JOINT VENTURE AGREEMENT
THIS JOINT VENTURE AGREEMENT ("Agreement") is made the 29th day of August
1996.
BETWEEN:
GOLDEN PANTHER RESOURCES LIMITED ("Panther"), a company incorporated in the
Province British Colombia having its principal place of business at Suite 00X
- 0000 Xxxxxxx Xxxxxx, Xxxxxxxxx, X.X., Xxxxxx, X0X 0X0
AND:
P.T. PERTIWI KENCANA ABADI ("Pertiwill), a company incorporated in Indonesia
having its principal place of business at Wisma A.K.R. Xx 0, Xx. 000, Xx.
Xxxxxxxxxx, Xxxxx Jeruk, West Jakarta 11530, Indonesia (Hereinafter together
referred to as the "Parties" and separately as a "Party")
WHERE AS:
A. Pertiwi is wholly owned by Indonesian citizens and is the holder of
certain information pertaining to the mineral potential of the Contract Area.
B. Panther is a company incorporated in British Columbia, Canada, and has
expertise in mineral exploration, development and mining.
C. The Parties have agreed to cooperate for general survey, exploration,
development and exploitation of Minerals within the Contract Area described in
Schedule A.
D. Panther and Pertiwi intend to ask the Government of the Republic of
Indonesia to grant a Contract of Work in respect of the Contract Area, to
enable them to explore for, mine, treat and sell minerals in and from that
area and to carry out related activities.
E. The Parties have agreed to participate in the activities described in
Recital D in the following manner:
(a) by formation of a Project Company, the initial issued shares in which
shall be held by Panther as to 80% and by Pertiwi as to 20%.
(b) by causing the Project Company to execute and perform a contact of work;
and
(c) by subscribing for shares in, and making loans to, the Project Company;
F. The Parties have agreed to enter into this Agreement to regulate the
formation of the Project Company, their share holdings in it and the business
and affairs of the Project Company.
NOW THIS AGREEMENT WITNESSES AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATIONS
1.1 Definitions
In this Agreement, unless the context otherwise requires:
"Approval Date" means the date on which a draft COW for the Contract Area is
approved and initialed by the Parties and the Government;
"Articles" means the articles of association of the Project Company in such
form as the Parties may agree, as amended from time to time (and any reference
to an "Article" shall be a reference to that article of those articles of
association);
"Board" means the Board of Directors of the Project Company;
"Completion Date" means the date on which the Project Company certifies to the
Parties and to the third party Lenders to the Project Company (if any) that
the decision to proceed with construction of the mine and related facilities
to be operated by the Project Company in its mining in the Contract Area has
been approved by the Board of Directors;
"Commencement Period" means the period commencing on the date on which
approval is received from the Minister for the construction of a mine and
facilities to be used by the Project Company in the conduct of the Project
under Cow and ending on the Completion Date;
"Contract Area" 11 means the area described in Schedule A, and, upon grant
of the COW, shall have the meaning given to that expression in the COW
together with such additional land as the Parties may agree from time to time;
"COW" means a contract between the Government of the Republic of Indonesia
and the Project Company for exploration for and exploitation and development
of minerals in the Contract Area or part of it;
"Director" means a Director of the Project Company;
"Dividend" includes a bonus distribution in specie or in cash;
"Encumbrance" means any mortgage, pledge, lien, charge or other form of
security interest or interest in the nature of a security interest
whatsoever;
"Foreign Capital Investment Law" means the Foreign Investment Law No. I of
1967 of Indonesia as amended by Laws No. 11 of 1970 and Nols. 20 and 15 of
1994;
"Government" means the Government of the Republic of Indonesia and as the
context, may require the Department of Mines and Energy thereof;
"LIBOR" means, in relation to the amount of any loan, the London Inter Bank
Offered Rate for the United States Dollar in that amount determined on the
date on which the loan falls due to be made under Clause 5, or, if no such
rate is determined on that data, the most recent date on which such a rate
has been determined;
"Minerals" (and "minerals") means all naturally occurring deposits and
natural accumulations containing chemical elements of all kinds either in
elemental form or in association or chemical combination with other metallic
or non-metallic elements and, upon grant of the COW, shall have the meaning
given to that expression in the COW;
"Panther Shares means Shares held by Panther;
"Pertiwi Shares means Shares held by Pertiwi;
"Pledge of Shares Agreement" means the Pledge of Shares Agreement to be
executed by Panther and Pertiwi in a form agreed between the Parties;
"Project" means the exploration for and, if so decided, mining and treatment
of Minerals in the Contract Area, the sale of those minerals and such
related activities as may be required or permitted to be carried out under the
COW;
"Project Company" means the company to be formed pursuant to Clause 3.1;
"Related Corporation" means, in relation to a Party, a corporation (wherever
incorporated) which controls, is controlled by or is under common control
with that Party, where "control" means the power, whether held directly or
indirectly and whether with or without the concurrence of any other person
or corporation;
(a) to control the composition of the board of directors of a corporation;
(b) to cast or to control the casting of, more than one-half of the maximum
number of votes that might be cast at a general meeting of a corporation; or
(c) to hold more than one-half of the issued share capital of a corporation.
