HEADS OF AGREEMENT
1. Parties
These Heads of Agreement (sometimes referred to as this "Agreement") are
entered into on June 4, 2003 by:
KWAGGA GOLD (PROPRIETARY) LIMITED, a corporation existing under the
laws of the Republic of South Africa, (hereinafter referred to as
"Kwagga"),
and
HAWK PRECIOUS MINERALS INC., a corporation existing under the laws of
Ontario (hereinafter referred to as "Hawk"),
and
AFRIORE INTERNATIONAL (BARBADOS) LIMITED, a corporation existing under
the laws of Barbados (hereinafter referred to as "AfriOre").
2. The Project
Hawk wishes to earn an interest and rights in certain lands located in the
Republic of South Africa, currently covering approximately 107,000 hectares,
(the "Property") and the right to fund and participate in all operations
conducted on the Property for the purposes of exploring for and, if warranted,
exploiting base and/or precious metals discovered therein (the Property,
together with the foregoing right, collectively the "Project").
3. Formal Agreement
This document constitutes the Heads of Agreement for definitive option and
shareholders agreements (collectively, the "JVA") that the parties intend to
negotiate in good faith. It is acknowledged and agreed that it shall be a
condition in favour of Kwagga (which may be waived by Kwagga) to Kwagga
commencing to incur Expenditures (as hereinafter defined) that the JVA shall
have been executed by Kwagga, AfriOre and Hawk. Pending the execution of the
JVA, these Heads of Agreement shall nevertheless continue in effect according to
its terms.
4. Heads of Agreement Binding
The parties hereto shall be legally bound by these Heads of Agreement, and
these Heads of Agreement shall remain in effect until terminated as hereinafter
provided or until superseded by the JVA signed by the parties.
5. Objective
The objective of the parties is to explore the Property for deposits of
base and precious metals that may be commercially exploitable and, if feasible,
to exploit any such deposits.
6. Initial Payments
The parties acknowledge and agree that:
(a) prior to the date of execution of this Agreement, Hawk has paid to
Kwagga CDN$20,000 as a non-refundable commitment fee, which Kwagga
shall be entitled to retain as damages and not as a penalty in the
event that this Agreement terminates; and
(b) Hawk shall pay all out-of-pocket costs and expenses incurred by
AfriOre Limited with respect to the attendance of Stuart Comline in
Minneapolis, Minnesota on or about May 13, 2003, including all travel
and accommodation costs. Such costs and expenses shall be paid
immediately upon the delivery to Hawk of all related invoices and/or
expense reports from AfriOre Limited.
7. Phased Earn-In
7.1 Hawk shall have the right to subscribe for such number of shares in the
capital of Kwagga (each, a "Share") as shall represent 50% of the issued and
outstanding Shares after giving effect to such subscription, by funding
expenditures for the exploration, development and maintenance of the Property
("Expenditures") that will total USD$3,500,000, through advances (the
"Advances") to Kwagga and subscriptions for Shares to be paid in the manner set
out in this Section 7.1. All Advances made by Hawk shall be non-interest bearing
and, except as otherwise provided herein, non-refundable. Such Expenditures,
Advances and Share subscriptions shall be phased as follows:
(a) Phase One: Hawk shall make the following Advances to Kwagga on or
before the respective dates set out below:
Date of Payment Amount of Advance
--------------- -----------------
June 20, 2003 USD$500,000
September 27, 2003 USD$1,000,000
November 11, 2003 USD$600,000
In the event that Hawk fails to make any Advance on or prior to the
applicable due date therefor, all as set out above, Kwagga shall have the
right to terminate this Agreement upon 7 days prior written notice to Hawk
and, in the event that the amount in default is not advanced to Kwagga
prior to the expiry of such 7 day period, upon the expiry of such period
this Agreement will terminate. Kwagga shall use the Advances made by Hawk
to incur Expenditures prior to June 20, 2006. Upon Kwagga completing
Expenditures totalling USD$2,100,000, such Advances shall be automatically
