Form 8-K
8-K — REALLOYS INC.
Accession: 0001185185-26-002091
Filed: 2026-05-22
Period: 2026-05-18
CIK: 0001567900
SIC: 1000 (METAL MINING)
Item: Entry into a Material Definitive Agreement
Item: Regulation FD Disclosure
Item: Financial Statements and Exhibits
Documents
8-K — realloys8k052126.htm (Primary)
EX-10.1 — EXHIBIT 10.1 (realloysex10-1.htm)
EX-99.1 — EXHIBIT 99.1 (realloysex99-1.htm)
XML — IDEA: XBRL DOCUMENT (R1.htm)
8-K — FORM 8-K
8-K (Primary)
Filename: realloys8k052126.htm · Sequence: 1
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2026-05-18
2026-05-18
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UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) May 18, 2026
REALLOYS INC.
(Exact name of registrant as specified in its charter)
Nevada
001-41051
45-3598066
(State or other jurisdiction
of incorporation)
(Commission File Number)
(I.R.S. Employer
Identification No.)
7280 W. Palmetto Park Rd., Suite 302N
Boca Raton, FL
33433
(Address of principal executive
offices)
(Zip Code)
972-726-9203
(Registrant’s telephone number, including area code)
N/A
(Former name or former address, if changed since last report.)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
☐ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities
registered pursuant to Section 12(b) of the Act:
Title of each class
Trading Symbol(s)
Name of each exchange
on which
registered
Common Stock, par value $0.001 per share
ALOY
The
Nasdaq Stock Market
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item
1.01 Entry into a Material Definitive Agreement.
On
May 18, 2026, REalloys Inc. (the “Company”) entered into that certain Rare Earth Product Offtake Agreement
(the “Agreement”) with Critical Metals Corp, a company organized under the laws of the British Virgin Islands
(“Critical Metals”), effective as of May 15, 2026 (the “Effective Date”).
The
Agreement provides for the supply by Critical Metals, through its affiliate Tanbreez Mining Greenland A/S (“Tanbreez Mining”),
of eudialyte-derived rare earth element concentrate (the “Product”) produced from the initial production phase
(“Phase 1”) of the Tanbreez rare earth element mining and processing project located in southern Greenland
and developed by Critical Metals through Tanbreez Mining (the “Project”).
The
Agreement has an initial term of 15 years (the “Initial Term”) commencing on the date on which the parties
reach mutual agreement regarding certain post-qualification matters, including agreed minimum specifications and product qualification
requirements (the “Supply Start Date”). On or before the date falling 18 months before the expiry of the Initial
Term, the parties shall enter into good faith discussions regarding any extension of the Initial Term. If the Supply Start Date has not
occurred within five years following the Effective Date, either party may terminate the Agreement, pursuant to the terms thereof.
Pursuant
to the Agreement, the Company is committed to purchase, and Critical Metals is committed to supply, 15% of the monthly Phase 1 production
of rare earth element concentrate from the Project, subject to a per-delivery variance of plus or minus 5% (the “Monthly
Committed Quantity”), provided that such quantity shall not in any calendar month exceed one-twelfth of 15% of 15,000 metric
tons. The Monthly Committed Quantity shall be delivered in one or more shipments throughout each month (each, a “Shipment”),
each in accordance with a monthly delivery schedule to be delivered by Critical Metals. The Company has no binding obligation to take
delivery of quantities in excess of the Monthly Committed Quantity unless otherwise agreed in writing. The Company’s commitment
pursuant the Agreement is limited to production under Phase 1 of the Project, which has a nameplate capacity of up to 15,000 metric tons
of Product per annum.
The
Product supplied under the Agreement is expected to contain the following elements: neodymium-praseodymium (“NdPr”),
dysprosium (“Dy”), terbium (“Tb”) and yttrium (“Y”) (each
of NdPr, Dy, Tb and Y, a “Payable Element”). The amount payable by the Company for each Shipment (the “Product
Price”) is calculated as the sum of the amount payable for each Payable Element (“Per Element Payment”).
The Per Element Payment is calculated as the product of (i) the percentage applicable for each Payable Element as set forth in Schedule
2 of the Agreement (the “Payable Percentage”), (ii) the fixed contractual recovery yield applicable to each
Payable Element as such formula is set forth in the Agreement (the “Recovery”), (iii) the contained kilograms
of each Payable Element per metric ton of Product, on an oxide basis, as shown in the certificate showing the physical composition and
chemical specifications of the Product comprising the Shipment based on the analysis conducted at the Critical Metals facility or at
the port of loading, as issued by a third-party laboratory, and (iv) the applicable effective price of each Payable Element, on an oxide
basis, being the higher of (a) a trailing six-month arithmetic average of specified ex-China industry indices, including Argus Media,
Asian Metal and Fastmarkets (with secondary and tertiary fallback indices), and (b) a floor price subject to annual escalation of two
percent (2%) (the “Effective Price”). Subject to agreed minimum specifications and product qualification requirements,
the Payable Percentage for each of NdPr, Dy, Tb, and Y are expected to be 75%, 80%, 80% and 35%, respectively. The parties anticipate
that the Recovery for each Payable Element will be fixed at >85%.
Pursuant
to the Agreement, the Company is responsible for ocean transportation and import clearance. If the Company fails to take delivery of
all quantities of Product that have been delivered by Critical Metals under the Agreement for any Shipment due to reasons the Company
is responsible for (an “Offtaker Shortfall”), the Company must pay to Critical Metals an amount equal to (i)
the average of all Product Prices in the applicable calendar month in which the Offtaker Shortfall occurs multiplied by the volume of
the Offtaker Shortfall, plus (ii) documented out-of-pocket mitigation costs incurred by Critical Metals, minus (iii) any proceeds received
by Critical Metals from mitigating sales to third parties.
The
Agreement contains certain events of default by the Company, including, (i) any failure by the Company to pay pursuant to the terms of
the Agreement, subject to cure period set forth therein, (ii) any failure by the Company to comply with certain trade controls and sanctions
pursuant to the terms of the Agreement, (iii) failure by the Company to take delivery of 50% or more of the Monthly Committed Quantities
over any period of 12 consecutive calendar months during the applicable supply period, subject to certain exceptions, and (iv) any other
material breach by the Company of the covenants and obligations set forth in the Agreement, subject to certain cure periods. The Agreement
additionally contains certain events of default by Critical Metals, including but not limited to, (i) any insolvency event, (ii) any
failure by Critical Metals to comply with certain trade controls and sanctions pursuant to the terms of the Agreement, and (iii) any
other material breach by Critical Metals of the covenants and obligations set forth in the Agreement, subject to certain cure periods.
Additionally, if any payment due in connection with the Agreement remains unpaid after the applicable due date, interest on the unpaid
amount shall accrue, from the date such payment became due until the date that payment is made in full, at the rate equal to the sum
of the (i) one-month Term SOFR rate as administered and published by CME Group Benchmark Administration Limited (or any successor administrator)
(provided that if such rate is less than zero, it shall be deemed to be zero), plus (ii) 3%.
The
Agreement contains certain representations and warranties, covenants and indemnities customary for similar agreements of this nature.
The foregoing description of the Agreement does not purport to be complete and is qualified in its entirety by reference to the full
text of the Agreement, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Item
7.01 Regulation FD Disclosure.
On
May 21, 2026, the Company issued a press release announcing its entry into the Agreement. A copy of the press release is furnished as
Exhibit 99.1 to this Current Report on Form 8-K.
In
accordance with General Instruction B.2 of Form 8-K, the information in this Item 7.01 of this Current Report on Form 8-K, including
Exhibit 99.1, shall not be deemed “filed” for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference
in any filing under the Exchange Act or the Securities Act of 1933, as amended, except as shall be expressly set forth by reference in
such a filing. Furthermore, the furnishing of information under Item 7.01 of this Current Report on Form 8-K is not intended to constitute
a determination by the Company that the information contained herein, including the exhibits hereto, is material or that the dissemination
of such information is required by Regulation FD.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits
Exhibit No.
Description
10.1
Rare Earth Product Offtake Agreement, dated May 18, 2026, by and between the Company and Critical Metals Corp.
99.1
Press Release, dated May 21, 2026 (furnished pursuant to Item 7.01 of Form 8-K).
104
Cover Page Interactive Data File (formatted as Inline
XBRL).
1
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly
authorized.
REALLOYS INC.
Date: May 22, 2026
By:
/s/ Leonard Sternheim
Name:
Leonard Sternheim
Title:
President and Chief Executive Officer
2
EX-10.1 — EXHIBIT 10.1
EX-10.1
Filename: realloysex10-1.htm · Sequence: 2
Exhibit
10.1
Rare
Earth Product Offtake Agreement
between
Critical
Metals Corp
as
“Seller”
REalloys
Inc.
as
“Offtaker”
Table
of Contents
Page
ARTICLE
I DEFINITIONS AND INTERPRETATION
1
Section
1.1
Definitions.
1
Section
1.2
Interpretation
9
ARTICLE
II SUBJECT MATTER OF THE AGREEMENT
10
Section
2.1
Sale
and Purchase Obligation
10
Section
2.2
Source
of Product
10
ARTICLE
III TERM AND SUPPLY PERIOD
10
Section
3.1
Term
10
Section
3.2
Supply
Period
10
ARTICLE
IV COMMISSIONING PHASE AND EARLY PRODUCT ARRANGEMENTS
11
Section
4.1
Early
Product
11
Section
4.2
Early
Product Arrangements
11
ARTICLE
V PRODUCT QUALIFICATION
11
Section
5.1
Minimum
Specifications
11
Section
5.2
Sample
Product and Qualification Process
11
Section
5.3
Product
Qualification
12
ARTICLE
VI SALE AND PURCHASE OF PRODUCT
13
ARTICLE
VII OFFTAKE OBLIGATIONS AND PROCEDURES
13
Section
7.1
Annual
Quantity Estimate
13
Section
7.2
Monthly
Production Schedule and Offtake Commitment
13
Section
7.3
Delivery,
Title and Risk
14
Section
7.4
Vessel
Nomination Procedure; Loading and Shipping Terms
15
Section
7.5
Failure
to Take
15
ARTICLE
VIII PRODUCT PRICE AND PAYMENT
16
Section
8.1
Product
Price
16
Section
8.2
Provisional
Invoice
16
Section
8.3
Final
Invoice
17
Section
8.4
Currency;
No Set-Off
17
Section
8.5
Invoice
Disputes
17
Section
8.6
Late
Payment
18
Section
8.7
Audit
Rights
18
ARTICLE
IX WEIGHT DETERMINATION AND QUALITY CERTIFICATION
18
Section
9.1
Weight
Determination
18
Section
9.2
Sampling
and Preliminary Quality Analysis
19
Section
9.3
Quality
Determination
19
ARTICLE
X SALT RESIDUE OBLIGATIONS
21
Section
10.1
Salt
Residue Production and Return Obligations
21
Section
10.2
Shortfall
Payment
21
Section
10.3
Collection
and Costs
22
ARTICLE
XI POST-QUALIFICATION MATTERS
22
Section
11.1
Negotiable
Items
22
Section
11.2
Supply
Start Date
22
ARTICLE
XII REPRESENTATIONS AND WARRANTIES
23
Section
12.1
Representations
and Warranties of Offtaker and Seller
23
(i)
Page
ARTICLE
XIII TAXES
23
Section
13.1
Taxes
23
Section
13.2
Tax
Returns
23
Section
13.3
Withholding
Tax
23
ARTICLE
XIV FORCE MAJEURE
24
Section
14.1
Force
Majeure
24
Section
14.2
Exclusions
25
Section
14.3
No
Liability for Breach
25
Section
14.4
Notice
25
Section
14.5
Resumption
25
Section
14.6
Prolonged
Force Majeure
25
ARTICLE
XV DEFAULTS AND REMEDIES
26
Section
15.1
Offtaker
Events of Default
26
Section
15.2
Seller
Events of Default
26
Section
15.3
Remedies
27
ARTICLE
XVI LIABILITY AND LIMITATIONS
27
Section
16.1
No
Consequential Damages
27
ARTICLE
XVII ASSIGNMENT AND SECURITY INTERESTS
27
Section
17.1
Assignment
27
Section
17.2
Direct
Agreement
27
ARTICLE
XVIII TERMINATION AND SURVIVAL
28
Section
18.1
Expiry
28
Section
18.2
Termination
for Default
28
Section
18.3
Mutual
Termination Rights
28
Section
18.4
Survival
28
ARTICLE
XIX GOVERNING LAW AND RESOLUTION OF DISPUTES
29
Section
19.1
Governing
Law and Jurisdiction
29
Section
19.2
Resolution
of Disputes
29
Section
19.3
Waiver
30
Section
19.4
Limitation
Period
30
Section
19.5
Construction
30
ARTICLE
XX COMPLIANCE WITH LAWS
30
Section
20.1
Compliance
with Applicable Laws and Authorisations
30
Section
20.2
Business
Conduct
30
Section
20.3
Trade
Control and Sanctions
31
ARTICLE
XXI MISCELLANEOUS
33
Section
21.1
Notices
33
Section
21.2
Further
Assurances
33
Section
21.3
No
Partnership or Agency
33
Section
21.4
Confidentiality
33
Section
21.5
Access
to Information
34
Section
21.6
Technical
Collaboration
34
Section
21.7
Entire
Agreement
35
(ii)
Page
Section
21.8
Amendments
35
Section
21.9
Costs
35
Section
21.10
Public
Announcements
35
Section
21.11
Language
35
Section
21.12
Severability
35
Section
21.13
Beneficiaries;
Successors and Assigns
36
Section
21.14
Counterparts
36
SCHEDULES
Schedule
1
-
Specifications
Schedule
2
-
Pricing
Terms
Schedule
3
-
Product
Qualification Requirements
Schedule
4
-
Shipping
Terms
(iii)
This
Rare Earth Product Offtake Agreement (as amended, modified or supplemented from time to time, this “Agreement”)
is dated as of May 18, 2026
Between:
(1) Critical
Metals Corp, a company organised under the laws of the British Virgin Islands and listed
on the Nasdaq Stock Market, with its US offices located at 712 5th Avenue, 11th Floor, New
York,
NY
10001 (the “Seller”); and
(2) REalloys
Inc., a Nevada C-Corporation with its address at 7280 W Palmetto Park Rd, Suite 302N,
Boca
Raton, Florida 33433 (the “Offtaker”), (each a “Party”, and collectively the “Parties”).
Whereas:
(A) The
Seller, through its Affiliate, Tanbreez Mining Greenland A/S, holds Mineral Exploitation
Licence MIN 2020-54 (the “Licence”), granted by the Government of Greenland
on 8 September 2020 and expiring on 7 September 2050, covering an area of eighteen square
kilometres (18 km²) in southern Greenland, which confers the right to exploit elements
found in the eudialyte mineral within the licence area.
(B) Pursuant
to the Licence, the Seller and its Affiliates are developing a rare earth element mining
and processing project at the Tanbreez resource (the “Project”), comprising
the mining, extraction and processing operations at the Seller’s facility for the production
of eudialyte-derived rare earth element concentrate for supply to the global rare earth and
critical minerals market (“Product”).
(C) The
Seller desires to sell and deliver, and the Offtaker desires to purchase and receive, the
Product on a committed basis during the Supply Period (as defined below), and the Parties
wish to set out in this Agreement the terms and conditions governing the sale and purchase
of the Product.
W
I T N E S S E T H :
ARTICLE
I
DEFINITIONS AND INTERPRETATION
Section
1.1 Definitions.
In
this Agreement, unless the context otherwise requires, the following terms shall have the meanings specified or referred to below:
“Acceptable
Bank” means a commercial bank that has branches in either London or New York City and a credit rating of at least the Minimum
Rating.
“Actual
Recovery Yield” has the meaning set forth in Schedule 2 (Pricing Terms).
“Affected
Party” has the meaning set forth in Section 14.3 (No Liability for Breach).
“Affiliate”
means, in relation to any Party, any Person that directly, or indirectly through one or more intermediaries, controls, is controlled
by or is under common control with that Party. For purposes of the foregoing definition, the term “control” means the possession,
directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract, or otherwise, provided that a Person who owns greater than fifty per cent. (50%) of any
outstanding class of voting securities of any other Person shall be deemed to control such other Person.
“Agents”
means, in relation to a Person, that Person’s directors, officers, employees, advisers, agents and representatives.
“Agreement”
has the meaning set forth in the Preamble.
“Annual
Quantity Estimate” has the meaning set forth in Section 7.1(a) (Annual Quantity Estimate).
“Applicable
Law” means any law (including constitutional, statutory, common law and equity), legislation or statute including any international
or other treaty, any domestic or foreign constitution or any multinational, federal, provincial, territorial, state, municipal, county
or local statute, law, ordinance, code, rule, regulation, order (including any securities laws or requirements of stock exchanges and
any consent, decree or administrative order), or Authorisation, including any change in the interpretation of, or application of any
of the foregoing, in each case to the extent applicable to and legally binding upon or having the force of law over any Party, property,
transaction or event, or any of such Party’s property or assets.
“Authorisation”
means any consent, authority, registration, lodgement, notification, certificate, commission, lease, licence, permit, approval or exemption
from, by or with a Governmental Authority which is required by a Party to carry out its obligations under this Agreement.
