SHARE ISSUANCE AGREEMENT
Exhibit 10.1
SHARE
ISSUANCE AGREEMENT dated the 8th day of March, 2010,
BETWEEN:
SK
CAPITAL CORP.,
("SUBSCRIBER")
AND:
XXXXX
EXPLORATION., a Nevada domestic corporation, with a corporate office on 0 Xxxxxxx Xxxxxx, Xxxxxx
Xxxxxx Xxxxxxxxx 0000
(hereinafter,
the "COMPANY")
NOW
THEREFORE THIS SHARE
ISSUANCE AGREEMENT ("AGREEMENT") WITNESSES that
the parties
hereto agree as follows:
ARTICLE 1
- INTERPRETATION
SECTION
1.1. DEFINITIONS. When used in this
Agreement (including the recitals and
schedules hereto) or in any
amendment hereto, the following terms shall,
unless
otherwise expressly provided, have the meanings assigned to them
herein:
"BANKING
DAY" shall mean any day other than a Saturday, Sunday, public holiday
under the
laws of the State of Queensland or other day on which banking institutions
are
authorized or obligated to close in Queensland.
"CHARTER
DOCUMENTS" means constating documents and by-laws, and all amendments
thereto;
"CONSENT"
means
any permit, license, approval, consent, order, right,
certificate,
judgment, writ, injunction, award, determination, direction,
decree,
authorization, franchise, privilege, grant, waiver, exemption and
other concession
or by-law, rule or regulation;
"SHARE
PRICE" means a price of $0.20 and
"DOLLAR"
or "$" means the currency of the United States of America.
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ARTICLE 2
- THE SHARE ISSUANCE
SECTION
2.1. SHARE ISSUANCE. The Subscriber shall make available to the
Company in accordance with, and subject to the terms and conditions of, this
Agreement, until March 8, 2011
(the "COMPLETION DATE"), up
to $250,000 by way of Advances in accordance with this Sections 2.2,
2.3 and 2.4 of this Agreement. The
Completion Date may be extended for an additional term of up to twelve
months at
the option of the Company or the Subscriber upon written notice on or
before
the Completion Date in accordance with the notice provisions in
Section of this
Agreement.
SECTION 2.2.
THE ADVANCES. On the terms and conditions set forth herein the
Subscriber,
from time to time, on any Banking Day, prior to the Completion Date,
Agrees,
at its sole discretion, to make advances to the Company ("ADVANCES"). Each
Advance shall be in an aggregate amount of not more
than $50,000.
SECTION
2.3. PROCEDURE TO REQUEST ADVANCES. Each Advance shall be
made on or before five Banking Days following notice from the
Company. Each such notice shall be given by a notice to the
Subscriber in the form substantially the same as the
form attached hereto in Schedule A (each a "NOTICE").
SECTION
2.4. SUBSCRIPTION AGREEMENT. Upon making each Advance, the
Subscriber shall provide an executed Subscription Agreement, in a form
acceptable to both parties to this Agreement, to the Company.
SECTION 2.5.
USE OF PROCEEDS. The Company shall use all Advances to
fund operating expenses, acquisitions, working capital and general corporate
activities.
SECTION
2.6 OPTION. The Subscriber may, at their discretion, take the option to
subscribe
up to a further $250,000, when the
total subscription from this agreement
has been received by the Company.