converted into such number of Shares as shall represent 35% of the issued
and outstanding Shares after giving effect to such conversion. In the event
that Kwagga elects to discontinue incurring Expenditures prior to incurring
an aggregate of USD$2,100,000 in Expenditures or less than USD$2,100,000 is
used by Kwagga to incur Expenditures prior to June 20, 2006, Kwagga shall
provide written notice thereof to Hawk. Within 30 days following Hawk's
receipt of such notice, Hawk shall have the right, exercisable by written
notice delivered to Kwagga, to:
2
(i) direct Kwagga to retain the balance of the Advances then held by
it, whereupon all of the Advances shall be automatically
converted into such number of Shares as shall represent 35% of
the issued and outstanding Shares after giving effect to such
conversion, and Kwagga shall be entitled to retain such funds for
its sole benefit; or
(ii) terminate this Agreement and the JVA, whereupon Kwagga shall
repay to Hawk an amount equal to the balance of the Advances not
used to incur Expenditures, the remaining outstanding Advances
shall be transferred by Hawk to AfriOre and/or any person(s)
designated by AfriOre for an aggregate of USD$1.00 and Hawk's
interest in Kwagga and in the Project shall terminate.
In the event that Hawk shall have failed to make the foregoing election
within such 30 day period, Hawk shall be deemed to have made the election
provided for in Section 7.1(a)(ii).
(b) Upon completion of Expenditures totalling USD$2,100,000, Kwagga shall give
Hawk written notice thereof, accompanied by a Report (as hereinafter
defined). Within 120 days following receipt by Hawk of the foregoing notice
and Report, Hawk shall have the right to elect to subscribe for such
additional number of Shares which when combined with the Shares then held
by Hawk shall represent 50% of the issued and outstanding Shares after
giving effect to such subscription, for an aggregate subscription price of
USD$1,400,000. The subscription proceeds shall be used by Kwagga to fund
Expenditures during Phase Two. If within such 120 day period Hawk elects
not to subscribe for such Shares, it shall have the right, exercisable by
written notice delivered to Kwagga prior to the end of such period, to
elect Option A or Option B set out below.
Option A
Hawk shall have the right to request that AfriOre purchase Hawk's Shares
for a purchase price, payable in cash, equal to USD$1,050,000. Upon
exercise by Hawk of such Option A, AfriOre (and/or its designee) shall have
the right, but not the obligation, to complete such acquisition within 180
days following its receipt of Hawk's written notice. In the event that
AfriOre (and/or its designee) does not purchase such Shares, Hawk shall be
deemed to have elected Option B; or
3
Option B
Hawk shall have the right to elect to reduce its shareholding interest in
Kwagga on the following basis:
(i) its rights to fund Kwagga and vote its Shares shall terminate;
(ii) it shall not have the right to sell, assign, encumber or otherwise
transfer any Shares;
(iii) its rights under Section 8.3 shall terminate;
(iv) its shareholding interest in Kwagga shall be diluted on the basis
that for each USD$30,000 of Expenditures incurred by Kwagga
thereafter, Hawk's shareholding interest in Kwagga shall be
reduced by 1% (such that after USD$900,000 of Expenditures having
been incurred, Hawk's shareholding interest in Kwagga shall be
5%); and
(v) in the event that Hawk's shareholding interest in Kwagga is
reduced to 5%, then Hawk shall have the right, exercisable within
120 days following the date of delivery of notice thereof from
AfriOre, to elect to fund Kwagga thereafter, based upon its 5%
interest, or to sell to AfriOre and/or any person(s) designated by
AfriOre all of its Shares for an aggregate of USD$1.00. In the
event that Hawk does not exercise such right, it shall be deemed
to have elected to sell all of its Shares to AfriOre and/or its
designee(s) for USD$1.00.
In the event that Hawk fails to elect either Option A or Option B within
such 120 day period or in the event that, after Hawk has elected to
subscribe for such Shares, it fails to complete the foregoing
subscription for Shares within such 120 day period, it shall be deemed to
have elected Option B.
