SALE OF SHARES AND CLAIMS AGREEMENT
Exhibit
10.40
1 PARTIES
|
1.1
|
The
parties to this agreement are -
|
|
1.1.2
|
SSC
Mandarin Financial Services Limited;
and
|
|
1.1.3
|
SSC
Mandarin Africa (Proprietary) Limited.
|
|
1.2
|
The
parties agree as set out below.
|
2 INTERPRETATION
|
2.1
|
In
this agreement, unless inconsistent with or otherwise indicated
by the
context -
|
|
2.1.1
|
"the/this
agreement"
means the agreement as set out herein together with all appendices
hereto;
|
|
2.1.2
|
“business
day”
means a day which is not a Saturday, Sunday or a United States
public
holiday;
|
|
2.1.3
|
“the
collaboration agreement”
means the collaboration agreement entered into on 4 August 2006
between
the company and the and Kumba Iron Ore Limited, a indirect subsidiary
of
Anglo American plc;
|
|
2.1.4
|
“the
company”
means SSC Mandarin Africa (Proprietary) Limited, with registration
number
1998/010265/07, a private company duly incorporated in accordance
with the
laws of the Republic of South Africa, herein represented by Xxxx
Xxxxxx,
he being duly authorised;
|
|
2.1.5
|
"the
documents of title"
means collectively –
|
1
|
2.1.5.1
|
the
share certificates in respect of the subject shares, together with
share
transfer forms in respect thereof duly completed in accordance
with the
articles of association of the company, indicating the purchaser
or his
nominee as the transferee of the subject shares and dated the effective
date;
|
|
2.1.5.2
|
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 shares in the name of the
purchaser;
|
|
2.1.5.3
|
the
written and signed cession of the claims in favour of the
purchaser;
|
|
2.1.6
|
“the
effective date”
means the signature date;
|
|
2.1.7
|
"the
parties"
means all the parties to this
agreement;
|
|
2.1.8
|
"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;
|
|
2.1.9
|
"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;
|
|
2.1.10
|
“the
signature date”
means the date of signature of this agreement as identified on
the
signature page;
|
|
2.1.11
|
“the
subject claims”
means any and all claims of whatsoever nature and howsoever arising
held
by the seller against the company as at the effective
date;
|
2
|
2.1.12
|
"the
subject shares"
means 40 (forty) ordinary par value shares amounting to 40% (forty
percentum) of the company’s issued share capital at the effective
date;
|
|
2.1.13
|
any
reference to the singular includes the plural and vice
versa;
|
|
2.1.14
|
any
reference to natural persons includes legal persons and vice
versa;
|
|
2.1.15
|
any
reference to a gender includes the other
genders.
|
|
2.2
|
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.
|
|
2.3
|
The
clause headings in this agreement have been inserted for convenience
only
and shall not be taken into account in its
interpretation.
|
|
2.4
|
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.
|
|
2.5
|
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.
|
|
2.6
|
This
agreement shall be governed by and construed and interpreted in
accordance
with the laws of the United Sates of
America.
|
3 INTRODUCTION
|
3.1
|
It
is recorded that –
|
|
3.1.1
|
the
seller is the owner of the subject shares and the subject claims;
|
3
|
3.1.2
|
the
purchaser wishes to acquire the subject shares and the subject
claims from
the seller and the seller is willing to dispose of the subject
shares and
the subject claims to the purchaser on the effective date, subject
to the
terms and conditions set out in this
agreement.
|
|
3.2
|
The
parties accordingly agree as set out
herein.
|
4 PURCHASE
AND SALE
With
effect from the effective date the seller hereby sells the subject shares
and
the subject claims to the purchaser, who hereby purchases same from the seller,
subject to the terms and conditions set out in this agreement.
