DRAFT-Touchstone - SOW.pdf

SOLICITATION MATERIALS

for Corporate Services Providers in Panama and Colombia to Transfer, Maintain and Liquidate a Panama Entity and its Colombia Branch on behalf of United States International Development Finance Corporation

I. BACKGROUND

(Note: Entity names have been redacted)

A. [Canada LP], a limited partnership organized and existing under the laws of Canada ([Canada LP]) established Panama Entity, S. de R.L., a limited liability company organized and existing under the laws of Panama ([Panama Entity]), which in turn established [Colombia Branch], a Colombian branch of [Panama Entity] ([Colombia Branch] and, together with [Canada LP] and [Panama Entity], the [Entity Parties]) to develop, construct, expand and operate a surface-level gold mine and processing facility in Colombia (the Project).

B. To settle a political risk insurance claim by [Panama Entity] for coverage provided by the United States

International Development Finance Corporation (DFC), DFC and the [Entity Parties] entered into a claim settlement agreement on December 15, 2023 (the Settlement Agreement) by means of which (i) DFC paid the political risk insurance claim; and (ii) the [Entity Parties] assigned and transferred to DFC, pursuant to the terms and conditions established therein, all ownership interests in and to [Panama Entity]’s equity investments in [Colombia Branch] (the Investment) and all other rights and interests in all claims of the [Entity Parties] related to the political risk insurance claim (the Assigned Assets).

C. To give effect to the assignment and transfer of the Assigned Assets, to protect any and all claims DFC may have in connection with such Assigned Assets, and to create pathways to undertake such salvage efforts as it may wish to pursue, while mitigating and minimizing any liability DFC, as assignee, may have thereunder, DFC seeks to undertake corporate control of [Panama Entity] and [Colombia Branch], and take all corporate actions as may be required to ensure that [Panama Entity] and [Colombia Branch] continue to operate in compliance with applicable laws until eventual liquidation.

D. DFC engaged the services of Hunton Andrews Kurth LLP to assist, in conjunction with the law firms of

Anzola Robles & Asociados (ARA) (Panama) and Gómez-Pinzón (Colombia), to develop a strategy to undertake such corporate control. A component of such strategy is the contracting by DFC of a corporate services company or Panama-Colombia consortium of corporate services companies (the Corporate Services Provider) on terms described under the scope of work, for which prospective providers of such services will be evaluated under proposals to provide such services to DFC. DFC seeks proposals from firms that would act as a single provider of such services with the capabilities and capacity to provide such services in both Panama and Colombia on a coordinated basis. The Corporate Services Provider will be selected based on the evaluation criteria set forth herein and a pricing proposal for a period not to exceed three (3) years from a date to be specified under DFC’s contract award.

II. SCOPE OF WORK - CORPORATE SERVICES IN PANAMA

In Panama, DFC requires (i) to perfect the assignment and transfer of Assigned Assets by undertaking corporate control of [Panama Entity] and, thereby, [Colombia Branch]; (ii) to appoint a new manager, legal representatives, and resident agent (iii) to issue new powers of attorney; (iv) to comply with annual fees requirements, accounting records requirements, and due diligence requirements after the perfection of the transfer of the Assigned Assets; and (v) to take all corporate actions as my be required to (1) pursue salvage efforts in Colombia and, (2), eventually dissolve [Panama Entity] and [Colombia Branch].

The Corporate Services Provider will provide the following services for [Panama Entity], on behalf of DFC, pursuant to documents prepared by DFC’s Panama counsel, executed and delivered upon contract award between DFC and the Corporate Services Provider:

1. under an assignment agreement for the transfer of [Canada LP]’s equity interest in [Panama Entity] act as nominee (trust or other entity, the Assignee) on behalf of DFC.

2. under an Assignee’s trust or other entity, the Assignee would hold, for the direct/indirect benefit of DFC, all equity interest in [Panama Entity].

3. under corporate resolutions and undertakings of corporate actions that give effect to the transfer of

[Canada LP]’s equity interest in [Panama Entity], perform services in accordance with the following:

a. Corporate resolution that amends [Panama Entity]’s articles of incorporation to include the names of the new members.

b. Registration of such resolution before the Panamanian Public Registry Office.

c. Annotation of the transfer of [Canada LP]’s equity interest (e.g., quotas) in [Panama Entity] under the company’s registry book.

d. Endorsement of the current quota certificates representing all equity interest in [Panama Entity] in favor of the Assignee.

