Exhibit 10.24
L I C E N C E A G R E
E M E N T
BETWEEN
BIOMIN TECHNOLOGIES S.A.
------------------------
and
BOGOSO GOLD LIMITED
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TABLE OF CONTENTS
Page
1. DEFINITIONS
AND INTERPRETATION............................................1
1.1
Definitions..........................................................1
1.2
Interpretation.......................................................6
2. GRANT OF
LICENCE..........................................................7
3.
TERM......................................................................9
4. IMPROVEMENTS AND
DEVELOPMENTS.............................................9
5. LICENCE
FEE..............................................................10
6. CONSTRUCTION
OF PLANT....................................................11
7. COMMISSIONING
OF PLANT...................................................13
8. OPERATIONAL
SUPPORT AND TRAINING.........................................14
9. GENERAL
OBLIGATIONS OF BOTH
PARTIES......................................15
10. CONCENTRATE NOT OF
FEEDSTOCK QUALITY.....................................15
11.
BREACH...................................................................16
12. TERMINATION OF
AGREEMENT AND DISMANTLING OF PLANT........................16
13. EXCLUSION OF
WARRANTIES..................................................17
14.
CONFIDENTIALITY..........................................................20
15. FORCE
MAJEURE............................................................21
16. WARRANTY OF
AUTHORITY....................................................21
17. RELATIONSHIP OF
PARTIES..................................................21
18.
ASSIGNMENT...............................................................22
19. PROTECTION OF
PROCESS....................................................22
20.
NOTICES..................................................................23
21. MISCELLANEOUS
...........................................................24
21.1
Variation...........................................................24
21.2
Waivers.............................................................24
21.3
Rights of Third Parties
Act.........................................24
21.4
Payments............................................................24
21.5
Proper
Law..........................................................25
21.6
Arbitration of
Disputes.............................................25
21.7
Severability........................................................25
21.8
Costs...............................................................25
21.9
Successors
Bound....................................................26
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TABLE OF CONTENTS
(continued)
Page
21.10 Entire
Agreement...................................................26
21.11
Interest...........................................................26
SCHEDULES ATTACHED
Schedule 1
BIOX(R) Battery Limits
Schedule 2
Confidentiality Deed
Schedule 3
Feedstock Quality
Schedule 4
Process Performance Guarantees
Schedule 5
Tests and Procedures
Schedule 6
Schedule of Rates
Schedule 7
Deed of Power of Attorney
Schedule 8
Estimated Time and Cost of Consulting
Schedule 9
Address for Service
Schedule 10
Licencees of the BIOX(R) Process
ANNEXURES
Annexure A
Testwork Agreement dated 30 October 2000
Annexure B
Licence Area Map
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THIS LICENCE AGREEMENT is made this 28th day of June 2004.
BETWEEN: BIOMIN
TECHNOLOGIES
S.A., a company incorporated in Switzerland
and having its registered office there at c/o Progressia Societe de
Gestion SA, rue St-Pierre 18, 1700 Fribourg, Switzerland (hereinafter
with its successors and assigns known as "BIOMIN")
AND: BOGOSO
GOLD LIMITED, a company incorporated in Ghana and having
its
registered office there at 12 Akosombo Road, Airport Residential
Area, Accra, Ghana. (hereinafter with its successors and assigns
known
as "BGL")
WHEREAS:
A. BIOMIN is the
proprietor of a process known as the BIOX(R) Process whereby
micro-organisms are used in the oxidation of certain gold bearing
sulphidic
minerals in order to
facilitate gold
recovery and BIOMIN is in possession
of
and has access to technology and know-how pertaining to such a
process.
B. BGL is the
owner and operator of
the Bogoso Gold Mine
situated at Bogoso
and
also the Prestea,
Mansiso, Obuom and
Asikuma Gold Mines, all situated
in
Ghana.
C. BGL wishes to
use the BIOX(R) Process at the Bogoso Gold Mine and BIOMIN is
willing to allow such use and the parties have accordingly entered into a
Testwork Agreement
attached as Annexure
"A" ("the Testwork Agreement")
which deals in principle with some of the matters relating to such use. If
any
provision of this Agreement conflicts with any provision of the
Testwork Agreement, the relevant provision of this Agreement will
prevail.
