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EXHIBIT 10.14
FIRST RIGHT OF REFUSAL
AND VENTURE AGREEMENT
THIS AGREEMENT is dated and made for reference effective (the
"Effective Date") as of the 18th day of November, 1997.
BETWEEN:
AZCO MINING INC, and its appointed affiliates, subsidiaries, and
assigns, with its address for delivery and service at Suite 1250 -
999 West Hastings Street, Vancouver, B.C. V6C 2W2
(hereinafter referred to as "Azco");
OF THE FIRST PART
AND:
LION MINING CORPORATION LIMITED and its appointed affiliates,
subsidiaries, and assigns, of 7 - 8 Kendrick Mews, London, England
SW7 3HG
(hereinafter referred to as "Lion");
OF THE SECOND PART
(Azco and Lion being hereinafter singularly also referred to as a
"Party" and collectively referred to as the "Parties" as the context
so requires).
WHEREAS:
A. Azco and Lion have a mutuality of interest in the field of mining
exploration and finance;
B. In 1996 the Parties commenced business relations in regard to mining
business in Africa and elsewhere with the intention that such would be
memorialized in a future contract of co-venture when the experiences of the
first endeavors had been absorbed and could direct the structure of a formal
agreement;
C. Through the introduction of Lion, Azco and Lion Mining Finance
Limited (an affiliate of Lion and which has assigned its interests therein to
Lion) entered into a Memorandum of Agreement (hereinafter called the "Mali
Agreement") dated effective May 9, 1996 and to which Mali Agreement, West
African Gold and Exploration Ltd. and Eagle River International Limited
(hereinafter called "Eagle") are also parties as the vendors of certain mineral
interests;
D. By the nature of the Mali Agreement and the Parties' relative
relations with Eagle, Azco contractually agreed to advance the initial
contributions prior to a roll-over of the proposed project into a publicly
listed self-funding entity and, in compliance therewith, Azco has advanced loans
to Eagle and its subsidiaries in excess of US $4,000,000 towards the Mali
Agreement;
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E. By the terms of the Mali Agreement, Azco was to be repaid all of its
loan advances (which have been advanced to Eagle and its subsidiaries and which
parties have issued security notes for the same) if certain preconditions and
warranties were not met. It has transpired that Azco and Lion suffered
misrepresentation by Eagle with the result that those pre-conditions have not
been achieved and cannot be achieved (including a warranty that the subject
properties thereof would have a value of no less than US $3,125,000), default
has been declared to Eagle, and Azco has been required to write-down its
advances to a nominal position;
F. Azco and Lion have determined to cooperate to pursue any available
remedies in regard to Eagle and to profit from the experience by employing the
same in the formalizing of the issues of a Venture agreement encapsulated
herein;
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the
within covenants and other consideration, the receipt and sufficiency of which
is hereby acknowledged, THE PARTIES HERETO MUTUALLY COVENANT AND AGREE AS
FOLLOWS:
1. VENTURE STRUCTURE. The Parties hereby create and formally recognize a
grant to Azco of a right of first refusal and of a venture between Azco and
Lion, in the event of exercise of such right of first refusal at any time,
having the following principle characteristics:
(a) the purpose of this Venture (the "Venture") is, employing
Opportunities (as below defined) located by Lion and accepted for the
Venture by the Technical Committee (defined below), to pursue the
mutual profitable exploitation of the Opportunities on the terms of
this Agreement;
(b) the name of the Venture shall be the "Kingfisher Venture";
(c) the Venture shall be operated by a management and technical
committee (the "Technical Committee") composed of no less than one
representative of each of Azco and Lion. Azco's representative(s)
shall collectively represent six votes and Lion's representative(s)
shall collectively represent four votes and the cost of such
representatives shall be borne by each Party solely. No meeting of
the Technical Committee shall be conducted unless a majority of
voting interests are present, no less than 10 days notice has been
given (or waived) and at least one member of each of Lion and Azco
are present unless, as to this latter requirement, at least one
adjournment has occurred and 5 days notice of recall has been given.
Meetings of the Technical Committee may be conducted in person or by
telephone conference or by consent resolution. Notwithstanding the
forgoing, the Technical Committee shall not impose any material
financial burdens on the Venture and the Parties unless specific
notice has been given prior to any meeting and if any Party shall be
unable to attend through its representative at any such meeting, it
shall have the right to require a further meeting to re-consider any
part which it finds objectionable. The Technical Committee shall
maintain minutes of its meetings and deliberations and each Party
shall be entitled to a copy of such minutes;
(d) this Agreement shall constitute the fundamental constitution of
the Venture governing the relations of the Parties, in a manner
similar to corporate articles under British Columbia corporate
practice and law. Matters not addressed by this Agreement or which
constitute specific and day-to-day operating and management policies
shall be determined by resolution of the Technical Committee with
power and effect equal to corporate board of directors resolutions;
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(e) the participating and contributory interests of Azco and Lion
(subject to adjustment as to a specific project as elsewhere set
forth in this Agreement) shall be sixty (60%) percent to Azco and
forty (40%) percent to Lion (such interests are referred to as
"Participating Interests").