7.2 It is acknowledged and agreed that a black economic empowerment group to be
selected by Kwagga (the "Empowerment Group") will be granted an option to
subscribe for up to 28% of the issued and outstanding Shares for a subscription
price equal to an amount to be mutually agreed upon by Hawk, Kwagga and the
Empowerment Group (the "Empowerment Group Subscription").
7.3 It is acknowledged and agreed that if the Empowerment Group does not
exercise such option within a period to be mutually agreed upon by Kwagga, Hawk
and the Empowerment Group, such option shall expire. In the event that the
Empowerment Group exercises its option and pays to Kwagga the applicable
Empowerment Group Subscription within the period prescribed therefor, the
Empowerment Group shall acquire 28% of the Shares and the shareholdings of
AfriOre and Hawk in Kwagga shall be reduced on a proportionate basis.
4
7.4 The following general principles shall apply to Expenditures:
(a) An Affiliate of AfriOre designated by AfriOre shall be the
operator (the "Operator") of all work carried out on the Property.
(b) Expenditures during all Phases shall be made pursuant to work
plans formulated and carried out in the sole discretion of the
Operator.
(c) The Operator shall maintain the Property in good standing by
making all payments and filings for such purpose as may be
required by applicable law or regulation from time to time. The
amount of all such payments shall be included as Expenditures.
(d) Expenditures shall include an administrative charge equal to 10%
of all Expenditures, to cover the Operator's general and
administrative overheads.
(e) Expenditures shall include all costs incurred by the Operator and
Kwagga in maintaining the Property in good standing pursuant to
applicable legislation and pursuant to any agreements or other
obligations respecting the Property, together with all costs
incurred by the Operator and Kwagga in identifying, negotiating
and acquiring any lands, usage rights and/or mineral interests or
rights within the Area of Interest (as hereinafter defined).
(f) Within 90 days following the end of each 12 month period during
each Phase and following the completion of each Phase, the
Operator shall deliver to Hawk a detailed report (each, a
"Report") prepared by the Operator setting out the Expenditures
incurred, the work carried out on the Property and the results of
such work since the date of the last Report, if any.
(g) During each Phase, the Operator will provide Hawk with quarterly
updates on the work carried out during each of the first 3
quarters, the results thereof and the amount of Expenditures
incurred during such quarter (each, an "Update").
7.5 After all of Hawk's Advances and Share subscription proceeds and, if
applicable, the Empowerment Group Subscription proceeds, have been incurred on
Expenditures, all amounts required to fund the exploration and development of
the Project shall be contributed by AfriOre, Hawk and, if applicable, the
Empowerment Group, in proportion to their respective shareholding interests in
Kwagga, subject to any election permitted by Section 9.1.
8. Assignment
8.1 AfriOre may sell, assign, encumber or otherwise transfer all or part of its
rights and obligations under this Agreement or its Shares to an Affiliate.
8.2 Hawk shall not be entitled to sell, assign, encumber or otherwise transfer
any of its rights and obligations under this Agreement or its Shares, without
the prior written consent of AfriOre. It is acknowledged and agreed that,
notwithstanding the foregoing:
5
(a) Hawk shall be entitled to assign all of its interest in this
Agreement to an Affiliate (the "Hawk Affiliate"); provided that
Hawk shall remain jointly and severally liable for all of such
transferee's obligations under this Agreement and the JVA; and
(b) Hawk or, if applicable, the Hawk Affiliate shall be entitled to
assign all of its interest in this Agreement (the "AIQ
Transaction") to a limited liability company (the "JV Company")
owned as to 50% by each of Hawk or the Hawk Affiliate and by
Active IQ Technologies Inc. ("AIQ"); provided that Hawk, the Hawk
Affiliate, if applicable, AIQ and the JV Company execute and
deliver a novation agreement in form and substance satisfactory to
AfriOre, acting reasonably, pursuant to which AIQ and the JV
Company shall assume all of Hawk's and, if applicable, the Hawk
Affiliate's obligations hereunder on a joint and several basis. In
such event:
(i) all Advances made by, and all Shares held by, Hawk, the
Hawk Affiliate and/or AIQ shall be treated as if such
Advances were made by and such Shares are held by Hawk
alone;
(ii) Kwagga, AfriOre and the Operator shall only be required to
communicate and deal with Hawk hereunder and under the JVA;
and
(iii) Hawk shall be the sole representative of Hawk, the Hawk
Affiliate, AIQ and the JV Company in respect of this
Agreement, the JVA and the Project.