D. BIOMIN and
BGL (hereinafter
referred to as "the parties") are now entering
into
this Agreement to record in more detail and comprehensively the terms
and
conditions upon which
the use of the BIOX(R)
Process will be allowed,
using Inoculum provided by BIOMIN.
E.
Notwithstanding their efforts pursuant to this Agreement, the
parties shall
remain separate and distinct entities, involved in businesses and
efforts
independent hereof and
of each other. The
parties wish to provide for and
record the basis of their relationship.
THE PARTIES ACCORDINGLY AGREE THAT:
1. DEFINITIONS
AND INTERPRETATION
1.1
Definitions
In this Agreement
(which term
includes the Recitals
and Schedules)
unless the context requires otherwise:
1.1.1
"Affiliates"
in relation to a person, means
any person, partnership, limited
liability company,joint venture,
corporation, entity or other
form of enterprise which
controls, is controlled by, or
is under common control with
that party. As used herein,
"control" means the ability,
directly or indirectly, to
direct or cause the direction
of management and policies of a
person or entity through
(i) the legal or
beneficial
ownership of voting
securities or membership
interests;
(ii) the right to
appoint
managers, directors or
corporate management;
(iii) contracts;
(iv) operating voting
trusts;
(v) family
relationship;
(vi) agency; or
(vii) otherwise.
1.1.2
"Ancillary Costs"
means the reasonable costs of
accommodation, meals and local
and international travel on a
business class basis, which have
not been supplied by BGL in
terms of Clause 6.7.
1.1.3
"Approved Contractor" means the contractor
appointed
by BGL for the construction of
the BIOX(R) Plant, as approved
by BIOMIN pursuant to Clause
6.3.
1.1.4
"BGL Material"
means the concentrate produced
by the processing through a
flotation plant of run of mine
ore extracted by BGL from its
Bogoso, Prestea, Mansiso, Obuom
and Asikuma Mines, as shown on
the Licence Area Map annexed as
Annexure B.
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1.1.5
"BIOX(R) Battery
Limits"
means all areas of the BIOX(R)
Plant:
(a) that fall
within the bund
walls and vertical
projections thereof
surrounding each of the
surge/stock tanks and
nutrient make up facility,
BIOX(R) reactors,
countercurrent decantation
thickeners and
neutralisation units; and;
(b) where the
BIOX(R)
compressors/blowers and
cooling towers are
situated;
all of which are shown on the
flow chart annexed as Schedule
1.
1.1.6
"BIOX(R) Plant"
means all components and
equipment of the processing
plant to be constructed in
accordance with the Process
Design Package within the
BIOX(R) Battery Limits set out
in Schedule 1, at the
Bogoso
Mine in Ghana.
1.1.7
"BIOX(R) Process"
means the know-how and
technology in respect of the
biological process pursuant to
which microorganisms are used in
the oxidation of certain gold
bearing sulphidic minerals to
facilitate gold recovery.
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1.1.8
"BIOX(R) Proprietary
items"
means the impellers, air
dispersers and cooling coils of
the BIOX(R) Plant.
1.1.9
"Business Day"
means a day on which the main
branch of Barclays Bank in Ghana
is open for business.
1.1.10
"Competitive Supplier"
means any supplier of a tank
bacterial process for the
processing of gold bearing
minerals (or its Affiliates) or
any person engaged in research
on such technology (or its
Affiliates) other than BIOMIN
and its Affiliates.
1.1.11
"Confidentiality Deed"
means a deed substantially in
the form of Schedule 2.
1.1.12
"Date of Commence-
ment of Operations" means the date
on which oxidized
ore slurry is first received
into the carbon-in-leach ("CIL")
Plant from the final thickener
underflow from the BIOX(R)
Plant.
1.1.13
"Deemed Capital Cost" means US$ 15 million, as
stated
in Clause 5.4.
1.1.14
"Dollars" and "$" sign
means the lawful currency the
United States of America.
1.1.15
"Effective Date"
means the date of this Agreement
as stated in its heading.
1.1.16
"Event of Force
Majeure"
means any occurrence occurring
beyond the reasonable control of
the party affected by it and,
without limiting the generality
of the aforegoing, includes:
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(a) was
(declared or
undeclared), civil
commotion, riot, political
unrest, military action or
an act of sabotage or
terrorism;
(b) strike,
lockout and
industrial action, dispute
or any other kind of
disturbance;
(c) an act or
failure to act
of government or a
governmental agency, in
either case whether de
jure or de facto;
(d) a storm,
tempest, fire,
flood, earthquake or other
calamity;
(e) delay in
obtaining or
inability to obtain any
governmental permit,
consent or authority
necessary to implement any
material aspect of this
Agreement.