(f) profits of the Venture may be distributed at such times as the
Technical Committee may determine. Profits shall be calculated as net
of payment of all debts and costs of the Venture, payment to the
Parties of costs carried on behalf of the Venture, reservation of
working capital considered prudent by the Technical Committee, and
after payment of any outstanding Negative Balance (as below defined).
The Technical Committee shall determine the accounting treatment and
policy of the Venture finances. The Technical Committee shall not be
required to distribute or record mineral interests or any
undistributed asset, in the Parties' individual names but may hold
the same in the name of the Venture or a controlled company. Any
Party may require distribution of cash or shares constituting
distributable profit on a quarterly basis;
(g) Azco and Lion shall contribute the following rights, goods,
services, and capital as their contribution to the Venture:
(i) Lion shall diligently seek and make available, from
opportunities which come to its attention, are discovered
by it or are brought to it, mineral opportunities (the
"Opportunity") within the criteria established by the
Technical Committee and shall bear the cost of such search
and initial analysis. Upon Azco exercising its right of
first refusal by its representatives on the Technical
Committee determining to proceed to do due diligence and
to complete a contract of acquisition of an Opportunity
Lion shall be refunded by the Venture or Azco (in the
initial stage as to the latter) that proportion of the
carried cost of such Opportunity equal to its full cost
less its Participating Interest share. At the discretion
of the Technical Committee, where Lion has incurred costs
outside of its normal business endeavors in seeking
Opportunities and the Technical Committee has not
determined to proceed with certain of the same and Lion
has not been able to recover its costs by disposition of
such to third parties, then the Technical Committee may
determine that Lion shall recover some or all of such
costs from the Venture;
(ii) Lion grants unto Azco the exclusive first right to
acquire, pursue, and develop an Opportunity on the terms
of this Venture, except for those projects, Ventures, or
other agreements that are disclosed in Schedule "B" hereto
to which Lion has prior commitment;
(iii) Azco and Lion shall make available to the Venture
their expertise, staff, and other available and pertinent
resources at cost plus a 15% management fee or at their
`best customer' price, or at their opportunity cost of
resources, as accepted by the Technical Committee, to be
carried or paid by the Venture out of proceeds of
Opportunities and out of retained earnings, as the same
may be reserved by the Technical Committee from the
Parties' share of proceeds of the Venture;
(iv) upon the Technical Committee determining to pursue an
Opportunity for the Venture, Azco shall fund, or provide
funding for, the initial acquisition or contract securing
costs (the "Acquisition Cost") of an Opportunity, which
shall be repaid first (including all accumulated
unrefunded Acquisition Costs of any preceding
Opportunities) out of proceeds of disposition or
production only. However it is understood by the Parties
that where Acquisition Costs or other Opportunity costs
are to be rolled-over into a private or public finance
vehicle that the Parties will mutually and independently
use best reasonable endeavors to seek and acquire the
required finance to
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service such costs of an Opportunity and to avoid Azco
being required to advance the Acquisition Cost, where
possible; and
(v) thereafter, Azco and Lion shall provide capital and
other required resources as to any Opportunity in
proportion to their Participating Interests;
(h) as part of the determination of the Technical Committee regarding
an Opportunity it shall apply financial analysis and management
planning to any Opportunity to determine the most advantageous and
beneficial means of adding value to any Opportunity including,
without restricting the determination of the Technical Committee, to
develop the Opportunity privately (with or without third party
participants) and to sell such at any time or to take such to
production, or (shortly after acquisition or after private
development) to assign the Opportunity to a public company (or take a
private company public) and receive any combination of cash, shares,
or debt for the same. As a general principle, a roll-over to a
separate finance vehicle and the employment of independent financial
resources (whether private or public) shall be the preferred option;
(i) Lion shall provide a best reasonable efforts initial assessment
of Opportunities sufficient to allow a reasoned judgment on the
merits of an Opportunity and shall provide the Technical Committee