"Security Documents" means the documents listed in Clause 5.6(b) and any
other documents which are executed pursuant to Clauses 5.5(c) or (d);
"Share" and "Shares" means the share and shares of the capital of the
Project Company;
"Shareholder Loan 11 means, in relation to a Party, a loan to the Project
Company made by that Party or on behalf of that Party pursuant to this
Agreement;
"Shareholder Loan Agreement." means, with respect to either Party, the
agreement pursuant to which that Party's Shareholder's Loan are made, and
which is to be in the form agreed between the Party and the Project Company;
"Specified Percentage" means, subject to Panther exercising its right under
Clause 5.16, for Panther 80% and Pertiwi 20% or, if any Shares are
Transferred or new Shares are issued in accordance with this Agreement and the
Articles, the proportion of which a Party's paid-up capital bears to the total
paid-up capital of the Project Company, expressed as a percentage;
"Subscription Loan Agreement" means an Agreement to be executed by Panther
and Pertiwi in the form consistent herewith and otherwise as agreed between
the parties; and
"Transfer" means, in relation to a Share, entering into a transaction in
relation to the Share (or any interest therein), other than a transaction
permitted by this Agreement or the Articles, which results in a person other
than the registered holder of that Share,
(a) Acquiring any interest in that Share, including, but not limited to, an
option agreement or an agreement creating a pledge or other security
interest in respect of that Share; or
(b) Acquiring any right to receive directly or indirectly any dividends
payable in respect of that Share; or
(c) Acquiring any right of pre-emption, first refusal or like control over
the disposal of that Share; or
(d) Acquiring any rights of control over the exercise or any voting rights
or rights to appoint Directors attaching to that Share; or
(e) holding an encumbrance over that Share; or
(f) otherwise acquiring rights against the registered holder of that Share
which.have the effect of placing the person in the same position as would
exist if the person had acquired an interest in that Share itself, and
"Transferor", "Transferee" and "Transfer" have corresponding meanings.
1.2 Interpretation
In this Agreement, unless the context otherwise requ ires:
(a) the symbol 11$11 or the expression '"dollars" means the lawful currency
of the United States of America and the symbol "Rp" or the expression
"Rupiah" means the lawful currency of the Republic of Indonesia;
(b) a reference to any law or regulation or to any provision thereof
includes any modification or re-enactment thereof or any provision
substituted therefor and all statutory instruments issued thereunder;
(c) a word denoting the singular includes the plural and vice ver I sa,
(d) a word denoting an individual includes a corporation and vice versa;
(e) a reference to a Clause or Schedule is a reference to a Clause of or
Schedule to the Agreement;
(f) a reference to any document or agreement, including this Agreement,
includes a reference to that document or agreement as amended,
annotated, supplemented, varied or replaced from time to time;
(g) a word denoting any gender includes all genders; and
(h) a reference to any Party to this Agreement or any other document or
agreement includes its successors or permitted assigns.
1.3 Headings
The headings to Clauses or Schedules are for the purpose of convenient
reference only and do not form part of this Agreement or affect its
interpretation
2. THE CONTRACT OF WORK
2.1 Negotiations for COW
(a) The Parties have agreed to jointly apply for, at the discretion of
Panther, to the Government for the offer of a COW to the Project Company in
relation to the Contract Area and each of the Parties shall provide promptly
such documents as may be required in order to make that application. Panther
shall provide the draft work program.
(b) The Parties shall jointly conduct negotiations with the Government in
relation to the terms and conditions of the COW, shall consult fully with
each other and shall endeavor to obtain from the Government the most favorable
terms reasonably possible.
(c) Each of the Parties shall do all things reasonably within their
respective powers to ensure that the COW is approved, initialed and formally
offered to the Project Company as soon as practicable after the date of this
agreement.
2.2 If Application Unsuccessful
If the COW is not offered to and initialed by the Project Company within two
years after the date of application then Panther, if it so wishes, may
terminate this Agreement at any time thereafter (prior to the. Approval
Date) by giving 15 days prior notice to Pertiwi. Upon such termination,
Panther shall be entitled to a full refund of all bonds and deposits lodged
with the Government in connection with the application for the COW.
2.3 Independent Activities
Nothing in this Agreement shall preclude either Party or any of its Related
Corporations from applying for contracts of work or other exploration or
mining permits or authorizations in respect of areas outside the Contract
Area, either alone or in conjunction with third parties.
2.4 Interim Operations/Joint Venture
If so required, the Project Company may apply for Preliminary Survey Permits
("SIPPs") to conduct general exploration and survey work in the Contract
Area during the period between the Approval Date and the Commencement Date and
Pertiwi shall provide all reasonable assistance in relation to such
applications. Any deposit required for such application will be paid by
Panther and will be returned in full to Panther upon its maturity. Until
such time as the Project Company is formed, the Parties shall act as a joint
venture in all matters contemplated by this Agreement in the manner
specified in Clause 3.3.
2.5 Delivery of Data
Pertiwi agrees to deliver to Panther all geological data and information
relating to the Contract Area which is in its possession or under its
control.
2.6 Expenses
All proper and reasonable expenses covered by budgets approved in advance by
Panther incurred by a Party in relation to the application for and
negotiation of the COW and formation of the Project Company (other than those
specifically reimbursed under other provisions of this Agreement) shall be
treated as expenses of the Project Company and shall be reimbursed to the
Parties incurring such expenses as soon as practicable after formation of the
Project Company.
2.7 Notarial Fees and Other Expenses
The Project Company shall bear all legal and notarial costs and stamp duties
incurred in respect of this Agreement and the Articles and all expenses for
registration and publication of the Deed of Establishment in the Indonesian
State Gazette
3. FORMATION OF PROJECT COMPANY
3.1 Incorporation
As soon as practicable after the Approval Date the Parties will procure the
incorporation of a new limited liability company (the "Project Company")
under the Foreign Capital Investment Law as follows:
(a) the name of the Project Company shall be as agreed between the Parties;
(b) the Articles of Association of the Project Company shall be in the form
agreed between the Parties; and
(c) the authorized capital of the Project Company shall be as determined by
Panther, subject only to the Government's Investment Approval in the event
the Project Company, at Panther's option, is incorporated under the Foreign
Investment law as a PT PMA Company;
(d) the liability of the Members of the Project Company shall be limited.
3.2 Subscription of Shares
on formation of the Project Company, each of the Parties shall subscribe
and pay in the manner herein provided for those Shares which are set out below
against its name and the Parties shall procure the Project Company to so
issue such Shares;
Panther: that number of Shares which equals 80% of the initial issued
capital of the Project Company.
Pertiwi: that number of Shares which equals 20% of the initial issued
capital of the Project Company.
3.3 Prior to Approval of Deed of Establishment
(a) In addition to the provisions of this Agreement, which shall be
applicable to the Parties as of the execution hereof, as of the execution of
the Deed of Establishment of the Project Company, the relationship between
the Parties shall also be governed by the Articles of Association.