1.1.17
"Feedstock Quality" means the
quality parameters set
out in Schedule 3.
1.1.18
"Inoculum"
means the microorganisms used in
the oxidation of certain gold
bearing sulphidic minerals in
accordance with the BIOX(R)
Process.
1.1.19
"Licence Fee"
means the fee payable by BGL in
terms of Clause 5.1 or any part
of such fee payable as an
installment in terms of Clause
5.2.
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1.1.20
"Manuals"
means the BIOX(R) Operating
Manual and the BIOX(R) Inoculum
Build-up Manual, developed,
prepared and issued by BIOMIN,
or any of them, as the same may
be revised, replaced or
supplemented from time to time
by BIOMIN.
1.1.21
"Performance Test" means the
performance test for
the
BIOX(R) Plant set out in
Schedule 4.
1.1.22
"Performance Acceptance
Date"
means the first day on which the
operational parameters, as set
out in Schedule 4, are met or
are deemed to have been met in
accordance with Clause
7.3.
1.1.23
"Process Design
Package"
means a set of documents
prepared by BIOMIN consisting of
a process description, process
flow diagram, detailed mass and
heat balances, process
instrumentation and valve
diagrams, detailed equipment
lists, process design
specification and a process
control philosophy all of which
were or will be developed with
a view to procuring performance
of the BIOX(R) Plant.
1.2
Interpretation
In this Agreement, unless the context requires otherwise:
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1.2.1
words importing
any one gender include the other two
genders, the
singular includes the plural and vice
versa, and references to natural persons include created
entities (whether
or not having a corporate legal
personality);
1.2.2
headings are used for
convenience only
and shall not
be used in the interpretation of this Agreement;
1.2.3
words or phrases
defined in Clause 1.1 shall, where
they appear
in any other grammatical form, have a
meaning corresponding
to the defined meaning.
2. GRANT OF
LICENCE
2.1
BIOMIN hereby grants
to BGL a non-exclusive
right and license to
use
the BIOX(R) Process for the term of this Agreement at its Bogoso
Mine,
situated at Bogoso in Ghana, solely for the purpose of:
2.1.1
erecting and commissioning the BIOX(R) Plant;
2.1.2
treating BGL
Material or (subject
to clause 2.4) other
material (for
itself or on a toll basis for third
parties) through the BIOX(R) Plant.
2.2
BGL shall not use or
allow the use of the BIOX(R) Process at any other
place or for any other
purpose than as stated in Clause 2.1. Without
derogating from the generality of the aforegoing, BGL shall
not:
2.2.1
upgrade, extend
or expand the BIOX(R) Plant beyond
the nominal design
capacity of 349 (three
hunderd and
forty nine)
metric tons per day of
BGL Material, as
specified in
the Process Design Package
without the
prior consent of BIOMIN (not to be unreasonably withheld
or delayed); or
2.2.2
replace any components
which would result in anincrease
in capacity
of the BIOX(R) Plant beyond the design
capacity
specified in
the Process Design Package
without the
prior consent of BIOMIN (not to be
unreasonably
withheld or
delayed).
2.3
If BGL desires an
extension,
expansion or
replacement
or wishes to
build an entirely new BIOX(R) Plant, for the purpose of processing
BGL
Material, whether or
not such new BIOX(R) Plant would be based on the
Process Design
Package, the parties shall in good faith
endeavour to
negotiate a new
licensing agreement based on similar terms and
conditions as agreed in this licensing agreement, provided
that:
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2.3.1
neither party
shall have any liability if such an
agreement
cannot be
successfully
negotiated
for
whatever reason;
2.3.2
if the parties are unable to reach agreement on such
extension, expansion, replacement or new BIOX(R) Plant,
BGL shall not commence construction
thereof.
2.4
Should BGL wish to use
the BIOX(R)
Process at the
BIOX(R) Plant to
treat material
other than BGL
Material on a toll basis for a third
party, or treat material other than BGL Material for BGL itself,
then
such material shall be
tested by both parties to ensure that it is of
Feedstock Quality as
described in Schedule
3. If the material is not
of Feedstock Quality, then the provisions of Clause 10 shall apply.