with all material reasonably available to it and reasonably
accessible for analysis. The Parties and the Technical Committee
shall sign all such confidentiality agreements as are reasonably
required by the Opportunity owners. The Technical Committee shall
employ reasonable best efforts to make an initial go/no-go decision
on further efforts and due diligence regarding the Opportunity. In
the event that the Technical Committee determines not to proceed then
Lion shall be at full liberty to seek its sole profit from such
Opportunity thereafter without further reference to the Venture. In
the event that the Technical Committee determines to proceed with an
Opportunity then Lion shall employ reasonable best efforts to permit
the Technical Committee to negotiate the terms of the agreement with
the Opportunity owner and the Technical Committee shall employ
reasonable best efforts to finalize such agreement and due diligence
as soon as possible;
(j) in the event that in regard to any Opportunity a Party cannot
fund its required contributions in accordance with its Participating
Interest and the development plan of the Technical Committee then it
shall be subject to dilution in regard to its Participating Interest
in such Opportunity in accordance with a formula agreed by the
Parties. In the event that the Parties cannot agree on a dilution
formula then the formula shall be a reduction of one full Opportunity
percentage point (one point out of the 100% aggregate all-Party
points of the Opportunity) for each incidence of non-contribution
calculated by the required contribution per point on a quarterly
basis which the non-contributing Party has not funded (and such
diluted interest transferring at the end of each quarter with
concomitant alteration to the Participating Interest percentage of
each Party). However, on the first anniversary date of the unfunded
contribution the non-contributing Party shall have a one-time right
to buy-back all the diluted interest of such quarter in reference by
paying the funding Party double the expenditures incurred in respect
to the diluted interests. In the event that the Party being diluted
seeks to assign some or all of its interest or to seek a funding
partner for its costs then the other Party shall have first right to
provide such funding upon the terms intended or contracted to be
offered (open for 30 days for determination after receipt of all
pertinent details of the offer) and, in the event that it elects to
provide the funding, then there shall be no buy-back right in respect
to the consideration provided for such funding. In the circumstance
in which an Opportunity remains private strictly within the Venture
as a development of the Venture, a Party shall not be diluted to less
than a ten (10%) percent working interest prior to commercial
production but shall be carried in the form of a loan which shall be
repaid out of sale of the Opportunity or from two-thirds (2/3rds) of
the diluted Party's share of revenue of such Opportunity. All such
carried loans shall bear interest at the carrying Party's cost of
money with its principal bank,
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fixed annually, plus three (3%) percent calculated and compounded
annually at the time of interest fixing;
(k) the Parties shall not assign their Participating Interests in
this Venture for a period of two years from the date hereof (except
to controlled subsidiaries or affiliates) and thereafter shall offer
the other Party a right of first refusal exercisable for a period of
60 days following delivery of all pertinent details of the offer. If
the receiving Party does not exercise the right of first refusal then
the selling Party shall be free to dispose of the offered interest on
the same terms for a period of 180 days thereafter. Any sale of a
part or all of a Participating Interest shall not be effective until
the purchaser has executed a copy of this Agreement or any successor
agreement;
(l) in the event of any dispute between the Parties the Parties shall
employ best efforts to settle the same by good faith negotiations for
a period of not less than 30 days after written notice of a dispute
and thereafter shall arbitrate the same before an agreed arbitrator
in accordance with the Commercial Arbitration Act of British Columbia
and any arbitration decision shall be final; and
(m) the term of this Venture shall be the longer of three (3) years
or the payout of the Negative Balance plus six months, regardless,
expiring on December 31, 2010, renewable by mutual agreement of Azco
and Lion. Notwithstanding the termination of this Venture, in
circumstances in which one or more Opportunities are in progress then
the terms of this Agreement shall continue only in respect to such
Opportunity(ies) only to the extent required to govern the Parties'
rights and obligations in respect to such Opportunity(ies).
