Dated December 23, 2008 TRANSFER AGREEMENT RELATING TO THE ENTIRE ISSUED SHARE CAPITAL OF CHINA GLOBAL MINING RESOURCES LIMITED
EXHIBIT
10.68
Dated
December 23, 2008
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(2)
CHINA GLOBAL MINING RESOURCES (BVI)
LIMITED
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RELATING
TO THE ENTIRE ISSUED SHARE CAPITAL
OF CHINA
GLOBAL MINING RESOURCES LIMITED
CONTENTS
Clause Page
4
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4
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Schedules
1.
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Completion
Obligations
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THIS AGREEMENT is made
on 23
December2008
BETWEEN:
(1)
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WITS BASIN PRECIOUS MINERALS
INC. a company incorporated in the State of Minnesota, United
States with registered number 00-0000000 whose registered office is at 00
Xxxxx 0xx
Xxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000 ("Wits Basin");
and
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(2)
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CHINA GLOBAL MINING RESOURCES
(BVI) LIMITED, a company incorporated in the British Virgin
Islands, Company No. 1513743, whose registered office is at 56
Administration Drive, P.O. Box 3190, Road Town, Tortola, British Virgin
Islands ("CGMR
BVI").
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INTRODUCTION
(A)
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Wits
Basin has agreed to transfer all the issued and to be issued share capital
in China Global Mining Resources Limited 中國環球礦業資源有限公司,
a company incorporated in Hong Kong, Company No. 1110747, whose registered
office is at 41st Floor Bank of China Tower, 0 Xxxxxx Xxxx Xxxxxxx, Xxxx
Xxxx ("HK Co") to
CGMR BVI on the terms and conditions of this
Agreement.
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(B)
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As
consideration for the transfer of the Share, CGMR BVI has agreed to issue
the Promissory Note to Wits Basin.
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IT IS AGREED as
follows:
1.
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DEFINITIONS
AND INTERPRETATION
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1.1
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Definitions
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Throughout
this Agreement, the following words and phrases have the meanings set out
below:-
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Business
Day
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means
any day other than a Saturday or Sunday, on which clearing banks are open
for business in the City of London, the British Virgin Islands, Hong Kong,
the United States and the People's Republic of
China.
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China
Gold
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means
China Gold, LLC, a limited liability company organised under the laws of
the State of Kansas in the United
States.
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Completion
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means
completion of the transfer of the Share in accordance with the terms of
this Agreement.
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1
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Encumbrance
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except
for the Permitted Encumbrance, means (i) any option, warrant, right to
acquire, right of conversion, right of pre-emption, restriction or equity;
or (ii) any binding written agreement to create any of the foregoing; or
(iii) any mortgage, assignment, charge, lien, pledge or other security
interest of any kind and any binding written agreement to create any of
the foregoing.
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Hong
Kong
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means
the Hong Kong Special Administrative Region of the People's Republic of
China
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HK Co
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means
China Global Mining Resources Limited中國環球礦業資源有限公司,
a limited liability company incorporated pursuant to the laws of Hong
Kong, Company number 1110747 and whose registered office is at 41st
Floor Bank of Xxxxx Xxxxx, 0 Xxxxxx Xxxx Xxxxxxx, Xxxx
Xxxx.
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HK$
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means
Hong Kong dollars, the lawful currency for the time being of Hong
Kong
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London
Mining
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means
London Mining Plc, a company incorporated in England and Wales with
registered number 5424040 whose registered office is at 00 Xxxxxx Xxxxxx,
Xxxxxx XX0X 0XX.
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Permitted
Encumbrance
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means,
from the date hereof until completion of the transactions contemplated in
the Subscription Agreement, HK Co’s obligations under that certain
Guaranty dated 7 February 2008 issued in favour of China Gold and the
Subsidiary Security.
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Promissory
Note
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means
the promissory note for US$4,800,000 to be issued by CGMR BVI in favour of
Wits Basin in connection with certain outstanding debt obligations owed by
Wits Basin to China Gold.
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Share
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means
the entire issued share capital of HK Co comprising 1 ordinary share of HK
$1.00.
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2
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Subscription
Agreement
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means
the agreement between London Mining and Wits Basin dated 17 November 2008
relating to the incorporation of, and subscription into, CGMR
BVI.
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Subsidiary
Security
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the
security given by HK Co in favour of China Gold under the Subsidiary
Security Agreement dated 7 February 2008 in relation to that certain
Convertible Notes Purchase Agreement dated 10 April 2007 between China
Gold and Wits Basin, as amended from time to
time.
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US$
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means
United States Dollars, the lawful currency of the United
States.