In
addition, BGL shall
pay BIOMIN a tolling fee of US$ 1.50 per ounce of
gold sold containing
material other than
BGL Material which has been
treated at the BIOX(R) Plant.
2.5
BIOMIN undertakes to cause BGL to be
entered as a registered user of
the registered
"BIOX(R)" trade mark
in respect of the BIOX(R) Plant,
for the duration of this Agreement.
2.6
The registered
user agreement being entered into pursuant to
Clause
2.5 shall include terms providing for the automatic
cancellation
of
such agreement upon termination of this Agreement.
2.7
Subject to clause 18.1, BGL shall not, during the term of this
Agreement or at any
time thereafter
without the prior consent of
BIOMIN, in any country whatsoever:
2.7.1
assign or
otherwise provide to any third party a
sublicense, grant,
or use of any right granted to
BGL
herein;
2.7.2
apply to patent the BIOX(R) Process or the
bacterial
strain used
in the BIOX(R) Process or to register
the
term BIOX(R) as a trade mark;
2.7.3
attack the validity
of the patents granted in respect
of the
BIOX(R) Process or the
registration of the trade
mark BIOX(R) or BIOMIN's common law rights in and to the
trade mark BIOX(R) and
the BIOX(R) Process.
2.7.4
attack BIOMIN's title to the patents granted in respect
of the BIOX(R) Process, or any of its registered and
common law rights to the BIOX(R) Process.
2.8
BGL shall use the term
"BIOX(R)" whenever it makes written reference ,
and the term "BIOX(R)"
wherever it makes oral reference, to the
BIOX(R) Process
or the BIOX(R) Plant and shall not use any other
trademark, term,
name or description in relation to the BIOX(R)
Process or BIOX(R) Plant.
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2.9
Upon termination of
this Agreement, BGL
shall join with BIOMIN in any
application which may be necessary to cancel the registration, if
any,
of BGL as a registered
user in respect of the BIOX(R) trade mark.
2.10
For the purpose of Clause 2.9, BGL shall, simultaneously with this
Agreement,
execute a Power of Attorney in favour of BIOMIN,
substantially in the form of Part A of Schedule 7.
2.11
The licence granted to
BGL pursuant to Clause 2.1 and this Agreement
shall not include the right to grant any sub-license to any person or
entity.
3. TERM
3.1
This Agreement shall
commence on the Effective Date and shall continue
until terminated:
3.1.1
by unanimous agreement of the parties;
3.1.2
pursuant to Clauses 6.9 or 11.1 or 15.3;
3.1.3
upon written notice to
BGL from BIOMIN if
construction
of the BIOX(R)
Plant shall not have
been completed on
or before a date two years after the Effective Date;
3.1.4
upon written
notice to BGL from BIOMIN if,following
its construction, the BIOX(R) Plant is not operated to
process BGL
Material for any continuous period of at
least twelve months,
whichever is the earliest.
3.2
The termination of this Agreement shall not in any way affect the
parties'
respective
continuing
obligations in
terms
of the
Confidentiality Deed
attached hereto as Schedule 2 or any
covenants
signed pursuant to the
Confidentiality
Deed or any
confidentiality
undertakings which
have been signed by third parties pursuant to this
Agreement.
3.3
BGL undertakes to notify BIOMIN in writing where possible of any
intended permanent or temporary cessation of operations
scheduled to
last for more than a quarter at the BIOX(R) Plant and the
anticipated
dates thereof as well as the date of resumption of any
operations.
4. IMPROVEMENTS
AND DEVELOPMENTS
4.1
BGL shall promptly disclose in writing to BIOMIN all inventions,
improvements and
developments
made by its employees
contractors or
agents of which it is aware in respect of the BIOX(R) Process or the
BIOX(R) Plant.
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4.2
All such inventions,
improvements or
developments, whether patentable
or not, shall belong to BIOMIN and BGL shall, at BIOMIN's reasonable
request and
cost, procure the signing of all documents and the
performance of all acts which may be necessary to prove BIOMIN's
title
thereto and to enable
BIOMIN to apply for and obtain patent or other
protection in respect thereof throughout the world.
4.3
BIOMIN shall inform BGL of all inventions, improvements and
developments in
respect of the
BIOX(R) Process in which it obtains
proprietary rights after the Effective Date.