2. COMMENCEMENT ISSUES. This Venture shall be deemed to commence
effective the Effective Date with the following commencement issues and
conditions:
(a) Lion shall declare all projects, opportunities, and corporate
agreements which it has in effect on the Effective Date and which are
thereby to be excluded from, or restrict the ambit of, the
Opportunities of this Venture and are set forth in Schedule "B"
hereto;
(b) Azco shall be deemed to have a negative draw balance (the
"Negative Balance") in the Venture relating to the first endeavor,
being the Malian Agreement, equal to its total expenditures in regard
to the Malian Agreement less all recoveries, including tax recoveries
and fair value of equipment, all with a final valuation cut-off
effective the Effective Date and accounted on or before March 1,
1998, except if Azco realizes any recoveries (or debits) from Eagle
or taxation after such date then there shall be a subsequent
add-back; the Parties acknowledging that it is considered highly
unlikely that any recoveries will be effected from Eagle (as it is in
bankruptcy) and Azco shall be under no requirement to pursue any
remedies. Lion agrees that it hereby assigns to Azco all its rights
and interests in the Malian Agreement and agrees to cooperate fully
with Azco in the pursuit of any remedies against Eagle and Azco
agrees that any judicial remedies, and any costs borne by Lion in any
requested assistance to Azco, shall be at Azco's sole expense. The
Parties further agree that any results of Azco's endeavors, positive
or negative, after the Effective Date to mitigate its damages
(including any efforts to pursue and effect expenditures regarding
any part of the properties of the Malian Agreement to create value)
or to pursue its remedies shall solely accrue to Azco and shall be at
its sole cost and risk and Lion shall not participate therein, nor be
accountable for any part thereof, and shall be held harmless for any
consequences flowing therefrom and arising from Azco's activities
thereto and the Parties shall execute mutual releases. Lion shall be
considered to have an equivalent $60,000 Negative Balance relating to
the Malian Agreement;
(c) Azco's and Lion's Negative Balance shall be reduced, pro rata,
only from profits of the Venture, after all costs of the Venture, and
shall be reduced by a preferential allocation of 60%
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of first profits available for distribution prior to any distribution
being accounted for Participating Interests. The Parties further
agree that, whenever reasonably possible without materially harming
an Opportunity's prospects for financing, best efforts will be made
to include in financing an allocation to retire the Negative
Balances;
(d) attached hereto as Schedule "A" are the initial selection
criteria for Opportunities, which may be altered by the Technical
Committee, as it so determines from time-to-time; and
(e) attached hereto as Schedule "C" are the initial organizational
principles for the Technical Committee, which may be changed by the
Parties, as to appointees, and the Technical Committee, as to their
organizational principles, at any time.
3. GENERAL TERMS. The following general terms apply to the Venture and
the Parties' relations in respect thereto:
(a) the Parties will support each other's good name and reputation
and will employ good faith and reasonable best endeavors in the
performance of this Agreement and their mutual endeavors;
(b) the Parties will maintain all activities in respect hereto and in
respect to each other and any Opportunities in confidence, except as
required by any legal requirements to which a Party is subject;
(c) when any benefits, such as shares, are distributed to Parties
from the Venture the Parties shall be free to employ the same to
their individual benefit thereafter;
(d) this Agreement does not constitute a partnership nor in any
manner shall the Parties hold themselves out as such;
(e) this Agreement constitutes an enforceable agreement in principle
but the Parties agree to negotiate a more detailed agreement in good
faith at the requirement of any Party. Should a more detailed
agreement not be effected then this Agreement shall continue to
govern;
(f) this Agreement shall be construed and enforced in accordance with
British Columbia law;
(g) all notices required hereunder shall be delivered to the Parties
at the foregoing addresses, or such other addresses as subsequently
advised in writing, and to the Technical Committee members at such
addresses as they may advise from time to time.
IN WITNESS WHEREOF the Parties hereto have duly executed this
Agreement by their authorized signatories effective on the date first above
written.
AZCO MINING INC.
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________________________________
Per: Authorized Signatory
LION MINING CORPORATION LIMITED
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Per: Authorized Signatory
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SCHEDULE "A"
COMMENCEMENT OPPORTUNITY CRITERIA
IN DECLINING ORDER OF IMPORTANCE
1. BY GEOGRAPHICAL REGION:
(a) North and South America
(b) Southern and Eastern Africa including (in no particular
order of importance):
(i) Republic of South Africa
(ii) Botswana
(iii) Zambia
(iv) Malagasy Republic
(v) Uganda
(vi) Ethiopia
(vii) Namibia
(viii) Zimbabwe
(ix) Mozambique
(x) Tanzania
(xi) Kenya
(xii) Eritrea
(c) Europe including (in no particular order of importance):
(i) Scandinavian countries
(ii) Spain
(iii) Turkey
(iv) Bulgaria
(v) Former Yugoslavia
(vi) Eire
(vii) Portugal
(viii) Greece
(ix) Former Czechoslovakia
(d) Australia and South-East Asia excluding China and India,