(b) Prior to the approval of the Deed of Establishment by the Minister of
Justice:
(i) any references to shareholders shall be applicable to the Parties
as founders and joint venturers and any references to meetings of
shareholders shall mean the meeting of the Parties as founders and
joint venturers)
(ii) any references herein to the Board of Directors ("Directors") and
its members shall be applicable to the person appointed in the Deed of
Establishment or otherwise designated as Directors and its members, who
shall then act as managers, and jointly as a board of management, handling
the
affairs of the joint venture contemplated hereby and the Project Company
having the same function as the Directors and its members according to this
Agreement and the Deed of Establishment;
(iii) unless otherwise provided hereunder and to the extent the
contents of this Agreement and the Deed of Establishment as agreed cannot be
made applicable, prior to the approval of the Deed of Establishment by the
Minister of Justice the provisions of Indonesian law concerning partnerships
acting under a joint name (persekutuan firma) shall supplement the
relationship between the Parties contemplated hereunder.
are subsisting.
3.5 Directors
(a) The Project Company shall be managed by a Board of Directors consisting
of not less than 5 members, 4 of whom shall be appointed on the
nomination of Panther and 1 shall be appointed on the nomination of
Pertiwi.
(b) The appointment of Directors of the Project Company, the rights and
duties of the Directors and the Board and the procedures for calling and
holding meetings of the Shareholders and the Board shall be as set out in
the Articles.
(c) Each Director shall have one vote and all decisions of the Board shall
be made by simple majority.
(d) All meetings of the Board of Directors may be validly held by telephone
conference call.
(e) The parties shall cause the General Meeting of Shareholders that elects
members of the Board of Directors to elect the person named by those
shareholders entitled to nominate persons for the position concerned
3.6 President Director
Panther shall be entitled to nominate the President Director of
the Project Company.
3.7 Commissioners
(a) The Board of Commissioners shall be comprised of 3 persons.
(b) Panther shall be entitled to nominate 2 members including the President
Commissioner and Pertiwi shall be entitled to nominate 1 member.
(c) Panther shall cause the General Meeting of Shareholders that elects
members of the Board of Commissioners to elect the person named by
those entitled to nominate persons for the position concerned.
3.8 General Meetings of Shareholders
The quorum for General Meetings of Shareholders of the Project
Company shall be one or more Shareholders holding at least 55% of the issued
and paid-up Shares. All General Meetings of Shareholders may be validly held
by telephone conference call.
3.9 Participation by Indonesian Citizens
If it is a term of the COW or if there should be at any time a
requirement of the Government for the participation in the Project or in the
Project Company of Indonesian citizens or companies owned entirely or
controlled by Indonesian citizens in addition to the participation by
Pertiwi then:
(a) Panther shall have the absolute right to determine the timing and manner
in which Panther and/or the Project Company will comply with such
obligation, which may include (without limitation):
(i) the Transfer of Shares by Panther or issue of new Shares to a
qualified party selected by Panther;
(ii) the Transfer of Shares by Panther or issue of new Shares to a
qualified venture capital; or
(iii) the listing of all or part of the Project Company's
capital
on an Indonesian stock exchange;
(b) subject to Clause 3.9(c), Pertiwi agrees to provide all reasonable co-
operation in relation to the arrangement determined by Panther under
Clause 3.9(a) provided that Pertiwils Specified Percentage is not reduced
as a consequence of the issue of new Shares;
(c) subject to Clause 5, nothing in Clause 3.9(b) shall require Pertiwi to
subscribe and pay for any new Shares or to accept a Transfer of Shares from
Panther;
(d) if Panther proposes to list any of its Shares in the Project Company, or
any new Shares on a stock exchange, then Pertiwi shall be entitled to
participate pro rata in such listing provided it bears a portion of the
costs and fees concerned which is proportionate to its percentage of the
Shares to be listed; and
(e) if, pursuant to Clause 3.9(d), Panther requires all or any of the Shares
in the Project Company to be listed, then Pertiwi will consent to the
listing of its Shares provided that no expenses of listing are required to be
paid by Pertiwi.
3.9 Director's Fees
The Parties acknowledge and agree that Directors shall be paid such fees
or remuneration if employed by the Project Company as the Board of Directors
may determine from time to time,
4. PROGRAMS AND BUDGETS
4.1 President Director to Prepare
The President Director designate of the Project Company shall prepare
annual programs and budgets for the conduct of the Project during each
calendar year and shall deliver them to the Board of Directors for
consideration and approval:
(a) in the case of the first partial calendar as soon as practicable; and
(b) in respect of each other calendar year, at least 60 days before its
commencement.
4.2 Supplementary Program and Budget
The President Director may at any time, and shall, if so directed by the
Board of Directors prepare and submit to the Board of Directors
supplementary, revised or special purpose programs and budgets.
4.3 Board to Consider and Approve
The Parties shall cause the Board of Directors of the Project Company to
meet and vote upon each program and budget submitted to it under Clause 4.1
or 4.2 prior to its specified date for commencement.
4.4 Quality of Performance
Panther shall use reasonable efforts to ensure that the programs and
budgets prepared and approved under Clauses 4.1 or 4.2 and 4.3 are
professionally prepared and carried out and comply reasonably with the
requirements of the COW, and Panther shall keep Pertiwi fully informed on
the progress of the Project.
4.5 Jakarta Office Expenses
Panther's Jakarta office expenses (if any) related directly to the
Project shall be charged to the Project Company, but if Panther carries out
work in relation to more than one COW then those expenses will be
apportioned by Panther annually to all such COW's in which Panther is
interested, and shall be charged to the relevant projects accordingly.
4.6 Assistance by Pertiwi
Pertiwi will assist Panther and the Project Company whenever reasonably
requested in any matter relating to the Project and any major or significant
costs incurred by Pertiwi in doing so and which are approved in advance in
writing by Panther shall be reimbursed by the Project Company.
