EXHIBIT 10.2
AMENDMENT TO SHAREHOLDERS AGREEMENT
MEMORANDUM OF AGREEMENT made as of August 30, 2004.
BETWEEN:
AFRIORE INTERNATIONAL (BARBADOS) LIMITED, a corporation incorporated
under the laws of Barbados
(hereinafter referred to as "AfriOre (Barbados)")
OF THE FIRST PART
- and -
WITS BASIN PRECIOUS MINERALS INC., a corporation incorporated under
the laws of the State of Minnesota, U.S.A.
(hereinafter referred to as "WB")
OF THE SECOND PART
- and -
KWAGGA GOLD (BARBADOS) LIMITED, a corporation incorporated under the
laws of Barbados
(hereinafter referred to as the "Corporation")
OF THE THIRD PART
WHEREAS the parties entered into an agreement (the "Shareholders
Agreement") concerning the Corporation;
AND WHEREAS the parties have agreed to amend the Shareholders Agreement on
the terms contained herein;
NOW THEREFORE THIS AGREEMENT WITNESSETH that for and in consideration of
the mutual covenants and agreements contained in the Shareholders Agreement and
in consideration of the further mutual covenants and agreements herein contained
and the sum of Two ($2.00) Dollars (the receipt and sufficiency of which is
hereby acknowledged), it is hereby agreed by and between the parties hereto as
follows:
1. All terms defined in the Shareholders Agreement shall have the same
meaning as so defined when used in this agreement, except as expressly
stated herein to the contrary.
2. The Shareholders Agreement is hereby amended by deleting therefrom
Sections 1.1(dd), 2.2, 2.3 and 2.8 and substituting therefor the
following:
"1.1(dd) "Shareholder" means at any time any party to this Agreement who
is the beneficial owner of any Shares; provided that until such time
as WB shall have advanced the additional $75,000 referred to Section
2.2, it shall not be deemed to be a Shareholder notwithstanding that
it is the beneficial owner of the Initial WB Shares;"
"2.2 Phase One
It is acknowledged and agreed that as of the date hereof WB has
advanced $2,025,000 to the Corporation. WB and the Corporation
hereby agree that such portion of the WB Advances is hereby
converted into, and the Corporation agrees to, within 7 days after
the date hereof, issue and deliver to WB 1,817,307 Shares (the
"Initial WB Shares"). WB hereby irrevocably authorizes and directs
the Corporation to deliver the share certificate representing the
Initial WB Shares to AfriOre (Barbados). AfriOre (Barbados) shall
hold such share certificates in escrow pending fulfilment by WB of
its obligations in the following paragraph.
WB hereby irrevocably agrees to advance to the Corporation an
additional $75,000 on or prior to the later of July 30, 2004 or the
date upon which Kwagga has obtained all required permits to commence
drilling of the second drill hole in the Project Area. Upon the
advance of the $75,000 by WB, such portion of the WB Advances shall
be automatically converted into, and the Corporation shall, within
seven (7) days thereafter, issue and deliver to WB, 67,308 Shares.
It is acknowledged that all WB Advances have been, and will be, used
to fund Expenses of the Corporation and loans to Kwagga to fund
Kwagga's Expenses, to be incurred prior to June 20, 2006."
"2.3 Default by WB
In the event that:
(a) WB fails to advance the additional $75,000 referred to in Section
2.2 on or prior to the later of July 30, 2004 or the date upon which
Kwagga has obtained all required permits to commence drilling of the
second drill hole in the Project Area;
(b) thereafter Kwagga and AfriOre (Barbados) deliver written notice of
such default to WB; and
(c) WB fails to advance such amount within seven (7) days after WB's
receipt of such notice,
at any time thereafter, upon notice from AfriOre (Barbados) to WB, the
Initial WB Shares and the WB Advances (if any) shall be automatically sold
by WB to AfriOre (Barbados) against payment by AfriOre (Barbados) to WB of
$1.000, whereupon this Agreement shall terminate. For the purposes of such
sale, AfriOre (Barbados) is hereby authorized and directed by WB to
deliver the share certificate representing the Initial WB Shares (held by
AfriOre (Barbados) pursuant to Section 2.2) to itself."
- 2 -
"2.8 Subscription Price for Shares
All Shares issued to WB pursuant to:
(a) Section 2.2 shall be issued at a subscription price of $1.114286
each, representing a total of 1,884,615 Shares to be issued for a
gross subscription price of $2,100,000.
(b) Section 2.5 shall be issued at a subscription price of $0.866666
each, representing a total of 1,615,385 Shares for an aggregate
subscription price of $1,400,000."
3. The Shareholders Agreement, as changed, altered, amended or
supplemented by this agreement, shall continue in full force and
effect and is hereby confirmed by the parties hereto.
4. The Shareholders Agreement shall henceforth be read in conjunction
with this agreement and the Shareholders Agreement and this
agreement shall henceforth have effect so far as practicable as if
all the provisions of the Shareholders Agreement and of this
agreement were contained in one instrument.
5. This agreement may be executed in any number of counterparts and all
such counterparts taken together will be deemed to constitute one
and the same instrument, and further, this agreement may be executed
by facsimile signatures.
IN WITNESS WHEREOF the parties hereto have caused this agreement to be
executed as of the day and year first above written.
AFRIORE INTERNATIONAL (BARBADOS) LIMITED
Per: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title:
WITS BASIN PRECIOUS MINERALS INC.
Per: /s/ X. Xxxxx White
------------------------------------
Name: X. Xxxxx White
Title: Pres. and CEO
KWAGGA GOLD HOLDINGS (BARBADOS) LIMITED
Per: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title:
