CONSENSUS MATTERS. 13.1 The Parties shall procure that, subject to 13.2, no decision may be taken or done by or in connection with the Company or Kibali without the unanimous consent of the Parties. 13.2 If either Party’s Percentage is 45% or less: 13.2.1 any action of the Company in respect of any matter that is not a Key Decision shall be decided by majority vote of the Company Board; and 13.2.2 no Key Decision may be taken or done by or in connection with the Company or Kibali without the unanimous consent of the Parties, which consent can be provided in writing or at a meeting of the Parties. 13.3 The Parties shall procure that none of the following actions may be taken or done by or in connection with the Company or Kibali without the unanimous consent of the Parties, which consent can be provided in writing or at a meeting of the Parties (“Key Decisions”): 13.3.1 any sale or disposal or encumbrance or hypothecation in any manner whatsoever of any of the Company’s or Kibali’s assets (subject to the provisions of the Kibali JVA), otherwise than in the ordinary course of business, in excess of a transaction value of US$2 million in respect of any one transaction, and in excess of an aggregate transaction value of US$5 million in any Financial Year; 13.3.2 any alteration or variation in the statutes of the Company or Kibali; 13.3.3 any change to the share capital structure of the Company or Kibali; 13.3.4 any change in the issued share capital of the Company or Kibali (except in the circumstances provided in clauses 12.11-12.15, in which case such consent shall be deemed to have been given); 13.3.5 the formation or acquisition of any subsidiaries of the Company or Kibali; 13.3.6 the entering into any agreement, the making of any offer or the granting of any right capable of becoming an agreement to allot or issue any shares of the Company or Kibali or the issue of any securities convertible into shares or debentures of the Company or Kibali or the issue of any warrants or options with respect to shares of the Company or Kibali; 13.3.7 the borrowing of any money (other than from the Company’s or Kibali’s bankers in the ordinary course of the Company’s or Kibali’s business, respectively) in excess of US$2 million in respect of any one borrowing, and in excess of US$5 million in the aggregate in any Financial Year; 13.3.8 the giving of any security (other than by operation of law) on the assets of the Company or Kibali, except for the purpose of securing any indebtedness incurred by the Company or Kibali, respectively, to its bankers in the ordinary course of its business; 13.3.9 the incurring of capital expenses which, in the aggregate, are in excess of US$5 million in any Financial Year; 13.3.10 the giving of any guarantee or indemnity to secure the liabilities or obligations of any person (other than a subsidiary of Kibali); 13.3.11 the taking of any steps to wind up or terminate the corporate existence of the Company or Kibali or to place it under judicial management (whether provisionally or finally); 13.3.12 the sale, lease, exchange or disposal of the entire undertaking or assets of the Company or Kibali or any substantial part thereof; 13.3.13 the entering into of any lease or licence, or agreement for, or in the nature of, a lease or licence as lessor or licensor, as the case may be, the aggregate value of which shall be in excess of US$5 million; 13.3.14 the entering into of a partnership or of any arrangement for the sharing of profits, union of interests, joint venture or reciprocal concession with any person; 13.3.15 any change in the identity of the bankers or auditors of the Company or Kibali; 13.3.16 any change in the year-end and/or the registered office of the Company or Kibali; 13.3.17 the entering into of any amalgamation, merger or consolidation with any other body corporate; 13.3.18 the amendment of the dividend policy of the Company or Kibali; 13.3.19 the approval of the Annual Budget, the Approved Programme, the Capital Budget and/or the Life of Mine Plan, and/or any material deviation therefrom; 13.3.20 the entering into of any contract by the Company or Kibali relating to the refining of gold, the treatment of gold ore, gold doré or any similar off-take contract or agreement; 13.3.21 the entering into of any contract by the Company or Kibali outside the ordinary course of the business of the Company or Kibali, respectively; 13.3.22 subject to clause 17.3 through clause 17.4, the appointment, removal or termination of the Operator; 13.3.23 the appointment and removal of the appointees of the Company to the Kibali Board; 13.3.24 the appointment by Kibali of the Chief Executive Officer, Chief Operating Officer or Chief Financial Officer of Kibali; 13.3.25 the conclusion and/or amendment of any agreement, other than the Operator Agreement; and 13.3.26 any further and/or other matter as shall be agreed between the Parties in writing from time to time. 13.4 The Parties acknowledge that, under the terms of section 19 of the Kibali JVA, in the event that OKIMO wishes to sell all or any part of its shares in Kibali, Moto has a preemptive right to purchase such shares. The Parties agree that in the event such preemptiv-e right is triggered they will promptly meet to determine whether the Company, through Moto, should exercise such preemptive right, and if they agree to exercise such right, shall take all necessary steps to acquire such shares.
