EXHIBIT 10.8
DATED _________, 2004
[o]
the Grantor
AND
KEYGOLD CORPORATION
the Grantee
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DEED OF CALL OPTION
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THIS DEED OF CALL OPTION (the "Deed") is made on the ____________________ day of
_______________________ 2004
BETWEEN:
(1) [o, a limited liability company incorporated under the laws of
________________________________, having its registered office at
_____________________/o, an individual Passport No. ________ residing at
________________________________________ (the "GRANTOR");
AND
(2) Keygold Corporation, a corporation duly organised and existing under the
laws of __________________ with its registered address at
_______________________ and quoted on the OTC Bulletin Board (the
"GRANTEE").
WHEREAS:
(A) JHP Resources Limited (the "COMPANY") is a company incorporated under the
laws of the Province of the British Columbia, Canada whose place of
business is at #000-0000 Xxxxxx Xxx, Xxxxxxxx, X.X. Canada V6V 1N3;
(B) The Grantee has entered into a Subscription Agreement dated ______________
______________, 2004 (the "AGREEMENT") to subscribe for up to 8,000 Series
A Shares;
(C) The Company shall have as at the date of the First Completion (as defined
in the Agreement) an authorised capital consisting of a class of ordinary
shares ("ORDINARY SHARES") and a class of Series A convertible preferred
shares (the "SERIES A SHARES");
(D) The Grantor is the beneficial owner of 2,000 Ordinary Shares (the "OPTION
SHARES"); and
(E) The Grantor has agreed to grant to the Grantee the right to require the
Grantor to sell the Option Shares in consideration for the allotment and
issue of 3,500,000 common shares of the Grantee (the "CONSIDERATION
SHARES") to the Grantor.
NOW, THEREFORE, in consideration of the mutual promises and covenants made
herein the parties agree as follows:
1. GRANT OF OPTION
1.1. The Grantor hereby irrevocably grants unto the Grantee the right during
the Option Period (as defined in Clause 6) to require that the Grantor
sells and delivers to the Grantee all but not some only of the Option
Shares subject to the terms and conditions set forth herein (the
"OPTION").
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2. EXERCISE OF CALL OPTION
2.1. At any time, the Grantee may exercise this Option by the delivery of a
demand in writing to exercise the Option substantially in the form
attached hereto as Schedule 1 (the "EXERCISE LETTER") to the Grantor.
3. CONSIDERATION
3.1. The consideration to be paid by the Grantee to the Grantor for the
purchase of the Option Shares by the Grantee shall be satisfied by the
allotment and issue to the Grantor or its nominee(s) of the Consideration
Shares.
4. COMPLETION
4.1 Completion under this Deed ("COMPLETION") shall take place at 10:00 am in
the offices of the Grantor three (3) days following the receipt of the
Exercise Letter by the Grantor.
4.2 At Completion, the Grantor shall deliver or cause to be delivered to the
Grantee:
(a) duly executed instruments of transfer and sold notes in favour of
the Grantee accompanied by the relevant share certificates in
respect of the Option Shares;
(b) all powers of attorney or other authorities under which the
instruments of transfer and sold notes in respect of the Option
Shares have been executed;
(c) a certified true copy of the board resolutions of the Grantor
approving the sale of the Option Shares to the Grantee in accordance
with the terms of this Deed;
(d) such waivers or consents as the Grantee may require to enable the
Grantee or its nominees to be registered as the holders of the
Option Shares; and
(e) such other documents as may be required to give to the Grantee good
title to the Option Shares and to enable the Grantee or its nominees
to become the registered holders thereof.
4.3 At Completion, the Grantee shall deliver or cause to be delivered to the
Grantor:
(a) share certificates for the Consideration Shares;
(b) a certified true copy of the board resolutions of the Grantee
approving the allotment and issue of the Consideration Shares to the
Grantee in accordance with the terms of this Deed;
(c) such waivers or consents as the Grantor may require to enable the
Grantor or its nominees to be registered as the holders of the
Consideration Shares; and
(d) such other documents as may be required to give to the Grantor good
title to the Consideration Shares and to enable the Grantor or its
nominees to become the registered holders thereof.
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4.4 The Consideration Shares shall be allotted and issued to the Grantor fully
paid at Completion, free from all liens and encumbrances and with all
rights attaching to them pursuant to the Memorandum and Articles of
Association of the Grantee.