“Base
Rate” means, for any day, the one-month Term SOFR rate as administered and published by CME Group Benchmark Administration
Limited (or any successor administrator), provided that if such rate is less than zero, it shall be deemed to be zero for the
purposes of this Agreement.
“Benchmark
i” has the meaning set forth in Schedule 2 (Pricing Terms).
“Benchmark
Reference Period” has the meaning set forth in Schedule 2 (Pricing Terms).
“Benchmark Transition Notice”
has the meaning set forth in Schedule 2 (Pricing Terms).
“Benchmark Transition Period” has the meaning
set forth in Schedule 2 (Pricing Terms).
“Books and Records” has the meaning set forth in Section
8.7 (Audit Rights).
“Business
Day” means a day (other than a Saturday, Sunday, or public holiday in New York) when commercial banks in New York are open
for ordinary banking business.
“Business
Integrity Laws” means any laws, international conventions, rules, regulations or other legally binding measures of any applicable
jurisdiction, including but not limited to the United Kingdom, the United States of America, Greenland and Denmark, that relate to the
prevention of bribery, corruption, money laundering, dealings with the proceeds of crime, the facilitation of tax evasion, or fraud,
including without limitation the United Nations Convention against corruption 2003, the OECD Convention on Combating Bribery of Foreign
Public Officials in International Transactions 1997, the U.S. Foreign Corrupt Practices Act of 1977, the Proceeds of Crime Act 2002,
the Bribery Act 2010, the Anti-Terrorism, Crime and Security Act 2011 and the Criminal Finances Act 2017.
“Certificate
of Analysis” means a certificate showing the physical composition and chemical specifications of the Product comprising a Shipment
based on the analysis conducted at the Seller’s facility or at the port of loading, as issued by a Third-Party Laboratory.
2
“Certificate
of Weight” means a certificate showing the weight of the Product comprising a Shipment based on the weighing conducted at the
Seller’s facility or at the port of loading, as issued by a Third-Party Surveyor.
“Confidential
Information” means all data and information disclosed by a Party or its Representatives to the other Party or its Representatives,
whether orally or in writing or in whatsoever form, relating in any way, directly or indirectly, to this Agreement (including the terms
of this Agreement) that is not in the public domain, or that is in the public domain, but only as a consequence of a breach of this Agreement
or another obligation of confidentiality between the Parties.
“Contained
i” has the meaning set forth in Schedule 2 (Pricing Terms).
“Contract
Year” means each calendar year during the Supply Period, provided that:
(a)
the first Contract Year shall commence on the Supply Start Date and end on 31 December of the same calendar year; and
(b)
the last Contract Year shall commence on 1 January of the calendar year in which the Term expires and end on the date of expiry of
the Term or the early termination of this Agreement (whichever occurs earliest).
“Conversion
Negotiation Period” has the meaning set forth in Schedule 2 (Pricing Terms).
“Converted Payable Element”
has the meaning set forth in Schedule 2 (Pricing Terms).
“Default Rate” means a rate per annum equal
to the Base Rate plus three per cent. (3%).
“Delivery
Month” means each calendar month during the Supply Period in which one or more Shipments are delivered or scheduled to be delivered
to the Offtaker pursuant to this Agreement.
“Delivery
Point” has the meaning set forth in Section 7.3(a) (Delivery, Title and Risk).
“Delivery
Receipt” means a written document issued by the owner or provider of the relevant means of transportation, with respect to
a Shipment that has been delivered to, and duly taken by the Offtaker.
“Deprecated
Index” has the meaning set forth in Schedule 2 (Pricing Terms).
“Direct Agreement” has the
meaning set forth in Section 17.2 (Direct Agreement).
“Dispute” has the meaning set forth in Section
19.2(a) (Resolution of Disputes).
“ECJU”
has the meaning set forth in Section 20.3(e)(iii) (Trade Control and Sanctions).
“Effective
Date” means the date on which this Agreement is signed.
“Effective
Price i” has the meaning set forth in Schedule 2 (Pricing Terms).
“Early
Product” has the meaning set forth in Section 4.1 (Early Product Arrangements).
“Event
of Default” means an Offtaker Event of Default or a Seller Event of Default, as applicable.
“Expert” means,
upon either Party’s request made in accordance with specific provisions under this Agreement, one or more experts to be appointed
by the ICC from the ICC Panel of Experts.
“Floor
Price” has the meaning set forth in Schedule 2 (Pricing Terms).
3
“Final
Quality Results” has the meaning set forth in Section 8.3 (Final Invoice).
“Final
Settlement Amount” has the meaning set forth in Section 8.3(a)(i) (Final Invoice).
“FOB”
has the meaning set forth in Incoterms.
“Force
Majeure” has the meaning set forth in Section 14.1 (Force Majeure).
“Governmental
Authority” means any unit, agency, ministry, commission, division, department, instrumentality or other similar legal authority
of any branch of government (whether executive, legislative, judicial, regulatory or administrative) at any level of government (whether
national, federal, regional, state, provincial, municipal, territorial or local, foreign or domestic), including a recognised stock exchange,
and any self-regulatory organisation or other non-governmental regulatory authority or quasi-governmental authority (to the extent that
the rules, regulations or orders of such organisation or authority have the force of law), or any arbitrator, court or tribunal of competent
jurisdiction.
“Greenland”
means the autonomous territory of Greenland within the Kingdom of Denmark. “HREE” means heavy rare earth elements.
“Incoterms”
means the 2020 edition of the International Chamber of Commerce (ICC) official rules for the interpretation of trade terms.
“Index
Replacement Period” has the meaning set forth in Schedule 2 (Pricing Terms).
“Initial
Term” has the meaning set forth in Section 3.1(a) (Term).
“Insolvency
Event” means, in respect of any Person, any of the following acts or events:
(a)
any general assignment, settlement, arrangement or composition with or for the benefit of its creditors being entered into, by or in
relation to such Person;
(b)
a supervisor, trustee, receiver, interim receiver, receiver manager, custodian, administrator, administrative receiver (or other
person with similar powers) taking possession of or being appointed over or any distress, execution, garnishment, attachment or
other process being levied (and not being withdrawn or discharged within twenty-one (21) days) or enforced upon the whole or any
material part of the assets of such Person;
(c)
such Person ceasing to carry on business or being or becoming insolvent or unable to pay its debts as they fall due;
(d)
a petition being presented (and not being discharged or adjourned for later hearing within twenty-one (21) days or not being
discharged on the first adjourned hearing) or a resolution being passed or an order being made for the administration or the
receivership, winding-up, bankruptcy, liquidation or dissolution of such Person;
(e)
any order or judgment is made (and not overturned or withdrawn within twenty-one (21) days) by a tribunal of competent jurisdiction
restraining such Person’s ability to deal with all or a substantial portion of its assets and property; or
(f)
such Person suffering any similar event or act to those set forth in paragraphs (a) to (e) above with similar effect
under Applicable Law.
“Invoice”
has the meaning set forth in Section 8.2(c) (Provisional Invoice).
“Invoice
Amount” has the meaning set forth in Section 8.2(c) (Provisional Invoice).
4
“L/C”
has the meaning set forth in Section 8.2(a) (Provisional Invoice).
“Lenders”
means, collectively, all of the Persons, including commercial banks, export credit agencies and/or governmental financing agencies, from
time to time, providing any form of financing or refinancing (or guarantees, insurance or reinsurance in support thereof) or any form
of hedging to the Seller or its Affiliates for the purposes of the Project, and any trustee or agent acting on any of those persons’
behalf.
“Licence”
has the meaning set forth in Recital (A).
“Loading
Notification” has the meaning set forth in Schedule 4 (Shipping Terms).
“Long
Stop Date” has the meaning set forth in Section 3.2(b) (Supply Period).
“Loss”
means all claims, demands, proceedings, fines, losses, damages, liabilities, obligations, deficiencies, costs and expenses (including
all reasonable legal, advisory and other professional fees and disbursements, interest, penalties, judgements and amounts paid in settlement
of any demand, action, suit, proceeding, assessment, judgment or settlement or compromise).
“Metric
Ton” or “MT” means one thousand (1,000) kilograms.
“Minimum
Rating” means a long-term credit rating of at least A3 by Moody’s Investors Service, Inc. (or its successor) or A- by
S&P Global Ratings (or its successor).
“Minimum
Specifications” has the meaning set forth in Schedule 1 (Specifications).
“Mitigation Period”
has the meaning set forth in Section 7.5(c) (Failure to Take).
“Mitigating Sale” has the meaning set
forth in Section 7.5(c) (Failure to Take).
“Monthly
Committed Quantity” has the meaning set forth in Section 7.2(c) (Monthly Production Schedule and Offtake Commitment).
“Monthly
Delivery Schedule” has the meaning set forth in Section 7.2(b) (Monthly Production Schedule and Offtake Commitment).
“Monthly
Offtake Quantity” has the meaning set forth in Section 7.2(a) (Monthly Production Schedule and Offtake Commitment).
“Monthly
Production Notice” has the meaning set forth in Section 7.2(a) (Monthly Production Schedule and Offtake Commitment).
“Nominated
Vessel” has the meaning set forth in Schedule 4 (Shipping Terms).
“Non-Conforming
Products” has the meaning set forth in Section 9.3(i) (Quality Determination).
“Non-Payable
Elements” has the meaning set forth in Schedule 2 (Pricing Terms).
“Notice
of Non-qualification” has the meaning set forth in Section 5.3(b) (Product Qualification).
“OFAC”
has the meaning set forth in Section 20.3(e)(iii) (Trade Control and Sanctions).
“Offtaker” has the
meaning set forth in the Preamble.
“Offtaker’s
Certificate of Analysis” has the meaning set forth in Section 9.3(e) (Quality Determination).
5
“Offtaker’s
Sample” has the meaning set forth in Section 9.2(c) (Sampling and Preliminary Quality Analysis).
“Offtaker
Event of Default” has the meaning set forth in Section 15.1 (Offtaker Event of Default).
“Offtaker
Shortfall” has the meaning set forth in Section 7.5(b) (Failure to Take).
“OFSI” has the meaning
set forth in Section 20.3(e)(iii) (Trade Control and Sanctions).
“OTSI” has the meaning set forth in
Section 20.3(e)(iii) (Trade Control and Sanctions).
“Parties” has the meaning set forth in the Preamble.
“Party”
has the meaning set forth in the Preamble.
“Payable
Percentage” has the meaning set forth in Schedule 2 (Pricing Terms).
“Payable Element” has
the meaning set forth in Schedule 2 (Pricing Terms).
“Payment i” has the meaning set forth in Schedule
2 (Pricing Terms).
“Phase
1” means the initial production phase of the Project, which has a nameplate capacity of producing up to fifteen thousand (15,000)
metric tons of Product per annum.
“Person”
means any individual, partnership, corporation, limited liability company, cooperative, association, foundation, joint stock company,
trust, joint venture, unincorporated organisation, Governmental Authority or any other entity (in each case whether or not incorporated
and whether or not having a separate legal identity).
“Post-Qualification
Matters” has the meaning set forth in Section 11.1 (Negotiable Items).
“Preliminary
Certificate of Analysis” has the meaning set forth in Section 9.2(a) (Sampling and Preliminary Quality Analysis).
“Product”
has the meaning set forth in Recital (B).
“Product
Price” has the meaning set forth under Section 8.1 (Product Price).
“Product
Qualification” has the meaning set forth in Section 5.3(a) (Product Qualification).
“Product
Qualification Notice” has the meaning set forth in Section 5.3(a) (Product Qualification).
“Product
Qualification Requirements” has the meaning set forth in Schedule 3 (Product Qualification).
“Project”
has the meaning set forth in Recital (B).
“Proposed
Replacement Index” has the meaning set forth in Schedule 2 (Pricing Terms).
“Providing Party”
has the meaning set forth in Section 21.5(a) (Access to Information).
“Recovery i” has the meaning set
forth in Schedule 2 (Pricing Terms).
“Recovery
Yield Saving” has the meaning set forth in Schedule 2 (Pricing Terms).
“Rejectable Product”
has the meaning set forth in Section 9.3(b) (Quality Determination).
“REO” means rare earth oxide.
6
“Replacement
Products” has the meaning set forth in Section 9.3(j) (Quality Determination).
“Representatives”
means, in respect of a Party or its Affiliates, their Agents.
“Returnable
Zr/Hf Quantity” has the meaning set forth in Section 10.1 (Salt Residue Production and Return Obligations).
“Rules”
has the meaning set forth in Section 19.2(b) (Resolution of Disputes).
“Salt
Residue” has the meaning set forth in Section 10.1 (Salt Residue Production and Return Obligations).
“Sample
Product” has the meaning set forth in Section 5.2(b)(i) (Sample Product and Qualification Process).
“Sampling
Lot” has the meaning set forth in Section 9.3(g) (Quality Determination).
“Sanctioned
Person” has the meaning set forth in Section 20.3(e)(i) (Trade Control and Sanctions).
“Sanctioned
Territory” has the meaning set forth in Section 20.3(e)(ii) (Trade Control and Sanctions).
“Sanctions
Authority” has the meaning set forth in Section 20.3(e)(iii) (Trade Control and Sanctions).
“Sanctions
Laws” has the meaning set forth in Section 20.3(e)(iv) (Trade Control and Sanctions).
“Sanctions List”
has the meaning set forth in Section 20.3(e)(v) (Trade Control and Sanctions).
“Scheduled Loading Date”
has the meaning set forth in Schedule 4 (Shipping Terms).
“Seller”
has the meaning set forth in the Preamble.
“Seller
Conversion Notice” has the meaning set forth in Schedule 2 (Pricing Terms).
“Seller
Delivered Quantities” has the meaning set forth in Section 7.5(a) (Failure to Take).
“Seller Event of
Default” has the meaning set forth in Section 15.2 (Seller Events of Default).
“Seller’s
Certificate of Analysis” has the meaning set forth in Section 9.3(e) (Quality Determination).
“Seller’s
Sample” has the meaning set forth in Section 9.2(c) (Sampling and Preliminary Quality Analysis).
“Shipment”
means each shipment of Product that has been delivered in accordance with the terms of this Agreement.
“Shipping
Tolerance” means, in respect of each Shipment, plus or minus five per cent. (5%) of the quantity of Product scheduled for delivery
in that Shipment.
“Special
Consultation Requirements” has the meaning set forth in Section 19.2(a) (Resolution of Disputes).
“Statement”
has the meaning set forth in Section 21.7(b) (Non-Reliance).
7
“Supply
Period” shall mean the period commencing on the Supply Start Date and continuing until the end of the Term.
“Supply
Start Date” shall mean the date on which each Post-Qualification Matter has been mutually agreed in writing by the Parties.
“Supply
Year” means each twelve (12)-month interval from the Supply Start Date.
“Take
or Pay Base Price” means the average of all Product Prices in the applicable calendar month in which the Offtaker Shortfall
occurs.
“Take
or Pay Payment” has the meaning set forth in Section 7.5(d) (Failure to Take).
“Tax”
or “Taxes” means all taxes, assessments and other governmental charges, duties, royalties and impositions, including
any interest, penalties, tax instalment payments or other additions that may become payable in respect thereof, imposed by any Governmental
Authority, which taxes shall include all income or profits taxes, tariffs, non-resident withholding taxes, sales and use taxes, branch
profit taxes, ad valorem taxes, excise taxes, harmonised sales taxes, franchise taxes, gross receipts taxes, business licence taxes,
occupation taxes, real and personal property taxes, stamp taxes, environmental taxes, production taxes, transfer taxes, land transfer
taxes, capital taxes, extraordinary income taxes, surface area taxes, property taxes, asset transfer taxes and other governmental charges
and other obligations of the same or of a similar nature to any of the foregoing.
“Telegraphic
Transfer” means an electronic payment of cleared funds through the international banking system that is credited in cleared
funds directly to an account nominated by the party entitled to payment.
“Term”
means the Initial Term, as extended by any extension agreed by the Parties pursuant to Section 3.1(b) (Term).
“Third-Party
Laboratory” means a professional organisation for the sampling and analysis of Product as required under this Agreement, which
shall be the organisation as mutually agreed to by the Offtaker and the Seller from time to time from the list of SGS, ALS and Intertek,
or any other professional organisation as mutually agreed by the Parties.
“Third-Party
Sample” has the meaning set forth in Section 9.2(c) (Sampling and Preliminary Quality Analysis).
“Third-Party
Surveyor” means a professional organisation for the weighing of Product as required under this Agreement, which shall be the
organisation as selected by the Seller from time to time from the list of SGS, CISS and Bureau Veritas, or any other professional organisation
as mutually agreed by the Parties.
“TREO”
means total rare earth oxide.
“USD”
means United States Dollars, the lawful currency for the time being of the United States of America.
“Zr/Hf
Shortfall” has the meaning set forth in Section 10.2(a) (Shortfall Payment).
“Zr/Hf
Shortfall Payment” has the meaning set forth in Section 10.2(a) (Shortfall Payment).
8
Section 1.2 Interpretation
(a) References
to “this Agreement” or to “any other agreement or document referred to in this Agreement” are references to this
agreement or such other document or agreement as amended, varied, supplemented, replaced or novated (in each case, other than in breach
of the provisions of this Agreement or such other agreement or document) from time to time.