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CONSENSUS MATTERS. 13.1 The Parties shall procure that, subject to 13.2, no decision may be taken or done by or in connection with the Company or Kibali without the unanimous consent of the Parties.
13.2 If either Party’s Percentage is 45% or less:
13.2.1 any action of the Company in respect of any matter that is not a Key Decision shall be decided by majority vote of the Company Board; and
13.2.2 no Key Decision may be taken or done by or in connection with the Company or Kibali without the unanimous consent of the Parties, which consent can be provided in writing or at a meeting of the Parties.
13.3 The Parties shall procure that none of the following actions may be taken or done by or in connection with the Company or Kibali without the unanimous consent of the Parties, which consent can be provided in writing or at a meeting of the Parties (“Key Decisions”):
13.3.1 any sale or disposal or encumbrance or hypothecation in any manner whatsoever of any of the Company’s or Kibali’s assets (subject to the provisions of the Kibali JVA), otherwise than in the ordinary course of business, in excess of a transaction value of US$US $2 million in respect of any one transaction, and in excess of an aggregate transaction value of US$5 million in any Financial Year;
13.3.2 any alteration or variation in the statutes of the Company or Kibali;
13.3.3 any change to the share capital structure of the Company or Kibali;
13.3.4 any change in the issued share capital of the Company or Kibali (except in the circumstances provided in clauses 12.11-12.11- 12.15, in which case such consent shall be deemed to have been given);
13.3.5 the formation or acquisition of any subsidiaries of the Company or Kibali;
13.3.6 the entering into any agreement, the making of any offer or the granting of any right capable of becoming an agreement to allot or issue any shares of the Company or Kibali or the issue of any securities convertible into shares or debentures of the Company or Kibali or the issue of any warrants or options with respect to shares of the Company or Kibali;
13.3.7 the borrowing of any money (other than from the Company’s or Kibali’s bankers in the ordinary course of the Company’s or Kibali’s business, respectively) in excess of US$2 million in respect of any one borrowing, and in excess of US$5 million in the aggregate in any Financial Year;
13.3.8 the giving of any security (other than by operation of law) on the assets of the Company or Kibali, except for the purpose of securing any indebtedness incurred by the Company or Kibali, respectively, to its bankers in the ordinary course of its business;
13.3.9 the incurring of capital expenses which, in the aggregate, are in excess of US$5 million in any Financial Year;
13.3.10 the giving of any guarantee or indemnity to secure the liabilities or obligations of any person (other than a subsidiary of Kibali);
13.3.11 the taking of any steps to wind up or terminate the corporate existence of the Company or Kibali or to place it under judicial management (whether provisionally or finally);
13.3.12 the sale, lease, exchange or disposal of the entire undertaking or assets of the Company or Kibali or any substantial part thereof;
13.3.13 the entering into of any lease or licence, or agreement for, or in the nature of, a lease or licence as lessor or licensor, as the case may be, the aggregate value of which shall be in excess of US$5 million;
13.3.14 the entering into of a partnership or of any arrangement for the sharing of profits, union of interests, joint venture or reciprocal concession with any person;
13.3.15 any change in the identity of the bankers or auditors of the Company or Kibali;
13.3.16 any change in the year-end and/or the registered office of the Company or Kibali;
13.3.17 the entering into of any amalgamation, merger or consolidation with any other body corporate;
13.3.18 the amendment of the dividend policy of the Company or Kibali;
13.3.19 the approval of the Annual Budget, the Approved Programme, the Capital Budget and/or the Life of Mine Plan, and/or any material deviation therefrom;
13.3.20 the entering into of any contract by the Company or Kibali relating to the refining of gold, the treatment of gold ore, gold doré or any similar off-take contract or agreement;
13.3.21 the entering into of any contract by the Company or Kibali outside the ordinary course of the business of the Company or Kibali, respectively;
13.3.22 subject to clause 17.3 through clause 17.417.7, the appointment, removal or termination of the Operator;
13.3.23 the appointment and removal of the appointees of the Company to the Kibali Board;
13.3.24 the appointment and/or the dismissal by Kibali of the Chief Executive Officer, Chief Operating Officer or Chief Financial Officer of Kibali;
13.3.25 the conclusion and/or amendment of any agreement, other than the Operator Agreement; and
13.3.26 any further and/or other matter as shall be agreed between the Parties in writing from time to time.
13.4 The Parties acknowledge that, under the terms of section 19 of the Kibali JVA, in the event that OKIMO wishes to sell all or any part of its shares in Kibali, Moto has a preemptive pre-emptive right to purchase such shares. The Parties agree that in the event such preemptivpre-e emptive right is triggered they will promptly meet to determine whether the Company, through Moto, should exercise such preemptive pre-emptive right, and if they agree to exercise such right, shall take all necessary steps to acquire such shares.
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