5. FINANCE
5.1 Equity and Debt
Subject to Clause 5.5 and 5.8, the operations of the Project Company
shall be financed by way of additional Shares to be subscribed and paid for
by the Parties and by way of shareholder Loans from the Parties, at such times
and in such amounts as may be determined from time to time under the
Articles and this Agreement.
5.2 Contributions
Each of the Parties agrees, subject to Clause 5.5:
(a) to subscribe and pay for additional Shares; and
(b) to make Shareholder Loans to the Project Company in its Specified
Percentage, so that the respective.Share holdings and Shareholder Loan
accounts of the Parties stand at all times in the proportion that their
Specified Percentages now bear to each other.
5.3 Shareholder Loans
All Shareholder Loans shall be made on the terms of Shareholder Loan
Agreements.
5.4 Payments
All payments by the Project Company of interest and expenses and
repayments of principal under Shareholder Loan Agreements shall be made
ratably between the Shareholder Loan Agreements, according to the Parties,
respective Specified Percentages.
5.5 Financing of Pertiwi Obligations
Panther agrees that it will fund all of Pertiwils obligations under this
Agreement to subscribe for Shares or to make Shareholder Loans which shall
be made ratably between the Shareholder Loan Agreements, according to the
Parties' respective Specified Percentages, provided that:
(a) all amounts so advanced by Panther on Pertiwils behalf to the
Project Company shall bear interest at 2% over LIBOR;
(b) amounts advanced by Panther shall be applie d by Pertiwi
exclusively in satisfaction of inertia obligations under this Agreement
to pay for Shares and to make Shareholder Loans;
(c) all payments of interest and repayments of principal due by
the Project Company under the Shareholder Loan Agreement between the
Project Company and Pertiwi shall be paid directly to Panther. If it is
necessary to withhold or deduct any amounts from the payment of such
interest by Pertiwi, in accordance with Indonesian Income Tax Law,
Pertiwi shall pay such further amount as is necessary to ensure Panther
receives the amount it would have received had no such withholding or
deduction been made;
(d) Pertiwi shall assign to Panther the right to receive 80% of all
dividends paid in respect of the Pertiwi Shares, and those dividends
shall be the sole source of funds for repayment of advances or loans
made by Panther to Pertiwi under the Subscription Loan Agreement
otherwise than in the event of default by Pertiwi; and
(e) subject to Clause 5.8, Pertiwi shall grant to Panther such security over
the Pertiwi Shares in the Project Company as Panther reasonably requires
to secure payment of all amounts outstanding from time to time under the
subscription Loan Agreement.
5.6 Documentation
The Parties agree that:
(a) Immediately prior to formation of the Project Company they will enter
into the Subscription Loan Agreements;
(b) Pertiwi shall execute the following documents:
(i) Assignment of Dividends Agreement;
(ii) Pledge of Shares Agreement;
(iii) Power of Attorney to sell;
(iv) In relation to each advance under the Subscription Loan
Agreement, an Acknowledgment of Indebtedness in notarial deed
form; and
(v) Power of Attorney to vote;
in the form agreed between the Parties;
(c) Panther shall not be entitled to exercise its powers under the Power of
Attorney referred to in Clause 5.6(b)(iii) except upon the occurrence of
an Event of Default (as such term is defined in the Subscription Loan
Agreement) or an event which, with the lapse of time or giving of notice
or both, would constitute such an Event of Default;
(d) Panther shall not be entitled to exercise its power of sale under the
Power of Attorney referred to in Clause 5.6(b)(iii) except to a bona
fide purchaser at arm's length; and
(e) upon satisfaction of all of Pertiwils obligations under the Subscription
Loan Agreement) Panther shall return the documents referred to in Clause
5.6(b) to Pertiwi and cause all related obligations of Pertiwi to be
discharged and terminated.
5.7 Acknowledgement ant and Undertaking
Pertiwi acknowledges that in the event that Panther has not exercised
the option set out in Clause 5.16 to purchase Pertiwils Specific Percentage
before the Completion Date then Pertiwi is required to fund from its own
resources or financiers all obligations under Clause 5.2 in respect of the
period after the Completion Date.
5.8 External Finance
The Parties agree that the Project Company may seek third party
financial assistance and loans for the conduct of any part of the Project
including in particular the construction of a mine and related facilities,
as and when feasible and on such terms and conditions as the Board shall
decide, and if such financing is obtained and the lenders so require:
(a) Pertiwi shall grant to the lenders or as they direct such security over
its Shares and its full entitlement to dividends from the Project Company as
those lenders require, and;
(b) Panther shall enter into such arrangement with those lenders to cause
its rights under Clause 5.5 and 5.6'to be subordinated to the right of the
lenders without constituting any default on the part of Pertiwi in relation
to those rights,
5.9 Failure to Comply
If Pertiwi fails to comply with any of its obligations under this
Agreement;
(a) if such failure occurs prior to release of the security granted by the
Security Documents, Panther may freely exercise its rights under the
Security Documents; or
(b) if such failure occurs in respect of Pertiwi funding obligations under
Clauses 5.2 and 5.7 after the Completion Date, Panther may give to
Pertiwi notice of such failure and if such failure is not remedied
within 30 days of the date of such notice, then Panther shall have the
right to cause the Pertiwi Shares in the Project Company to be sold and
the proceeds applied as follows:
(i) first, in satisfaction of costs and expenses of the sale;
(ii) second, in satisfaction of all amounts (if any) owing by Pertiwi
to third parties holding security over the Pertiwi Shares;
(iii) third, in satisfaction of all amounts (if any) paid by Panther
on account of Pertiwi or which are owing by Pertiwi to Panther under
this Agreement or the Articles or any document executed pursuant
to this Agreement; and
(iv) fourth, in satisfaction of all amounts (if any) owned by Pertiwi
to the Project Company.
5.10 Power of Attorney
Pertiwi hereby grants an irrevocable power of attorney to Panther in
addition to the appointment contemplated under Clause 5.6(b)(iii) to sell
Pertiwils Shares in the Project Company, but only in the circumstances
described in Clause 5.9(b).
