SALE OF SHARES AND CLAIMS AGREEMENT
Exhibit
10.38
1
PARTIES
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1.1
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The
parties to this agreement are –
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1.1.2
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SSC
Mandarin Group Limited;
and
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1.1.3
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China
Global Mining Resources
Limited.
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1.2
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The
parties agree as set out below.
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2
INTERPRETATION
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2.1
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In
this agreement, unless inconsistent with or otherwise indicated by
the
context -
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2.1.1
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"the/this
agreement"
means the agreement as set out herein together with all appendices
hereto;
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2.1.2
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"business
day"
means a day which is not a Saturday, Sunday or a United States public
holiday;
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2.1.3
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"the
company"
means China Global Mining Resources Limited, with registration number
1386052, a company duly incorporated in accordance with the laws
of the
British Virgin Islands, herein represented by Xxx Sing Xxxxx, Xxxxx,
he
being duly authorised;
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2.1.4
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"the
subsidiary"
means Maanshan Global Resources Limited, a company duly incorporated
in
accordance with the laws of the People's Republic of China and a
wholly
owned foreign enterprise of the company with its registered address
at
Hongqinanlu, Development District, Ma'anshan, Anhui
Province;
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1
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2.1.5
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"the
documents of title"
means collectively
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2.1.5.1
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the
share certificates in respect of the subject shares, together with
share
transfer forms in respect thereof duly completed in accordance with
the
articles of association of the company, indicating the purchaser
or his
nominee as the transferee of the subject shares and dated the effective
date;
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2.1.5.2
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a
certified copy of a resolution of the directors of the company passed
in
accordance with the articles of association of the company approving
the
transfer of the subject shares in the name of the purchaser or its
nominee;
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2.1.5.3
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the
written and signed cession of the claims in favour of the purchaser
or its
nominee;
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2.1.6
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"the
effective date"
means the signature date;
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2.1.7
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"the
parties"
means all the parties to this
agreement;
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2.1.8
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"the
purchaser"
means Wits Basin Precious Minerals Inc. (OTCBB: WITM), a public company
duly incorporated in accordance with the laws Minnesota, United States
of
America, or its appointed nominee, herein represented by Xxxxxxx
Xxxxx
Xxxx, he having been duly authorised
hereto;
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2.1.9
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"the
Seller"
means SSC Mandarin Group Limited, with registration number 137917,
a
company duly incorporated in terms of the laws of the British Virgin
Islands, herein represented by Xxx Sing Xxxxx, Xxxxx, he being duly
authorised thereto;
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2.1.10
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"the
signature date"
means the date of signature of this agreement as identified on the
signature page;
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2
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2.1.11
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"the
subject claims"
means any and all claims of whatsoever nature and howsoever arising
held
by the seller against the company as at the effective
date;
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2.1.12
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"the
subject shares"
means 1 (one) ordinary par value share amounting to 100% (one hundred
percentum) of the company's issued share capital at the effective
date;
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2.1.13
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any
reference to the singular includes the plural and vice
versa;
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2.1.14
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any
reference to natural persons includes legal persons and vice
versa;
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2.1.15
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any
reference to a gender includes the other
genders.
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2.2
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If
any provision in a definition is a substantive provision conferring
rights
or imposing obligations on any party, effect shall be given to it
as if it
were a substantive clause in the body of the agreement notwithstanding
that it is only contained in the interpretation
clause.
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2.3
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The
clause headings in this agreement have been inserted for convenience
only
and shall not be taken into account in its
interpretation.
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2.4
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If
any period is referred to in this agreement by way of reference to
a
number of days, the days shall be reckoned exclusively of the first
and
inclusively of the last day unless the last day falls on a day other
than
a business day, in which case the last day shall be the next succeeding
business day.
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2.5
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Words
and expressions defined in any sub-clause shall, for the purposes
of the
clause of which that sub-clause forms part, bear the meaning assigned
to
such words and expressions in that
sub-clause.