4. under corporate resolutions and undertaking of corporate actions to change management of [Panama Entity], perform services in accordance with the following:

a. Corporate resolution(s) of [Panama Entity], removing the current managers and officers of

[Panama Entity] and appointing new managers (appoint representatives of Corporate Services Provider for Colombia as managers).

b. Registration of such resolution before the Panamanian Public Registry Office.

c. Prepare corporate resolution revoking any special and/or general power of attorneys previously granted by [Panama Entity].

d. Corporate resolution(s) of [Panama Entity], granting one or more new special and/or general power of attorney (grant to representatives of Corporate Services Provider for Colombia for appointment as managers) to manage the operations of [Panama Entity] and sign all corporate, commercial and regulatory documents needed for the day to day of [Panama Entity], and the dissolution and any other matter needed in connection with DFC taking control of [Panama Entity] and eventually dissolving it.

5. request Public Registry Office certificates of [Panama Entity] from the Public Registry Office.

6. provide services as resident agent of [Panama Entity], performing the following duties:

a. Maintain (i) accounting records; and (ii) copies of due diligence (KYC) documents required under

Panama law.

b. Collect corporate annual fee and make payment to the Panamanian tax authority.

7. under corporate resolutions for the dissolution of [Panama Entity] and undertaking of corporate actions to give effect to dissolution, perform services under the following and as instructed by DFC:

a. Corporate resolution that dissolves [Panama Entity], to so dissolve it.

b. File before the Public Registry Office the (i) corporate resolution that authorizes the dissolution of [Panama Entity]; and (ii) corporate resolution that confirms that [Panama Entity] completed the liquidation process.

8. Cancelation of [Panama Entity]’s taxpayer identification numbers (RUC) before the Panamanian tax authority.

9. Licensed Trustee (optional) – DFC is prepared to consider other arrangements, as proposed by the

Corporate Services Provider and incorporated into the contract award, to limit DFC’s exposure to liabilities that may arise in connection with its ownership of [Panama Entity] and [Colombia Branch], for example, holding ownership interest in [Panama Entity] through a trust(s) to be managed by the same trustee. Such an arrangement may involve transforming [Panama Entity] from a S. de R.L. to a S.A.

entity. For this purpose, the Corporate Services Provider shall arrange for a trustee with a license issued by the Bank Superintendency of Panama, to (i) first receive, as Assignee, on behalf of a trust(s), all equity interests in [Panama Entity]; and (ii) then manage and coordinate through such trust(s) all corporate actions following instructions from DFC in connection with [Panama Entity].

Licensed trustee services, if elected by the Corporate Services Provider to be included with its proposal, would provide for the following services:

a. Manage and coordinate as owner, its equity interest in [Panama Entity].

b. Receive and maintain all equity interest in [Panama Entity] and coordinate all corporate actions, following DFC instructions.

c. Provide the services agreed between the trustee and DFC in trust agreement(s) to be provided by the Corporate Services Provider.

d. Participate and have the right to vote at [Panama Entity] owners’ meetings.

III. SCOPE OF WORK – CORPORATE SERVICES IN COLOMBIA

For [Colombia Branch], [Panama Entity] should appoint representatives that have the required expertise to undertake such actions as may be necessary for closing operations and to eventually liquidate [Colombia Branch], or to continue with the operations of [Colombia Branch], as required, and in general, for the Project.

1. The Corporate Services Provider is expected to carry out various tasks aimed at ensuring compliance, risk mitigation, and legal protection for [Colombia Branch], including the following:

a. Act on behalf of [Colombia Branch] before administrative or judicial authorities of Colombia, and third parties, in accordance with the powers and limitations established by [Panama Entity].

b. Sign contracts, certifications, agreements, and documents on behalf of [Colombia Branch].

c. Manage contract renewal and termination processes, ensuring compliance with contractual obligations and terms.

d. File annual accounts and tax returns with local authorities.

e. Appear before any private, public, or administrative authority in the Republic of Colombia or before any entity, officer, agent, or employee of such authority, including but not limited to each and every political, administrative, judicial, tax, banking, municipal, customs or registration authority, chamber of commerce, notary, superintendency, entity of the executive branch and before any of its related or affiliated agencies.

f. Submit and receive documents, carry out registry acts, filing appeals, receive notifications, answer requests, and perform each act that requires representation of [Colombia Branch] before public authorities.

g. Recruit administrative and operational staff who will provide services as employees of [Panama Entity], if applicable.

h. Collaborate with legal advisors in matters related to intellectual property, risk management, negotiation of contracts, dispute resolution, corporate governance, data privacy and security.

i. Properly maintain [Colombia Branch]’s corporate records and file annual reports.