8.3 Following the execution of the JVA, a shareholder of Kwagga ("transferring
party") may sell, assign, encumber or otherwise transfer all or part of its
Shares ("offered interest") to any person not an Affiliate of the transferring
party ("transferee"), subject to the right of first offer of the other
shareholder to acquire such offered interest for such price and upon such terms
and conditions as are offered by such transferring party. If the
non-transferring party fails to accept such offer within 90 days after it
receives such offer, the transferring party shall be free to transfer the
offered interest to a transferee, provided that such transfer shall be for a
price and upon terms and conditions no more favourable to the transferee than
those offered to the non-transferring party. If the transferring party fails to
consummate such transfer to a transferee within 120 days after the expiration of
such 90-day offer period, the transferring party shall not transfer such offered
interest without again offering such interest to the non-transferring party.
9. Dilution on Election/Default
9.1 At any time that Hawk, Kwagga and, if applicable, the Empowerment Group are
required to contribute funds to Kwagga, each such shareholder may elect to
contribute in proportion to its then shareholding interest in Kwagga or may
elect to contribute a lesser portion or not at all. If a shareholder elects to
contribute less than in proportion to its shareholding interest in Kwagga or not
at all and the other shareholder(s) contribute(s) the shortfall, the former
shareholder shall suffer dilution of its interest according to a dilution
formula to be set out in the JVA.
6
9.2 If all shareholders of Kwagga are contributing funds to Kwagga in proportion
to their shareholding interests in Kwagga and, after a shareholder elects to
contribute to a work plan and budget, such shareholder defaults in making
further contributions for such work plan and budget, such defaulting
shareholder's shareholding interest in Kwagga shall be diluted and decreased
according to an accelerated dilution formula to be set out in the JVA.
9.3 If a shareholder of Kwagga elects to contribute to a work plan and budget
less than in proportion to its shareholding interest in Kwagga or not at all and
the other shareholder(s) do(es) not elect to contribute the full amount of such
work plan and budget, the work plan shall not be proceeded with and the Operator
shall prepare and submit a revised work plan and budget.
10. Injury or Damage to Persons or Property
10.1 The Operator shall take all reasonable precautions for the protection of
life and property on or about or in connection with operations carried out on
the Property.
10.2 The Operator shall indemnify, defend and hold harmless Kwagga for, from and
against any and all loss, cost, expense, damage, liability or claim therefor,
including attorneys fees and court costs, caused by the Operator, its employees,
workmen, agents or contractors as a result of operations carried out on the
Property, unless such loss or damage is caused by the gross negligence or wilful
misconduct of any shareholder of Kwagga (other than AfriOre), Hawk, the Hawk
Affiliate, AIQ and/or the JV Company.
11. Applicable Law
11.1 The validity, interpretation and performance of this Agreement as well as
the JVA shall be governed by the laws of England, without regard for conflict of
laws or choice of laws principles that would permit or require the application
of the laws of any other jurisdiction. The parties hereby consent to the
exclusive jurisdiction of the courts of England. Each of the parties expressly
submits and consents in advance to such jurisdiction in any action or suit
commenced in such courts and each party hereby waives any objection which it may
have based upon lack of personal jurisdiction, improper venue or forum non
conveniens and hereby consents to the granting of such legal or equitable relief
as is deemed appropriate by such courts.
