OPTION AGREEMENT
Exhibit
10.41
1
PARTIES
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1.1
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The
parties to this agreement are –
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1.1.1
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1.1.2
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SSC
Mandarin Financial Services Limited;
and
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1.1.3
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SSC-Sino
Gold Consulting Co.
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 SSC-Sino Gold Consulting Co. Limited, with registration number
019332, a company duly incorporated in accordance with the laws of
the
People's Republic of China, herein represented by Lu Wenyuan, he
having
been duly authorised hereto;
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2.1.4
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"the
company board"
means the board members of the company as at the signature date,
being
Xxxxxx Xxxxxxxxx, Xxx Sing Xxxxx, Xxxxx, Lixun, Ma Xiaona, Lu Wenyuan,
Xxxxx Xxxxxxx and Wan Guoli;
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2.1.5
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"the
documents of title"
means collectively –
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1
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2.1.5.1
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the
transfer documents in respect of the subject interest, duly completed
in
accordance with the articles of association of the company, indicating
the
purchaser or its nominee as the transferee of the subject interest
and
dated the exercise 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 interest 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
exercise date"
means the date on which the purchaser exercises the option, which
date
shall be within the option period;
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2.1.8
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"the
exercise price"
means an amount of USD5,000,000 (five million United States Dollars)
to be
paid by the purchaser to the seller on the exercise
date;
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2.1.9
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"the
option"
means the option which the seller grants to the purchaser to purchase
the
subject interest and the subject claims during the option
period;
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2.1.10
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"the
option period"
means 36 months from the effective
date;
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2.1.11
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"the
option price"
means an amount of USD100,000 (one hundred thousand United States
Dollars)
payable by the purchaser to the seller in respect of the
option;
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2.1.12
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"the
parties"
means all the parties to this
agreement;
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2
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2.1.13
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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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2.1.14
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"the
seller"
means SSC Mandarin Financial Services Limited, with registration
number
C.I. 641254, a company duly incorporated in terms of the laws of
Hong
Kong, herein represented by Xxx Sing Xxxxx, Xxxxx, he being duly
authorised thereto;
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2.1.15
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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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2.1.16
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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 exercise
date;
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2.1.17
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"the
subject interest"
means the interest or issued shares amounting to 60% (sixty percentum)
of
the company or the company's issued share capital at the exercise
date;
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2.1.18
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any
reference to the singular includes the plural and vice
versa;
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2.1.19
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any
reference to natural persons includes legal persons and vice
versa;
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2.1.20
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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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3
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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
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 interest and the subject
claims;
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3.1.2
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the
purchaser wishes to acquire an option to purchase the subject interest
and
the subject claims from the seller and the seller is willing grant
such an
option 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 OPTION
With
effect from the effective date the seller hereby grants the option for the
option period to the purchaser, who hereby purchases and accepts same from
the
seller, subject to the terms and conditions set out in this
agreement.
4
5
PAYMENT OF THE OPTION PRICE
It
is
recorded that the option price for option has been paid by the purchaser to
the
seller.
6
PAYMENT OF EXERCISE PRICE
The
exercise price for the subject interest and the subject claims shall be paid
by
the purchaser to the seller in cash on the exercise date and against delivery
of
the documents of title to the purchaser, at the address of the seller referred
to in 12.2.1 below or at such other premises as agreed to between
them.
7
WARRANTIES
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7.1
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The
seller warrants that on the exercise date
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7.1.1
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the
company will not be under any obligations to issue any shares, further
interest or debentures to any person, and no resolution will have
been
passed to increase its capital or to issue further shares, interest
or any
debentures;
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7.1.2
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no
person will have any lien or other preferential right in respect
of the
share capital or interest of the company, nor will any person other
than
the seller have any claim to any of the subject interest in the
company;
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7.1.3
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the
company will not have declared any dividends which will not have
been paid
in full.
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7.2
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Except
as set out above, the shares or interest and claims are sold without
any
warranties of any nature, either express or
implied.
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8 DELIVERY
AND CLOSING
At
12h00
on the exercise date, the parties shall meet at the address of the seller
referred to in 12.2.1 below or at such other premises as agreed to between
them.
At that meeting, against payment of the exercise price the seller shall deliver
to the purchaser or its nominee the documents of title.
5
9
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.
10
RISK AND BENEFIT
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10.1
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All
risk in and benefit to the subject interest and subject claims shall
pass
to the purchaser or its nominee on the exercise
date.
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10.2
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Ownership
of the subject interest and subject claims shall pass to the purchaser
or
its nominee with effect from the exercise
date.
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11
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.
12
NOTICES AND DOMICILIA
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12.1
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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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12.2
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For
purposes of this agreement the parties' respective addresses shall
be
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12.2.1
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the
seller at Suite 3015, 301F, One International Finance Centre, 0 Xxxxxxx
Xxxx Xxxxxx, Xxxxxxx, Xxxx Xxxx;
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facsimile
number ~ x000 0000 0000;
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12.2.2
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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 ~ x0 000 000 0000;
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12.2.3
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the
company at Xx. 0-000, Xxxxxxxxxxxxxxxx, Xxxxxxxxx Xxxxxxxx,
Xxxxxxx;
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facsimile
number x00000 000 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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12.3
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Any
notice given in terms of this agreement shall be in writing and shall
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12.3.1
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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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12.3.2
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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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12.4
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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
13
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.
14
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.
15
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.
16
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 FINANCIAL
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For:
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SERVICES
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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SSC-SINO
GOLD
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For:
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CONSULTING
CO. LIMITED
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(Name
of witness in print)
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Duly
Authorised
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9