Panther acknowledges that its rights under such power of attorney will
not be exercised except in the circumstances described in Clause 5.9(b) and
that it shall not be entitled to exercise its power of sale under such power
of attorney except to a bona fide purchaser at arms length.
5.11 Timing
Each of the Parties shall subscribe and pay for Shares or make the
Shareholder Loans required to be made by it to the Project Company, as the
case may be, within 30 days of written request by the Board or the President
Director acting in its behalf.
5.12 No Other Financial Arrangements
Neither of the Parties shall provide any loan or share capital to the
Project Company, give any guarantee or indemnity in respect of the Project
Company's liabilities or obligations or provide any other form of financial
accommodation to the Project Company except as specifically provide in this
Agreement or as otherwise agreed by the Parties.
5.13 Compliance with Laws of Indonesia
The Parties. shall procure that the respective amounts of debt and
equity capital of the Project Company are at all times in accordance with
applicable laws of the Republic of Indonesia. Capitalization of any
Shareholder Loans to the Project Company shall be effected by issuing Shares
in the Project Company to the Parties in their Specified Percentages as and
when the lending party so agrees.
5.14 Debt to Equity Ratio
Subject to Clause 5.13, thedebt to equity ratio of the Project Company
shall be as determined by Panther from tune to time.
5.15 Repayments
Unless the Parties agree otherwise, the Project Company shall apply,
adopt and follow the policy of repaying all Shareholder Loans and loans from
third parties as contemplated hereby from funds available to the Project
Company as soon as practicable and in priority to the payment of any
dividends.
5.16 Option to Purchase Pertiwi Shares
Pertiwi agrees and warrants that Panther has the exclusive right to
purchase Pertiwils Specified Percentage of 10% in the Project Company at any
time up to the Completion Date and that Pertiwi will assist In all matters
relating to expedition of this purchase by Panther. This right shall be
exercised by written notification to Pertiwi by Panther and by payment
within 14 days of the issuance of such notification of $5 million to Pertiwi
by Panther.
6. TRANSFERS
6.1 Pertiwi Not to Transfer its Shares
Pertiwi shall not transfer the Pertiwi Shares unless it has first
offered to transfer such Shares to Panther in accordance with the procedures
set out in Clause 6.3.
6.2 Transfer by Panther
Panther shall have the right to transfer to any party all or any of:
(a) the Panther Shares;
(b) its rights and interests under this Agreement provided that the
transferee shall assume all or any of its obligation under this
Agreement.
6.3 Pre-emptive Rights
(a) If Pertiwi receives a bona fide offer from a third party who is an
Indonesian national or a legal entity owned by Indonesian nationals for
all or any number of the Pertiwi Shares and Pertiwi wishes to accept
that offer and to transfer all or any of such Shares to that third party
it shall notify Panther accordingly, stating; for all or any number of
the Pertiwi Shares and Pertiwi wishes to accept that offer and to
transfer all or any of such Shares to that third party it shall notify Panther
accordingly, stating:
(i) the number of Pertiwi Shares for which it wishes to accept the
offer,
(ii) the proposed price per share (which shall be cash consideration
only);
(iii) the name of the proposed transferee; and
(iv) all other terms conditions of the offer concerned
(b) A notification given under Clause 6.3(a) shall constitute an offer to
Panther by Pertiwi for the sale of that number of Pertiwi Shares
referred to in the notification at the price and on any other terms and
conditions specified in the notification. The offer to Panther shall be
irrevocable for a period of sixty (60) days from the date on which it is
received by Panther.
(c) Panther may personally accept an offer made under Clause 6.3(b) or it
may accept the offer on behalf of a nominated person provided that such
person is qualified under the laws of Indonesia to hold all or part of
the Pertiwi Shares.
(d) If an offer made under Clause 6.3(b) is not accepted within the period
of sixty (60) days referred to in Clause 6,3(b) Pertiwi may at any time
within a further period of one-hundred and twenty (120) days from the
expiration of the period of sixty (60) days accept the offer referred to
in Clause 6.3(a) or accept another offer at a higher price.
6.4 Completion
If Panther transfers any of the Panther Shares or Pertiwi transfers any
of the Pertiwi Shares under and in accordance with the terms and provisions
of this clause 6, the Parties shall do all things necessary (including the
passing of resolutions at a General Meeting of Shareholders of the Project
Company) to ensure that the transfer concerned is completed in accordance
with its terms and that the transferee is recorded in the register of the
Project Company as the holder of the Shares concerned.
6.5 Board Approval
The Parties shall cause the Board to refuse to register any transfer of
Shares in the Project Company which:
(a) does not comply with the procedures set out by the Board ox required in
this Agreement and the Articles for the transfer of Shares;
(b) is not accompanied by a deed (if so required) executed pursuant to
Clause 6.6;
(c) in the opinion of the Board would result In the Project Company being in
breach of any of the provisions of the COW or the general law in
relation to the ownership of Shares; or
(d) is not accompanied by an assignment and assumption of all or a
corresponding proportion (as the case may be) of the rights and
obligations of the transferor in respect of Shareholder Loans made by
the transferor to the Project Company.
6.6 Assumption Deed
Any transfer of Shares, if the xxxxxxxxx.xxxxx so requires, -shall be
conditional upon the transferee entering into a deed with the remaining
party (in a form satisfactory to it) under which transferee covenants to
observe and perform the obligations of the transferor under this Agreement,
the transferor's rights and obligations in respect of its Shareholder Loans
and, in the case of a transfer by Pertiwi, the obligations of Pertiwi under
the Subscription Loan Agreement.
6.7 Waiver of Article 8.2
The Parties agree that the provisions of Article 8.2 of the Articles of
Association shall not apply to transfers by either of the Parties or by
their respective successors or assigns (but the Parties acknowledge that, in
the case of Pertiwi, the procedures in this Clause 6 shall apply) and
accordingly each of the parties irrevocable waives its pre-emptive rights
under that Article.