11.2 If any provision of this Agreement is held, in whole or in part, to be in
conflict or inconsistent with any applicable law, rule or regulation, then that
provision shall be severed from this Agreement and an equitable adjustment shall
be made and such necessary further provision agreed upon so as to give effect to
the intention of the parties evidenced in this Agreement at the time of its
execution.
12. Confidentiality
12.1 The terms and conditions of this Agreement and all data and information
(including Updates and Reports) obtained or created by Kwagga and/or the
Operator in carrying out this Agreement (herein referred to as "confidential
information") shall be the exclusive property of Kwagga and shall be maintained
on a confidential basis by Hawk.
7
12.2 Hawk agrees to take reasonable measures to ensure that all confidential
information that it holds shall be maintained and kept in a safe place
sufficient to ensure that such material is not available for inspection or study
by any person that is not so authorized by Kwagga.
12.3 Hawk agrees to take reasonable measures to ensure that any representative,
consultant, independent contractor or employee of Hawk that had or may have had
access to confidential information shall not communicate, either orally or in
writing, such confidential information to any other person without the written
permission of Kwagga.
12.4 The following data and information shall not be considered confidential for
the purposes hereof:
(a) information and data that at the time such information and data
were obtained or created by a party were available to the public;
(b) information and data that, after such information and data were
obtained or created by a party, are published or otherwise become
available to the public through no fault of either party; or
(c) information and data received from a third party that is not
legally required to hold such information and data in confidence.
12.5 Hawk acknowledges and agrees that other than its right to receive Updates
and Reports, it shall have no rights to receive any other information or reports
respecting work carried out on the Property, to examine any records, data or
information respecting the Project or to have access to or the right to inspect
the Property or the work carried out thereon.
12.6 Hawk shall not, directly or indirectly, make any disclosure of confidential
information to the public or otherwise give out or provide for any publicity or
press release regarding the Project without the prior written consent of Kwagga.
The requirement for consent shall not apply to a disclosure to an attorney,
accountant or consultant that has a bona fide need to be informed, subject to
compliance with Section 12.3.
12.7 In the event that Hawk or, in the event that the AIQ Transaction is
completed, AIQ is required to disclose any confidential information to any
governmental agency, a stock exchange or the public in order to comply with
applicable securities laws, rules or regulations or the rules of any applicable
stock exchange or trading facility:
(a) such disclosure shall be limited to the minimum level of
disclosure required in the circumstances;
(b) a verbatim transcript of any such disclosure intended to be made
by Hawk or AIQ, as applicable, shall be delivered to Kwagga at
least 3 business days prior to the proposed date of such
disclosure; and
(c) Hawk and AIQ, if applicable, shall not make such disclosure
without Kwagga's prior written consent which shall not be
unreasonably withheld or delayed; and
8
(d) Hawk and AIQ, if applicable, shall amend such disclosure in
accordance with Kwagga's reasonable direction.
It is acknowledged and agreed that AfriOre Limited may act as Kwagga's
representative in connection with the foregoing.
12.8 Notwithstanding the other provisions hereof, it is acknowledged and agreed
by Hawk that the location and legal description of the Property shall be kept
strictly confidential and not disclosed to any person, including disclosure
otherwise permitted pursuant to Section 12.7. Hawk covenants and agrees to use
best efforts to comply with the foregoing covenant, including, without
limitation, making all applications to all applicable regulatory authorities to
obtain such orders or rulings as may be required in order to ensure that Hawk is
not required to disclose the exact location or legal description of the
Property, including in any reports required to be filed pursuant to the rules of
any stock exchange or trading facility, National Instrument 43-101 promulgated
by Canadian securities regulators and/or pursuant to any requirement of any
United States federal or state securities legislation or regulatory authority,
in any offering memorandum, registration statement or prospectus used or filed
by Hawk, in any title opinions filed by Hawk and in any oral, written or
electronic disclosures to any persons, including underwriters, agents or
financiers.
12.9 Hawk shall indemnify and hold harmless Kwagga from any and all loss or
damage (including, but not in any way limited to, legal costs on a solicitor and
own client basis) which may arise from the unauthorized disclosure or use of any
confidential information.