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2.6
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This
agreement shall be governed by and construed and interpreted in accordance
with the laws of the United Sates of
America.
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3
3
INTRODUCTION
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3.1
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It
is recorded that –
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3.1.1
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the
seller is the owner of the subject shares and the subject
claims;
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3.1.2
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the
purchaser wishes to acquire the subject shares and the subject claims
from
the seller and the seller is willing to dispose of the subject shares
and
the subject claims to the purchaser on the effective date, subject
to the
terms and conditions set out in this
agreement.
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3.2
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The
parties accordingly agree as set out
herein.
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4 PURCHASE
AND SALE
With
effect from the effective date the seller hereby sells the subject shares and
the subject claims to the purchaser, who hereby purchases same from the seller,
subject to the terms and conditions set out in this agreement.
5 SHARE
CAPITAL OF THE COMPANY
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5.1
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It
is recorded that the company is duly registered with a share capital
as
follows
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5.1.1
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an
authorised share capital of USD50,000 (fifty thousand United States
Dollars) divided into 50,000 (fifty thousand) ordinary par value
shares of
USD1,00 (one United States Dollar) each;
and
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5.1.2
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an
issued share capital of USD1,00 (one United States Dollar) divided
into 1
(one) ordinary par value share of USD1,00 (one United States
Dollar).
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6
PURCHASE PRICE
The
purchase price payable by the purchaser to the seller in respect of the subject
shares and the subject claims shall be an amount of HKD10,000 (ten thousand
Hong
Kong Dollars), the receipt of which is hereby acknowledged by
seller.
4
7
PAYMENT OF PURCHASE PRICE
It
is
recorded that the purchase price for the subject shares and the subject claims
has been paid by the purchaser to the seller in cash.
8
WARRANTIES
The
seller warrants that on the effective date –
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8.1
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the
company will not be under any obligations to issue any shares or
debentures to any person, and no resolution will have been passed
to
increase its capital or to issue further shares or any
debentures;
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8.2
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no
person will have any lien or other preferential right in respect
of the
share capital of the company, nor will any person other than the
seller
have any claim to any of the subject shares in the
company;
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8.3
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the
company will not have declared any dividends which will not have
been paid
in full.
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8.4
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Except
as set out above, the shares and claims are sold without any warranties
of
any nature, either express or
implied.
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9
DELIVERY AND CLOSING
At
10h00
on the effective date, the parties shall meet at the address of the seller
referred to in 13.2.1 below or at such other premises as agreed to between
them.
At that meeting the seller shall:
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9.1
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deliver
to the purchaser or its nominee –
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9.1.1
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the
share certificates in respect of the sale shares together with duly
signed
and currently dated share transfer forms in respect thereof duly
completed
in negotiable form;
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9.1.2
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a
copy of a resolution of the seller approving the transaction contemplated
in terms of this agreement.
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5
10
CONFIDENTIALITY
The
parties agree not to disclose details of this agreement or any other matter
in
relation to the transactions set out in this agreement to any third party at
any
time and further undertake not to make any public announcement relating to
the
matters contemplated herein without the prior written approval of the seller
and
the purchaser first being had and obtained and which approval shall not be
unreasonably withheld.
11
RISK AND BENEFIT
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11.1
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All
risk in and benefit to the subject shares and subject claims shall
pass to
the purchaser on the effective
date.
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11.2
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Ownership
of the subject shares and subject claims shall pass to the purchaser
with
effect from the effective date.
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12
BREACH
Should
any party ("the
party in default")
breach
any material term, condition, undertaking, warranty or representation contained
in this agreement and fail to remedy such breach within seven days (or such
reasonable longer period as the parties may agree on) after receipt of a written
notice from any of the other parties ("the
innocent party/ies"),
requiring such breach to be remedied, then, without prejudice to any other
rights that it may have in terms hereof or in law, the innocent party/ies shall
be entitled to forthwith cancel this agreement on written notice thereof to
the
party in default.