(b) When
a reference is made in this Agreement to an “Article”, “Section”, “Schedule” or “Exhibit”,
such reference shall be to an Article, Section, Schedule or Exhibit of or to this Agreement, unless the context requires otherwise.
(c) References
to a “company” shall include any company, corporation or other body corporate, wherever and however incorporated or established.
(d)
References to “include”, “including” or “in particular” are to be construed without
limitation.
(e)
References to “law” include common or customary law and any bye-law, regulation, legislation (including delegated
legislation), constitution, decree, judgement, order, ordinance, statute, treaty or other legislative measure in any jurisdiction
and any present, or future directive, requirement or guideline (in each case, whether or not having the force of law but, if not
having the force of law, the compliance with which is in accordance with the general practice of persons to whom the directive or
requirement is addressed).
(f) References
to “other” and “otherwise” shall not be limited by any foregoing words where a wider construction is possible.
(g) References
to a “person” include any natural person, corporation, partnership, limited liability company, unincorporated body, firm,
partnership, association, joint venture, trust, organisation, government, committee, department, authority or other body, or any agency
or political subdivision thereof or any other entity, whether or not having separate legal personality and that person’s personal
representatives, successors or permitted assigns.
(h)
Whenever the words “hereof”, “herein”, “hereunder” or “hereto” are used in this
Agreement, they shall be deemed to refer to this entire Agreement and not any particular provision.
(i) A
reference to a day, month or year is relevant to a calendar day, calendar month or calendar year.
(j)
A reference to “writing” or “written” includes any communication sent by letter or email or any other means
of reproducing words in a legible and non-transitory form.
(k) Where
a word or expression is defined, words and expressions which are related in origin shall be construed accordingly.
(l) Headings
and the table of contents are for convenience only and shall not affect the interpretation of this Agreement.
(m) References
to any party shall include that party’s personal representatives, successors and permitted assigns.
(n) Unless
the context otherwise requires, words in the singular include the plural (and vice versa) and references to any gender includes references
to all other genders.
(o)
References in this Agreement to any statute or statutory provision or to any secondary legislation made thereunder shall be
construed as a reference to such primary or secondary legislation as the same may have been, or may from time to time be, amended,
varied, supplemented, replaced or re-enacted, provided that, as between the Parties, no such amendment, variation,
supplement, replacement or re-enactment shall apply for the purposes of this Agreement to the extent that it would impose any new or
extended obligation, liability or restriction on, or otherwise adversely affect the rights of, any Party.
9
(p) Any
obligation on a Party not to do something includes an obligation not to agree or allow that thing to be done.
(q) Any
obligation of a Party to negotiate, discuss, use good faith, use commercially reasonable efforts or any other efforts to mutually agree,
document or finalize anything in this Agreement, including the Minimum Specifications, the Post-Qualification Matters and the Product
Qualification Requirements, is an obligation only to participate in the applicable process in accordance with the applicable standard,
and neither Party shall be required to agree to or accept any term, condition, specification, requirement, price, percentage, value,
mechanic, schedule, procedure, amendment or other outcome that is not satisfactory to such Party in such Party’s sole discretion.
(r) References
to an agreement or a document under this Agreement shall include all of its appendices, schedules and addenda.
(s) References
to a legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept
or thing shall, in respect of any jurisdiction other than the jurisdiction of the governing law of this Agreement, be deemed to include
what most nearly approximates to such legal term in that jurisdiction.
(t) The
Incoterms applicable to a sale made under this Agreement apply to, and are incorporated in, this Agreement. If there is a conflict between
a provision of this Agreement and a provision of the Incoterms, the provision of this Agreement shall prevail.
ARTICLE
II
SUBJECT
MATTER OF THE AGREEMENT
Section
2.1 Sale and Purchase Obligation
The
Seller shall deliver Product with agreed upon specifications, including chemical composition and physical characteristics, as described
in more detail in Schedule 1 (Specifications) and the Offtaker shall order and accept delivery of the Product in accordance
with and subject to the terms and conditions set forth in this Agreement.
Section
2.2 Source of Product
The
Seller shall only be obliged to supply Product produced from the Project.
ARTICLE
III
TERM
AND SUPPLY PERIOD
Section
3.1 Term
(a) This
Agreement shall come into full force and effect on the Effective Date. Following the Effective Date and unless this Agreement is terminated
earlier in accordance with its terms, this Agreement shall continue in full force and effect until the date that is fifteen (15) Supply
Years from the Supply Start Date (the “Initial Term”).
(b) On
or before the date falling eighteen (18) months before the expiry of the Initial Term, the Parties shall enter into good faith discussions
with respect to any extension of the Initial Term.
Section
3.2 Supply Period
(a) The
Seller shall provide the Offtaker with periodic progress updates of the Project prior to the commencement of the Supply Period.
10
(b) Each
Party shall have the right to terminate this Agreement (in such Party’s sole discretion) by written notice if the Supply Start
Date is not achieved by five (5) years from the Effective Date (the “Long Stop Date”), whereupon neither Party shall
have any further obligation or liability to the other for, and irrevocably releases and discharges the other from, any claim, action
or damages whatsoever in relation to such termination, in each case whether at law, tort or contract, or in equity.
(c) Notwithstanding
anything to the contrary, the Seller’s obligation to sell and deliver Product to the Offtaker pursuant to Article VI (Sale
and Purchase of Product) will not commence until the commencement of the Supply Period, without prejudice to the rights of the Parties
under Section 3.2(b).
ARTICLE
IV
COMMISSIONING
PHASE AND EARLY PRODUCT ARRANGEMENTS
Section
4.1 Early Product
The
Parties acknowledge and agree that during the period from the Effective Date until the Supply Start Date, it is expected that the Project
will undergo construction, commissioning and ramp-up phases, and as the result rare earth element concentrate may be produced from the
Project from time to time prior to the commencement of the Supply Period (the “Early Product”).
Section
4.2 Early Product Arrangements
During
the period prior to the Supply Start Date the Parties shall enter into good faith discussions with a view to agreeing the terms and conditions
upon which the Offtaker may purchase quantities of Early Product from the Seller on a commercial basis, including the quantity, specifications,
pricing (which, unless otherwise agreed, shall be calculated by reference to the pricing formula set out in Schedule 2 (Pricing
Terms) applied mutatis mutandis to the characteristics of the Early Product as shown in the applicable certificate of analysis),
delivery arrangements and any other relevant commercial terms, provided that, neither Party shall have any binding obligation
to sell, deliver, purchase or take delivery of any Early Product (other than the Seller’s obligation to use reasonable efforts
to supply samples of Early Product for the purpose of Product Qualification) unless and until the Parties have entered into a separate
written agreement setting out the mutually agreed terms and conditions for such sale and purchase, and nothing in this Article IV
shall oblige either Party to enter into any such agreement.
ARTICLE
V
PRODUCT QUALIFICATION
Section
5.1 Minimum Specifications
Following
completion of the first delivery of Early Product in accordance with Section 4.2 (Early Product Arrangements), the Parties
shall, within sixty (60) days of such delivery (or such longer period as the Parties may agree in writing), negotiate in good faith,
using commercially reasonable efforts, to mutually agree the Minimum Specifications. If the Parties are unable to agree upon any of the
Minimum Specifications within such time, each Party shall have the right to terminate this Agreement (in such Party’s sole discretion)
in accordance with Section 18.3(a) (Mutual Termination Rights).
Section
5.2 Sample Product and Qualification Process
(a)
The Parties shall, within sixty (60) days of the first delivery of Early Product in accordance with Section 4.2 (Early
Product Arrangements) (or such longer period as the Parties may agree in writing), use commercially reasonable efforts to
mutually agree the Product Qualification Requirements to be documented in Schedule 3 (Product Qualification
Requirements).
11
(b) Each
Party shall use reasonable efforts to procure that the Product is qualified as expeditiously as reasonably practicable following the
commencement of the supply of Early Product, in accordance with the following process:
(i) the
Seller shall use reasonable efforts to deliver, or procure the delivery of, to the Offtaker’s designated facility, samples of rare
earth element concentrate produced from the Project that represents a commercially reasonable quantity (the “Sample Product”);
(ii) the
quantities of the Sample Product, the delivery arrangements, the procedure and organisation of the qualification test and further details
of the test shall be set out in Schedule 3 (Product Qualification Requirements); and
(iii) following
the receipt of the Sample Product the Offtaker shall organize the qualification test in accordance with the procedure and other requirements
under Schedule 3 (Product Qualification Requirements). The Offtaker shall notify the Seller in advance regarding the timing
and venue for the test and the Seller shall be entitled to attend and witness the qualification test at its own cost.
(c) The
Offtaker shall procure the timely assistance and participation from its raw material suppliers in the qualification process, to the extent
such assistance and participation are reasonably required or desirable for the successful conduct of the qualification process.
(d) The
Seller shall bear and pay the costs of production and delivery of the Sample Product to the Offtaker’s designated facility. Upon
receipt of the Sample Product, the Offtaker shall bear and pay the cost of transporting the Sample Product to the relevant testing facility
and the costs of conducting the qualification test.
Section
5.3 Product Qualification
(a) The
Product shall be considered qualified (the “Product Qualification”) only if, based on the results from the qualification
test in accordance with the terms set out in Schedule 3 (Product Qualification Requirements), the Product satisfies the
Minimum Specifications set out in Item 2 (Minimum Specifications) of Schedule 1 (Specifications) and the
requirements set out in Schedule 3 (Product Qualification Requirements). The Product Qualification shall constitute a condition
precedent to the commencement of the Supply Period and, subject to the other terms of this Agreement, the Party’s obligations under
Article VI (Sale and Purchase of Product). Upon confirmation by either Party of Product Qualification, such Party shall
also issue a notice to the other Party within seven (7) days from the completion of the qualification test certifying the same (the “Product
Qualification Notice”).
(b) If
either Party considers that the Product has not been qualified based on the results from the qualification test, it shall within seven
(7) days from the completion of the qualification test provide to the other Party in writing a notice of non-qualification, including
its reasons and supporting materials in reasonable details (the “Notice of Non-qualification”). Upon delivery of a
Notice of Non-qualification, each Party shall have the right to terminate this Agreement (in such Party’s sole discretion) in accordance
with Section 18.3(b) (Mutual Termination Rights).
(c)
If within one hundred and twenty (120) days from the Offtaker’s receipt of the first delivery of Early Product in accordance with
Section 4.2 (Early Product Arrangements) (or such longer period as the Parties may agree in writing), neither Party has
issued either a Product Qualification Notice or a Notice of Non-qualification, each Party shall have the right to terminate this Agreement
(in such Party’s sole discretion) in accordance with Section 18.3(c) (Mutual Termination Rights).
12
ARTICLE
VI
SALE
AND PURCHASE OF PRODUCT
Subject
to and in accordance with the terms and conditions of this Agreement, the Seller agrees to sell and deliver to the Offtaker, and the
Offtaker agrees to take the delivery of and pay for, the Monthly Committed Quantity as further set out in Article VII (Offtake
Obligations and Procedures).
ARTICLE
VII
OFFTAKE
OBLIGATIONS AND PROCEDURES
Section
7.1 Annual Quantity Estimate
(a) No
later than sixty (60) days prior to the start of each Contract Year, the Seller shall provide the Offtaker with a non-binding, good faith
estimate of the total quantities of Product that the Seller reasonably anticipates will be produced from Phase 1 of the Project and available
for delivery to the Offtaker during the applicable Contract Year (the “Annual Quantity Estimate”), having regard to
the anticipated operational performance of Phase 1 of the Project for the applicable Contract Year, including the impacts of performing
scheduled plant maintenance and inspection activities.
(b)
The Annual Quantity Estimate is indicative only and shall not constitute a binding commitment by the Seller to deliver, or by the Offtaker
to purchase, any particular quantity of Product. The Offtaker’s binding offtake commitment shall be determined on a monthly basis
in accordance with Section 7.2 (Monthly Production Schedule and Offtake Commitment).
Section
7.2 Monthly Production Schedule and Offtake Commitment
(a) At
least sixty (60) Business Days prior to the start of each calendar month during the Supply Period, the Seller shall deliver to the Offtaker
a written notice (the “Monthly Production Notice”) setting out the Seller’s good faith estimate of the total
quantities of Product reasonably expected to be produced from Phase 1 of the Project during such calendar month (the “Monthly
Offtake Quantity”) and material changes, if any, to the then-applicable Annual Quantity Estimate for the remaining months in
such Supply Period, having regard to:
(i)
the operational performance at the Project; and
(ii)
the logistics arrangements that the Offtaker can reasonably secure.
(b) Within
ten (10) Business Days following the receipt by the Offtaker of the Monthly Production Notice, the Seller shall deliver to the Offtaker
a delivery and shipping arrangement for such calendar month (the “Monthly Delivery Schedule”). Each Monthly Delivery
Schedule will set out the delivery dates and quantities of Product under each Shipment to be delivered during the applicable calendar
month, and such other information as the Seller considers reasonably necessary. The Offtaker may propose reasonable amendments to the
Monthly Delivery Schedule, which the Seller shall consider in good faith but shall not be obliged to accept.
(c)
Upon receipt of the Monthly Production Notice, the Offtaker shall be obligated to take delivery of and pay for a quantity of Product
equal to fifteen per cent. (15%) of the Monthly Offtake Quantity, subject to a variance of plus or minus five per cent. (±
5%) of such quantity (the “Monthly Committed Quantity”); provided that the Monthly Committed Quantity shall not
in any calendar month exceed one-twelfth (1/12th) of fifteen per cent. (15%) of fifteen thousand (15,000) metric tons.
13
(d) The
Offtaker shall have no binding obligation to take delivery of or pay for any quantities of Product in excess of the Monthly Committed
Quantity (as adjusted for the applicable variance) in any calendar month, unless otherwise agreed in writing by the Parties.
(e) The
Parties may, by mutual agreement in writing and acting in good faith, revise a Monthly Delivery Schedule in whole or in part, whereupon
the new schedule replaces the previous Monthly Delivery Schedule.
(f) Notwithstanding
anything to the contrary in this Agreement, the Seller shall be deemed as having met its obligations to deliver required quantities of
Product for a Shipment as long as the total quantities of Product that it has delivered for that Shipment is within the Shipping Tolerance.
(g) Where
quantities of Product in excess of the Monthly Committed Quantity become available and are not committed to a third party, the Seller
shall notify the Offtaker and the Parties shall discuss in good faith the terms upon which such additional quantities may be purchased
by the Offtaker; provided that neither Party shall have any binding obligation to sell, deliver, purchase or take delivery of
any such additional quantities unless and until the Parties have agreed the terms for such sale and purchase in writing.
(h) The
Parties acknowledge and agree that the Offtaker’s rights and obligations under this Agreement relate solely to Product produced
from Phase 1 of the Project. Any production of Product from any subsequent phase of the Project beyond Phase 1 shall be excluded from
the scope of this Agreement and shall not be taken into account in determining the Monthly Offtake Quantity, the Monthly Committed Quantity
or any other volume commitment under this Agreement.
Section
7.3 Delivery, Title and Risk
(a) The
Seller shall, at its own cost and expense as part of the Product Price, deliver and the Offtaker shall take delivery of each Shipment
under this Agreement on the basis of FOB (Incoterms 2020) at the Tanbreez port at the head of Kangerluarsuk Fjord, Greenland, or another
location agreed by the Seller and the Offtaker in writing (the “Delivery Point”), in accordance with the requirements
as set out in the Monthly Delivery Schedule; provided that any proposed modifications to the Delivery Point or the delivery terms
shall require a review and adjustment of the Product Price to reflect any additional costs, expenses and responsibilities so incurred
by the Seller.
(b) To
the extent the Seller is unable to proceed with or finalise the delivery due to the Offtaker not taking the relevant delivery or otherwise
failing to fulfil its obligations as buyer under the applicable Incoterms, the applicable delivery shall be deemed to have occurred and
the relevant quantities shall be deemed to be included in the applicable Seller Delivered Quantities to the extent the Seller is not
otherwise in breach of its delivery obligations under this Agreement.
(c) Subject
to Section 7.3(f), risk of loss, damage, destruction or injury caused to or by the Product passes from the Seller to the Offtaker
at the Delivery Point upon loading of the Product in accordance with FOB (Incoterms).
(d) Unless
otherwise explicitly specified in this Agreement, title to each Shipment of Product shall pass to the Offtaker at the Delivery Point,
subject to payment in full by the Offtaker of the Invoice Amount or Final Settlement Amount, as applicable, for that Shipment.
14
(e) The
Seller shall, as soon as reasonably practicable, notify the Offtaker if it becomes reasonably aware that, in respect of any Shipment,
it may be unable to deliver all or part of the scheduled quantity for that Shipment in accordance with the Monthly Delivery Schedule,
except to the extent directly resulting from the actions of the Offtaker. The Seller shall reimburse the Offtaker for any actually incurred,
direct, documented and reasonable costs of the Offtaker resulting directly from the Seller’s inability to deliver all or part of
the scheduled quantity for such Shipment in accordance with the Monthly Delivery Schedule. The Offtaker shall have an obligation to reasonably
mitigate any such costs resulting from the Seller’s inability to deliver all or part of the scheduled quantity for such Shipment.
(f) The
Parties shall use commercially reasonable endeavours to reschedule any Shipment in respect of which the Seller notifies the Offtaker
that it may be unable to deliver in accordance with the Monthly Delivery Schedule.