2. Once [Panama Entity] decides to close and liquidate [Colombia Branch], the Corporate Services Provider will provide liquidation services, including acting as liquidator and carrying out all the procedures required to achieve the liquidation of [Colombia Branch] in accordance with applicable law, including (but not limited to):

a. Coordinate the publication of the liquidation notice of [Colombia Branch] in a newspaper with wide circulation in [Colombia Branch]’s domicile.

b. Send communications to: (i) the National Tax and Customs Authority (DIAN), and (ii) the Secretary of Treasury (Secretaría de Hacienda), informing that [Colombia Branch] has entered liquidation.

c. Evaluate the available assets and seek the reorganization of the liabilities of [Colombia Branch].

d. Request an account statement before DIAN.

e. Prepare the final liquidation account of [Colombia Branch].

f. Prepare, execute, and file all relevant documents required to be filed before the different authorities to complete the liquidation of [Colombia Branch].

g. Provide periodic reports regarding the liquidation process.

h. Carry out the proceedings required to cancel [Colombia Branch]’s: (i) sole tax registry (RUT for its acronym in Spanish); and (ii) the foreign investment before the Central Bank.

i. Prepare and certify [Colombia Branch]’s inventory of corporate assets.

j. Execute and register the public deed of liquidation before the Chamber of Commerce.

k. If [Colombia Branch] has any remaining assets, coordinate their transfer through the foreign exchange market.

l. Cancel the bank account of [Colombia Branch], if applicable.

IV. Evaluation Criteria

a. General Information and Capacity. The candidate shall provide information that indicates its ability to provide the services and shall describe how it would approach the representation of [Panama Entity] and [Colombia Branch]. The candidate shall be an entity duly incorporated under the laws of the country of its incorporation, which shall be evidenced by providing a certificate of good standing, certificate of existence, or similar document. The corporate purpose of the candidate must align with the services to be provided.

b. Trustee Proposal (optional). If a proposal is submitted that includes services as a licensed trustee in

Panama, the candidate must show that it: (1) operates pursuant to a valid trustee license issued by the Bank Superintendency of Panama; and (2) is not a part of a bank group with a Panama banking license.

c. Experience. The candidate must have been incorporated at least three years prior to the submission of the proposal. The candidate and the designated team for providing the services must demonstrate proven relevant experience and expertise in corporate management in Panama and Colombia. Additionally, it should demonstrate previous experience working with international financial institutions, including development finance institutions and multilateral development banks. A candidate with a proven track record of at least three years in providing corporate services to clients who operate gold mines in Colombia may be viewed more favorably than candidates without such a proven track record. However, a candidate without a proven track record in providing corporate services to clients who operate gold mines in Colombia may be viewed as favorably as candidates with such a proven track records if such candidate demonstrates at least five years of experience representing companies from other sectors.

d. Team Composition. The personnel assigned to provide the services must be bilingual (English and Spanish), as well as proficient in both written and verbal communication in English. Preference may be given to candidates with team that include professionals in business administration, lawyers, accountants, and engineers or other individuals with experience in the mining and energy sector.

e. Absence of Conflicts. The candidate must not have any conflicts of interest, financial or otherwise, that could compromise its ability to impartially participate in the selection process and carry out the services effectively. This includes but is not limited to conflicts arising from existing contractual obligations, personal relationships, or financial interests that could unduly influence decision-making or rendering of services to be engaged.

f. Financial Solvency. The economic proposal submitted by the candidate must be competitive and within the range of fees or indicative prices consistent with the market for corporate services in Panama and Colombia. Furthermore, a candidate is ineligible if undergoing bankruptcy proceedings or receivership or has a history of bankruptcy filings.