4.5 Unless waived by the Grantor, the Grantor shall not be obliged to complete
this Deed unless the Grantee is quoted on the OTC Bulletin Board or listed
either on the American Stock Exchange, the New York Stock Exchange or the
NASDAQ Stock Market as at the date of the Completion.
5. REPRESENTATIONS AND WARRANTIES
5.1 The Grantor hereby represents, warrants and undertakes to the Grantee as
at the date of this Deed, on the date of the Exercise Letter and at
Completion that it is a company validly existing under the laws of _____
____________________________, and that the Option Shares are free from any
and all liens and encumbrances and are fully paid and freely transferable,
without limitation, to the Grantee at Completion and that all necessary
actions required, corporate or otherwise, have been undertaken and all
signatures, consents and approvals have been procured for purposes of
writing, issuing and authorizing this Option on the Option Shares and the
delivery and transfer of the Option Shares to the Grantee upon exercise of
this Option.
5.2 The Grantee hereby represents, warrants and undertakes as at the date of
this Deed, on the date of the Exercise Letter and at Completion to the
Grantor as follows:
(a) The Grantee is a company duly organized and validly existing under
the laws of ___________________________________, that all necessary
actions required, corporate or otherwise, have been undertaken and
that all signatures, consents and approvals have been procured for
purposes of executing this Deed and performance of its obligations
hereunder.
(b) Particulars of the Grantee as at the date hereof are set out in Part
A of Schedule 2 and the authorized capital of the Grantee
immediately prior to the Completion as disclosed in Part 2 of
Schedule 2 is true accurate and complete for all material respects.
(c) The Consideration Shares that are being allotted and issued to the
Grantor hereunder will be duly and validly issued, fully paid, and
non-assessable when issued, and will be free of restrictions on
transfer other than restrictions on transfer under this Deed or the
Memorandum and Articles of Association of the Grantee or under the
applicable laws.
(d) The Consideration Shares shall have demand registration rights that
permit the holder to demand within the two (2) weeks of acquiring
such Consideration Shares that the Grantee file a registration
statement within 45 days of the demand and require the Grantee to
use commercially reasonable efforts to prosecute the registration of
the Consideration Shares in compliance with the United States
Securities Act of 1933.
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(e) There are no other outstanding options, warrants, rights (including
conversion or preemptive rights and rights of first refusal), proxy
or agreements among members or agreements of any kind for the
purchase or acquisition from the Grantee of any of its securities.
(f) Compliance with the terms of this Deed does not and will not
conflict with, or result in the breach of, or constitute a default
under any agreement or instrument to which the Grantee is a party,
or any provision of the Memorandum and Articles of Association of
the Grantee or constitutional documents or any encumbrance, lease,
contract, order, judgement, award, injunction, regulation or other
restriction or obligation by which the Grantee is bound or subject;
(g) The Grantee is not engaged in any litigation or arbitration
proceedings, as plaintiff or defendant, and there are no such
proceedings pending or threatened, either by or against the Grantee
and there are no facts which have been brought to the attention of
the Grantee indicating any such litigation or arbitration; and
(h) The Grantee is quoted on the OTC Bulletin Board or listed either on
the American Stock Exchange, the New York Stock Exchange or the
NASDAQ Stock Market.
6. TERM
6.1 The term of this Option (the "OPTION PERIOD") shall commence on the date
of the First Completion (as defined in the Agreement) (the "START DATE")
and expire on the earlier of:
(a) the exercise of the option under the Deed of Put Option between the
Grantor and the Grantee and dated the ____________________, 2004; or
(b) the liquidation and winding up of the Grantor; or
(c) three (3) years from the Start Date.
7. REGISTRATION OF THE CONSIDERATION SHARES
7.1 In the event that after Completion the Grantor as holder of the
Consideration Shares demands within the two (2) weeks of acquiring such
Consideration Shares that the Grantee register the Consideration Shares in
compliance with the United States Securities Act of 1933, the Grantee
shall as soon as practicable and in any event within 45 days of demand by
the Grantor file a registration statement and use commercially reasonable
efforts to prosecute such registration provided that there shall be no
penalty to the Grantee should the registration not be declared effective
at any point in time or ever.