(g) The
Offtaker shall be liable for all demurrage, unloading and other costs incurred by the Seller at the discharge point, if any. Any costs
incurred due to an error or fault of a Party shall be borne by such Party.
Section
7.4 Vessel Nomination Procedure; Loading and Shipping Terms
The
vessel nomination procedure, loading notification requirements, additional shipping requirements, customs documentation obligations and
all other terms relating to the transportation of Product from the Delivery Point shall be as set out in Schedule 4 (Shipping
Terms).
Section
7.5 Failure to Take
(a) The
Offtaker shall take delivery of and pay for all quantities of Product that have been delivered by the Seller under each Monthly Delivery
Schedule (the “Seller Delivered Quantities”) in accordance with the pricing terms set out in Section 8.1 (Product
Price), provided that, the following paragraphs of this Section 7.5 shall apply to the extent the Offtaker fails to
take all such Seller Delivered Quantities.
(b) If
the Offtaker fails to, in any calendar month, take delivery of all of the Seller Delivered Quantities delivered in such calendar month
due to reasons that the Offtaker is responsible for, which shall, for the avoidance of doubt, exclude such failures caused by:
(i)
a Force Majeure event affecting the Offtaker’s ability to take delivery of the Product; or
(ii)
breach of this Agreement by the Seller,
such Seller Delivered Quantities that are not taken by the Offtaker shall constitute an “Offtaker
Shortfall”.
(c) Within
thirty (30) days following the end of the applicable calendar month in which an Offtaker Shortfall arises (the “Mitigation Period”),
the Seller shall:
(i) use
reasonable endeavours to sell some or all of the Offtaker Shortfall to a third party or third parties, without reference to the Offtaker;
and
(ii) upon
the Offtaker’s request, permit the Offtaker to procure a third party or third parties that have passed the Seller’s “know-your-client”
checks to purchase the Offtaker Shortfall as available from the Seller on terms that are acceptable by the Seller, so that all relevant
proceeds are directly paid to the Seller,
(collectively,
a “Mitigating Sale”).
15
(d) Within
fifteen (15) days following the Mitigation Period, the Offtaker shall pay the Seller an amount that equals the total of:
(i)
an amount that equals the applicable Take or Pay Base Price multiplied by the Offtaker Shortfall; plus
(ii) any
reasonable and documented out-of-pocket costs actually incurred by the Seller in mitigating its losses due to the Offtaker’s failure
to take delivery of the Offtaker Shortfall (including the costs of any Mitigating Sale, additional storage cost and/or disposal cost);
minus
(iii)
any proceeds received by the Seller from the Mitigating Sale,
provided
that if such amount as calculated is a negative number, then such amount shall be deemed to be zero,
(the
“Take or Pay Payment”).
ARTICLE
VIII
PRODUCT PRICE AND PAYMENT
Section
8.1 Product Price
The
payment for all Seller Delivered Quantities with respect to each Shipment (the “Product Price”) shall be made in USD
and as calculated in accordance with Schedule 2 (Pricing Terms).
Section
8.2 Provisional Invoice
(a) Not
less than thirty (30) days prior to the scheduled delivery date of each Shipment, the Offtaker shall provide the Seller with an irrevocable
documentary letter of credit in USD payable at sight (the “L/C”) issued by an Acceptable Bank, covering an amount
equal to one hundred per cent. (100%) of the estimated value for the applicable Shipment as notified by the Seller to the Offtaker in
writing no later than five (5) Business Days prior to the date on which the L/C is required to be provided, with validity until thirty
(30) days after the scheduled delivery date of such Shipment, issued in favour of the Seller.
(b) If
the Offtaker fails to provide the L/C in respect of any Shipment by the date required under Section 8.2(a) the Seller shall have
the right (but not the obligation), without prejudice to any other rights or remedies available to it under this Agreement or at law,
to suspend delivery of the relevant Shipment until such L/C has been duly provided in accordance with Section 8.2(a).
(c) As
soon as is reasonably practicable following delivery of a Shipment, the Seller shall issue an invoice to the Offtaker for the payment
of an amount that equals one hundred per cent. (100%) of the total value of the Seller Delivered Quantities that are taken by the Offtaker,
calculated in accordance with Schedule 2 (Pricing Terms) (such amount, the “Invoice Amount”, such invoice,
the “Invoice”), together with the following documents:
(i)
Delivery Receipt;
(ii)
the Preliminary Certificate of Analysis; and
(iii)
the Certificate of Weight.
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(d) The
payment of the Invoice Amount by the Offtaker shall be firstly made under the L/C, within thirty (30) days from the receipt of the documents
set out under Section 8.2(c); provided that, where the Invoice Amount is greater than the face amount of the L/C, the Offtaker
shall be liable to pay the balance to the Seller by Telegraphic Transfer within thirty (30) days from the receipt of the Invoice.
(e) For
the avoidance of doubt, the payment for Offtaker Shortfall shall be made in accordance with Section 7.5 (Failure to Take).
Section
8.3 Final Invoice
(a) In
respect of each Shipment, once the final quality of the Product is determined pursuant to Section 9.3 (Quality Determination)
(the “Final Quality Results”), the Seller shall, as soon as reasonably practicable, notify the Offtaker in writing
of:
(i) the
final value of the Seller Delivered Quantities for the applicable Shipment, calculated in accordance with Schedule 2 (Pricing
Terms) and applying the Final Quality Results and the Certificate of Weight (the “Final Settlement Amount”);
and
(ii) any
balance due to the Seller or the Offtaker, as applicable, after deducting from the Final Settlement Amount the Invoice Amount already
paid by the Offtaker in respect of such Shipment.
(b) Within
five (5) Business Days of the Seller’s notice under this Section 8.3(a), the Party that is owed the balance shall issue
an invoice to the other Party, and the Party liable for such balance shall pay the same in full by Telegraphic Transfer within ten (10)
Business Days of receipt of such invoice.
Section
8.4 Currency; No Set-Off
(a) Unless
otherwise expressly agreed in writing, all payments due under this Agreement shall be made in USD.
(b) The
Offtaker may only set off, deduct or withhold payments if its counterclaims are either undisputed or finally settled by a competent court
or a competent arbitration tribunal.
Section
8.5 Invoice Disputes
(a) In
the event either Party, acting reasonably and in good faith, disputes any invoice or payment to be made hereunder, it shall immediately
provide the other Party with a written explanation setting forth the reasons for such dispute, and shall, despite any such dispute, pay
the full undisputed amount when due and payable. An invoice, payment or related calculation may be disputed only if written notice of
such dispute is delivered to the other Party within seven (7) days after either the date of receipt of such invoice, documentation, payment
calculation or notice giving rise to the dispute, after which time such invoice, documentation, calculation or notice shall be deemed
correct and accepted by both Parties.
(b) No
later than seven (7) days after the date on which any Dispute is resolved, the amount of any overpayment or underpayment shall be payable
by the Seller or the Offtaker, as the case may be, to the other Party.
(c) If
the Parties are unable to resolve any payment or invoice Dispute, then either Party shall be entitled to refer such Dispute for resolution
pursuant to Section 19.2 (Resolution of Disputes).
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Section
8.6 Late Payment
(a) If
any payment due in connection with this Agreement remains unpaid after its due date, interest on the unpaid amount shall accrue at the
Default Rate from the date such payment became due until the date that payment is made in full.
(b) If
the Offtaker fails to make any payments required to be made under this Agreement, the Seller may (but shall not be obliged to), without
prejudice to its other rights under this Agreement, serve a written notice to the Offtaker specifying the amount in default. If such
payment has not been made by the Offtaker within fourteen (14) days of receipt of such written notice, without limitation to any other
remedies of the Seller whether at law or in equity or under this Agreement, the Seller shall have the right (but not the obligation)
to immediately suspend delivery of Product hereunder and to sell Product to third parties until such payments are made.
Section
8.7 Audit Rights
(a) The
Seller shall have the right, upon not less than ten (10) Business Days’ prior written notice and no more than once per calendar
quarter during the Term, to audit the Offtaker’s books, records and accounts relating to any cost, recovery or pricing calculation
made by the Offtaker under this Agreement (including, without limitation, any impurity adjustments, recovery adjustments and Product
Price calculations) (collectively, “Books and Records”).
(b) The
Offtaker shall maintain its Books and Records in sufficient detail to substantiate all such calculations and shall retain them for a
minimum of three (3) years following expiry or termination of this Agreement.
(c) The
Offtaker shall make its Books and Records reasonably available to the Seller (in redacted form where necessary to protect third-party
confidentiality), subject at all times to the confidentiality obligations in Section 21.4 (Confidentiality).
(d) The
Seller shall bear and pay its own costs of any audit; provided that if an audit establishes that the Offtaker has underpaid the
Seller by more than one per cent. (1%) of the amounts owed for the period audited, the Offtaker shall: (i) pay the deficiency together
with interest at the Default Rate from the original due date; and (ii) reimburse the Seller’s reasonable, documented audit costs.
ARTICLE
IX
WEIGHT
DETERMINATION AND QUALITY CERTIFICATION
Section
9.1 Weight Determination
(a) For
each Shipment, the Seller shall, at its own cost and expense, arrange for the Third-Party Surveyor to determine the weight of the quantity
of Product to be loaded onto the relevant vessel at the port of loading at the Delivery Point, in accordance with the provisions below
and applicable customary industry practices.
(b) The
Offtaker shall have the right, subject to approval by the Seller (such approval not to be unreasonably withheld, conditioned or delayed),
to appoint at its own cost and expense representative(s) to observe the procedures for weight determination.
(c)
Following the stuffing or loading of the containers or other agreed packaging units for an applicable Shipment, each full container
or unit shall be weighed on the scale at the port of loading. The gross weight of the full container or unit shall be the weight
recorded at the time of weighing. For the purpose of calculating the net weight of the Product (including, without limitation, for
the calculation of the amounts owed by the Offtaker in respect of such Product pursuant to Article VIII (Product Price and
Payment)), the tare weight of the empty container or unit, together with the weight of any bags and pallets, shall be deducted
from the gross weight of the full container or unit. For the determination of the weight of any bags and pallets, a typical weight
provided by the Seller, based on its experience and given in good faith, shall be used.
18
(d) The
weight so determined in accordance with Sections 9.1(a), 9.1(b) and 9.1(c) shall be the basis for the bill of lading
and for the Certificate of Weight to be issued by the Third-Party Surveyor with respect to the applicable Shipment.
(e) The
results from the Certificate of Weight, absent manifest error or fraud, shall be final and binding on the Parties as to the gross weight
of the loaded containers or units and the net weight of the Product contained in the relevant Shipment.
(f) The
Seller (or its Affiliate) shall provide a packing list for each Shipment. The transfer shall be coordinated based on the Scheduled Loading
Date of the Nominated Vessel.
Section
9.2 Sampling and Preliminary Quality Analysis
(a) Concurrently
with preparing the Product for the applicable Shipment to be delivered, the Seller shall complete preliminary analysis of the quality
of the Product. The Seller shall also issue a preliminary certificate of analysis of the Product contained in the Shipment (the “Preliminary
Certificate of Analysis”).
(b) Prior
to dispatching a Shipment for delivery, and in accordance with good industry practice applied in the rare earth processing industry,
the Seller shall take representative samples from each unit of Product within a Shipment.
(c) The
sample taken by the Seller from each unit of Product within a Shipment shall be divided into three portions: (i) one portion for the
Seller (the “Seller’s Sample”); (ii) one portion for the Offtaker (the “Offtaker’s Sample”);
and (iii) one portion retained by the Seller for analysis by the Third-Party Laboratory if required (the “Third-Party Sample”).
The Seller shall promptly courier all Offtaker’s Samples, taken from all units contained in the relevant Shipment (unless otherwise
agreed by the Seller and the Offtaker), to the Offtaker (or a Third-Party Laboratory or other third party appointed by the Offtaker).
The Seller shall be required to retain the Seller’s Sample until payment of the final invoice pursuant to Section 8.3 (Final
Invoice).
(d) The
specifications of a Shipment shown in the Preliminary Certificate of Analysis shall be the arithmetic average of the values assessed
from the samples from all units contained in that Shipment.
Section
9.3 Quality Determination
(a) Subject
to the remainder of this Section 9.3, the Seller shall only deliver, and the Offtaker shall only be obligated to receive, Shipments
in which the Product satisfies each of the parameters comprising the Minimum Specifications, in each case as measured after calcination
on a dry, calcined basis and determined by reference to the Preliminary Certificate of Analysis. For the avoidance of doubt, the Minimum
Specifications shall be satisfied only if the Product in the applicable Shipment at least conforms to the parameters set out in Item
2 (Minimum Specifications) of Schedule 1 (Specifications); failure to conform to any one or more parameters
shall constitute a failure to meet the Minimum Specifications.
(b)
If the Product in a Shipment fails to satisfy one or more of the parameters comprising the Minimum Specifications (such
non-conforming Product, the “Rejectable Product”) but the Seller still intends to deliver the Shipment, the
Seller shall promptly deliver written notice to the Offtaker of the existence of such Rejectable Product not less than thirty (30)
days prior to the applicable Scheduled Loading Date and the Offtaker shall have the right to, acting reasonably:
(i) reject
such quantities of Rejectable Product by written notice to the Seller at any time prior to delivery to the Delivery Point; or
(ii)
request good faith negotiation of price adjustments with respect to such Rejectable Product.
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(c) In
the absence of the Offtaker’s written rejection pursuant to Section 9.3(b), if the Shipment containing Rejectable Product
is proposed for delivery or has been delivered and the Parties have agreed to price adjustment terms no later than three (3) days from
the delivery or the Scheduled Loading Date, as applicable, such quantities of Rejectable Product in the applicable Shipment shall for
all purposes of this Agreement be deemed to fully satisfy the Seller’s delivery obligations with respect to the applicable Monthly
Offtake Quantity and the Monthly Committed Quantity. In such case, the Offtaker shall have no further claim or remedies arising from
the quality of such Product, except as provided under Section 9.3(i). If the Parties fail to agree on mutually acceptable price
adjustment terms within three (3) days from the delivery or the Scheduled Loading Date, as applicable, such quantities of Rejectable
Product shall be deemed to have been rejected by the Offtaker.
(d) Where
the Offtaker rejects or is deemed to have rejected a quantity of Rejectable Product in accordance with Section 9.3(b) or Section
9.3(c), the Seller shall retrieve the Shipment or dispose of it at its own expense and risk, and the relevant quantity of Product
shall be treated as a failure to deliver Product by the Seller under this Agreement.
(e) For
the purpose of finally determining the quality of the Product in the Shipment, the Offtaker and the Seller shall promptly arrange and
conduct quality analysis of their respective Offtaker’s Samples and Seller’s Samples, using the Third-Party Laboratory. Subject
to Section 9.3(f), no later than the Shipment’s arrival at the discharge point, the Offtaker shall issue a certificate of
analysis based on the Offtaker’s analysis (the “Offtaker’s Certificate of Analysis”), and the Seller shall
issue a certificate of analysis based on the Seller’s analysis (the “Seller’s Certificate of Analysis”).
(f) Both
Parties shall exchange the results from their respective certificates of analysis as encrypted PDFs via email on the same Business Day
(as mutually agreed by the parties), which shall be within ten (10) days of the Offtaker’s Samples arriving to the Offtaker, or
a Third-Party Laboratory appointed by the Offtaker, as applicable.
(g) If
the difference between the Offtaker’s and the Seller’s results on each composite sample (the arithmetic average of the results
from the samples taken from all units within a Shipment) (the “Sampling Lot”) is within five per cent. (5%) of the
corresponding results in the Seller’s Certificate of Analysis for each individual element or compound measured, then the results
in the Seller’s Certificate of Analysis shall be binding.
(h) If
the difference between the Offtaker’s and the Seller’s results on a Sampling Lot exceeds five per cent. (5%) of the value
of any individual element or compound measured, the Parties shall engage in good faith discussions to attempt to agree on a final result.
Any results agreed by the Parties in writing shall be binding.
(i)
Failing agreement within ten (10) days from the commencement of the discussion according to Section 9.3(h), either Party may
request that the Third-Party Sample be sent to a Third-Party Laboratory for analysis, whose results shall be binding. The Party
whose value with respect to each unit of Product within a Shipment (determined as the price of the respective unit of Product within
a Shipment in USD) is furthest from the Third-Party Laboratory’s results with respect to such unit shall bear and pay the
portion of the Third-Party Laboratory’s costs applicable to such unit of Product. Notwithstanding the foregoing, if the
results of the Third-Party Sample demonstrate that the unit Product in the Shipment failed to satisfy one or more of the parameters
comprising the Minimum Specifications (all such units of Product in the Shipment that failed to satisfy the Minimum Specifications,
the “Non-Conforming Products”), the Seller shall bear and pay all Third-Party Laboratory costs and the Parties
shall negotiate in good faith a corresponding price adjustment for such Shipment.
20
(j) Subject
to the rights of the Offtaker set out in Section 9.3(h), if any Shipment contains Non-Conforming Products and the Seller has not
received a written termination notice from the Offtaker pursuant to Section 9.3(h), the Seller shall offer to deliver to the Offtaker
in the immediately following month, in accordance with the terms of this Agreement and in addition to the Monthly Committed Quantity,
a quantity of replacement Product equal to the quantity of the Non-Conforming Products (such amount, the “Replacement Products”).