12.10 Hawk acknowledges the confidential information is proprietary and
confidential and that Kwagga may be irreparably damaged if any of the provisions
contained in this Article 12 are not performed by Hawk in accordance with the
terms set out and therefore Hawk agrees that Kwagga, in addition to and without
limiting any other rights or remedies that Kwagga may have, will have the right
to an immediate injunction or other available equitable relief in any court of
competent jurisdiction, enjoining any threatened or actual breach of the
provisions of this Article 12 by Hawk. Hawk agrees that the existence of this
right to an immediate and undefended injunction or other available equitable
relief will not preclude Kwagga from pursuing any other rights and remedies at
law or in equity which Kwagga may have, including recovery of damages.
12.11 In the event that there is a change of control of AfriOre Limited:
(a) the provisions of Sections 12.5, 12.7 and 12.8 shall terminate;
(b) thereafter Hawk shall be entitled to examine all records, data and
information respecting the Project and to have access to and the
right to inspect the Property and the work carried out thereon, at
its sole risk during normal business hours upon reasonable prior
notice to Kwagga; and
(c) thereafter any data or information which Hawk is required to
disclose in order to comply with applicable securities laws, rules
or regulations or the rules of any applicable stock exchange or
trading facility shall not be considered confidential for the
purposes hereof.
9
12.12 The provisions of this Article 12 shall survive the termination of this
Agreement.
13. Area of Interest
13.1 It is acknowledged and agreed that Kwagga may elect at any time or from
time to time to abandon portions of the Property and, in such event, such
abandoned land, usage rights and/or mineral interests shall no longer form part
of the Property or be subject to this Agreement or the JVA.
13.2 It is acknowledged and agreed that it is intended that additional public or
private land, usage rights and/or mineral interests or rights within the area
delineated on the map attached as Schedule "A" hereto (hereinafter collectively
referred to as the "Area of Interest") may be acquired by or on behalf of Kwagga
or any of its Affiliates after the date hereof as part of the Expenditures. Upon
any such acquisition, such lands, interests and rights shall be deemed to be
part of the Property for the purposes hereof.
13.3 Hawk agrees that for a period of 5 years from the date of this Agreement,
neither Hawk nor any of its Affiliates (regardless of whether such person is its
Affiliate on the date hereof), officers or directors will, acquire, lease or
otherwise obtain or control any interest in the Property or any public or
private land, usage rights or mineral interests or rights within the Area of
Interest, or conduct any exploration, development or production activities in
the Area of Interest.
13.4 If, notwithstanding the prohibition contained in Section 13.3, Hawk or any
of its Affiliates, officers or directors acquire, lease or otherwise obtain or
control any interest in all or part of the Property or in land, usage rights or
mineral interests or rights within the Area of Interest within 5 years from the
date of this Agreement, Hawk shall notify Kwagga thereof within the 30 days
immediately following the date of such transaction and Hawk shall (or Hawk shall
cause such Affiliate, officer or director to) convey the same to Kwagga or its
nominee in the manner that Kwagga directs as soon as practicable thereafter, in
consideration of the payment by Kwagga to Hawk or such Affiliate, officer or
director, as the case may be, of an amount equal to the direct out of pocket
cost of acquisition thereof or of similar land or interests from the government
of the Republic of South Africa pursuant to applicable legislation in force at
the time of such acquisition.
13.5 The provisions of this Article 13 shall survive the termination of this
Agreement.
14. No Holding Out
This Agreement shall not constitute a partnership between the parties.
Neither party will hold itself out as an agent or partner of the other.
15. Due Authorization
Each of the parties represents and warrants to the other that:
15.1 it is a company duly incorporated in accordance with the laws of its
jurisdiction of incorporation;
10
15.2 it is empowered, authorized and entitled to enter into this Agreement;
15.3 no transaction contemplated hereby is in breach of its memorandum or
articles of association or any other agreement or arrangement to which it is a
party; and
15.4 all corporate and other proceedings required to authorize such party to
enter into and carry out this Agreement have duly and properly been taken.