7. WARRANTIES
7.1 Indonesia Indonesian ownership
Pertiwi represents and warrants that it is a company controlled by
Indonesia citizens and that it shall so remain for as long as it holds any
Shares, unless Panther otherwise agrees. If at any time Pertiwi ceases to be
controlled by Indonesian citizens, Panther shall be entitled to require
Pertiwi to transfer to Indonesian nationals designated by Panther all or
some of its Shares in whatever manner and in whatever numbers Panther
reasonably consider necessary to ensure that the obligations of the Project
Company under the provisions of the COW, the general laws and any
requirements of the Government are satisfied.
7.2 Warranties by Panther
Panther represents and warrants that:
(a) it is duly incorporated and validly existing under the laws of the
province of British Columbia and has all requisite powers to own property,
to bind itself in the manner contemplated by this Agreement and to execute,
deliver and perform this Agreement; and
(b) this Agreement has been validly executed and delivered by it and
constitutes the valid, binding and enforceable obligations of Panther in
accordance with its terms.
7.3 Warranties by Pertiwi
Pertiwi further represents and warrants to Panther that:
(a) it is a duly incorporated and validly existing under the laws of the
Republic of Indonesia and has all requisite powers to own property, to
bind itself in the manner contemplated by this Agreement and to execute,
deliver and perform this Agreement; and
(b) this Agreement has been Validly executed and delivered by it and
Warranties by Pertiwi constitutes the valid, binding and enforceable
obligations of Pertiwi in accordance with its terms.
7.4 Undertaking
Pertiwi undertakes to Panther that neither Pertiwi nor any of its
Shareholders, Directors or commissioners nor any person or company which is
related or associated, directly or indirectly, with any of those persons
will take any step to apply for or hold an interest in any mining
authorization, SKIP, SIPP, or any other permit or authorization relating to
prospecting or exploration for, or mining or treatment of, Minerals within a
distance of 20 km of the boundaries of the Contract Area during term of this
Agreement without the express prior approval of Panther.
8. THE ARTICLES
8.1 This Agreement Override Articles
The Parties acknowledge that it is their intention that the provisions
of this Agreement should override the Articles in the event of inconsistency
and each of the Parties agrees to exercise its rights and comply with its
obligations with respect to the Project Company in accordance with its
obligations under this Agreement. The Parties further agree that if any
inconsistency exists between the Articles of Association and this Agreement
they will take all action which may be necessary to carry out the intentions
of the Parties as expressed in and in accordance with the terms of this
Agreement.
8.2 Voting Rights
Each Party Undertakes with the other:
(a) to exercise all votes powers and rights pursuant to the Articles so as
to give full force and effect to the provisions and intentions of this
Agreement; and
(b) subject to Clause 8.1 to observe and comply fully and promptly with the
provisions of the Articles to the Intent and effect that each and every
provisions thereof shall be enforceable.
8.3 Alteration of the Articles
If it should be necessary that, in order for any provision of this
Agreement to be effective in accordance with its terms, that provision
should be included in the Articles or any alteration must be made to the
Articles, the Parties will cause the amendment of the Articles accordingly,
9. INFORMATION, CONFIDENTIALITY & PUBLIC ANNOUNCEMENT
9.1 Confidential Information
The Parties agree to keep the provisions of this Agreement confidential
and shall not disclose to any person this Agreement or information
concerning the Project and the Project Company other than
(a) subject to clause 9.4, if and to the extent required by law or pursuant
to any necessarily applicable legislation or pursuant to the rules or
regulations of a recognized stock exchange applicable to the disclosing
Party or its Related Corporations,
(b) to a financial institution in connection with any financial
accommodation sought to be arranged by Panther or the Project Company for
purposes directly related to the Project and to a bona fide relevant
Transfer is permitted under this Agreement, but such disclosure shall only be
made for the purposes of satisfying such institution or potential Transferee
as to the value and commercial viability of the Project and those Shares or
as to the disclosing Party's rights under this Agreement;
(c) to independent consultants and contractors of either of the Parties or
of the Project whose duties in relation to the Project reasonably require
such disclosure;
(d) In court proceedings as required by a court having Jurisdiction over the
Parties or over matters contemplated by this Agreement;
(e) to the Government, if and to the extent required under the COW; and
(f) to the Project Company, but only insofar as such information relates to
the Project.
9.2 Public announcements and statements relating to the Project Company, the
Project or this Agreement, including statements to the Patties, respective
Shareholders, whether contained in an annual report or made at a general
meeting or otherwise shall only be issued by or with the prior written
consent of Panther.
9.3 Covenants
(a) Any disclosure pursuant to Clauses 9.1(c) and (d) shall only be made
subject to the person to whom disclosure is made covenanting with the
Parties that the information concerned shall not be disclosed to any other
person for any purposes whatsoever.
(b) In the case of disclosure to a Related Corporation employees or employee
of a Related Corporation pursuant to Clause 9.1(a) the disclosing Party
shall take reasonable steps to ensure that such Related Corporation or
employee does not breach the provisions of this Clause 9 which would be
binding on it if it were a Party to this Agreement.
(c) In the case of disclosure pursuant to Clause 9.1(b) and (f) the
disclosing Party shall take reasonable steps to preserve the confidentiality
of the information disclosed.
(d) The Parties shall use all reasonable efforts to agree upon the manner of
disclosure to the Government under Clause 9.1(e).
9.4 Obligations to Remain Binding after Withdrawal
The provisions of this Clause 9 shall continue to hind each of the
Parties notwithstanding that it may have ceased to be a Shareholder in the
Project Company or a Party to this Agreement until a date 2 years after the
termination of this Agreement or its ceasing to be a Shareholder, as the
case may be, whichever occurs first.