If the Offtaker accepts the Seller’s offer to redeliver Replacement Product in writing, it shall have the binding obligation to
take delivery of and pay for such Replacement Products unless expressly consented to in writing by the Offtaker.
ARTICLE
X
SALT
RESIDUE OBLIGATIONS
Section
10.1 Salt Residue Production and Return Obligations
To
the extent that the Offtaker or any of its Affiliates or sub-processors generates salt residue containing zirconium (expressed as ZrO2)
and/or hafnium (expressed as HfO2) as a result of the separation or processing of Product delivered under this Agreement (the
“Salt Residue”), the Offtaker shall, upon the Seller’s written request, make available to the Seller a quantity
of Salt Residue such that the aggregate mass of ZrO2 and HfO2 content returned to the Seller is not less than eighty
per cent. (80%) of the total ZrO2 and HfO2 content contained in the Salt Residue generated from the processing
of such Product (the “Returnable Zr/Hf Quantity”). The Salt Residue made available pursuant to this Section 10.1
shall be in a form that:
(a)
has been neutralised and rendered non-toxic and non-acidic prior to collection;
(b) is
handleable and safe for transportation by container cargo in accordance with applicable international shipping and transportation standards;
and
(c) is
packaged in agreed contained packaging, which shall normally consist of the Salt Residue being drummed and the drums loaded into standard
shipping containers, in each case meeting applicable international standards for the transportation of such materials.
Section
10.2 Shortfall Payment
(a)
If, in respect of any calendar quarter during the Supply Period, the aggregate mass of ZrO2 and HfO2 content actually
made available to the Seller is less than the Returnable Zr/Hf Quantity for that quarter (the difference being the “Zr/Hf
Shortfall”), the Offtaker shall pay to the Seller, within thirty (30) days following the end of such calendar quarter, a balancing
payment (the “Zr/Hf Shortfall Payment”) calculated in accordance with Item 5 of Schedule 2 (Pricing
Terms).
(b) The
Zr/Hf Shortfall Payment shall be calculated separately for each of ZrO2 and HfO2 in accordance with Item 5
(Zr/Hf Shortfall Payment) of Schedule 2 (Pricing Terms).
21
Section
10.3 Collection and Costs
(a) The
Seller shall collect the Salt Residue from a United States port, designated by the Offtaker and reasonably acceptable to the Seller,
on an FOB basis (Incoterms 2020) and shall bear and pay all costs of collection, transportation and onward handling from the point of
collection. The Offtaker shall bear and pay the costs of neutralisation, drumming and making the Salt Residue available for collection
in accordance with Section 10.1 (Salt Residue Production and Return Obligations).
(b) The
Offtaker shall maintain records of the ZrO2 and HfO2 content of all Salt Residue generated from the processing
of Product delivered under this Agreement and shall provide the Seller, upon the written request of Seller, with a written statement
of such content within thirty (30) days following the end of each calendar quarter, together with supporting analytical data from a Third-Party
Laboratory. The Seller’s right to audit the Offtaker’s records relating to the ZrO2 and HfO2 content
of Salt Residue shall be governed by Section 8.7 (Audit Rights), and the Offtaker’s records maintained under this
Section 10.3 shall constitute Books and Records for the purposes of Section 8.7 (Audit Rights).
ARTICLE
XI
POST-QUALIFICATION
MATTERS
Section
11.1 Negotiable Items
Without
prejudice to the other provisions of this Agreement, the Parties shall negotiate in good faith to mutually agree on the following matters
(to the extent not already finally agreed in this Agreement) following Product Qualification as conditions precedent to the commencement
of the Supply Period:
(a)
the Minimum Specifications;
(b)
the Product Qualification Requirements;
(c)
the list of Payable Elements;
(d)
the Payable Percentages applicable to each Payable Element;
(e)
the Recovery i values for each Payable Element;
(f)
the Floor Price for each Payable Element; and
(g)
the Zr/Hf Shortfall Payment mechanics, including the Reference Price,
(collectively,
the “Post-Qualification Matters”).
Section
11.2 Supply Start Date
(a) The
Parties shall use commercially reasonable efforts to agree all Post-Qualification Matters within one hundred and twenty (120) days from
the Offtaker’s receipt of the first delivery of Early Product in accordance with Section 4.2 (Early Product Arrangements)
(or such longer period as the Parties may agree in writing).
(b) Upon
agreement of all Post-Qualification Matters, the Parties shall each produce written confirmation that all Post-Qualification Matters
have been finally agreed, that the Supply Start Date has been achieved, specifying the date thereof, and shall enter into a binding amendment
agreement to this Agreement to record and confirm all such material terms, including but not limited to each Post-Qualification Matter.
22
(c) If
the Parties are unable to mutually agree (i) on any of the Post-Qualification Matters or otherwise (ii) to enter into a binding amendment
agreement to this Agreement to record and confirm each Post-Qualification Matter, in each case within such period specified in Section
11.2(a), unless otherwise mutually agreed in writing, each Party shall have the right to terminate this Agreement (in such Party’s
sole discretion) in accordance with Section 18.3(d) (Mutual Termination Rights).
ARTICLE
XII
REPRESENTATIONS AND WARRANTIES
Section
12.1 Representations and Warranties of Offtaker and Seller
Each
Party represents and warrants to the other Party that, as of the date hereof:
(a) it
is a company duly organised and validly existing under the law of its jurisdiction of organisation, and has all requisite company power,
capacity and authority to own its assets and to conduct its business as currently conducted and to perform its obligations under this
Agreement;
(b) all
requisite company action to authorize the execution, delivery and performance by such Party of this Agreement has been taken;
(c)
the execution, delivery and performance by such Party of this Agreement do not and will not (i) conflict with any provision of its constitutive
or organisational documents, and (ii) contravene or violate any Applicable Law;
(d) this
Agreement has been duly and validly executed and delivered by such Party and constitutes the legal, valid and binding obligation of such
Party, enforceable against it in accordance with the terms hereof, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganisation, moratorium or other similar laws affecting creditors’ rights generally; and
(e) there
is no pending or, to the knowledge of such Party, threatened action, suit or proceeding affecting such Party before any court, Governmental
Authority or arbitrator that could reasonably be expected to adversely affect its ability to perform its obligations under this Agreement
or affect the legality, validity and enforceability of this Agreement.
ARTICLE
XIII
TAXES
Section
13.1 Taxes
Each
Party shall be responsible for the payment of all applicable Taxes in connection with its performance under this Agreement as required
by Applicable Law except as otherwise provided in this Agreement.
Section
13.2 Tax Returns
Each
of the Seller and the Offtaker shall file, at its own expense, all returns and other documentation required by Applicable Law to be
filed by it in connection with any Taxes in respect of which it has paid pursuant to Section 13.1 (Taxes).
Section 13.3
Withholding Tax
All
amounts payable under this Agreement will be made free and clear of, and without withholding or deduction for, or on account of, any
present or future Taxes, duties, assessments or governmental charges of whatever nature imposed, levied, collected, withheld or
assessed on the transaction, unless the withholding or deduction of such Taxes, duties, assessments or governmental charges is
required by Applicable Law. In that event, if such withholding or deduction relates to an obligation on a Party to pay interest on
any amount payable under this Agreement, the Party liable to pay interest shall pay such additional amounts as will result in
receipt by the other Party as would have been received by it had no such withholding or deduction been required.
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ARTICLE
XIV
FORCE
MAJEURE
Section
14.1 Force Majeure
Subject
to Section 14.2 (Exclusions), “Force Majeure” means an event or cause which is beyond the reasonable
control of the Party claiming Force Majeure, not able to be overcome by the exercise of reasonable care, proper precautions and the consideration
of reasonable alternatives with the intention of avoiding the effects of the Force Majeure by that Party, and which could not have been
reasonably foreseen. Without limiting the generality of the foregoing, “Force Majeure” shall include:
(a) fires,
earthquakes, lightning, floods, explosions, storms, adverse weather, landslides and other acts of natural calamity or acts of God;
(b)
endemics, epidemics or pandemics;
(c) shortages
of labour or strikes, interference of trade unions, lockout, secondary boycott, other labour difficulties (without regard to whether
such difficulties can be resolved by acceding to the demands of the union or other labour group);
(d) accidents
at, failure to dredge or construct, closing of or restrictions upon the use of mooring facilities, docks, ports, harbours, railroads
or other navigational or transportation mechanisms;
(e) to
the extent it has a direct effect on the Project, shortages, failure, breakdown, disruption, late construction or delivery, unavailability
of or inability to obtain machinery, materials, feedstock, supplies, plant or equipment or other facilities, water, natural gas or hydrogen,
fuel, transportation, power or other utilities or infrastructure;
(f) acts
of war, hostilities (whether declared or undeclared), riot or civil commotion, terrorism, sabotage, blockade, social unrest or acts of
the public enemy, criminal acts and cartel activities;
(g)
expropriation, nationalisation or other act of eminent domain;
(h)
export restrictions, embargoes or similar laws; or
(i) any
action or failure to act within a reasonable time without justifiable cause by any Governmental Authority which has a direct effect on
the Project (including any action or failure to act within a reasonable time without justifiable cause by any duly authorised agent of
any such Governmental Authority), including the denial of or delay in granting any permit upon due application and diligent effort by
the Party to obtain the same, or the failure once granted to maintain the same (without justifiable cause) in full force and effect or
to renew on substantially similar terms; or
24
(j) laws,
rules and regulations or orders of any Governmental Authority enacted or made after the date of execution of this Agreement that impact
the Project.
Section
14.2 Exclusions
Notwithstanding
Section 14.1 (Force Majeure), Force Majeure shall not include any of the following or any event arising out of any of the
following:
(a) inability
to economically produce or market the Product (other than where caused in whole or in part by an event or circumstance described under
Section 14.1 (Force Majeure));
(b)
industry economic conditions or general economic conditions;
(c)
financial hardship;
(d) failure
or inability to pay money when due for any reason, except to the extent caused by transfer restrictions imposed by a Governmental Authority;
or
(e) breakdown
or failure of plant or equipment caused by normal wear and tear or by a failure to properly maintain such plant or equipment.
Section
14.3 No Liability for Breach
If
performance or part performance of the Agreement by a Party (“Affected Party”) is prevented, suspended or delayed
directly or indirectly by Force Majeure, no liability for damage or delay will arise against the Affected Party on account of its failure
to perform its obligations under this Agreement to the non-Affected Party or on account of any disruption or delay due to the Force Majeure
or the consequences of it.
Section
14.4 Notice
In
the event that a Party is rendered unable to perform its obligations hereunder, whether in whole or in part, by a Force Majeure event,
such Party shall, as soon as reasonably practicable, notify the other Party in writing stating the nature of such Force Majeure event,
the date on which it commenced and its expected duration (including the extent of any suspended performance).
Section
14.5 Resumption
The
Party affected by Force Majeure shall use commercially reasonable efforts to:
(a) avoid
or abate the occurrence of, cause the cessation of or remedy or overcome the Force Majeure event as quickly as possible;
(b)
mitigate the effect upon its performance of this Agreement;
(c) continue
performing all of its obligations that are not affected by the event of Force Majeure; and
(d) resume
performance of its obligations that are affected by the event of Force Majeure as soon as practicable.
Section
14.6 Prolonged Force Majeure
In
addition to the other rights set out in this Article XIV, where the performance of any material obligation by a Party under
this Agreement is prevented or suspended by one or more Force Majeure events for a period of twelve (12) consecutive months then the
other Party may by notice to the Party affected by Force Majeure terminate this Agreement, unless the Party affected by Force
Majeure demonstrates to the satisfaction of the other Party (acting reasonably) that it is taking steps that are reasonably likely
to overcome the Force Majeure event. Termination of the Agreement pursuant to this Section 14.6 does not affect (a) any
rights of a Party that arose prior to termination; and (b) the existing rights and obligations of a Party which obligations survive
the expiry or termination of this Agreement.
25
ARTICLE
XV
DEFAULTS AND REMEDIES
Section
15.1 Offtaker Events of Default
The
occurrence of any of the following events or circumstances shall constitute an event of default by the Offtaker under this Agreement
(each, an “Offtaker Event of Default”):
(a) except
to the extent such amount is disputed in good faith in accordance with Section 8.5(a) (Invoice Disputes), any failure by
the Offtaker to pay by the due date the payment due under this Agreement (including accrued interest) and such failure is not cured within
thirty
(30)
days of receipt of notice from the Seller notifying the Offtaker of such failure;
(b) any
failure by the Offtaker to comply with Section 20.3 (Trade Control and Sanctions);
(c) any
other material breach by the Offtaker of its covenants and obligations set forth herein and if such breach is not cured within thirty
(30) days of receipt of notice from the non-defaulting Party notifying the defaulting Party of such breach (or such longer period of
time as the non-defaulting Party may permit in writing if cure has been commenced and additional time is reasonably required); or
(d) the
Offtaker fails to take delivery of fifty per cent. (50%) or more of the aggregate Monthly Committed Quantities over any period of twelve
(12) consecutive calendar months during the Supply Period, except to the extent that such failure is caused by:
(i)
a Force Majeure event affecting the Offtaker; or
(ii) a
breach of this Agreement by the Seller, including the failure to satisfy the Minimum Specifications.
Section
15.2 Seller Events of Default
The
occurrence of any of the following events or circumstances shall constitute an event of default by the Seller under this Agreement (each,
a “Seller Event of Default”):
(a) an
Insolvency Event with respect to the Seller (other than such an Insolvency Event resulting from the Offtaker’s failure to make
payments due under this Agreement);
(b) any
failure by the Seller to comply with Section 20.3 (Trade Control and Sanctions); or
(c) any
other material breach by the Seller of its other covenants and obligations set forth herein and if such breach is not cured within thirty
(30) days of receipt of notice from the non-defaulting Party notifying the defaulting Party of such breach (or such longer period of
time as the non-defaulting Party may permit in writing if cure has been commenced and additional time is reasonably required).
26
Section
15.3 Remedies
If
an Event of Default occurs and is continuing, in addition to remedies expressly provided for in this Agreement, including the right to
terminate the Agreement in accordance with the provisions of Section 18.2 (Termination for Default), the non-defaulting
Party shall be entitled to pursue any or all other remedies available to it at law, including claims for damages, specific performance
and/or injunctive relief. For the avoidance of doubt, neither Party shall be entitled to recover compensation more than once in respect
of the same Loss.
ARTICLE
XVI
LIABILITY AND LIMITATIONS
Section
16.1 No Consequential Damages
Except
for fraud, gross negligence or wilful misconduct and unless otherwise expressly agreed in this Agreement, to the maximum extent permitted
by the Applicable Law, in no event shall either Party be liable to the other Party for loss or deferment of revenue, profit, any business
interruption or other special or punitive damages of any kind arising out of or in connection with this Agreement; provided that this
Section 16.1 shall not limit or exclude any Party’s liability to pay any amounts expressly due and payable under this Agreement
(including, without limitation, the Take or Pay Payment, the Invoice Amount, the Final Settlement Amount and any interest accrued thereon).
ARTICLE
XVII
ASSIGNMENT AND SECURITY INTERESTS
Section
17.1 Assignment
(a) Subject
to Sections 17.1(b), 17.1(d) and 17.2 (Direct Agreement), neither Party may directly or indirectly assign,
transfer or subcontract any of its rights, titles, interests or obligations under this Agreement without the other Party’s prior
written consent.
(b) The
Seller may grant security over, or assign by way of security, all or any of its rights, titles, interests or obligations under this Agreement
in favour of the Lenders.
(c) The
Offtaker shall, upon the request of the Seller, execute such documents and take such actions as may reasonably and customarily be required
to give effect to any such assignment under this Section 17.1.
(d) Notwithstanding
any other provision of this Section 17.1, no change of control of a Party (or of any direct or indirect parent entity of a Party)
that occurs solely as a result of transactions in the equity securities of an entity whose securities are listed and traded on a recognised
stock exchange (including, without limitation, the Nasdaq Stock Market or any other securities exchange recognised by a Governmental
Authority of competent jurisdiction) shall constitute an assignment, transfer or change of control requiring the consent of the other
Party under this Agreement, and no such change of control shall give rise to any right of termination, modification or other remedy on
the part of the other Party.
Section
17.2 Direct Agreement
(a)
Upon being requested by the Seller to do so, the Offtaker shall enter into a direct agreement with the Lenders (or the agent or
trustee acting on behalf of such Lenders and secured parties) in form and substance that are customarily required for financing the
Project on a limited recourse or non-recourse basis (the “Direct Agreement”).
27
(b) The
Offtaker further agrees to do all such further acts or execute and deliver all such further documents, including consents, notices, assignments
or acknowledgements as may be necessary or desirable to facilitate the assignment to the Lenders and to carry out the intent and purpose
of this Agreement or the Direct Agreement, including entering into and delivering all such documents to:
(i) create,
perfect or maintain any security interest in favour of the Lenders or for the exercise of any rights and remedies of the Lenders; and
(ii) facilitate
the realisation of the assets which are the subject of the security interests.
ARTICLE
XVIII
TERMINATION
AND SURVIVAL
Section
18.1 Expiry
This
Agreement shall automatically terminate upon the expiration of the Term of this Agreement, without the need for any action by either
Party.
Section
18.2 Termination for Default
(a) If
an Event of Default occurs and is continuing, the non-defaulting Party may terminate this Agreement upon seven (7) days’ written
notice to the defaulting Party.
(b) For
the avoidance of doubt, the Parties agree that this Agreement may not be terminated pursuant to this Section 18.2 as the consequence
of an immaterial breach.
Section
18.3 Mutual Termination Rights
Each
Party shall have the right to terminate this Agreement (in such Party’s sole discretion) upon seven (7) days’ written notice
to the other Party if:
(a) the
Minimum Specifications are not mutually agreed within the time required under Section 5.1 (Minimum Specifications);
(b) a
Notice of Non-qualification is delivered in accordance with Section 5.3(b) (Product Qualification);
(c) neither
Party has issued either a Product Qualification Notice or a Notice of Non-qualification within the time required under Section 5.3(c)
(Product Qualification);
(d) the
Parties fail to agree all Post-Qualification Matters within the time required under Section 11.2 (Supply Start Date); or
(e) a
Shipment contains Rejectable Product and the Parties are unable to agree on price adjustment terms in accordance with Section 9.3(c)
(Quality Determination).
Section
18.4 Survival
The
expiry or termination of this Agreement shall not affect any accrued rights or obligations of the Parties in respect of damages for non-performance
accrued prior to such expiry or termination.
28
ARTICLE
XIX
GOVERNING
LAW AND RESOLUTION OF DISPUTES
Section
19.1 Governing Law and Jurisdiction
(a) This
Agreement, including the arbitration agreement at Section 19.2(b) (Resolution of Disputes), and any non-contractual rights
and/or obligations arising out of or in connection with it, shall be governed by and construed in accordance with the laws of the State
of New York, without regard to any principles of conflicts of law that would require the application of the laws of any other jurisdiction.
(b) TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (i) EACH PARTY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT; AND (ii) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY DISCLAIMS ALL IMPLIED
WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE PRODUCT AND ANY
OTHER SUBJECT MATTER OF THIS AGREEMENT.
(c) The
United Nations Convention on Contracts for the International Sale of Goods does not apply to, and is excluded from, this Agreement.
Section
19.2 Resolution of Disputes
(a) If
any dispute, controversy or claim arises out of or in connection with this Agreement, including the validity, breach, amendment or termination
thereof, other than a dispute arising under Item 3.1 (Benchmark Price) of Schedule 2 (Pricing Terms), (a
“Dispute”), it must first be referred by a Party, via notice in writing, to a senior representative of the other Party.
Both Parties must endeavour to resolve the Dispute within thirty (30) days of such notice. Any joint written decision of those senior
representatives is binding upon the Parties. Notwithstanding the above, where other provisions in this Agreement expressly provide for
different consultation requirements (including but not limited to consultation period, trigger and process) with the view of resolving
a particular type of Dispute prior to resorting to the determinations by Expert or arbitration, as applicable, such requirements (the
“Special Consultation Requirements”) shall prevail and be followed.
(b)
If the Dispute is not settled by the Parties either (x) within thirty (30) days of the notification of the Dispute from one Party to
the other or (y) within the time period set out under the Special Consultation Requirements, any such Dispute shall be referred to and
finally settled by arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce (the “ICC”)
(the “Rules”) as in force as of the date on which referral of the relevant dispute to arbitration is made. The number
of arbitrators shall be three (3), one of whom shall be nominated by the claimant(s), one by the respondent(s) and the third of whom,
who shall act as presiding arbitrator and be jointly-nominated by the two (2) party-nominated arbitrators, provided that the presiding
arbitrator shall not be of the same nationality as the jurisdiction of organisation of the parties subject to the Dispute, provided
further that if the presiding arbitrator has not been nominated within thirty (30) days of the nomination of the second party-nominated
arbitrator, such presiding arbitrator shall be appointed by the ICC. The arbitration shall be seated and held in Manhattan, New York
and the language of arbitration shall be English.
29
(c) Notwithstanding
the foregoing agreement to arbitrate, either Party shall have the right to seek injunctive relief in any court of competent jurisdiction.
(d) For
the purposes of Section 19.2(c) and the enforcement of any arbitral award rendered pursuant to Section 19.2(b), each Party
irrevocably submits to the exclusive jurisdiction of the United States District Court for the Southern District of New York or, if that
court lacks subject matter jurisdiction, the courts of the State of New York sitting in the County of New York. Each Party waives any
objection to venue in any such court and any claim that proceedings in any such court have been brought in an inconvenient forum. Service
of process may be effected by registered or certified mail to the address set forth in Section 21.1 (Notices).
(e) The
existence of a Dispute shall not relieve either Party from performance of its obligations under this Agreement that are not the subject
of the Dispute.
Section
19.3 Waiver
No
failure or delay by either Party in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise of any right or remedy preclude any other or further exercise thereof. No waiver shall be effective unless
made in writing and signed by the waiving Party. The rights and remedies provided in this Agreement are cumulative and not exclusive
of any rights or remedies provided by applicable law.
Section
19.4 Limitation Period
No
action or proceeding arising out of or relating to this Agreement may be commenced more than three (3) years after the date on which
the claimant first knew, or in the exercise of reasonable diligence should have known, of the facts giving rise to such claim, except
that claims for payment of amounts due under this Agreement shall be subject to a six (6) year limitations period from the date such
payment first became due.
Section
19.5 Construction
This
Agreement has been negotiated by the Parties and their respective counsel and shall not be construed more strictly against either Party
as the drafter. References to “days” shall mean calendar days unless otherwise specified. All references to “dollars”
or “$” shall mean United States Dollars.
ARTICLE
XX
COMPLIANCE
WITH LAWS
Section
20.1 Compliance with Applicable Laws and Authorisations In performing its obligations under this Agreement, each Party will:
(a)
comply with all Applicable Laws; and
(b) obtain
and maintain in effect all Authorisations as may be required under all Applicable Law in order to perform its obligations under this
Agreement.
Section
20.2 Business Conduct
(a) All
statements to be made by a Party to the other Party under or pursuant to this Agreement including invoices, notices, reports, financial
settlements and other undertakings between the Parties, must accurately reflect the actual activities and transactions between the Parties.
30
(b) Each
Party shall establish precautions to prevent its employees, personnel or contractors from making, receiving, providing or offering any
substantial gifts or entertainment, or any payments, loans or other consideration to or from another Party’s employees, personnel
or contractors.
(c) In
exercising its rights and performing its obligations under this Agreement, each Party must comply, and must procure that its Affiliates
and its and their Agents and contractors comply, with all applicable Business Integrity Laws, and must not give or offer to give, promise,
receive or agree to accept, directly or indirectly, any payment, gift or other advantage which infringes or violates any such applicable
Business Integrity Laws.
Section
20.3 Trade Control and Sanctions
(a) Each
Party represents and warrants that neither it nor its Affiliates, any of its or its Affiliates’ senior officers, directors, or
agents, nor, to the best of its knowledge, employees:
(i)
is a Sanctioned Person; or
(ii) is
transacting or has in the last ten years transacted business with a Sanctioned Person or in violation of applicable Sanctions Laws.
(b) Each
Party covenants to not use any amounts paid pursuant to this Agreement to lend, contribute or otherwise make available such proceeds
to any Sanctioned Person or in violation of applicable Business Integrity Laws or Sanctions Laws.
(c)
Each Party undertakes to the other Party that it:
(i)
will not, during the term of this Agreement, engage in any activity:
(A)
involving any Sanctioned Person;
(B) that
would breach or could reasonably be expected to cause the other Party to breach applicable Sanctions Laws; or
(C) that
would otherwise breach any Sanctions Laws or involve sanctionable activity under Sanctions Laws that may result in either of the Parties
or any shareholder of either of the Parties becoming a Sanctioned Person;
(ii) will
immediately notify the other Party in writing if it becomes, or any of its Agents becomes, a Sanctioned Person; and
(iii) will
have in place, and will continue to maintain, throughout the Term of this Agreement, adequate policies and procedures to ensure compliance
with applicable Sanctions Laws and will enforce them where appropriate.
(d) No
Party shall be obliged to perform any obligation under this Agreement if doing so is in breach of any Sanctions Laws and any Party that
cannot perform any obligation under this Agreement for that reason shall immediately give written notice to the other Party of its inability
to perform. To the extent permitted by Sanctions Laws, the Parties shall negotiate in good faith in order to attempt to resolve the issue.
31
(e) For
the purposes of this Section 20.3, the following terms shall have the following meanings:
(i)
“Sanctioned Person” means any individual, entity or vessel that is:
(A)
designated on any Sanctions List;
(B) located,
organized or resident in, or operating from, any Sanctioned Territory; or
(C) directly
or indirectly owned or controlled (as such terms are defined and construed under applicable Sanctions Laws or any official guidance related
to the same) by an individual or entity described in (A) or (B);
(ii) “Sanctioned
Territory” means any country or territory that is the subject of comprehensive, country-wide or territory-wide Sanctions Laws
(currently Cuba, the Crimea region, the so-called Donetsk People’s Republic and Luhansk People’s Republic regions of Ukraine,
Iran, North Korea, and Syria, as this list may be amended from time to time).
(iii) “Sanctions
Authority” means the respective governmental institutions and agencies of any of: (i) the United States; (ii) the United Nations;
(iii) the European Union or any of its member states; and (iv) the United Kingdom; including, without limitation, the Office of Foreign
Assets Control of the US Department of Treasury (“OFAC”), the United States Department of State, the Office for Financial
Sanctions Implementation (“OFSI”) in His Majesty’s Treasury, the United Kingdom Export Control Joint Unit (“ECJU”)
and the United Kingdom Office for Trade Sanctions Implementation (“OTSI”).
(iv) “Sanctions
Laws” means any economic, financial or trade sanctions laws, regulations, embargoes or restrictive measures or export controls
administered, enacted, implemented or enforced from time to time by any Sanctions Authority; and
(v) “Sanctions
List” means any of the lists of designated or sanctioned individuals, entities or vessels (or equivalent) issued by any Sanctions
Authority, each as amended, supplemented or substituted from time to time, including, without limitation, the List of Specially Designated
Nationals and Blocked Persons, Foreign Sanctions Evaders List, and Sectoral Sanctions Identifications List, each administered by OFAC;
the Consolidated List of Persons, Groups and Entities Subject to EU Financial Sanctions and Annexes III, V and VI to Council Regulation
(EU) 833/2014, as amended; the Consolidated List of Financial Sanctions Targets in the UK administered by His Majesty’s Treasury;
and the UK Sanctions List administered by the UK Foreign, Commonwealth & Development Office.
32
ARTICLE
XXI
MISCELLANEOUS
Section
21.1 Notices
(a)
Unless provided otherwise in this Agreement, any notice or other communication required or permitted to be given under this
Agreement must be in writing and, subject to Section 21.1(b), shall be deemed to have been properly given or delivered when
delivered personally to the Party to whom directed, or upon receipt of confirmation of delivery when delivered by email or an
internationally recognised overnight courier service to the Party to whom directed, and addressed to the Party to whom directed at
the following address:
(i) the
Seller:
Critical
Metals Corp
Address:
712 5th Avenue, 11th Floor,
New York, NY 10001
Attention:
John Thomas, General Counsel
Email: [***]
(ii) the
Offtaker:
REalloys Inc.
Address:
7280 W Palmetto Park Rd, Suite 302N,
Boca Raton, Florida 33433
Attention:
[***]
Email:
[***]
(b) In
the event any notice or other communication given in accordance with this Section 21.1 is delivered after 5.00 p.m. local time
at the place of delivery, such notice or other communication shall be deemed to have been delivered on the next Business Day. Either
Party may change its address by giving fifteen (15) days prior written notice of its new address to the other Party.
Section
21.2 Further Assurances
Each
Party shall give such further assurances and do, execute and deliver (and procure to be done, executed and delivered by any relevant
third party) all such further acts, documents and things as may be necessary or appropriate to giving the other Party the full benefit
under this Agreement.
Section
21.3 No Partnership or Agency
Nothing
in this Agreement or any arrangement contemplated by it is intended to, or shall be, construed so as to establish or imply any partnership,
joint venture, commercial partnership, agency relationship, fiduciary relationship or other partnership relationship between the Seller
and the Offtaker.
Section
21.4 Confidentiality
(a) Duty
of Confidentiality: Save as expressly provided in this Section 21.4 (Confidentiality), each Party undertakes that at any
time during the Term of this Agreement and for a period of five (5) years following the termination or expiry of this Agreement, it shall
not disclose to any Person any Confidential Information concerning the business, affairs, customers, clients or suppliers of any other
Party or the provisions of this Agreement or any information it has received or obtained relating to other Party as a result of negotiating
or entering into this Agreement.
(b) Permitted
Disclosure: Each Party may disclose the other Party’s Confidential Information:
(i) to
its Agents who need to know such information for the purposes of carrying out its obligations under this Agreement, and on the basis
that each Party shall ensure that each of its employees, officers, representatives or advisers to whom it discloses any other Party’s
Confidential Information adheres to this Section 21.4 (Confidentiality);
33
(ii) as
may be required by law, court order or any governmental or regulatory authority;
(iii) is
required for the defense against claims of the other Party or for the assessment of claims against the other Party before courts or relevant
arbitration tribunals, but the Party who intends to disclose the other Party’s Confidential Information for this purpose shall
inform the other Party in writing well in advance of its intention and the Parties shall reasonably cooperate with respect to a court
or arbitration panel to not disclose the Confidential Information to third parties; and
(iv) to
its actual or prospective debt or equity investors, or to obtain funding from any bank or other financial institution, including the
Lenders.
(c) Use
of Confidential Information: No Party shall use any other Party’s Confidential Information for any purpose other than to perform
its obligations under this Agreement.
(d) Ownership
of Confidential Information: All Confidential Information is and shall remain the property of the Party who has supplied it.
Section
21.5 Access to Information
(a) Each
Party (the “Providing Party”) shall provide the other Party and such other Party’s Representatives with reasonable
access during normal business hours to documents, data and other information which are within the Providing Party’s possession
and control, as may be reasonably requested by the other Party solely for the purposes of confirming and verifying the Providing Party’s
status and ability in connection with the compliance with the requirements of this Agreement, including but not limited to confirming
and verifying the transparency of the Providing Party’s information in case of a financial distress situation.
(b)
Without limiting the foregoing, the Offtaker confirms and further agrees that:
(i) the
Seller shall have the right to provide to the Lenders information in accordance with Section 21.5(a); and
(ii) it
will provide reasonable assistance to the Seller with respect to any reasonable request that arises from the Lenders’ due diligence,
including providing access to information in connection with the Offtaker’s performance of this Agreement.
Section
21.6 Technical Collaboration
(a) Without
prejudice to Section 21.5 (Access to Information), the Parties shall collaborate in good faith with respect to the sharing
of technical expertise relating to the processing and separation of the Product, including the recovery of Payable Elements and the production
and handling of Salt Residue.
(b) Each
Party shall, upon reasonable prior written notice and at the requesting Party’s cost, grant the other Party and its designated
technical representatives reasonable access during normal business hours to its processing facilities for the purposes of such technical
collaboration, subject to compliance with all applicable health, safety and environmental requirements and the host Party’s reasonable
site access policies.
(c)
For the avoidance of doubt, nothing in this Section 21.6 or elsewhere in this Agreement shall be construed as granting either
Party any licence, right, title or interest in or to the other Party’s intellectual property, proprietary technology, trade
secrets or know-how, and all Confidential Information exchanged pursuant to this Section 21.6 shall be subject to Section
21.4 (Confidentiality).
34
Section
21.7 Entire Agreement
(a)
Entire Agreement
This
Agreement and any other documents referred to in this Agreement (including any Schedules or Exhibits hereto) constitutes the whole agreement
between the Parties and supersedes any prior written or oral arrangement, understanding or agreement between them relating to the subject
matter of this Agreement. All terms implied by law are excluded to the fullest extent permitted by law.
(b)
Non-Reliance
Each
Party acknowledges and confirms that it has not entered into this Agreement or any other documents referred to in this Agreement on the
basis of any representation, warranty, undertaking or other statement whatsoever (for the purposes of this Section 21.7 (Entire
Agreement), a “Statement”), whether made negligently or innocently, by any person (whether a Party to this Agreement
or not), other than as expressly set out in this Agreement.
Section
21.8 Amendments
Except
as otherwise provided in this Agreement, no waiver, alteration, amendment, variation or modification of any of the terms of this Agreement
shall be valid or binding unless it is in writing and signed by or on behalf of each Party.
Section
21.9 Costs
Each
Party must bear its own costs for the preparation, execution, delivery and performance of this Agreement.
Section
21.10 Public Announcements
Neither
Party, nor its Affiliates, shall make any public announcements or statements regarding this Agreement or any transaction contemplated
herewith without the prior written approval from the other Party (such approval not to be unreasonably withheld, conditioned or delayed),
except to the extent required by Applicable Law or the rules of any recognised stock exchange on which the securities of such Party or
its Affiliates are listed. The Parties shall coordinate and mutually agree any media statements or announcements.
Section
21.11 Language
The
language of this Agreement and the transactions envisaged by it is English and all notices, demands, requests, statements, certificates
or other documents or communications must be in English unless otherwise agreed in writing. If this Agreement or any other related documents
are translated into another language, the English version will prevail.
