include, but not be limited to, safety, communication between the
Parties, access, disturbances, mitigation of disturbances, air and
water ingress to the underground mine from the surface excavations,
blasting operations, notification of blasting operations, survey and
notification of underground openings, community relations,
confidentiality, statements to the media, joint emergency response, and
security operations.
2.2 The Agreement does not constitute a commercial arrangement between the
Parties and only deals with how the Parties will cooperate to ensure
that their individual operations and activities on the Lease Area will
have minimal impact on the operations and activities of the other
Party.
2.3 This Agreement shall remain in force so long as BGL is the holder of
the BGL Leased or other mining rights in the Lease Area and PGR is the
holder of the PGR Lease or other mining rights in the Lease Area. Its
validity and continuance in force shall not be affected in any way by
(a) BGL's failure to make payment of the balance of the First Option
Payment, where such failure results from PGR's inability or failure to
satisfy one or more closing conditions, or BGL's own exercise of the
Option. In this regard PGR hereby acknowledges the adequacy of the
payments already made to it by BGL as consideration for their entering
into of this Agreement
JOINT OPERATING AGREEMENT PAGE 6
--------------------------------------------------------------------------------
ARTICLE 3
CONSULTATION AND COOPERATION
3.1 Management Committee
(a) The Parties will form a Management Committee comprised of
equal numbers of BGL and PGR representatives, but no more than
ten (10), from BGL and ten (10) from PGR at any time.
(b) The Management Committee shall meet as often as required but
at least monthly. The Chairmanship of the Management Committee
shall alternate between BGL and PGR. BGL shall chair the first
meeting, then PGR shall chair the second meeting and so on.
(c) The Management Committee will consider and decide on issues
that affect the operations and activities of both BGL and PGR
within the Lease Area. Issues will be decided by mutual
agreement between the Parties.
(d) Undecided or unresolved issues will be deferred for further
investigation by the Parties and consideration by the
Management Committee. Any unresolved issue or disputed issue
may be resolved by arbitration as set out in Clause 8.
(e) Minutes of all meetings of the Management Committee shall be
recorded and then approved by the Parties at the next meeting
of the Management Committee.
3.2 Mining Plans
(a) The Parties shall provide documented mining plans and
schedules for each Financial Year to the other Party no later
than 30 days prior to the commencement of the Financial Year.
For 2002 the plans and sections will be provided no later than
ten (10) days after the execution of t his letter.
(b) The Parties shall provide a detailed mining plan and schedule
to the other Party for each Month no later than seven days
prior to the commencement of each Month.
(c) No Party shall deviate from any mining plan or schedule
provided to the other without first having given the other
Party ten days notice of its intention to do so.
(d) No Party shall conduct any mining operations or activities
within 20 metres of the 150 Metre Depth without first having
presented a Feasibility Study on the activity to the other
Party and the Chief Inspector of Mines, and received their
written Agreement to do so.
3.3 Systems and Procedures
(a) The Parties shall establish systems and procedures to control
their operations and activities.
JOINT OPERATING AGREEMENT PAGE 7
--------------------------------------------------------------------------------
(b) The systems and procedures shall deal with blast times, blast
monitoring, sharing of survey information, surface mining near
voids, storm water control, dewatering, surface access and
control, development of infrastructure by the Parties on the
Lease Area, and authorisations to third parties to work or
develop infrastructure on the Lease Area.
3.4 Announcements and Community Relations
(a) All announcement regarding the activities of the Parties
within the Lease Area shall require the approval of the other
Party, such approval not to be unreasonably withheld, and
shall be deemed to have been granted in the event that no
response is received from the approving Party within 72 hours
of hand delivery.
(b) The Parties shall coordinate all meetings with the local
government, traditional rulers and the local community
regarding their respective mining plans and activities within
the Lease Area and shall ensure that both Parties are
represented at any such hearings.
(c) The restriction at Section 3.4 (a) shall not apply in the
event of any press release required by law or the rules and
regulations of a stock exchange having jurisdiction.
ARTICLE 4
SAFETY AND ENVIRONMENT
4.1 Each Party shall ensure that all of its operations within the Lease
Area are carried out in accordance with all applicable safety and
environmental laws and guidelines in effect for such operations and in
accordance with the terms of any environmental or mining permits issued
to them.
4.2 The Parties covenant to accept the final decision of the Chief
Inspector of Mines on any safety or environmental matter or dispute
between the Parties.
ARTICLE 5
INFRASTRUCTURE MITIGATION PLAN
5.1 The Parties recognize the importance of, and need for, the adoption and
implementation of the Infrastructure Mitigation Plan ("Plan") designed
to minimize the impact of surface mining operations to be conducted by
BGL under the BGL Lease.