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ARTICLE 3
- REPRESENTATIONS AND WARRANTIES
SECTION
3.1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to the
Subscriber:
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(a)
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Organization and Corporate Power. The
Company has been duly
incorporated and organized and
is validly subsisting and in good
standing under the laws of its jurisdiction and
has full corporate right, power and authority to
enter into and perform its obligations
under the Agreement to which it is or shall be a
party and has full corporate right, power and authority to own and operate
its properties and to carry on its
business;
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(b)
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Conflict with
Other Instruments. The execution and
delivery by the Company of the Agreement and
the performance by the Company of its
obligations thereunder, do not and will
not: (i) conflict with or result in a
breach of any of the terms, conditions or
provisions of: (A) the charter documents of the Company; (B)
any law applicable to or binding on the Company; or (C) any
contractual restriction binding on or affecting the Company or
its properties the breach of which would have a
material adverse effect on the Company; or (ii) result in, or
require or permit: (A) the imposition of any lien on
or with respect to the properties now owned or
hereafter acquired by the Company; or (B) the
acceleration of the maturity of any debt of the Company, under
any
contractual provision binding on or affecting the
Company;
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(c)
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Consents, Official
Body Approvals. The execution and delivery of the Agreement and the
performance by the Company of its obligations thereunder have been duly
authorized by all necessary action on the part of the
Company, and no Consent under any applicable law and no
registration, qualification, designation, declaration or filing with any
official body having jurisdiction over the Company
is or was necessary therefor. The Company possesses all Consents, in full
force and effect, under any applicable Law which are necessary in
connection with the operation of its business, the non-possession of which
could reasonably be expected to have a material adverse effect on the
Company;
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(d)
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Execution
of Binding Obligation. The Agreement has been duly executed and delivered
by the Company and, when duly executed by the Company and delivered for
value, the Agreement will constitute legal, valid and binding obligations
of the Company, enforceable against the Company, in accordance with its
terms;
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(e)
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No
Litigation. There are no actions, suits or proceedings pending
or, to the knowledge of the Company, after due inquiry, threatened against
or affecting the Company (nor, to the knowledge of the
Company, after due inquiry, any
basis therefor) before any official body having
jurisdiction over the
Company which purport to or do challenge the
validity or propriety of
the transactions contemplated by the
Share Issuance
the Company, which if adversely determined could
reasonably be expected to have a material adverse effect on the
Company;
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(g)
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Absence of Changes.
Since the date of the most recently delivered financial
statements of the Company, the Company has carried on its business,
operations and affairs only in the ordinary and normal course consistent
with past practice.
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ARTICLE 4
- COVENANTS OF THE COMPANY
SECTION
4.1. AFFIRMATIVE COVENANTS. Until the
Completion Date, the Company shall:
(a)
COMPLIANCE WITH LAWS, ETC. Comply
with all applicable laws, non-compliance with
which could have a material adverse effect on the Company;
(b)
PAYMENT OF TAXES AND CLAIMS. Pay and discharge before the same shall
become
delinquent: (i) all taxes and assessments; and (ii) all lawful
claims
which, if unpaid, might become a lien upon or in respect of the Company's
assets or properties;
(c)
MAINTAIN TITLE. Maintain and, as soon as reasonably practicable, defend
and take, all action necessary or advisable at any
time, and from time
to time, to maintain, defend, exercise or renew its right,
title and
interest in and to all of its property and assets;
(d)
PAY OBLIGATIONS TO SUBSCRIBER AND PERFORM OTHER COVENANTS. Make full
and timely payment of its obligations hereunder and duly comply with the terms
and covenants contained in this Agreement, all at the times and places and in
the manner set forth therein;
(e)
FURTHER ASSURANCES. At its cost and expense, upon request by the
Subscriber,
duly execute and deliver, or cause to be duly executed and delivered, to
the Subscriber, such
further instruments and do and cause to
be done such other acts as may be necessary or proper in the
reasonable
opinion of the Subscriber to carry out more effectually the provisions
and purposes of this Agreement.
ARTICLE 5
- SHARE ISSUANCE
SECTION
5.1 SHARE IS SUANCE. The Company shall issue, within fifteen (15) Banking Days
following the date of the receipt by the Company of any Advance under this
Agreement, common stock of the Company (the
“SHARES"). Upon receipt of any Advance under this Agreement, the
Company shall promptly cause its registrar and
transfer agent to issue
the certificates representing the
Shares.