Section
21.12 Severability
If
any provision of this Agreement is determined by an arbitral tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable
in any respect, all other provisions of this Agreement shall nevertheless remain in full force and effect. The Parties agree that they
will negotiate in good faith to replace any provision hereof so held invalid, illegal or unenforceable with a valid provision which is
as similar as possible in substance to the invalid, illegal or unenforceable provision.
35
Section
21.13 Beneficiaries; Successors and Assigns
This
Agreement is for the sole benefit of the Parties and shall inure to the benefit of and be binding upon their respective successors and
permitted assigns. Except as expressly contemplated herein, nothing herein is intended to or shall confer upon any other Person any legal
or equitable right, benefit or remedy of any nature or kind whatsoever under or by reason of this Agreement.
Section
21.14 Counterparts
This
Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which shall constitute the
same document and the signature pages from any counterpart may be appended to any other counterpart to assemble fully executed counterparts.
Counterparts of this Agreement may also be exchanged via electronic means and the electronic or facsimile signature of any Party’s
signature shall be deemed to be an original signature for all purposes.
[Signature
Page Follows]
36
In
Witness Whereof, the Parties have executed this Agreement by their duly authorised officers as of the date first written above.
Critical Metals Corp
By: /s/
Tony Sage
Name:
Tony Sage
Title:
CEO
REalloys Inc.
By: /s/
Leonard Sternheim
Name:
Leonard Sternheim
Title:
CEO
37
Schedule
1
Specifications
1. Compliance
with Specification
Product
delivered under this Agreement shall conform to the Minimum Specifications set forth in Item 2 (Minimum Specifications)
below.
2. Minimum
Specifications
2.1 The
following Specification parameters shall constitute binding minimum requirements that each
Shipment of Product must satisfy (the “Minimum Specifications”), each
to be determined on a dry, calcined basis by reference to the Certificate of Analysis for
the applicable Shipment:
(a) [●];
(b) [●];
and
(c) [●].
2.2 The
Minimum Specifications set out in this Item 2 shall be binding on the Seller in respect
of each Shipment. Any Shipment that fails to satisfy one or more of the Minimum Specifications
shall constitute a Rejectable Product and shall be dealt with in accordance with Article
IX (Weight Determination and Quality Certification). The Parties may agree in
writing to revise the Minimum Specifications from time to time, provided that any such revision
shall not take effect until confirmed in writing by both Parties.
3. Sampling
and Assay Standards
All
assays shall be conducted using recognised industry-standard methods. The Offtaker shall have the right to verify all assay results through
independent testing in accordance with Article IX (Weight Determination and Quality Certification).
38
Schedule
2
Pricing
Terms
1. Purchase
Price
1.1 The
Product Price for each Shipment shall be calculated on an element-by-element basis (“i”)
as
the
sum of all Payment i values for such Shipment as follows:
𝑷𝒂𝒚𝒎𝒆𝒏𝒕
𝒊 = 𝑷𝒂𝒚𝒂𝒃𝒍𝒆 𝒊 × 𝑹𝒆𝒄𝒐𝒗𝒆𝒓𝒚
𝒊 × 𝑪𝒐𝒏𝒕𝒂𝒊𝒏𝒆𝒅 𝒊 × 𝑬𝒇𝒇𝒆𝒄𝒕𝒊𝒗𝒆
𝑷𝒓𝒊𝒄𝒆 𝒊
1.2 Where:
(a) Payment
i = the payment attributable to Payable Element i;
(b) Payable
i = the Payable Percentage for Payable Element i as set out in Item 2.1 (Payable
Elements and Payable Percentages) below;
(c) Recovery
i = the fixed contractual recovery yield applicable to Payable Element i as set out in
Item 4 (Recovery Adjustment) below; and
(d) Contained
i = the contained kilograms of Payable Element i per Metric Ton of Product (on an oxide
basis) as shown in the Certificate of Analysis; and
(e) Effective
Price i = the applicable effective price of Payable Element i (on an oxide basis), being
the higher of: (i) Benchmark i, as determined in accordance with Item 3.1 (Benchmark
Price) below; and (ii) the Floor Price for such Payable Element i, as determined in accordance
with Item 3.3 (Floor Price).
2. Payable
and Non-Payable Elements
2.1 Payable
Elements and Percentages
(a) “Payable
Element” means each of [NdPr, Dy, Tb, Y, [●], [●], as listed in the
column titled “Payable Element i” in the below table], and any other rare earth
element designated as a Payable Element by the Parties following Product Qualification or
pursuant to Item 2.3 (Conversion of Non-Payable Elements to Payable Elements)
below, as updated from time to time in accordance with this Agreement.
(b) The
“Payable Percentage” applicable to each Payable Element shall be as follows:
Payable
Element “i”
Payable
Percentage
NdPr
[75%]
Dy
[80%]
Tb
[80%]
Y
[35%]
[●]
[●]
39
Payable
Element “i”
Payable
Percentage
[●]
[●]
2.2 Non-Payable
Elements
“Non-Payable
Elements” means, at the relevant time of determination, all rare earth elements present in the Product not then listed as Payable
Elements in Item 2.1 (Payable Elements and Payable Percentages), as updated to reflect any Converted Payable Elements designated
under Item 2.3 (Conversion of Non-Payable Elements to Payable Elements).
2.3 Conversion
of Non-Payable Elements to Payable Elements
(a) The
Seller may at any time during the Supply Period designate any Non-Payable Element as a Payable
Element by written notice to the Offtaker (a “Seller Conversion Notice”)
specifying:
(i) the
element(s) to be designated;
(ii) the
proposed Payable Percentage(s);
(iii) the
proposed Recovery i; and
(iv) the
effective date (being no earlier than thirty (30) days after delivery of the Seller Conversion
Notice).
(b) The
Seller’s right to deliver a Seller Conversion Notice shall be exercisable upon the
occurrence of either of the following trigger events in respect of a Non-Payable Element:
(i) Market
Pricing Trigger: the relevant Non-Payable Element becomes the subject of a published price
index by any of the index providers listed in Item 3.1 (Benchmark Price) (whether
as a primary, secondary or tertiary index), such that a Benchmark i can be determined for
that element in accordance with Item 3.1 (Benchmark Price); or
(ii) Monetisation
Trigger: the Offtaker or any of its Affiliates has monetised, or entered into a binding agreement
to monetise, the relevant Non-Payable Element following its separation or processing from
Product delivered under this Agreement, whether by sale to a third party or otherwise.
(c) Upon
the occurrence of either trigger event in Item 2.3(b), the Seller shall notify the
Offtaker in writing of the relevant trigger event and its intention to designate the applicable
Non-Payable Element as a Payable Element, together with the proposed terms set out in the
Seller Conversion Notice.
(d) Following
delivery of a Seller Conversion Notice, the Parties shall negotiate in good faith for a period of thirty (30) days (the “Conversion
Negotiation Period”) with a view to agreeing the terms upon which the relevant Non-Payable Element shall be designated as a
Payable Element, including the applicable Payable Percentage, Recovery i and Floor Price. If the Parties reach agreement within the Conversion
Negotiation Period, the relevant element shall, from the effective date specified in the Seller Conversion Notice (or such other date
as the Parties may agree), be a “Converted Payable Element” and shall be treated as a Payable Element for all purposes
of this Agreement. The table in Item 2.1 (Payable Elements and Payable Percentages) shall be deemed automatically amended
accordingly.
40
(e) If
the Parties fail to reach agreement on the terms of conversion within the Conversion Negotiation
Period, the Seller shall have the right, exercisable by written notice to the Offtaker within
fifteen (15) days following the expiry of the Conversion Negotiation Period, to terminate
this Agreement in its entirety upon thirty (30) days’ written notice to the Offtaker,
whereupon the termination provisions of Article XVIII (Termination and Survival)
shall apply.
(f) Unless
otherwise agreed during the Conversion Negotiation Period, each Converted Payable Element
shall be priced in accordance with the pricing mechanics applicable to Payable Elements under
this Schedule 2, save that:
(i) the
Effective Price i shall be the higher of: (i) Benchmark i, as determined in accordance with
Item 3.1 (Benchmark Price); and (ii) the Floor Price agreed between the Parties
within fifteen (15) days of the Seller Conversion Notice (or, failing agreement within such
period, as determined by an Expert in accordance with Item 3.1(c)(ii) (Benchmark
Price));
(ii) actual
separation costs per oxide-equivalent kilogram of the applicable Converted Payable Element,
as incurred by the Offtaker or any third party separating such element from the Product,
shall be used in lieu of any fixed separation cost deduction; provided that such separation
costs shall be documented and verified in accordance with Section 8.7 (Audit Rights)
and shall exclude any costs attributable to a separator that is owned or financed in any
way by a Sanctioned Person;
(iii) Recovery
i shall be the actual recovery yield achieved in separating the relevant Converted Payable
Element, expressed as a percentage of the oxide-equivalent quantity of such element contained
in the relevant Shipment prior to separation; and
(iv) the
Floor Price applicable to each Converted Payable Element shall apply from the date of conversion
and shall thereafter be subject to the annual escalation mechanism set out in Item 3.3(b)
(Floor Price).
3. Effective
Price
3.1 Benchmark
Price
(a) “Benchmark i” means, for each Payable Element
i and each Delivery Month, the price determined in accordance with the following hierarchy, in each case calculated as the arithmetic
average of the applicable monthly published prices over the six (6) calendar months immediately preceding the relevant Delivery Month
(i.e. months M-1 through M-6, where M is the Delivery Month) (the “Benchmark Reference Period”):
(i) Primary
Index: where one or more of the following price indices are published for the applicable
Payable Element for the calendar month preceding the month of invoicing, the volumetric weighted
average of such published indices (converted to USD per kilogram of oxide-equivalent, where
necessary) shall apply:
(A) Argus
Media: the applicable ex-China oxide price for the relevant Payable Element (minimum
99.5% purity, CIF Europe or DDP US basis, as applicable);
41
(B) Asian
Metal: the applicable ex-China oxide price for the relevant Payable Element (minimum
99.5% purity, FOB basis); and
(C) Fastmarkets:
the applicable ex-China oxide price for the relevant Payable Element (minimum 99.5% purity,
CIF Rotterdam basis);
(ii) Secondary
Index: where no Primary Index is available for the applicable Payable Element in the
relevant calendar month, the price published by Benchmark Mineral Intelligence for the applicable
Payable Element (ex-China, CIF Europe or CIF North America basis) shall apply; and
(iii) Tertiary
/ Fallback: where neither a Primary Index nor a Secondary Index is available for the
applicable Payable Element in the relevant calendar month, the Parties shall negotiate in
good faith within fifteen (15) days to agree a replacement price for that month, and failing
agreement, the matter shall be referred to an Expert for determination.
(b) If
a specific price index is expressed by an index provider as a range (e.g. high/low), the
arithmetic average of that range shall be used for each month within the Benchmark Reference
Period before calculating the six-month average. Where an index is published for a combined
or unseparated product comprising two (2) or more Payable Elements, such index shall be used
for those Payable Elements on a combined basis. Where separate indices are published for
individual Payable Elements, the applicable individual element index shall be used for each
such element respectively.
(c) If
any index used in the determination of Benchmark i ceases to be published, ceases to exist,
is materially modified, is no longer used in a manner that systematically changes its economic
result, or is disaggregated, displaced or abandoned (a “Deprecated Index”),
the remaining indices used in the determination of Benchmark i shall continue to be used
for the purposes of calculating the six-month average under the Benchmark Reference Period.
If such Deprecated Index remains a Deprecated Index on the date falling two (2) calendar
months after the date on which it first became a Deprecated Index, either Party may, within
thirty (30) days following the end of such two (2) calendar month period, initiate the replacement
process as follows:
(i) the
Parties shall negotiate in good faith for a period of thirty (30) days following the initiation
of such process (the “Index Replacement Period”) with a view to agreeing
a replacement index or indices for the Deprecated Index that:
(A) are
published by a recognised and independent price reporting agency;
(B) reflect
ex-China market prices for the applicable Payable Element; and
(C) are
consistent with the pricing principles set out in this Item 3.1,
provided
that any replacement index or indices agreed by the Parties in writing during the Index Replacement Period shall, with effect from
the date agreed by the Parties (or, failing agreement, from the first day of the calendar month immediately following the date of agreement),
replace the Deprecated Index for all purposes of this Agreement; and
(ii) if
the Parties are unable to agree on a replacement index or source within thirty (30) days after the commencement of discussions under
Item 3.1(c)(i) above, the matter shall be referred to an Expert for final determination and the Parties shall promptly make the
request to ICC for the Expert appointment and shall provide all necessary and reasonable assistance for the Expert to make the determination
expeditiously.
42
(d) Without
prejudice to a Party’s right to initiate the replacement process pursuant to Item
3.1(c), if all of the indices used in the determination of Benchmark i for a given Payable
Element in a given calendar month become Deprecated Indices, Benchmark i for such element
in such month shall be the Benchmark i applicable in the immediately preceding calendar month
in which a valid index was available. If all such indices remain Deprecated Indices for a
period of three (3) consecutive calendar months, Benchmark i shall be calculated using FOB
China prices as published by Asian Metal, Argus Media or Fastmarkets (in that order of priority),
and to the extent FOB China prices are used, such prices shall cease to be used as soon as
an ex-China index becomes available again.
3.2 Benchmark
Transition and Renegotiation
(a) At
any time during the Term, either Party may deliver written notice to the other Party (a “Benchmark
Transition Notice”) requesting transition of Benchmark i for one or more specified
Payable Elements to a specified ex-China or non-Chinese price index (the “Proposed
Replacement Index”). The Proposed Replacement Index must:
(i) be
published by a recognised and independent price reporting agency;
(ii) reflect
ex-China or non-Chinese market prices for the applicable Payable Element; and
(iii) in
the reasonable opinion of the requesting Party, have demonstrated sufficient liquidity and
price continuity to serve as a reliable benchmark for the applicable Payable Element.
(b) Following
delivery of a Benchmark Transition Notice, the Parties shall negotiate in good faith for
thirty (30) days (the “Benchmark Transition Period”) to agree whether
the Proposed Replacement Index satisfies the criteria above and, if so, the terms and effective
date of transition. If agreement is reached, the Proposed Replacement Index shall replace
or supplement (as agreed) the applicable index or indices used in the determination of Benchmark
i for the relevant Payable Element(s) from the agreed effective date, and the table in Item
3.1(a) shall be deemed amended accordingly. If the Parties are unable to agree within
the Benchmark Transition Period, either Party may refer the matter to an Expert for final
and binding determination, with costs borne equally unless the Expert determines otherwise;
provided that the Parties right to deliver a Benchmark Transition Notice under this
Item 3.2(b) is without prejudice to and shall not limit either Party’s rights
under Items 3.1(c) or 3.1(d) (Benchmark Price).
3.3 Floor
Price
(a) The
following minimum prices per kilogram of oxide-equivalent shall apply to each Payable Element
(each, a “Floor Price”):
Payable
Element “i”
Floor Price
(USD per kg oxide-equivalent)
NdPr
[USD ● / kg]
43
Payable
Element “i”
Floor Price
(USD per kg oxide-equivalent)
Dy
[USD ● / kg]
Tb
[USD ● / kg]
Y
[USD ● / kg]
[●]
[USD ● / kg]
[●]
[USD ● / kg]
(b) The
Floor Prices set out in Item 3.3(a) shall, on 1 January of each calendar year during
the Term commencing on 1 January of the calendar year immediately following the Supply Start
Date, be increased by an amount equal to two per cent. (2%) of the Floor Price applicable
in the immediately preceding calendar year.
3.4 The
Floor Price operates as a minimum price protection for the Seller only. Where Benchmark i
exceeds the applicable Floor Price for a given element in a given month, Benchmark i shall
apply in full. The Floor Price shall not operate as a cap on the Product Price.
4. Recovery
Adjustment
4.1 The
following fixed contractual recovery yields (“Recovery i”) shall apply
to each Payable Element for the purposes of calculating Payment i under Item 1 (Purchase
Price). These amounts are fixed and shall not be subject to adjustment (whether increase
or decrease) under any provision of this Agreement, save only as provided in Item 4.3
(Recovery Yield Savings) below:
Payable
Element “i”
Recovery
“i” (fixed)
NdPr
[>85%]
Dy
[>85%]
Tb
[>85%]
Y
[>85%]
[●]
[●%]
[●]
[●%]
4.2 The
fixed Recovery i values set out in Item 4.1 are embedded directly in the Payment i formula under Item 1 (Purchase Price)
and reflect the contractually agreed allocation of recovery risk between the Parties. No separate downside adjustment shall be made to
Payment i on account of actual recovery being lower than the applicable Recovery i; the Seller bears the economic consequence of any
such shortfall through the operation of the Payment i formula itself.
44
4.3 If,
in respect of any Delivery Month, the actual recovery yield achieved by the Offtaker or any
third party in separating a Payable Element from the Product delivered during such Delivery
Month (the “Actual Recovery Yield”) exceeds the applicable fixed Recovery
i for that element, the positive difference between the Actual Recovery Yield and the fixed
Recovery i, applied to the oxide-equivalent quantity of that element contained in the relevant
Shipments and multiplied by the applicable Effective Price i, shall constitute a “Recovery
Yield Saving” for that element in that Delivery Month. The aggregate Recovery Yield
Savings for all Payable Elements in a Delivery Month shall be shared between the Seller and
the Offtaker on a seventy per cent. (70%) to Seller and thirty per cent. (30%) to Offtaker
basis, such that the Offtaker shall pay to the Seller an amount equal to seventy per cent.
