Memorandum of Understanding between United Chemical Company LLC and Mubadala Investment Company PJSC (“Memorandum”)
IN AGREEMENT On 20-08-2017
Memorandum of Understanding between United Chemical Company LLC
and Mubadala Investment Company PJSC (“Memorandum“)
This Memorandum was entered into on the of May 2017, by and between:
- United Chemical Company LLC, incorporated and acting in compliance with the legislation of the Republic of Kazakhstan with its statutory seat at Kunaev St, 8, block B, floor 34, Astana, Republic of Kazakhstan (“UCC”),
- Mubadala Investment Company PJSC, a public joint-stock company established under the laws of the Emirate of Abu Dhabi, with its main address at P.O. Box 45005, Abu Dhabi, UAE (hereinafter, “Mubadala”), represented for the purposes of signing this Memorandum by Mr Khalifa Al Suwaidi.
UCC and Mubadala will be referred to herein individually as “Party” and collectively the “the Parties”.
- UCC is a 100% subsidiary of Samruk-Kazyna JSC, was established in 2009 by the decree of the President of the Republic of Kazakhstan. The mission of UCC is to build and develop the chemical industry of Kazakhstan into one of the leading sectors of the national economy.
- Mubadala was launched in January 2017 as an investment company wholly-owned by the Government of Abu Dhabi, with a mission to realize growth across multiple sectors including energy and utilities, technology, aerospace, industry, healthcare, real estate and financial investments.
- The Parties wish to explore opportunities for them to cooperate in the areas of [developing, and investing in petrochemical plant project development] in Kazakhstan.
Therefore, the two Parties reached the following understanding:
- The Parties wish to cooperate in the area of identifying and developing world-scale petrochemical projects in the country of Kazakhstan.
- Mubadala intends to leverage off its global presence and considerable experience in the downstream sector in order to assist in identifying, executing and developing petrochemical projects.
- The objective of this non-binding memorandum is to facilitate discussions on the potential cooperation areas in a manner that benefits all parties. This shall include:
- the entry into by Borealis AG (a Mubadala group company) of a memorandum of understanding with UCC substantially in the form attached at Appendix 1 to this Memorandum; and
- the sharing of information in respect of opportunities for investment in the petrochemical sector in Kazakhstan.
- In respect of the memorandum of understanding attached at Appendix 1, provided UCC and Borealis are able to agree on conditions for joint project implementation and the Government of the Republic of Kazakhstan is able to provide the guarantees for necessary support measures, Parties shall use their reasonable endeavours to facilitate establishment of a joint venture by and between UCC and Borealis.
- The relationship between the Parties shall be that of independent entities. Nothing in this Memorandum may be considered as forming, establishing or giving effect to any commercial entity of any type. This Memorandum does not confer any binding rights or obligations on either Party except those limited rights and obligations of the Parties expressly indicated to be binding in this Memorandum.
- Nothing in this Memorandum may be interpreted as authorizing any of the Parties to act as an agent or representative of the other Party or to discharge on behalf of, or create for, the other Party any commitment without a prior written agreement of such Party.
- Each Party shall be solely responsible for its own costs and expenses incurred in relation to this Memorandum or whatever is completed pursuant to its terms. If the SC approves the utilization of other third-party expert(s) to provide advice with relation to the economic feasibility of any of the potential areas of cooperation or the relevant agreed-upon projects, then the Parties shall equally share the relevant costs and expenses.
- Term and Effect
This Memorandum shall take effect as of the date first mentioned above and remain in effect for two (2) years. The Parties may extend it for any term based on a written agreement signed by the authorized representative of each Party. Either Party may terminate this Agreement at any time and without any obligation, liability or responsibility, by providing the other Party with thirty (30) days’ written notice.
- Confidentiality and Publicity:
- The Parties acknowledge that all disclosed information shall be confidential and shall remain the property of whichever Party provided them. The recipient of disclosed information pledges to maintain the confidentiality of all and each part of the disclosed information, as well as the contents of this Memorandum, unless disclosure is required to be made to any other government agency and provided that the relevant recipient agency shall be informed that the information is confidential and shall be bound to preserve the complete confidentiality of such information and not to disclose them to any other entity without the written approval of the Party providing it, or unless the disclosure of the confidential information was necessary under the effective laws of either Party or under a final court order issued by a competent court of the state of such Party.
- Each Party pledges to maintain all the disclosed information delivered hereunder at a safe and secure place and not to exploit, or permit others to exploit, the disclosed information or any part thereof.
- Upon request, the recipient pledges to return the disclosed information, with all their copies, remarks and records, to the providing Party.