5
SHARE CAPITAL OF THE COMPANY
|
5.1
|
It
is recorded that the company is duly registered with a share capital
as
follows :
|
|
5.1.1
|
an
authorised share capital of R1000,00 (one thousand Rand) divided
into 1000
(one thousand) ordinary par value shares of R1,00 (one Rand) each;
and
|
|
5.1.2
|
an
issued share capital of R100,00 (one hundred Rand) divided into
100 (one
hundred) ordinary par value shares of R1,00 (one Rand)
each.
|
6 PURCHASE
PRICE
The
purchase price payable by the purchaser to the seller in respect of the subject
shares and the subject claims shall be an amount of $400,000 (four hundred
thousand United States Dollars).
7 PAYMENT
OF PURCHASE PRICE
It
is
recorded that the purchase price for the subject shares and the subject claims
has been paid by the purchaser to the seller in cash.
4
8 WARRANTIES
The
seller warrants that on the effective date -
|
8.1
|
the
company will not be under any obligations to issue any shares or
debentures to any person, and no resolution will have been passed
to
increase its capital or to issue further shares or any
debentures;
|
|
8.2
|
no
person will have any lien or other preferential right in respect
of the
share capital of the company, nor will any person other than the
seller
have any claim to any of the subject shares in the
company;
|
|
8.3
|
the
company will not have declared any dividends which will not have
been paid
in full.
|
|
8.4
|
Except
as set out above, the shares and claims are sold without any warranties
of
any nature, either express or
implied.
|
9
DELIVERY AND
CLOSING
At
10h00
on the effective date, the parties shall meet at such premises as agreed
to
between them. At that meeting the seller shall:
|
9.1
|
deliver
to the purchaser –
|
|
9.1.1
|
the
share certificates in respect of the sale shares together with
duly signed
and currently dated share transfer forms in respect thereof duly
completed
in negotiable form;
|
|
9.1.2
|
a
copy of a resolution of the seller approving the transaction contemplated
in terms of this agreement.
|
10
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.
5
11 RISK
AND BENEFIT
|
11.1
|
All
risk in and benefit to the subject shares and subject claims shall
pass to
the purchaser on the effective
date.
|
|
11.2
|
Ownership
of the subject shares and subject claims shall pass to the purchaser
with
effect from the effective date.
|
12 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.
13 NOTICES
AND DOMICILIA
|
13.1
|
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.
|
|
13.2
|
For
purposes of this agreement the parties’ respective addresses shall
be –
|
|
13.2.1
|
the
seller at Suite 3015, 30/F, One International Finance Centre,
0 Xxxxxxx Xxxx Xxxxxx, Xxxxxxx, Xxxx
Xxxx;
|
facsimile
number ~ x000 0000 0000;
6
|
13.2.2
|
the
purchaser at 900 IDS Center 00 Xxxxx 0xx
Xxxxxx Xxxxxxxxxxx, XX 00000, Xxxxxx Xxxxxx for attention Xx. Xxxx
X. Xxxxx,
|
facsimile
number ~ x0 000-000-0000;
|
13.2.3
|
the
company at 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx;
|
facsimile
number ~ x00 00 000 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.
|
13.3
|
Any
notice given in terms of this agreement shall be in writing and
shall –
|
|
13.3.1
|
if
delivered by hand be deemed to have been duly received by the addressee
on
the date of delivery;
|
|
13.3.2
|
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.
|
13.4
|
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.
|
14 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.
15 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.
7
16 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.
17 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
|
SIGNED
at _______________________________________
|
as of
________________________________________
|
||
|
AS
WITNESS:
|
|||
|
WITS
BASIN PRECIOUS
|
|||
|
For:
|
MINERALS
INC
|
||
|
(Name
of witness in print)
|
Duly
Authorised
|
||
|
SIGNED
at _______________________________________
|
as of ________________________________________
|
||
|
AS
WITNESS:
|
|||
|
SSC
MANDARIN FINANCIAL
|
|||
|
For:
|
SERVICES
LIMITED
|
||
|
(Names
of witness in block letters)
|
Duly
authorised
|
||
|
SIGNED
at _______________________________________
|
as of
_________________________________________
|
||
|
AS
WITNESS:
|
|||
|
SSC
MANDARIN AFRICA
|
|||
|
For:
|
(PROPRIETARY)
LIMITED
|
||
|
(Names
of witness in block letters)
|
Duly
authorised
|
||
9