4.4
Any information disclosed in terms of Clause 4.1 shall,
after such
disclosure, and any inventions, improvements and developments
referred
to in Clause 4.3 shall, be included in the definition of
the "BIOX(R)
Process"
for purposes of this Agreement.
4.5
BGL shall be entitled to use all inventions, improvements or
developments referred
to in Clauses 4.1, 4.2
and 4.3 pursuant to the
terms of this
Agreement and no additional consideration shall be
payable to BIOMIN in respect of such use.
5. LICENCE
FEE
5.1
In consideration for the grant of the rights
referred to in Clause
2.1, BGL shall pay to BIOMIN in cash or by telegraphic transfer to a
bank account designated by BIOMIN, and without deduction or
set-off, a
licence fee equal to 10 % (ten per centum) of the Deemed
Capital Cost
of the BIOX(R) Plant.
5.2
The amount due to BIOMIN in terms of Clause
5.1 shall be payable
in
installments, as follows:
5.2.1
25 % of the
fee upon notification of a decision by
BGL to proceed with the construction of a BIOX(R) Plant
at the Bogoso Mine;
5.2.2
25 % of the fee on the Date of Commencement of
Operations;
5.2.3
50 % of the fee after
completion of a
Performance Test
as per Schedule
5 demonstrating the achievement of
the operational
parameters set
out in Schedule 4, or
twelve (12) months
after the Date of
Commencement
of
Operations, if through no fault of its own,BIOMIN cannot
complete a Performance
Test within twelve
months after
the Date of
Commencement of
Operations, whichever date
occurs first.
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5.3
Each installment payable in terms of Clause 5.2 shall be paid in
accordance with Clauses 21.4 and 21.12.
5.4
The Deemed Capital Cost referred to in Clause 5.1 shall be US$
15,000,000 (Fifteen Million Dollars).
6. CONSTRUCTION
OF PLANT
6.1
It is hereby
recorded that BIOMIN
provided BGL with a
Process Design
Package for the
construction of the
BIOX(R) Plant at the Bogoso Mine
on 3 April 2001.
6.2
After execution of this Agreement, BGL shall design, erect and
commission the BIOX(R)
Plant in accordance
with the Process
Design
Package within a
period of 60 (sixty)
months after the date referred
to in Clause 6.1.
6.3
It is recorded
that BGL will
appoint one or more
contractors
("the
Approved Contractors") for the engineering, design and construction
of
the BIOX(R) Plant,
which appointment
shall be subject to the written
approval of BIOMIN, provided that such approval shall not
unreasonably
be withheld
or delayed for more
than fifteen
days after
notice of
appointment is given by BGL to BOMIN. Approval of BIOMIN shall not
be
required for any of
Minproc, MDM, Bateman or Lycopodium to be an
Approved Contractor.
6.4
BIOMIN shall:
6.4.1
within one
month
of a request by BGL, supply
metallurgical
and process
engineering
consultancy
services as
required
by BGL to BGL during the
construction and
commissioning
of the BIOX(R) Plant;
6.4.2
within two
weeks of submission
by BGL, consider and,
if deemed fit, verify
final process
engineering design
drawings pertaining
to the BIOX(R) Plant (provided
that BGL shall give
BIGMIN at least one
month's notice
of the intended submission).
6.5
BGL shall not allow
any person access to the Process Design Package if
such person
has not entered into a Confidentiality Covenant
substantially in the form of Schedule 2.
6.6
BIOMIN shall be
compensated by BGL for any services rendered pursuant
to Clause 6.4 in terms of the rates set out in Schedules 6 and 8,
plus
Ancillary Costs.
6.7
BGL shall provide,
at no charge to
BIOMIN, food,
accommodation
and
transport for no more
than four people at a time as may be reasonably
available at
the Bogoso Mine for any of BIOMIN's accredited
representatives or
employees rendering
services as
contemplated in
Clauses 6.4, 7 and 8.
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6.8
Subject to Clause
6.10, BGL shall not commence
construction
of the
BIOX(R) Plant
unless and until it has received BIOMIN's written
approval of the final
process engineering plans in respect of such
Plant, such approval not to be unreasonably withheld or delayed
beyond
the timeframe
mentioned in Clause 6.4.2. Construction of the BIOX(R)
Plant shall be
only in accordance with the plans as so approved.
6.9
If BIOMIN has not
approved such plans and design within a period 60
(sixty) months after
the Effective Date
through no fault of its own,
then BIOMIN
may, a