16. General
16.1 For the purposes of this Agreement:
(a) the term "person" shall be interpreted very broadly and shall
include, without limitation, any corporation, association, joint
venture, partnership or individual;
(b) "Affiliate" shall mean any individual, estate, trust, general
partnership, limited partnership, limited liability company,
corporation, association or other organization or entity that is
directly or indirectly controlling, controlled by or under common
control with a party to this Agreement; and
(c) "control" shall mean possession, directly or indirectly, of the
right to direct management and policies through ownership of
voting securities, contract, voting trust or otherwise.
16.2 All notices required or permitted to be given under this Agreement shall be
in writing, and (unless some other mode of giving the same is specified or
accepted in writing by the recipient) shall be effective (i) when delivered at
the address of the addressee if delivered during normal business hours and, if
not, then on the next business day following delivery, or (ii) on the day it
shall have been received by facsimile transmission at the addressee's address if
received during normal business hours and, if not, then on the next business day
following receipt, whichever of the foregoing shall first occur. The parties
respectively choose the following addresses for notices under this Agreement:
If to Hawk: Xxxxx 000
000 Xxx Xxxxxx
Xxxxxxx, XX X0X 0X0
Attention: President
Fax Number: (000) 000-0000
If to Kwagga: Ground Floor, Tuscany Office Park V
or AfriOre 0 Xxxxxx Xxxxx, Xxxxxxx
Xxxxxxx, 0000, Xxxxx Xxxxxx
Attention: President
Fax Number: 000 00 00 000-0000
11
16.3 No failure or delay by either party in exercising any right, power or
privilege under this Agreement shall operate as a waiver thereof, nor shall any
single or partial waiver thereof preclude any further exercise thereof or the
exercise of any other right, power or privilege hereunder or otherwise.
16.4 No variation, modification or waiver or cancellation of any provisions of
this Agreement, or consent to any departure therefrom, shall in any event be of
any force or effect unless confirmed in writing and signed by the parties, and
then such variation, modification, waiver, cancellation or consent shall be
effective only in the specific instance and for the purpose and to the extent
for which it was made or given.
16.5 Either party will execute such documents and do such things as the other
party may reasonably request in order to carry out the terms of this Agreement
or to preserve or protect the interests of a party hereunder.
16.6 This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns.
16.7 Time shall be of the essence hereof.
16.8 This Agreement constitutes the entire agreement between the parties hereto
with respect to the subject matter hereof and supersedes all prior agreements
between such parties with respect to the subject matter hereof. Hawk
acknowledges that, except as specifically contained in this Agreement, it has
not relied upon any representations or warranties of Kwagga or AfriOre
concerning the status and condition, environmental or otherwise, of the
Property.
16.9 Kwagga and Hawk hereby acknowledge and agree that the Heads of Agreement
entered into on April 9, 2003 between them is hereby terminated.
SIGNED at Rivonia, Johannesburg, South Africa as of June 4 9 [SRC], 2003.
KWAGGA GOLD (proprietary) LIMITED
By: /s/ Xxxxxx X. Comline
----------------------------
Name: Xxxxxx X. Comline
Title: Director
SIGNED at Rivonia, Johannesburg, South Africa as of June 4 9 [SRM], 2003.
AFRIORE INTERNATIONAL (BARBADOS) LIMITED
By: /s/ Xxxxxx X. Comlime
------------------------------
Name: Xxxxxx X. Comline
Title: Director
12
SIGNED at Toronto as of June 4, 2003.
HAWK PRECIOUS MINERALS INC.
By: /s/ X. Xxxxx White /s/ Xxxxxx X. Xxxxxx
--------------------------------------------------
Name: X. Xxxxx Xxxxx Xxxxxx X. Xxxxxx
Title: President Director
13
SCHEDULE "A"
AREA OF INTEREST
[MAP]