5.2 The Parties hereby adopt with immediate effect the Plan attached as
Schedule B.
5.3 The Parties undertake to regularly review the Plan and to amend it as
required from time to time to reflect changing circumstances and new
information on the Parties respective mining plans which was not
previously known.
JOINT OPERATING AGREEMENT PAGE 8
--------------------------------------------------------------------------------
5.4 In recognition of the need for BGL to be able to relocate certain
infrastructure pursuant to the Plan:
(a) PGR hereby grants BGL the right to acquire for $1.00 such of
the Prestea Assets that BGL is required to replace or relocate
as a result of the implementation of the Plan; provided that
(i) such replaced or relocated assets shall become the
property of PGR, and (ii) BGL may acquire title to such
replaced or relocated assets by paying to PGR an amount not in
excess of the consideration paid by PGR to SGMC to acquire
them plus reasonable expenses incurred in the acquisition;
(b) PGR agrees to transfer to BGL, for nominal consideration, such
of the Prestea Assets as are agreed between the Parties to be
necessary for BGL's own operations by a transfer agreement in
form and substance satisfactory to the Parties;
(c) PGR agrees that BGL shall be entitled to realize whatever
value possible, directly or indirectly, from the Prestea
Assets acquired by it in accordance with clause 5.4 (b) to
defray its costs and expenses incurred in executing the Plan;
(d) PGR agrees that the Prestea Assets, which will be acquired in
accordance with this clause, includes, among other things, the
Plant, and that the area on which the Plant is located will be
required for mining within the first six months of this
Agreement, and it is envisaged that about three months will be
required for the Decommissioning of the Plant. In this regard:
(i) BGL shall provide PGR with at least thirty (30) days
notice of the date of Decommissioning upon which PGR
shall cease delivering ore to the Plant;
(ii) Immediately following Decommissioning, BGL will have
the right to secure the Plant. PGR employees will be
granted access, on a 24-hour basis, for seven
consecutive days immediately thereafter in order to
effect a clean-up of the Plant and its inventories.
During this period, PGR employees shall have the
right to process any gold-bearing material in order
to produce a smelted product ("Gold Dore"). Only Gold
Dore and left-over reagents, inclusive of loaded
carbon, will remain the property of PGR and may be
removed during the aforementioned seven-day period.
After such seven-day clean-up period, any remaining
materials will become the property of BGL; and
(iii) BGL shall have the right to monitor all clean-up
operations conducted by PGR after Decommissioning.
Physical clean-up may be conducted on all machinery
and structures within the Plant boundary, provided
such cleaning actions are non-destructive, and
provided no dismantling or disassembly of any
equipment takes place. No cleaning may take place
which, in BGL's opinion, will physically alter,
degrade or render unserviceable any civil or
mechanical structure;
(e) From Decommissioning until such time as BGL is able to provide
alternative processing facilities ("Alternative Facilities")
for use by PGR to process its
JOINT OPERATING AGREEMENT PAGE 9
--------------------------------------------------------------------------------
underground ore, BGL shall be obligated to treat ore mined by
PGR on a toll processing basis at its processing facilities
under the terms and conditions set out in Schedule I of the
Investment Agreement.
(f) The Alternative Facilities will consist of, at BGL's option
but subject to PGR's approval, not to be unreasonably
withheld, either the relocation of the Plant or the
acquisition and upgrading, with the use of existing plant
equipment, of the processing plant currently used by Prestea
Sankofa Gold Limited, subject to its being available for this
purpose.
(g) The Alternative Facilities shall be constructed with due
regard to the metallurgical flowsheet, capacity and
performance of the Plant and their designed overall unit cost
per tonne shall not be more than and, recovery shall not be
less than, those of the Plant;
(h) Provided that BGL has commenced mining operations on the BGL
Lease in the area marked as "Plant Deposit" on Schedule A, or
alternatively, in the event that BGL ceases mining operations
on the BGL Lease prior to the Mining Commencement date, BGL
shall, upon the establishment of the Alternative Facilities,
transfer the Alternative Facilities to PGR for a purchase
price equal to the difference between (i) the cost of the
Alternative Facilities, and (ii) the price paid by PGR or BGL
to SGMC for the Plant. The purchase consideration shall be a
non-interest bearing demand loan note re-payable on December
31, 2999 secured by a fixed charge over the Alternative
Facilities.
