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Exhibit 10.2
EAGLE BAY RESOURCES N.L.
and
RMMI AUSTRALIA PTY LTD
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JOINT VENTURE HEADS OF AGREEMENT
AUSTRALIAN NICKEL J.V.
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RMMI / EAGLE BAY JOINT VENTURE HEADS OF AGREEMENT
THIS AGREEMENT is dated 6th December 2006
BETWEEN:
EAGLE BAY RESOURCES N.L. (ACN 051 212 429) of
Level 1, 14 Outram St, West Perth WA 6005 ("EBR")
AND
RMMI AUSTRALIA PTY LTD (ACN 122 077 105)
Level 25, 500 Collins Street, Melbourne Vic 3000 ("RMMI")
RECITALS:
B.
The parties wish to associate themselves for the purpose of
exploration
for
sulphide nickel deposits in Australia.
B.
The parties now agree to form a joint venture on the terms and
conditions
set
out in this Agreement.
AGREED as follows
1. INTERPRETATION
1.1
In this
Agreement unless the context otherwise requires:
"ASX" means Australian Stock Exchange Limited;
"Commencement Date" means 1st November 2006
"Expert" means an independent expert appointed by the
Participants or, in the absence of agreement, by the President
of
AusIMM;
"Joint Venture" means the joint venture constituted under
clause
2.1 of this Agreement;
"Joint Venture Expenditure" means all Outgoings and the costs
of
all Joint Venture Operations including (without limitation) all
costs, expenses and liabilities incurred in connection with the
exploration, development and mining of the Tenements for
minerals,
accounted for in accordance with accounting principles accepted
in
Australia;
"Joint Venture Interest" means in relation to a Participant:
(a) its
interest (from time to time) as tenant in common in the
Joint Venture Property and in all other rights conferred by
this Agreement; and
(b) its
right to take in kind a share of minerals derived from
the Tenements subject to the liabilities and obligations
attaching to the foregoing and imposed by this Agreement;
"Joint Venture Operations" means all activities as are
necessary
or desirable in order to implement and give full effect to the
provisions and purposes of this Agreement;
"Joint Venture Property" means all property of whatsoever kind
held, developed, acquired or created by or on behalf of the
Participants for the purpose of the Joint Venture including
(without limitations):
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(a) the Tenements;
(b) Mining information; and
(c) minerals, concentrate and ore prior to their being taken in
kind by the Participants;
"Manager" means the Participant appointed to conduct Joint
Venture
Operations pursuant to clause 3.1 but reference to the Manager
do
not include references to that Participant in any other
capacity;
"Mining Act" means the Mining Act 1978 (W.A.) as amended;
"Mining Information" means all technical and other information
including (without limitation) geological, geochemical and
geophysical reports, surveys, mosaics, aerial photographs,
samples, drill core, drill logs, drill pulp, assay results,
maps
and plans relating to the Tenements or to Joint Venture
Operations, whether in physical, written or electronic form;
"Operating
Committee" means the Operating Committee formed under
clause 4.1 of this Agreement;
"Outgoings" means all rents, rates, survey fees and other fees
and
charges under the Mining Act or otherwise in connection with
the
Tenements;
"Participants" means EBR and RMMI or their permitted successors
and assigns;
"Parties" means EBR and RMMI or their successors and assigns
holding a joint venture interest;
"Related Body Corporate" means with respect to any Participant
a
related body corporate of that Participant within the meaning
of
the Corporations Act;
"Tenement Area" means the land over which the relevant
Tenements
have been granted.
"Tenements" means any tenements acquired by the Joint Venture,
together with any extensions, renewals, consolidations,
replacements or amendments to those tenements and all rights
associated with those tenements including the right to treat
mineral bearing material located in the tenements.
1.2
In this
Agreement, unless the context requires otherwise:
(a)
reference to a recital, clause, schedule, annexure or
exhibit is to a recital, clause, schedule, annexure or
exhibit of or to this Agreement;
(b) a
reference to this Agreement or another instrument
includes any variation or replacement of any of them;
(c) a
reference to any statute shall include any amendment,
replacement or re-enactment thereof for the time being in
force and any by-laws, statutory instruments, rules,
regulations, notices, orders, directions, consents or
permissions made there under and any conditions attaching
thereto;
(d) the
singular includes the plural and vice versa;
(e) a
reference to any gender includes all genders;
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(f) a
reference to a person includes a reference to the
person's executors, administrators, substitutes, successors
and permitted assigns;
(g) a
covenant, representation or warranty in favour of two or
more persons is for the benefit of them jointly and
severally;
(h) a
covenant, representation or warranty on the part of two
or more persons binds them jointly and severally; and
(i) a
reference to currency is to the currency of Australia.