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1.2
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Interpretation
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1.2.1
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A
reference to any statutory provision in this
Agreement:-
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(a)
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includes
any order, instrument, plan, regulation, permission and direction made or
issued under such statutory provision or deriving validity from
it;
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(b)
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shall
be construed as a reference to such statutory provision as in force at the
date of this Agreement (including, for the avoidance of doubt, any
amendments made to such statutory provisions that are in force at the date
of this Agreement);
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(c)
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shall
also be construed as a reference to any statutory provision of which such
statutory provision is a re-enactment or consolidation;
and
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(d)
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shall
also be construed as a reference to any later statutory provision which
re-enacts or consolidates such statutory
provision.
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1.2.2
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References
to a clause are (unless otherwise stated) to a clause of this
Agreement.
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1.2.3
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The
headings used in this Agreement are for convenience only and shall not
affect its meaning.
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1.2.4
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Words
importing one gender shall (where appropriate) include any other gender
and words importing the singular shall (where appropriate) include the
plural and vice versa.
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1.2.5
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Any
English legal term for any action, remedy, method of judicial proceeding,
legal document, legal status, court, official or any legal concept or
thing shall, in respect of any jurisdiction other than that of England, be
deemed to include what most nearly approximates in that jurisdiction to
the English legal term.
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3
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1.2.6
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Any
time or date shall be construed as a reference to the time or date
prevailing in England.
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1.3
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In
construing this Agreement, general words introduced by the word "other" shall not be
given a restrictive meaning by reason of the
fact that they are preceded by words indicating a particular class of
acts, matters or things and general words shall not be given a restrictive
meaning by reason of the fact that they are followed by particular
examples intended to be embraced by the general
words.
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2.
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TRANSFER
OF THE SHARE
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2.1
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Wits
Basin shall sell the Share and CGMR BVI shall buy the Share in accordance
with the terms and conditions of this
Agreement.
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2.2
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CGMR
BVI shall buy the Share with effect from and including the date of
Completion to the intent that as from that date all rights and advantages
accruing to the Share, including any dividends or distributions declared,
made or paid on the Share on or after that date shall belong to CGMR
BVI.
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2.3
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Wits
Basin shall procure that CGMR BVI acquires good title to the Share with
full title guarantee, free from Encumbrances and free from all third party
claims.
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2.4
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Wits
Basin waives any rights or restrictions conferred on which it may exist in
relation to the Share under the articles of association of HK Co or
otherwise.
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3.
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CONSIDERATION
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3.1
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As
consideration for the transfer of the Share, CGMR BVI shall issue the
Promissory Note in favour of Wits Basin at
Completion.
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4.
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COMPLETION
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4.1
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Completion
shall take place immediately following the execution of this
Agreement.
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4.2
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At
Completion, the parties shall perform their respective obligations in
relation to the transfer of the Share as set out in Schedule
1.
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5.
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WARRANTIES
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5.1
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Wits
Basin warrants and represents to CGMR BVI as at the date of this Agreement
that:
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4
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5.1.1
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the
Share is legally and beneficially owned by it;
and
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5.1.2
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the
Share is fully paid and has been properly and validly
allotted.
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5.2
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Each
party acknowledges and agrees that:
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5.2.1
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it
is not entering into this Agreement on the basis of, and is not relying
and has not relied on, any statement or representation (whether negligent
or innocent) or warranty or other provision (in any case whether oral,
written, express or implied) made, given or agreed to by any person
(whether a party to this Agreement or not) except those expressly repeated
or referred to in this Agreement or the Subscription Agreement and the
only remedy or remedies available to a party in respect of any
misrepresentation or untrue statement made to it shall be a claim for
breach of contract under this
Agreement;
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5.2.2
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this
clause 5.2.2 shall not apply to any statement, representation or warranty
made fraudulently or to any provision of this Agreement which was induced
by fraud for which the remedies shall be all those available under the law
governing this Agreement regardless of the other terms of this Agreement;
and
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5.2.3
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it
has full power and authority and has obtained all necessary consents to
enter into and perform the obligations expressed to be assumed by it under
this Agreement or any document referred to in this Agreement, that the
obligations expressed to be assumed by it under this Agreement are legal,
valid and binding and enforceable against it in accordance with their
terms and the execution, delivery and performance by it of this Agreement
and each such other agreement and arrangement will
not:
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(a)
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result
in a breach of, or constitute a default under, any agreement or
arrangement to which it is a party or by which it is bound;
or
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(b)
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result
in a breach of any law or order, judgment or decree of any court,
governmental agency or regulatory body to which it is a party or by which
it is bound.
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5.3
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CGMR
BVI acknowledges and agrees that it is a company validly incorporated
under the laws of the British Virgin
Islands.
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5.4
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Wits
Basin acknowledges and agrees that it is a company validly incorporated
under the laws of the State of
Minnesota.