(70%) of the aggregate Recovery Yield Savings for the applicable Delivery Month. Recovery
Yield Savings shall be calculated and settled as part of the final settlement process in
accordance with Section 8.3 (Final Invoice).
4.4 The
recovery mechanism under this Item 4 operates asymmetrically:
(a) downside
recovery risk (actual recovery below the fixed Recovery i) is borne entirely by the Seller
through the operation of the Payment i formula, which uses the fixed Recovery i as a direct
multiplier; and
(b) upside
recovery benefit (actual recovery above the fixed Recovery i) is shared between the Parties
in the proportions set out in Item 4.3, with the majority of such benefit accruing
to the Seller in recognition of the Seller’s investment in and responsibility for the
quality of the Product delivered.
For
the avoidance of doubt, no adjustment shall be made to Payment i on account of actual recovery performance, whether above or below the
fixed Recovery i; the Recovery Yield Savings mechanism in Item 4.3 (Recovery Yield Savings) is the sole mechanism by which
outperformance above the fixed Recovery i is recognised and shared.
5. Zr/Hf
Shortfall Payment
5.1 The
Zr/Hf Shortfall Payment payable by the Offtaker to the Seller in respect of any calendar
quarter shall be calculated separately for each of ZrO2 and HfO2 in
accordance with the following formula:
𝒁𝒓/𝑯𝒇
𝑺𝒉𝒐𝒓𝒕𝒇𝒂𝒍𝒍 𝑷𝒂𝒚𝒎𝒆𝒏𝒕
= 𝒁𝒓/𝑯𝒇 𝑺𝒉𝒐𝒓𝒕𝒇𝒂𝒍𝒍 × 𝑹𝒆𝒇𝒆𝒓𝒆𝒏𝒄𝒆
𝑷𝒓𝒊𝒄𝒆
5.2 Where:
(a) “Zr/Hf
Shortfall” means, in respect of each of ZrO2 and HfO2 separately,
the positive difference (if any) between: (i) the Returnable Zr/Hf Quantity attributable
to that oxide for the relevant calendar quarter; and (ii) the aggregate mass of that oxide
actually made available to the Seller during that calendar quarter, expressed in kilograms
on an oxide basis.
(b) “Reference
Price” means, in respect of each of ZrO2 and HfO2 separately, the arithmetic average of the monthly published
spot prices for the applicable oxide (minimum 99.0% purity, FOB basis) over the three (3) calendar months immediately preceding the relevant
calendar quarter, determined by applying the index hierarchy, Deprecated Index provisions and replacement mechanics set out in Item
3.1 (Benchmark Price) mutatis mutandis to ZrO2 and HfO2 (as if each such oxide were a Payable
Element for the purposes of Item 3.1), provided that references in Item 3.1 (Benchmark Price) to the Benchmark Reference
Period shall, for the purposes of this Item 5, be construed as references to the three (3) calendar month period specified above.
6. Currency
Unless
mutually agreed otherwise, all payments due under this Agreement shall be made in United States Dollars by wire transfer of immediately
available funds to a bank account designated in writing by the Party entitled to receive payment.
45
Schedule
3
Product
Qualification Requirements
This
Schedule 3 shall set out:
1. the
qualification testing methodology and standards to be applied, as mutually agreed by the
Parties;
2. the
minimum performance thresholds required for Product Qualification, which shall be objective,
measurable and consistent with the Minimum Specifications;
3. the
testing facility or facilities at which the qualification test will be conducted;
4. the
timeline for conducting and completing the qualification test following receipt of the Sample
Product; and
5. any
other requirements relevant to the qualification process. The qualification process shall
be conducted jointly by the Parties, with each Party bearing its own costs of participation
(save as otherwise provided in Section 5.2(d) (Sample Product and Qualification
Process)),
as
mutually agreed, the “Product Qualification Requirements”, provided that, neither Party shall have the right
to unilaterally determine the qualification criteria or the outcome of the qualification test.
46
Schedule
4
Shipping
Terms
This
Schedule 4 sets out the vessel nomination procedure, loading notification requirements, additional shipping requirements and customs
documentation obligations applicable to the transportation of Product from the Delivery Point.
Part
1 Vessel Nomination Procedure; Loading and Shipping Terms
1. The
Offtaker shall arrange and pay for ocean transportation from the Delivery Point to the discharge
point for the total quantity of Product sold hereunder. The Offtaker shall nominate and provide
vessels that are suitable for the Delivery Point and ocean transportation, and that comply
with all relevant requirements set out in this Agreement.
2. In
accordance with the requirements under the applicable Monthly Delivery Schedule, the Offtaker
shall, within three (3) Business Days of receipt of the relevant delivery notice, provide
the Seller with a written notice (the “Loading Notification”) setting
out, for each Shipment, full details of:
2.1 notification
and consignee details, and other requirements for the issuing of the bill of lading;
2.2 the
vessel the Offtaker nominates to take delivery of the relevant Product (each, a “Nominated
Vessel”);
2.3 the
booking number for the Nominated Vessel;
2.4 CO2
consumption and age of the Nominated Vessel;
2.5 applicable
demurrage rate in accordance with the carrier’s applicable tariff;
2.6 the
freight cost applicable to the Nominated Vessel;
2.7 the
list of local charges with the shipping company for the Nominated Vessel; and
2.8 the
date upon which the Nominated Vessel is scheduled to arrive at the Delivery Point to take
delivery of the relevant Shipment (each, a “Scheduled Loading Date”),
provided
that, the Parties shall cooperate in good faith to amend or adjust the time period for the delivery of the Loading Notification as
may be reasonably necessary to optimise the logistics of delivery.
3. The
Offtaker shall coordinate the Scheduled Loading Date and ensure that the Nominated Vessel
will take delivery of the relevant Shipment within the applicable delivery window. The Offtaker
shall have the right to substitute a Nominated Vessel, provided that the substituting vessel
meets the loading restrictions and vessel requirements previously notified in writing by
the Seller to the Offtaker and such substitution does not result in any increased costs to
the Seller or a delay to the Scheduled Loading Date. The Seller (acting reasonably) shall
confirm acceptance of any nominated substitute vessel within forty-eight (48) hours of such
nomination by the Offtaker.
47
Part
2 Additional Requirements
1. The
Offtaker may not nominate or use a vessel if the shipping company or the owner of the vessel
is subject to Sanctions Laws. Each Nominated Vessel shall be suitable for the Delivery Point
and comply with the loading and/or shipping regulations and requirements of the Delivery
Point.
2. The
free time detention at the Delivery Point is up to fourteen (14) calendar days. The free
time storage at the Delivery Point is up to ten (10) calendar days.
3. The
Seller shall not be responsible for any costs, delays, or damages arising from the Delivery
Point’s failure to provide access to containers or loading facilities on time. Any
time lost due to such delays shall be deemed a Force Majeure event relieving the Seller of
its delivery obligation to the extent of the delay. Timely coordination and provision of
necessary information by the Offtaker are essential to avoid delays. The Seller and the Offtaker
shall comply with applicable port and vessel security regulations, including the International
Code for the Security of Ships and Port Facilities (ISPS Code). Compliance with these regulations
shall not affect the delivery obligations or container free time or demurrage. Any costs
associated with any delays, and any retention or demurrage in connection therewith, caused
by the loading port, loading terminal or Nominated Vessel following delivery of Product at
the Delivery Point shall be for the Offtaker’s account (save where such costs are directly
attributable to the Seller’s actions).
4. The
Offtaker shall be solely responsible for, and shall indemnify and hold the Seller harmless
against, any and all Losses, damages, or liabilities arising from the operation of the Nominated
Vessel or actions of its crew, including but not limited to damage to equipment or facilities
at the Delivery Point or any other Seller-owned premises, harm to the Seller’s personnel,
environmental damage, or injury to third parties caused by the Nominated Vessel or its crew.
5. The
Seller shall be responsible for preparing all customs documentation and taxes required by
any Governmental Authority to clear the Product for export from Greenland. The Offtaker shall
take all reasonable actions to facilitate and support the Seller in obtaining customs clearance
of Shipments for export from Greenland. The Offtaker shall be responsible for all customs
documentation and taxes required by any Governmental Authority to clear the Product for import
at or from the discharge point. The Seller shall take all reasonable actions to facilitate
and support the Offtaker in obtaining customs clearance of Product for import at or from
the discharge point.
48
EX-99.1 — EXHIBIT 99.1
EX-99.1
Filename: realloysex99-1.htm · Sequence: 3
Exhibit 99.1
FOR
IMMEDIATE RELEASE
REalloys
Signs Definitive Long-Term Rare Earth Offtake Agreement with Critical Metals Corp. for 15% of Tanbreez Phase 1 Production
Definitive
agreement secures U.S.-aligned heavy rare earth supply from one of the largest known HREE deposits globally; advances REalloys’ mine-to-magnet
strategy for U.S. defense and critical industrial markets
EUCLID,
OHIO — May 21, 2026 — REalloys Inc. (NASDAQ: ALOY) (“REalloys” or the “Company”) today announced
that it has entered into a definitive long-term rare earth product offtake agreement (the “Offtake Agreement”) with Critical
Metals Corp. (NASDAQ: CRML) (“CRML”) covering 15% of monthly Phase 1 production from CRML’s Tanbreez Project in southern Greenland,
subject to a ±5% per-delivery operational variance. The Offtake Agreement was executed on May 20, 2026 and replaces and supersedes
the non-binding letter of intent previously announced by the parties. Production from any subsequent phase of CRML’s Tanbreez Project
is excluded from the scope of the Offtake Agreement.
The
Offtake Agreement establishes a long-term, U.S.-aligned source of heavy rare earth element (“HREE”) feedstock for REalloys’
downstream separation, metallization, and magnet manufacturing operations, and is a foundational component of the Company’s mine-to-magnet
strategy serving the U.S. Department of Defense, the U.S. Department of Energy, NASA, the U.S. Defense Industrial Base, and the broader
U.S. Organic Industrial Base.
Key
Commercial Terms
● Volume.
15% of monthly Phase 1 production from the Tanbreez Project, subject to a ±5% per-delivery operational variance.
● Phase
1 Capacity. CRML has publicly disclosed Phase 1 nameplate capacity of up to 15,000 metric tons of rare earth concentrate per annum.
● Term.
Initial 15-year term commencing with first commercial delivery, with extension provisions.
● Pricing.
Market-referenced formula pricing with floor-price protection on specified payable elements. Certain payable percentages, recovery assumptions,
and floor prices remain subject to finalization in accordance with the terms of the Offtake Agreement.
● Specifications
and Qualifications. Concentrate must meet agreed product specifications and pass REalloys’ qualification protocols prior to
commercial deliveries.
● Long
Stop Date. The Offtake Agreement is subject to a five-year-long stop date, after which either party may terminate if first commercial
delivery has not occurred.
Tanbreez
Project — Ownership and Permitting Milestones
In
April 2026, the Government of Greenland approved the transfer of the final 50.5% interest in Tanbreez Mining Greenland A/S to CRML, bringing
CRML’s total ownership of the Tanbreez Project to 92.5%. The Tanbreez deposit is recognized in CRML’s public technical disclosures as
one of the largest known HREE deposits globally, with significant content of dysprosium and terbium — the two heavy rare earth
elements most critical to high-temperature permanent magnets used in defense, aerospace, and electric mobility applications.
REalloys’
Diversified Feedstock and Processing Network
The
Offtake Agreement complements REalloys’ broader portfolio of rare earth supply, processing, and downstream relationships, including:
● Hoidas
Lake (Saskatchewan, Canada) — 100% REalloys-owned rare earth deposit;
● Saskatchewan
Research Council Rare Earth Processing Facility (Saskatoon) — separation and processing relationship;
● U.S.
Critical Materials Corp. (Sheep Creek, Montana) — strategic alliance and offtake commitment covering one of the highest-grade
rare earth deposits in the United States;
● St
George Mining Limited (Araxá, Brazil) — supply collaboration; and
● AltynGroup
(Kokbulak, Kazakhstan) — supply collaboration.
Together
with the Tanbreez offtake, these relationships are designed to deliver a diversified, allied-nation feedstock base supporting REalloys’
projected production of dysprosium, terbium, and neodymium metals and alloys at a commercial scale beginning in January 2027 —
ahead of the January 1, 2027 effective date of expanded U.S. federal procurement restrictions on Chinese rare earth content.
Management
Commentary
Leonard
Sternheim, Chief Executive Officer of REalloys, said:
“The Offtake Agreement with Critical Metals is a definitive contractual milestone for REalloys and a critical building block of
our mine-to-magnet strategy. We believe that securing a long-term, allied-nation source of heavy rare earth concentrate from Tanbreez
— alongside our existing relationships at Hoidas Lake, Sheep Creek, Saskatoon, Araxá, and Kokbulak — positions REalloys
to deliver qualified, compliant rare earth metals and alloys to the U.S. Department of Defense, NASA, and U.S. industrial customers as
expanded federal procurement restrictions take effect.”
2
Tony
Sage, Executive Chairman of Critical Metals Corp., said:
“REalloys
represents an important potential downstream partner for Tanbreez and for the broader development of a Western-aligned rare earth supply
chain. This agreement establishes a structured pathway for the parties to reduce and eventually eliminate reliance on China for rare
earths, especially heavy rare earths where almost all of it comes from China.”[1]
Disclosure
Information
REalloys
uses its website (https://realloys.com) and its investor relations page as a means of disclosing material
non-public information and for complying with its disclosure obligations under Regulation FD. Investors are encouraged to review the
information posted on these channels in addition to following REalloys’ press releases, SEC filings, and public conference calls and
webcasts.
About
REalloys Inc.
REalloys
Inc. (NASDAQ: ALOY) is a U.S.-based rare earth materials company executing a mine-to-magnet strategy across upstream feedstock, midstream
separation and metallization, and downstream magnet manufacturing. REalloys is focused on delivering qualified, allied-nation rare earth
metals and alloys — including dysprosium, terbium, and neodymium — to the U.S. Department of Defense, the U.S. Department
of Energy, NASA, the U.S. Defense Industrial Base, and the broader U.S. Organic Industrial Base. The Company is headquartered in Boca
Raton, Florida, with operational activities centered in Euclid, Ohio.
About
Critical Metals Corp.
Critical
Metals Corp. (NASDAQ: CRML) is a critical minerals development company. Its flagship asset is the Tanbreez Project in southern Greenland,
recognized as one of the largest known heavy rare earth element deposits globally. Additional information is available at https://criticalmetalscorp.com.
3
Forward-Looking
Statements
This
press release contains “forward-looking statements” within the meaning of the safe harbor provisions of the U.S. Private Securities
Litigation Reform Act of 1995 and Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. Forward-looking
statements include, without limitation, statements regarding the Offtake Agreement and its expected commercial, operational, and strategic
benefits; the timing, volume, specifications, pricing, and other terms of deliveries under the Offtake Agreement; CRML’s Tanbreez Project,
including its expected Phase 1 nameplate capacity, production timing, and resource characteristics; REalloys’ projected production of
dysprosium, terbium, and neodymium metals and alloys at commercial scale beginning in January 2027; REalloys’ relationships with Hoidas
Lake, the Saskatchewan Research Council, U.S. Critical Materials Corp., St George Mining Limited, and AltynGroup; the expected effects
of U.S. federal procurement restrictions on Chinese rare earth content effective January 1, 2027; and REalloys’ broader mine-to-magnet
strategy.
These
statements are based on management’s current expectations and assumptions and are subject to known and unknown risks, uncertainties,
and other factors that could cause actual results to differ materially, including, without limitation: failure of Tanbreez concentrate
to meet REalloys’ product specifications or to pass REalloys’ qualification protocols; the fact that certain payable elements, payable
percentages, recovery assumptions, and floor prices under the Offtake Agreement remain subject to finalization; the five-year long stop
date termination provision; risks relating to permitting, construction, financing, and operation of the Tanbreez Project and of REalloys’
downstream facilities; compliance with ITAR, EAR, Section 889-equivalent, and other U.S. federal procurement and export-control requirements;
commodity-price volatility; the Company’s history of losses and going-concern considerations; the Company’s status as an emerging growth
company and smaller reporting company; and the other risks and uncertainties described in REalloys’ filings with the U.S. Securities
and Exchange Commission, including its most recent Annual Report on Form 10-K, subsequent Quarterly Reports on Form 10-Q, and Current
Reports on Form 8-K. Forward-looking statements speak only as of the date of this release. REalloys undertakes no obligation to update
any forward-looking statement except as required by applicable law.
Investor
and Media Contact
REalloys
Inc.
7280 W. Palmetto Park Rd., Suite 302N
Boca Raton, FL 33433
(972) 726-9203
Contact: Sarah Riley, Director of IR and Communications
Email: sarah.riley@realloys.com
Website: https://realloys.com
1. Quote
attributed to Critical Metals Corp.; included in this release with CRML’s consent in connection with the parties’ coordinated
announcement.
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