(i) In the unlikely event that the Alternative Facilities are
established prior to the Mining Commencement Date, the
Alternative Facilities shall be and remain the property of BGL
and shall be made available to PGR for so long as it needs
them without charge; provided that (i) PGR shall be
responsible for maintaining the Alternative Facilities in good
repair and operating condition, and (ii) shall not be entitled
to modify them without BGL's prior consent, not to be
unreasonably withheld; and
(j) The Parties may agree to continue such toll processing
arrangement in lieu of BGL making the Alternative Facilities
available.
5.5 For greater certainty the Parties hereby confirm and agree that the
provisions of Clause 5.4 are intended to be enforceable independently
of the similar provisions contained in Clause 7.1 of the Investment
Agreement.
ARTICLE 6
DEFAULT
6.1 A Party shall be in default under this Agreement if, at any time (a)
such Party is in breach of any of its material obligations under this
Agreement and which continues for seven (7) days after notice by the
other Party specifying such breach; (b) bankruptcy, insolvency, or
similar events effecting such Party.
JOINT OPERATING AGREEMENT PAGE 10
--------------------------------------------------------------------------------
6.2 For the purposes of Clause 6.1 a break of material obligations shall
include but not be limited to breach of the obligations contained in
Clauses 3.2, 3.3, 4.1 and 5.3 and shall be enforceable by application
to a court having jurisdiction over the Parties.
ARTICLE 7
DISPUTE RESOLUTION
7.1 Any dispute, controversy or claim arising under or in connection with
this Agreement, and which cannot be resolved within sixty (60) days of
attempted negotiations between the Parties, shall be settled by
arbitration in accordance with this section.
7.2 Matters subject to arbitration shall be settled by arbitration in
accordance with the rules and regulations of the London Court of
International Arbitration in effect on the date of this agreement.
7.3 The place of arbitration shall be Accra, Ghana or such other place as
the Parties may agree.
7.4 The language of the arbitration shall be English.
7.5 The arbitration shall be the sole and exclusive forum for resolution of
the dispute or controversy and the award shall be final and binding.
7.6 A Party may demand arbitration by delivering a written notice thereof
to the other Party setting forth a complete, concise statement of the
issue(s) in dispute, the amount involved and the remedy requested.
7.7 The arbitrators shall render a written decision within six months after
having been appointed.
7.8 Notwithstanding anything herein, the arbitral panel shall have the
power to decide any dispute ex aequo et xxxx, with the objective of
deciding such matters fully in accordance with the intent of the
Parties as indicated by this Agreement.
7.9 The arbitrators shall have the right to award or include in their award
any relief which they deem proper in the circumstances, including,
without limitation, money damages (with interest on unpaid amounts from
date due), specific performance, injunctive relief and legal fees and
costs in accordance with this section.
7.10 The arbitrators shall not have the authority to award exemplary,
punitive, consequential or special damages and each Party shall be
limited to the recovery of any actual damages sustained by it.
7.11 The number of arbitrators shall be three. One arbitrator shall be
nominated by each of the Parties and shall then agree on the
appointment of a third arbitrator, who shall be disinterested in the
dispute and shall have no connection with any Party.
7.12 All arbitrators shall be persons having relevant experience in the
minerals industry.
JOINT OPERATING AGREEMENT PAGE 11
--------------------------------------------------------------------------------
7.13 Unless the three arbitrators have been appointed within thirty (30)
days after the date on which either Party requests the settlement of
any dispute by arbitration pursuant to this Section, the London court
of International Arbitration shall appoint the three arbitrators
referred to above. The appointing authority may appoint from among
nationals of any country, whether or not a Party is a national of that
country.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES
8.1 The Parties represent and warrant to each of the other Parties that:
(a) it is a body corporate duly incorporated, organized and
validly subsisting under the laws of its incorporating
jurisdiction;
(b) it has full power and authority to carry on its business and
to enter into this Agreement;
(c) neither the execution and delivery of this Agreement nor the
consummation of the transactions hereby contemplated conflict
with, result in the breach of or accelerate the performance
required by any agreement to which it is a party;
(d) the execution and delivery of this Agreement does not violate
or result in the breach of its constating documents or of the
laws of any applicable jurisdiction; and
(e) this Agreement has been duly authorized by all necessary
corporate action of its directors and shareholders and
constitutes a legal, valid and binding obligation enforceable
against it in accordance with its terms.
ARTICLE 9
GENERAL
9.1 Further Assurances
Each of the Parties will from time to time execute and deliver all
further documents and instruments and do all acts and things as the
other Party may, either before or after the Closing Date, reasonably
require to effectively carry out or better evidence or perfect the full
intent and meaning of this Agreement.