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8. GENERAL
8.1 Each party shall pay his or its own costs and disbursements of and
incidental to this Deed. 8.2 Each notice, demand or other communication
given or made under this Deed shall be in writing and delivered or sent to
the relevant party at his or its address or fax number set out below (or
such other address or fax number as the addressee has by five (5) days'
prior written notice specified to the other parties):
To the Grantor:
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Fax Number:
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Attention:
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To the Grantee:
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Fax Number:
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Attention:
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Any notice, demand or other communication so addressed to the relevant
party shall be deemed to have been delivered (a) if given or made by
letter, when actually delivered to the relevant address; and (b) if given
or made by fax, when despatched.
8.3 No failure or delay by a party in exercising any right, power or remedy
under this Deed shall operate as a waiver thereof, nor shall any single or
partial exercise of the same preclude any further exercise thereof or the
exercise of any other right, power or remedy. Without limiting the
foregoing, no waiver by a party of any breach by the other party of any
provision hereof shall be deemed to be a waiver of any subsequent breach
of that or any other provision hereof. If at any time any provision of
this Deed is or becomes illegal, invalid or unenforceable in any respect,
the legality, validity and enforceability of the remaining provisions of
this Deed shall not be affected or impaired thereby.
8.4 This Deed (together with any documents referred to herein) constitutes the
whole agreement between the parties and it is expressly declared that no
variations hereof shall be effective unless made in writing.
8.5 The provisions of this Deed including the representations, warranties and
undertakings herein contained, insofar as the same shall not have been
fully performed at Completion, shall remain in full force and effect
notwithstanding Completion.
8.6 The Grantor and the Grantee shall do and execute or procure to be done and
executed all such further acts, deeds, things and documents as may be
necessary to give effect to the terms of this Deed.
8.7 This Deed shall be governed by and construed in accordance with the laws
of State of Nevada, United States of America and the parties hereby
irrevocably submit to the non-exclusive jurisdiction of the State of
Nevada, United States of America courts.
8.8 This Deed shall be binding on and enure to the benefit of the parties
hereto and their respective successors.
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8.9 Except as permitted herein, no party hereto may assign or transfer any of
its rights or obligations under this Deed.
8.10 This Deed may be entered into by any party by executing a counterpart
hereof. All such counterparts when taken together shall constitute one and
the same instrument and this Deed shall only take effect upon the
execution by each of the parties hereto. This Deed may be executed by the
parties in original or telecopy produced by fax machine or other means of
electronic communication producing a printed copy.
8.11 The title and subheadings in this Deed have been resorted to only for
convenience and shall not adversely affect the rights and interests of the
parties.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF this Xxxx has been executed on the day and year first above
written.
SIGNED SEALED AND )
DELIVERED BY )
)
for and on behalf of )
Grantor )
in the presence of: )
)
SIGNED SEALED AND )
DELIVERED BY )
)
for and on behalf of )
Grantee )
in the presence of: )
)
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SCHEDULE 1
[Date]
[Name and address of the Grantor]
Dear Sirs,
We refer to the Deed of Call Option dated , 2004 (the "Deed") entered into
between us relating to the Option Shares. Terms and expressions used in this
Exercise Letter shall have the same meaning as defined in the Deed.
We hereby exercise the Option referred to in the Deed to require that you
as beneficial owner sell and deliver to us all but not some only of the 2,000
Option Shares in consideration of the Consideration Shares and that the
completion of the sale and purchase of the Option Shares shall take place on
_________________________________ at ________ a.m./p.m. at ___________________.
Yours faithfully,
For and on behalf of
Keygold Corporation
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SCHEDULE 2
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(PART A)
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PARTICULARS OF THE GRANTEE
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(as at the date hereof)
1. REGISTERED OFFICE :
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2. DATE OF INCORPORATION :
3. COMPANY NUMBER :
4. PLACE OF INCORPORATION :
5. DIRECTORS :
6. AUTHORIZED SHARE CAPITAL :
7. ISSUED SHARE CAPITAL at the date hereof is held as follows:
NAME OF SHAREHOLDERS NO. OF SHARES HELD
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(PART B)
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SHARE CAPITAL OF THE GRANTEE
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(immediately prior to Completion)
AUTHORIZED SHARE CAPITAL:
(PART C)
PARTICULARS OF THE GRANTEE
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(IMMEDIATELY AFTER COMPLETION)
1. REGISTERED OFFICE :
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2. NAME OF COMPANY:
3. DATE OF INCORPORATION:
4. PLACE OF INCORPORATION:
5. AUTHORISED SHARE CAPITAL:
6. PAID-UP SHARE CAPITAL:
7. SHAREHOLDERS:
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