except in exceptional cases as to the latter
2. BY COMMODITY
(a) Base metals, preferably with a precious metals credit and
(i) bulk tonnage preferably with potential in
excess of 250 million tonnes
(ii) massive sulfide preferably with potential in
excess of 10 million tonnes
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(b) Precious metals preferably with gold or gold-equivalent
potential to 500,000 oz. or better
(c) Gemstones, including diamonds as available
(d) Sand, gravel, limestone, and other such materials in the
bulk and construction industry area
(e) hydrocarbons
3. LEVEL OF DEVELOPMENT - PREFERRED TARGETS
(a) projects with immediate or near term cash flow
opportunities, preferably at discounts because of distress conditions
or by investment/technology/management leverage brought by the
Venture
(b) projects with immediate or near term equity value-added
opportunities due to discounts because of distress conditions or by
investment/technology/management leverage brought by the Venture
(c) projects with proven or probable reserves and positive
economic indicators and where the vendor will either Venture or take
equity in a minority position
(d) projects with advanced targets where vendor will take
equity or Venture in a minority position and little or no cash
payments for interests
(e) projects in a an active exploration play area with
favourable geological signatures
4. EXCLUSIONS - TARGETS NOT TO BE CONSIDERED EXCEPT IN THE MOST
EXCEPTIONAL CIRCUMSTANCES
(a) ferrochrome minerals, bauxite, chromite, tungsten
(b) industrial minerals except as noted above
(c) specialty metals
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SCHEDULE "B"
LION EXISTING CLIENT BUSINESS
EXCLUDED FROM AGREEMENT
1. AFRICAN CONTINENT
(a) Masana Holdings Ltd - South Africa
Lion retained to conduct technical due diligence and
provide financial advice on a range of privatised and
other mining opportunities. Where there is an opportunity
either to sell or J/V such opportunities, AZCO will have
first option on any qualifying property. Owners of Masana
are prominent political and business leaders in the new
black Africa.
(b) Botswana
Lion at an advanced stage in negotiating the flotation of
a new Botswana mining finance company with its own
capital. Lion to be a capital partner. Code: KYS.
(c) Diamonds
Due to Lion's previous exclusive agreements with
development and near-production companies, it is not
possible to include diamonds in this Lion/AZCO agreement.
Should the situation change in the future, Lion will
advise AZCO.
(d) Leading Southern African Merchant Bank
Corporate and Technical Advisory agreements under
negotiation together with potential fund management
business, together with the possibility of a large M&A
venture capital fund. These activities may produce AZCO
investment potential and wherever possible, AZCO will be
offered the chance to participate (subject to appropriate
consents).
2. MIDDLE EAST
Lion has numerous technical advisory agreements with Saudi Groups as
well as a financial Venture under discussion. Although at this stage
these agreements cover the technical evaluation of mining projects,
which are part of the restructuring of the Saudi Arabian mining
industry, it is possible that Venture opportunities could arise which
may be offered to AZCO (subject to appropriate consents).
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3. NORTH AMERICA
Lion's current activity for exclusion is M & A related. In M & A
situations, Lion will offer the opportunity to AZCO wherever
possible.
4. LATIN AMERICA
No conflicting business.
5. UNITED KINGDOM & EUROPE
Discussions under way relating primarily to fund management business.
6. M&A
With junior mining equity markets at their lowest levels since 1979,
the greatest acquisition opportunity is likely to arise among those
projects under development by an underfunded junior. Lion will use
its best endeavours to select qualifying juniors for merger,
acquisition or Venture by AZCO. Lion's `superfund' negotiations are
aimed at facilitating this endeavour.
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SCHEDULE "C"
COMMENCEMENT TECHNICAL COMMITTEE
ORGANIZATION PRINCIPLES
1. INITIAL TECHNICAL COMMITTEE MEMBERS
(a) Azco - Nick Badham-Chairman
Ian Gray
(b) Lion - Colin Bird
Andy Sarosi
2. MEETINGS
(a) Frequency - no less than once per month in person or by
conference, in person preferably
(b) Place - Lion's offices
(c) Agenda - produced by Lion with comment by Azco's
representatives
(d) Minutes - produced by Lion and signed off by Chairman
3. OPPORTUNITY ANALYSIS
(a) Opportunities which fit the criteria will be presented by
Lion and examined on a preliminary basis at the meetings;
(b) the Technical Committee will determine whether each
Opportunity should be investigated further, although it may defer a
decision if data is missing. The Committee may adjourn as to any
Opportunity if staff or consultants are required to effect some
evaluation and present a separate report to the Committee;
(c) the Committee will make a go/no-go decision as soon as
possible;
(d) if the Committee determines to proceed to investigate an
Opportunity further it shall set criteria, assign personnel, and set
a budget and shall use its best endeavors to complete the analysis
within 30 days;
(e) the Committee shall attempt to conduct contract
negotiations as soon as possible and shall assign personnel (which
shall preferably have at least a representative of each Party) to
conduct such negotiations. The Committee should attempt to establish
a reasonable agreement in principal as soon as possible to minimize
costs in the event a reasonable deal cannot be concluded.