2.
JOINT VENTURE
2.1 The
Participants hereby associate in an unincorporated
joint venture for the purpose of exploring and, if
warranted, developing and mining sulphide hosted nickel in
Australia.
2.2 The
Joint Venture shall commence on the Commencement Date
and on that date the Joint Venture Interests of the
Participants are:
EBR
50%
RMMI
50%
The Joint Venture will hire a competent nickel geologist
who will operate out of EBR's offices in West Perth and
whose cost
will be borne 50% by the Carr Boyd Joint Venture
and then pro rata to the participants in this Joint Venture
so long as the Carr Boyd Joint Venture remains extant.
2.3
Nothing in this Agreement shall make a Participant a
partner of any other Participant nor, except as expressly
provided in this Agreement, constitute any Participant the
agent or representative of any other Participant or to
create any fiduciary relationship between them.
2.4 No
Participant shall have any authority to act on behalf of
any other Participant, except as expressly provided in this
Agreement. Where a Participant acts on behalf of another
without authority, such Participant shall indemnify the
other from any losses, claims, damages and liabilities
arising out of any such act.
2.5 Each
Participant has the right to take in kind and
separately dispose of, in proportion to its Joint Venture
Interest, all minerals produced by the Joint Venture.
2.6 The
liabilities of the Participants to each other and to
third parties shall be several in proportion to their
respective Joint Venture Interests from time to time and
shall not be either joint or joint and several. Each
Participant hereby indemnifies the other against any claim
or liability incurred by the other in excess of the other's
Joint Venture Interest.
3.
MANAGER
3.1 RMMI
shall be the Manager and shall be entitled to remain
the Manager (subject to clause 3.2) while it holds a Joint
Venture Interest of 50% or greater.
3.2 The
Manager:
(a) may
resign on 30 days' notice to the Participants;
or
(b) may be
removed by resolution of the Operating
Committee or if it commits gross negligence or
wilful default; and
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upon retirement or removal of the Manager, the
Participants shall appoint a Manager by agreement
between them, or, failing this, by resolution of the
Operating Committee.
3.3 The
Manager shall prepare programmes and budgets for
consideration by the Operating Committee. Programmes and
budgets shall be prepared for periods each of 6 months
duration commencing on 1 September and 1 March.
3.4 The
Manager:
(a) shall
carry out the Joint Venture activities in
accordance with programmes and budgets approved by
the Operating Committee;
(b) may
not exceed an approved budget by more than 15%
without the prior consent of the Operating
Committee, except in relation to emergency
expenditure;
(c) shall
be responsible for all day to day operations
of the Joint Venture which shall include managing
and supervising all approved programmes and budgets;
(d) shall
carry out Joint Venture activities in
accordance with good mining industry practice, with
reasonable care, skill and diligence and in
accordance with all applicable laws and regulations;
(e) shall
promptly carry out the instructions and
directions of the Operating Committee; and
(f) shall
maintain complete and accurate books, records
and accounts of all transactions relating to the
Joint Venture which shall be open for inspection and
audit by the Participants.
3.5 The
Manager shall furnish concise reports to the
Participants, on a quarterly basis, which shall contain all
relevant technical and financial information concerning the
joint venture. The cost of providing such reports shall be
Joint Venture Expenditure.
3.6 All
statutory reports concerning the Tenements released by
the Manager shall be provided to the Participants and the
costs of providing such reports shall be Joint Venture
Expenditure.
3.7 The
Manager shall, on receiving reasonable notice from any
of the Participants, provide that Participant with copies
of any relevant project data, provided that any such report
or relevant project data is provided at the cost of the
Participant requesting it.
3.8 The
Manager shall not be liable to any Participant for any
losses sustained or liability incurred by the Joint Venture
and each Participant shall be liable to indemnify the
Manager in proportion to their respective Joint Venture
Interests in respect of the same except where any such loss
or liability arises as a direct result of the Manager's
wilful misconduct or gross negligence.
3.9 Each
Participant appoints the Manager and each of its
directors from time to time (severally) its lawful attorney
to sign all forms and documents and do everything necessary
to maintain the Tenements in good standing and in full
force, and to comply with the provisions of the Mining Act.
4.
OPERATING COMMITTEE
4.1 As
soon as practicable the Participants shall form and then
maintain a committee which shall meet not less than once in
each calendar quarter unless otherwise agreed.
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4.2 Each
of the Participants shall be entitled to appoint a
representative as a member of the Operating Committee and
to remove any person so appointed and to appoint anot