- Each Party agrees that it may not make any publication or announcement of this Memorandum or the planned joint work opportunities determined hereunder before obtaining a written agreement from the other Party.
- Confidentiality of information shall remain effective for 3 years after the expiry of the term of this Memorandum.
- Disclosed information for the purposes of this Memorandum shall mean any drawings, documents or other materials, including human readable, or computer-readable data or data readable by any other device, logical security and symbols, tabulations and test data, technical knowledge, commercially-sensitive ideas or information and information related to the commercial or financial affairs of either Party, whether submitted verbally or in writing.
- General Provisions:
- This Memorandum shall constitute the full agreement reached between the Parties in relation to the subject matter thereof.
- Neither Party nor any of their subsidiary companies, officials, employees or professional consultants shall be liable for any loss or direct, indirect, consequential or corrective damage, or the like, arising from or as a result of this Memorandum, including, without limitation, the loss of profit or business opportunities or the disruption of operations, for whatever reason.
- Each Party acknowledges that it has not provided or offered, and will not provide or offer, in relation to the matters forming the subject of this Memorandum, any payments or gifts, either directly or through intermediaries, to, or to the benefit of, any public servant (i.e., a person holding a legislative, administrative or judicial position, including any person performing a public job for a public entity or establishment or an international public organization), if such payment, gift, promise or advantage was in violation of any effective law.
- Neither Party may assign or transfer any of its rights hereunder to any third party without a prior written approval of the other Party, save that each Party may assign its rights under hereunder to an affiliate or subsidiary without such prior written approval. For the purposes of this Memorandum the term “affiliate” shall mean in respect of a Party, any person that (directly or indirectly) controls, is controlled by, or is under common control with such Party, and the term “control” (including the terms controlled by and under common control) with respect to the relationship between two or more persons, means the possession, directly or indirectly by equity ownership, contract or otherwise, of the power to direct the management or policies of the specified person.
- With the exception of the contents of Clauses 5 (Confidentiality and Publicity) and 6 (General Provisions), the provisions of this Agreement shall not be binding, nor shall they give rise to any legal rights or obligations, on either Party. This Memorandum is not exclusive, and neither Party is barred from concluding any similar transactions with any third parties.
- No modification to or change of this Memorandum shall be effective unless in writing and signed by both Parties.
- Should any disagreement arise concerning the interpretation or implementation of this Memorandum, the Parties shall seek to settle such disagreement through discussion by representatives of the senior leadership of the Parties. If the Parties cannot reach a result out of such negotiation, the dispute shall be referred to an arbitration tribunal composed of three arbitrators; each Party shall appoint one and the two arbitrators shall appoint a third arbitrator who shall chair the tribunal. The tribunal’s decisions shall be final and binding on both Parties. The arbitration shall be conducted in accordance with the arbitral rules of the International Chamber of Commerce (ICC Rules). The arbitration will take place in London, England, and the English language shall be the arbitration’s language.
- This Memorandum, and the activities herein, shall be governed by, and construed in accordance with, the laws of England and Wales.
- This Memorandum was prepared in one or more counterparts, each of them constituting an original copy.
- The obligations of the Parties set forth in Clauses 5 (Confidentiality and Publicity) and 6 (General Provisions) shall survive the expiry, or termination, of the term of this Memorandum.
- Notices required hereunder shall be in writing, and shall be deemed to have been duly delivered if sent by fax (against a positive transmission report) or by mail (registered and acknowledged, against proof of delivery to the mail system) or email (against a read receipt), to the below-mentioned person. Such notices shall be deemed sent on the date of sending.
- Notices addressed to UCC shall be sent to the following address:
United Chemical Company LLP
Kunaev St, 8, block B, floor 34
Republic of Kazakhstan
Attention: Mrs. Zarema Zhakipova
Telephone: +7717 2 737109
Copy to, Mr. Aibek Akbotayev
Telephone: +7717 2 737125
- Notices addressed to Mubadala shall be sent to the following address:
Mubadala Investment Company PJSC
P.O. Box: 45005
United Arab Emirates
Attention: Mr. Khalifa S. Al Suwaidi
Telephone: +9712 413 0000
Fax no. +9712 413 0001
Copy to, Mr. Khalfan Al Qamzi
Telephone: +971 2 413 0000
Fax no. +9712 413 0001
IN WITNESS WHEREOF, the Parties have caused this Memorandum to be signed by its duly authorized representatives on the date first written above.
|For and on behalf of MUBADALA INVESTMENT COMPANY PJSC||For and on behalf of UNITED CHEMICAL COMPANY LLC|
Khalifa Al Suwaidi