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5.5
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The
parties acknowledge and agree that the express terms of this Agreement are
in lieu of all warranties, conditions, terms, undertakings and obligations
implied by statute, common law or otherwise all of which are hereby
excluded to the fullest extent permitted by
law.
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5
6.
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APPLICABLE
LAW AND JURISDICTION
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6.1
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This
Agreement and the rights and obligations of the parties shall be governed
by and construed in accordance with the laws of England and
Wales.
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6.2
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The
parties irrevocably submit to the non-exclusive jurisdiction of the courts
of England and Wales in respect of any claim, dispute or difference
arising out of or in connection with this
Agreement.
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7.
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GENERAL
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Announcements
7.1
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Wits
Basin and CGMR BVI each agree that they will not make any announcement
relating to the subject matter of this Agreement or any related matter
without the prior written approval of the other
party.
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Entire
agreement
7.2
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This
Agreement (together with any documents referred to in this Agreement or
the Subscription Agreement or required to be entered into pursuant to this
Agreement or the Subscription Agreement) contains the entire agreement and
understanding of the parties and supersedes all prior agreements,
understandings or arrangements (both oral and written) relating to the
subject matter of this Agreement and any such
document.
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Variations
and waivers
7.3
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No
variation of this Agreement shall be effective unless made in writing
signed by or on behalf of each of the parties and expressed to be such a
variation.
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7.4
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No
failure or delay by any party or time or indulgence given in exercising
any remedy or right under or in relation to this Agreement shall operate
as a waiver of the same, nor shall any single or partial exercise of any
remedy or right preclude any further exercise of the same or the exercise
of any other remedy or right.
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7.5
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No
waiver by either party of any requirement of this Agreement, or of any
remedy or right under this Agreement, shall have effect unless given in
writing and signed by such party. No waiver of any particular
breach of the provisions of this Agreement shall operate as a waiver of
any repetition of such breach.
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Other
remedies
6
7.6
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Any
remedy or right conferred on either party for breach of this Agreement
shall be in addition to and without prejudice to all other rights and
remedies available to it.
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Assignment
7.7
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Neither
party shall be entitled to assign, transfer or create any trust in respect
of the benefit or burden of any provision of this Agreement (or any of the
documents referred to in this Agreement) without the prior written consent
of the other party.
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Further
assurance
7.8
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The
provisions of this Agreement shall remain in full force and effect after
its completion so far as they remain to be observed and
performed.
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7.9
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Each
party shall, and shall use all reasonable endeavours to procure that any
necessary third party shall, do and execute and perform all such further
deeds, documents, assurances, acts and things as may reasonably be
required to give effect to this
Agreement.
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Third
party rights
7.10
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The
parties do not intend this Agreement or any part of it to be enforceable
by virtue of the Contracts (Rights of Third Parties) Xxx 0000 but this
shall not affect any right or remedy of a third party which exists or is
available apart from that Act.
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Successors
7.11
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Subject
to clause 7.7, this Agreement shall be binding on each party's assigns and
successors in title.
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7.12
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Neither
party shall have any right to terminate or rescind this
Agreement.
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Costs
7.13
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Each
party shall pay its own costs and expenses incurred in the negotiation,
preparation and execution of this
Agreement.
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7.14
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The
cost of all stamp duty and other similar duty payable in respect of the
sale and purchase of the Share will be borne by CGMR
BVI.
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8.
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NOTICES
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Form
of notice
7
8.1
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Any
notice, consent, request, demand, approval or other communication to be
given or made under or in connection with this Agreement (each a "Notice" for the purposes
of this clause) shall be in English, legible, in writing and signed by or
on behalf of the person giving it.
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Method
of service
8.2
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Service
of a Notice must be effected by one of the following
methods:
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8.2.1
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by
hand to the relevant address set out in clause 8.4 and shall be deemed
served upon delivery if delivered during a Business Day, or at the start
of the next Business Day if delivered at any other time;
or
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8.2.2
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by
prepaid first-class post to the relevant address set out in clause 8.4 and
shall be deemed served at the start of the second Business Day after the
date of posting; or
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8.2.3
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by
prepaid international airmail to the relevant address set out in clause
8.4 and shall be deemed served at the start of the fourth Business Day
after the date of posting; or
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8.2.4
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by
facsimile transmission to the relevant facsimile number set out in clause
8.4 and shall be deemed served on despatch, if despatched during a
Business Day, or at the start of the next Business Day if despatched at
any other time, provided that in each case a receipt indicating complete
transmission of the Notice is obtained by the sender and that a copy of
the Notice is also despatched to the recipient using a method described in
clauses 8.2.1 to 8.2.3 (inclusive) no later than the end of the next
Business Day.