9.2 Legal Fees
Each of the Parties hereto will pay their respective legal and
accounting costs and expenses incurred in connection with the
preparation, execution and delivery of this Agreement, and all other
documents and instruments executed pursuant hereto and any other costs
and expenses whatsoever and howsoever incurred.
JOINT OPERATING AGREEMENT PAGE 12
--------------------------------------------------------------------------------
9.3 Confidentiality
No Party shall disclose the making of this Joint Operating Agreement
nor its terms nor any other agreement referred to in this Joint
Operating Agreement (except those matters set out in the press release
in the agreed form) nor any details of each Parties mining plans and
activities which may be shared with the other Party in the performance
of this Joint Operating Agreement unless agreed in writing by the other
Parties (such agreement not to be unreasonably withheld) and each Party
shall procure that each of its Related Persons shall not make any such
disclosure without the prior consent of the other Parties unless
disclosure is:
(a) to its professional advisers; or
(b) required by law; or
(c) required by the rules or standards of any stock exchange,
securities regulator that a Party is a reporting issuer of or
such other regulatory body agreed between the Parties and
disclosure shall then only be made by that Party:
(i) after it has taken all such steps as may be
reasonable in the circumstances to agree the contents
of such announcement with the other Parties before
making such announcement and provided that any such
announcement shall be made only after notice to the
other Parties; and
(ii) to the person or persons and in the manner required
by law or the rules of the stock exchange, securities
regulator or or such other regulatory body or as
otherwise agreed between the Parties.
The restrictions contained in Article 9.3 shall apply without limit of
time.
9.4 Entire Agreement
This Agreement constitutes the entire agreement among the Parties with
respect to the subject matter hereof and cancels and supersedes any
prior understandings and agreements between the Parties hereto with
respect thereto.
9.5 Amendments and Waiver
No modification of or amendment to this Agreement will be valid or
binding unless set forth in writing and duly executed by all of the
Parties and no waiver of any breach of any term or provision of this
Agreement will be effective or binding unless made in writing and
signed by the Party purporting to give the same and, unless otherwise
provided, will be limited to the specific breach waived.
9.6 Assignment
No Party may assign this Agreement to another party.
JOINT OPERATING AGREEMENT PAGE 13
--------------------------------------------------------------------------------
9.7 Benefit of the Agreement
This Agreement will enure to the benefit of and be binding upon the
respective successors of the Parties.
9.8 Notices
Any demand, notice or other communication to be given in connection
with this Agreement must be given in writing by personal delivery or by
electronic means of communication addressed to the recipient as
follows:
(a) To PGR:
Prestea Gold Resources Limited
XX Xxx 000
Xxxxx Xxxxx
Attention: Chairman
Facsimile No.: x000 00 00 0000
(b) To BGL:
Bogoso Gold Limited
00 Xxxxxxxx Xxxx
Xxxxxxx Xxxxxxxxxxx
XX Xxx 00000, Xxxxxxx
Xxxxx Xxxxx
Attention: Managing Director
Facsimile No.: x000 00 00 0000
or to such other address, individual or electronic communication number
as may be designated by notice given by either Party to the other. Any
demand, notice or other communication given by personal delivery will
be conclusively deemed to have been given on the day of actual delivery
thereof and, if given by electronic communication, on the day of
transmittal thereof if given during the normal business hours of the
recipient and on the Business Day during which such normal business
hours next occur if not given during such hours on any day.
9.9 Governing Law
This Agreement is governed by and must be construed in accordance with
the laws of Ghana.
9.10 Attornment
For the purpose of all legal proceedings this Agreement shall be deemed
to have been performed in Ghana and the courts of Ghana will have
jurisdiction to entertain any action arising under this Agreement. Each
Party hereby attorns to the jurisdiction of the courts of Ghana.
JOINT OPERATING AGREEMENT PAGE 14
--------------------------------------------------------------------------------
9.11 Counterparts
This Agreement may be executed in any number of counterparts, each of
which will be deemed to be an original and all of which when taken
together constitute one and the same agreement.
9.12 Execution by Facsimile Transmission
Delivery of this Agreement by may be made by facsimile transmission. A
copy of this Agreement duly executed in several counterparts by the
Parties and delivered by facsimile transmission constitutes a valid and
binding Agreement.
9.13 Force Majeure
The obligations of the Parties will be suspended for the duration of a
Force Majeure event.
In witness whereof the Parties have executed this Agreement as of the date first
above written
BOGOSO GOLD LIMITED
By: /s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Chairman
By: /s/ Xxxxxxx Xxxx
-----------------------------
Name: Xxxxxxx Xxxx
Title: Managing Director
PRESTEA GOLD RESOURCES LIMITED
By: /s/ Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Chairman
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx
Title: Mine Manager and Director