SECTION
5.2 FRACTIONAL SHARES. Notwithstanding any
other provisions of this Agreement, no
certificate for fractional shares of the Shares
shall be
issued to the Subscriber. In lieu of any such fractional shares, of the
Subscriber would otherwise be entitled to receive a
fraction of a share of the
Shares following a
Share Issuance, the Subscriber shall
be entitled to receive from theCompany a stock
certificate representing the nearest whole number of shares of
the
Company.
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ARTICLE 6
- MISCELLANEOUS
SECTION
6.1. NOTICES, ETC. Except as otherwise expressly provided herein, all
notices, requests, demands, directions
and communications by one party to the other
shall be sent by hand delivery
or registered mail or fax, and shall be
effective
when hand delivered or when delivered by the
relevant postal service or
when faxed and confirmed, as the case may
be. All such notices shall be addressed
to the President of the notified party at its
address given on the signature
page of this Agreement, or in accordance with any
unrevoked written direction
from such party to the other party.
SECTION
6.2. NO WAIVER; REMEDIES. No failure on the part of
the Subscriber or the Company to exercise, and
no delay in exercising, any right under this
Agreement shall
operate as a waiver thereof. The remedies herein provided
are cumulative
and not exclusive of any remedies provided by Law.
SECTION
6.3. JURISDICTION. (1) Each of the parties hereby irrevocably attorns to
the non-exclusive jurisdiction of
the Courts of the State of Nevada in any
action or
proceeding arising out of or relating to this
Agreement. The Company agrees that
a final judgment in
any such action or proceeding shall be
conclusive
and may be enforced in other jurisdictions by suit on the judgment or
in any
other manner provided by Law; and (2) nothing in this
Section 6.3 shall affect
the right of the Subscriber to serve
legal process in any other manner permitted by
Law or affect the right of the Subscriber to bring any
action or proceeding against the Company or its property in the courts of other
jurisdictions.
SECTION
6.4. SUCCESSORS AND ASSIGNS. The Company shall not have
the right to assign its rights hereunder or any
interest herein without the prior written
consent
of the Subscriber, which consent may be arbitrarily withheld.
SECTION
6.5. SEVERABILITY. If one or more provisions of
this Agreement be or become
invalid, or unenforceable in whole or in part in
any jurisdiction, the validity
of the remaining provisions of
this Agreement shall not be affected. The
parties hereto undertake to replace any such invalid provision without delay
with a
valid provision which as nearly
as possible duplicates the economic
intent of
the invalid provision.
SECTION
6.6. COUNTERPARTS. This Agreement may be executed in counterparts and by
different parties in separate counterparts, each of which when so executed shall
be deemed
an original and all of which, taken together, shall constitute one and
the same
instrument.
SECTION
6.7. SYNDICATION/PARTICIPATION. The Subscriber may not
sell, transfer, assign, participate, syndicate or
negotiate to one or more third parties, in whole or
in part, the Commitment and its rights under
this Agreement, without the prior
written consent of the Company, which consent may not be
arbitrarily withheld.
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IN
WITNESS
WHEREOF
the parties hereto have caused
this Agreement to be executed
by their respective officers thereunto duly authorized, as of the
date first
above written.
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THE
SUBSCRIBER
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THE
COMPANY
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SK
CAPITAL
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XXXXX
EXPLORATION.
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CORP.
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By:
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By:
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Authorized
Signing Officer
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Authorized
Signing Officer
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SCHEDULE
A
NOTICE
To: SK
CAPITAL CORP. (the "Subscriber")
The
undersigned, XXXXX EXPLORATION (the "Company") hereby requests an
advance of $________________ , in accordance with the
terms and conditions set
forth in
the
Share Issuance agreement dated March
5, 2010, between the
Subscriber
and the Company and as of the Date of Notice written below.
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DATE
OF NOTICE:
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Remaining
amount to be advanced under
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the
Share Issuance:
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XXXXX
EXPLORATION.
Per:
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Authorized
Signatory
The
Subscriber hereby acknowledges receipt of this
Notice and agrees with the
amounts
set out above as of this Notice.
SK
CAPITAL CORP.
Per:
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Authorized
Signatory
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