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8.3
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In
clause 8.2 "during a
Business Day" means any time between 9.30 a.m. and 5.30 p.m. on a
Business Day based on the local time where the recipient of the Notice is
located. References to "the start of [a] Business
Day" and "the end
of [a] Business Day" shall be construed
accordingly.
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Address
for service
8.4
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Notices
shall be addressed as follows:
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8.4.1
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Notices
for Wits Basin shall be marked for the attention
of:
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Name: Xxxx
X Xxxxx
Address:
00 Xxxxx 0xx Xxxxxx,
Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000
Fax
number: (US)
0 (000) 000 0000
8
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8.4.2
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Notices
for CGMR BVI shall be marked for the attention
of:
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Name: c/o
Corporate Secretary
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Address:
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56
Administration Drive, P.O. Box 3190, Road Town, Tortola, British Virgin
Islands
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Copies
of Notices
8.5
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Copies
of all Notices sent to CGMR BVI shall also be sent or given to Xxxxxx
Xxxxxx of London Mining, 00 Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX and Xxxxxxx
Xxxxxxxxxxx of Xxxxxxx Xxxxx LLP, 10 Snow Hill, London EC1A
2AL. Such copies shall be sent or given in accordance with one
of the methods described in clause 8. Failure to communicate such copies
shall not invalidate such Notice.
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Change
of details
8.6
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A
party may change its address for service provided that it gives the other
party not less than 14 days' prior notice in accordance with this clause
8. Until the end of such notice period, service on either
address shall remain effective.
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9.
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COUNTERPARTS
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This
Agreement may be executed as two or more counterparts and execution by each of
the parties of any one of such counterparts will constitute due execution of
this Agreement.
9
THIS AGREEMENT has been duly
executed on the date first stated above.
SCHEDULE
1
COMPLETION
OBLIGATIONS
PART
I - OBLIGATIONS OF WITS BASIN
1.
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Wits
Basin shall deliver, or (if CGMR BVI shall so agree) make available, to
CGMR BVI:
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1.1
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a
form of the instrument of transfer of the Share executed by Wits Basin in
favour of CGMR BVI, the relevant share certificate (or any indemnity in
respect of any lost share certificate or share certificate not issued by
the HK Co) and any additional documentation necessary to establish Wits
Basin's title to the Share and to authorise execution of such
transfer;
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1.2
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a
Sold Note executed by Wits Basin in favour of CGMR
BVI;
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1.3
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the
common seal (if any), all certificates of incorporation of HK Co and any
certificates on change of name, the statutory books (duly written up to
the date of Completion) and other record books of HK
Co;
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1.4
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letter
of resignation, effective as from completion of the Subscription
Agreement, from Xxxxxxx Xxxxxx Xxxxx, Xxxx Xxxxxx Xxxxx and Xxxxxx Xxxxx
White as directors and officers of HK Co;
and
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1.5
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a
duly executed release of the Subsidiary Security and Guaranty of HK Co
issued in favour of China Gold, in a form agreed to and approved in
accordance with the Subscription
Agreement.
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2.
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CGMR
shall deliver to Wits Basin:
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2.1
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a
form of the instrument of transfer of the Share executed by CGMR BVI as
transferee; and
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2.2
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a
Bought Note executed by Wits Basin in favour of CGMR
BVI;
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3.
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Wits
Basin agrees with CGMR BVI to procure that a board resolution, in the
approved terms, of HK Co is passed
sanctioning:
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3.1
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for
registration (subject, where necessary, to due stamping) the transfer in
respect of the Share;
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3.2
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the
issue of a share certificate in the name of CGMR BVI;
and
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3.3
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subject
to completion of the Subscription Agreement, the removal of Xxxxxxx Xxxxxx
Xxxxx, Xxxx Xxxxxx Xxxxx and Xxxxxx Xxxxx White as directors and officers
of HK Co and the appointment of Xxxxxx Xxxxxx as a director, subject to
receipt of any necessary consent to
appointment.
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10
4.
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Wits
Basin agrees with CGMR BVI to procure that it
shall:
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4.1
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submit
the Agreement and all relevant documents and applicable stamp duty payment
to the Stamp Office of the Inland Revenue Department for an assessment of
stamp duty payable under the Agreement;
and
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4.2
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make
all necessary regulatory filings to give effect to the transfer of the
Share and the other matters contemplated under this
Agreement.
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4.3
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Obtain
the release at completion of the Subscription Agreement of the Subsidiary
Security and the Guaranty issued in favour of China
Gold.
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11
SIGNED by
acting
by: Xxxx X.
Xxxxx )
/s/ Xxxx X.
Xxxxx
Chief
Financial Officer
SIGNED by
CHINA GLOBAL MINING RESOURCES
(BVI) LIMITED
)
acting
by: Xxxx X.
Xxxxx )
/s/ Xxxx X.
Xxxxx
Director
12