13
NOTICES AND DOMICILIA
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13.1
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The
parties choose as their domicilia
citandi et executandi
their respective addresses set out in this clause for all purposes
arising
out of or in connection with this agreement at which addresses all
processes and notices arising out of or in connection with this agreement,
its breach or termination may validly be served upon or delivered
to the
parties.
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6
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13.2
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For
purposes of this agreement the parties' respective addresses shall
be
–
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13.2.1
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the
seller at Suite 3015, 30/F, One International Finance Centre, 0 Xxxxxxx
Xxxx Xxxxxx, Xxxxxxx, Xxxx Xxxx;
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facsimile
number ~ x000 0000 0000;
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13.2.2
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the
purchaser at 900 IDS Center 00 Xxxxx 0. Xxxxxx Xxxxxxxxxxx, XX 00000,
Xxxxxx Xxxxxx for attention Xx. Xxxx X.
Xxxxx,
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facsimile
number ~ x0000 000 0000;
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13.2.3
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the
company at X.X. Xxx 000, Xxxxxxxx Xxxxxxxxxxxxxx Xxxxxx, Xxxx Xxxx,
Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx;
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facsimile
number ~ x000 0000 0000,
or
at
such other address of which the party concerned may notify the other/s in
writing provided that no street address mentioned in this sub-clause shall
be
changed to a post office box or poste restante.
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13.3
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Any
notice given in terms of this agreement shall be in writing and shall
–
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13.3.1
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if
delivered by hand be deemed to have been duly received by the addressee
on
the date of delivery;
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13.3.2
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if
transmitted by facsimile be deemed to have been received by the addressee
on the day following the date of despatch, unless the contrary is
proved.
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13.4
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Notwithstanding
anything to the contrary contained or implied in this agreement,
a written
notice or communication actually received by one of the parties from
another including by way of facsimile transmission shall be adequate
written notice or communication to such
party.
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7
14
WHOLE AGREEMENT
This
agreement constitutes the whole agreement between the parties as to the subject
matter hereof and no agreements, representations or warranties between the
parties regarding the subject matter hereof other than those set out herein
are
binding on the parties.
15
VARIATION
No
addition to or variation, consensual cancellation or novation of this agreement
and no waiver of any right arising from this agreement or its breach or
termination shall be of any force or effect unless reduced to writing and signed
by all the parties or their duly authorised representatives.
16
RELAXATION
No
latitude, extension of time or other indulgence which may be given or allowed
by
any party to the other parties in respect of the performance of any obligation
hereunder, and no delay or forbearance in the enforcement of any right of any
party arising from this agreement, and no single or partial exercise of any
right by any party under this agreement, shall in any circumstances be construed
to be an implied consent or election by such party or operate as a waiver or
a
novation of or otherwise affect any of the party's rights in terms of or arising
from this agreement or preclude any such party from enforcing at any time and
without notice, strict and punctual compliance with each and every provision
or
term hereof.
17
COSTS
Each
party shall bear its own costs in respect of the negotiation, drafting and
implementation of this agreement. All stamp duty, if any, shall be borne and
paid by the purchaser.
8
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SIGNED
at _______________________________________
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as of
________________________________________
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AS
WITNESS:
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WITS
BASIN PRECIOUS
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For:
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MINERALS
INC.
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(Name
of witness in print)
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Duly
Authorised
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SIGNED
at _______________________________________
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as of ________________________________________
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AS
WITNESS:
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SSC
MANDARIN GROUP
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For:
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LIMITED
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(Name
of witness in print)
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Duly
Authorised
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SIGNED
at _______________________________________
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as of
_________________________________________
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AS
WITNESS:
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CHINA
GLOBAL MINING
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For:
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RESOURCES
LIMITED
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(Name
of witness in print)
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Duly
Authorised
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9