10. DURATION AND TERMINATION
10.1 Termination by Agreement
This Agreement shall continue in full force and effect until:
(a) a Party transfers all of its Shares to the other Party or its nominee in
accordance with this Agreement;
(b) it is terminated by written agreement between the Parties;
(c) cessation of the activities under the COW and the compliance with all
outstanding obligations under the COW to the satisfaction of and at the
direction of the Government;
(d) the dissolution of the Project Company;
(e) at the option of Panther a notification is received by either Party that
the Government has disallowed the application for the COW;.and
(f) a notification is received by Pertiwi from Panther, that Panther wishes
to terminate this Agreement at any time up to the Commencement Date,
whichever occurs first.
10.2 Waiver
Each of the Parties hereby waives the provisions of Article 1266 of.the
Indonesian Commercial Code which could otherwise require an order of a court
in order that this Agreement be terminated.
10.3 Confidentially obligations to Continue
Neither the termination of this Agreement' however caused, nor a Party
ceasing to hold any shares shall prejudice any obligation or rights of
either of the Parties under Clause 9 or which have accrued prior to such
termination or cessation nor shall it affect any provision of this Agreement
which is expressly or by implication provided to come into effect on or to
continue in effect following such termination or cessation.
11. FORCE MAJEURE
11.1 Suspension
Subject to Clause 11.3 where a*Party is unable, wholly or in park by
reason of force majeure, to carry out any obligations under this Agreement
and that Party gives the other Party prompt notice of that force majeure with
reasonably full particulars thereof and, so far as known, the probable
extent to which it will be unable to perform or be delayed in performing, that
obligation shall be suspended so far as it affected by the force majeure
during the continuance thereof.
11.2 Removal of Force Majeure
Each of the Parties agrees to use all reasonable diligence to remove an
event of farce majeure as quickly as possible.
11.3 Force Majeure Continues
If, after a period of six months, the force majeure has not ceased, the
Parties shall meet in good faith to discuss the situation and endeavor to
achieve a mutually satisfactory resolution to the problem.
11.4 The requirement that any force majeure shall be removed with all
reasonable diligence shall not require the settlement of strikes, lockouts
or other labor disputes, or claims or demand by any government, on terms
contrary to the wishes ofthe Party affected.
11.5 Definition of "Force Majeure"
In this Agreement "force majeure" means:
(a) in relation to an obligation to pay money, the direction, act or
restraint of any government; and
(b) in any other case, an act of God, strike lockout or other interference
with work, war declared or undeclared, blockade, disturbance, lightning,
fire, earthquake, storm, flood, explosion, governmental or quasi-governmental
restraint, expropriation, prohibition, intervention, direction or embargo,
unavailability or delay in availability of equipment or transport, inability
or delay in obtaining government or quasi governmental approvals, consents,
permits, licenses, authorities or allocations, and any other cause whether
of the kind specifically enumerated above ox otherwise which is not reasonably
within the control of the Party affected.
12. FURTHER ASSURANCES
The Parties shall do, execute and perform all such further deeds,
documents, assurances, acts and things as either of the Parties may
reasonably require-by notice in writing to the other to carry the provisions
of this. Agreement into full force and effect.
13. ENTIRE AGREEMENT
13.1 Prior Agreements Superseded
Except as expressly agreed in writing by the Parties, this Agreement
constitutes the entire agreement between the Parties with respect to the
matters dealt with herein and supersedes any previous agreement between the
parties in relation to such matters.
13.2 No Additional Warranties
Each of the Parties hereby acknowledges that in entering into this
Agreement it has not relied on any representation or warranty of the other of
or any of its Related Corporations or of any person on its behalf save as
expressly set out in this Agreement or in any document referred to herein.
14. NO PARTNERSHIP
Nothing contained in this Agreement shall be read or construed so as
constitute the relationship of principal and agent or of partnership between
the Parties. Neither of the Parties may pledge or purport to pledge the
credit of or bind contractually the other Party or make or purport to make
any representation, warranties or undertaking for the other Party.
15. VARIATIONS
No amendments to this Agreement shall be valid and binding upon the
Parties unless made in writing any duly executed by the Parties,
16. WAIVER
No failure to exercise and no delay in exercising on the part of either
of the Parties any right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or partial exercise of any right, power
or privilege preclude any other or further exercise thereof or the exercise of
any other right, power or privilege. The rights and remedies provided in
this Agreement are cumulative and not exclusive of any rights or remedies
otherwise provided by law.
17. COSTS
Each Party shall bear its own legal and other costs incurred in relation
the negotiation and execution of this Agreement and all agreements
contemplated by this Agreement.
18. NOTICES
18.1 Addresses for Service
Any notice, demand or other communication given or made under this
Agreement shall be in writing and shall be deemed duly given or made if
delivered or sent by post, telex or facsimile transmission as follows:
(a) In the case of GOLDEN PANTHER:
GOLDEN PANTHER RESOURCES LTD.
00X -0000 Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X.
Xxxxxx, X0X 0X0
Facsimile: 000-000-0000
Attention: President
(b) In the case of PERTIWI:
PT PERTIWI KENCANA ABADI
Wisma A.K.R. Lt. 6, No. 607
Xx. Xxxxxxxxxx Xx. 0
Xxxx Xxxxxxx 00000
Xxxxxxxx of Indonesia
Facsimile: 00-00-0000000
Attention: President Director
18.2 Change of Address
A Party may change its address or facsimile transmission numbers for the
purpose of this Agreement by giving written notice of such change to the other
Party pursuant to this Clause 18.
18.3 Proof of Service
In the absence of proof to the contrary, any notice, demand or other
communication shall be deemed to have been received by the Party to whom it
was sent:
(a) in the case delivery by post, 10 days after the date of posting (postage
prepaid); and
(b) in the case of delivery by telex or facsimile transmission, at the time
of transmission, the sender receives the recipient's answer back code or a
transmission confirmation report (as the case may be), unless in any such
case it would be deemed to have been received on a day which is not a
business day in the place of address, or after 5:00 PM on such a business
day, in which event it shall be deemed to have been received on the next
such business day.
19. ENUREMENT
The provisions of this Agreement shall enure for the benefit and be
binding upon the Parties and upon their respective successors and assigns.
20. SEVERABILITY
Notwithstanding that any provision of this Agreement may prove to be
illegal or unenforceable, the remaining provisions of this Agreement shall
continue in full force and effect.
21. PROPER LAW
This Agreement and the rights and obligations of the Parties shall be
construed and take effect in accordance with and be governed by the laws of
the Republic of Indonesia and each Party expressly submits to the
non-exclusive jurisdiction of the courts of Indonesia
22. DISPUTE RESOLUTION
22.1 Notice
It shall be a condition precedent to either Party's cause of action or
entitlement to commence or maintain proceedings in any court or other forum in
connection with any dispute or difference whatsoever arising in connection
with this Agreement or its termination (other than in relation to the
occurrence of a default event under any Security Document or the exercise of
any rights under a Security Document) (a Dispute), that the following
preliminary conditions be satisfied:
(a) the Party claiming that a dispute has arisen shall give notice of such
Dispute to the other Parties; and
(b) the Parties shall promptly arrange negotiations in good faith to settle
the dispute.
22.2 Submission
If within twenty (20) days of the service of notice under Clause
22.1(a):
(a) the Dispute is not settled as a result of, or by a method agreed as a
result of, such negotiations; or
(b) the Parties have not agreed to appoint a person to act as an expert and
not as an arbitrator to determine,the dispute by a final and binding
termination, then either party may submit such dispute to arbitration in
Jakarta by a single arbitrator in the English language in accordance with the
UNCITRAL Arbitration Rules contained in resolution 31/98 adopted by the United
Nations General Assembly on 15 December 1976 and entitled "Arbitration Rules
of the United Nations Commission on International Trade Law" (UNCITRAL Rules).
22.3 Appointment of Arbitrators
In the event that the Parties cannot agree on a single arbitrator, each
Party shall appoint an arbitrator and the arbitrators so appointed shall
together appoint a third arbitrator who together shall constitute the Board of
Arbitration, and shall hear and finally determine the Dispute in accordance
with the UNCITRAL Rules. In the event a party does not appoint an arbitrator,
the other Party may requested the Singapore International Arbitration Centre
to do so and such selection shall be binding on the Parties.
22.4 Waiver of Article 650
The Parties expressly agree to waive the applicability of Article 650
Section 2 of the Regalement op de Rechtsvodering ("R.V.11) so that the
appointment of the Board of Arbitration shall not terminate after six (6)
months from the date of its appointment. The mandate of the Board of
Arbitration duly constituted in accordance with the terms of this Agreement
shall remain in effect until a final arbitral award has been issued by the
Board of Arbitration.
22.5 Waiver of Article 631
The Parties expressly agree to waive the applicability of Article 631
Section 2 of the R.V. and accordingly in deciding the disagreement or dispute
the Board of Arbitration shall be bound by strict rules of law, and may not
purport to decide the same ex acquo at xxxx.
22.6 Award is Final
The award of the Board of Arbitration shall be final and binding in the
Parties and the Parties hereby exclude any right of application or appeal to
any Court connection with any question of law arising in the course of
arbitration or respect of any award made. For this purpose, the Parties
expressly agree to waive the operation of Article 631 of the R.V. and Article
15 and 108 of Law No. I of 1950 (Supreme Court Rules).
22.7 Continuity
Pending the submission to the Board of Arbitration and thereafter until
the Board of Arbitration gives its decision, the Parties shall, except in the
event of termination of this Agreement in accordance with its terms, continue
without prejudice to a final adjustment in accordance with the award of the
Board of Arbitration.
22.8 Language
All communication relating to the arbitration proceedings shall be in
the English language.
22.9 No Separate Legal Actions
No Party shall be entitled to commence or maintain any action in a court
of law upon any matter in disagreement or dispute until such matter shall have
been submitted and decided as hereinbefore provided and then only for the
enforcement of the award of the Board of Arbitration.
22.10 Enforcement
An order of judicial acceptance or on application for enforcement of the
award may be sought in any court of competent jurisdiction within or outside
of the Republic of Indonesia.
22.11 Domicile
For the purpose of enforcing any arbitration award, the Parties hereby
choose general and permanent domicile at the Registrar's office of the
District Court of Central Jakarta (Pengadilan Negeri Jakarta Pusat), without
prejudice to a Party's right to commence proceedings in any other Court having
jurisdictions over the other Party or any of its assets.
22.12 Cost
The cost of arbitration shall be borne in accordance with the
determination of the Board of Arbitration.
22.13 Clause to Survive Termination
The provisions of this Clause 22 shall survive any termination of this
Agreement by whomsoever and for whatever reason.
IN WITNESS WHEREOF the Parties have executed this Agreement on the day and
year first written above.
SIGNED for and on behalf of
GOLDEN PANTHER RESOURCES LTD PT PERTIWI KENCANA ABADI
by:/s/Xxxxxxxxx Xxx Xxxxxx /s/Xxxxxxx Siboe
Name; XXXXXX XXXX Name; XXXXXXX SIBOE
Title: PRESIDENT Title: PRESIDENT DIRECTOR
August 29, 1996
POWER OF ATTORNEY
Dear Sir:
In connection with joint venture agreement between Golden Panther Resources
Ltd. and P.T. Pertiwi Kencana Abadi, I hereby authorize and request that Xxxx
Xxx Xxxxxx, Vice President of Golden Resources Ltd. (herein called my at
attorney) sign this agreement dated August 29, 1996.
I hereby grant unto my attorney full power and authority to act as above and
ratify and confirm all that he shall do or cause to be done by virtue
hereof.
The powers hereby granted to my attorney shall continue in full force and
effect for the complete execution of the aforementioned document.
/s/Xxxxxx X. Xxxx /s/Xxxxx Perfect
Xxxxxx X. Xxxx Witness
The following is a spqcimen signature of my attorney named herein.
/s/Xxxx Xxx Xxxxxx /s/Xxxxxx Xxxxx
Xxxx Xxx Xxxxxx Witness
The following is a specimen signature of my attorney named herein
Dated: 29/8/96
