EXHIBIT 10.3
SHAREHOLDERS AGREEMENT
entered into between :-
GLOBAL DIAMONDS (SA) (PROPRIETARY) LIMITED
("Global")
and
XX. XXXXXX XX XXXXX
in his capacity as trustee for a private company to be formed with the name
NABAS DIAMANTE (PROPRIETARY) LIMITED
or another name approved by the Registrar of Companies
and
XX. XXXXXXX XXXXXX XXXXXXXXX
in his capacity as trustee for a private company to be formed with the name
NABAS HOLDINGS DIAMANTE (PROPRIETARY) LIMITED
or another name approved by the Registrar of Companies
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1. DEFINITIONS
-----------
For the purposes of this agreement, unless the context indicates
otherwise:
1.1 "shareholders" shall mean all the shareholders of Nabas, namely
Global and Holdings;
1.2 "shares" shall mean the share capital of Nabas;
1.3 "commencement date" shall mean the date on which the mining
licence is granted to Nabas;
1.4 "Cloete Group" shall mean Gerrith Cloete, Gysbert Xxxxxxx Xxxxxx,
Xxxxxxx Xxxxx van Wyk, Xxxxxxxxx Xxxxxxxxx Xxxxxx and Xxxxxxx
Xxxxxxx Xxxxxx;
1.5 "the Grasdrif Property" shall mean the portion call Grasdrif
coloured in red on the attached annexure "A" over which the
Cloete Group has obtained the right to prospect from the Northern
Richtersveld Management Committee which rights shall be ceded to
Nabas;
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1.6 "the Act" shall mean the Minerals Act of 1991;
2. SUSPENSIVE CONDITIONS
---------------------
2.1 This agreement is subject to the following suspensive
conditions namely :-
2.1.1 Global shall acquire the necessary permission to
obtain overseas funding in order to undertake
mining activities and in order to fulfil its
obligations to Nabas;
2.1.2 the shareholders will ensure the registration of
Nabas and Holdings in accordance with the terms
and conditions as set out in this agreement;
2.1.3 Nabas will obtain all the licenses necessary in
terms of the Act in order to undertake mining
activities.
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3. FORMATION OF THE COMPANY
------------------------
3.1 After the signature of the agreement the shareholders
undertake to register two companies with limited liability
within a reasonable time period.
3.2 The names of the companies shall be Nabas Diamante
(Proprietary) Limited (which company is represented in this
agreement by Xx. Xxxxxx Xx Xxxxx in his capacity as trustee
of Nabas Diamante (Pty) Ltd, a company to be formed) and
Nabas Holdings (Pty) Ltd (which company is represented in
this agreement by Xx. Xxxxxxx Xxxxxx XxxXxxxxx in his
capacity as trustee of Nabas Holdings (Pty) Ltd, a company
to be formed) or such other names as will meet the approval
of the shareholders and the Registrar of Companies.
3.3 The primary purpose of Nabas and the general nature of its
business shall be to undertake mining activities. Holdings
shall be an investment company with an exclusive interest in
Nabas
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3.5.6 a quorum for the directors meetings shall consist of a minimum
of 5 (five) directors provided that the proper notice of such
a meeting is received by all the directors of Nabas;
3.5.7 the chairman of Nabas shall alternate yearly between a
representative of Global and Holdings. The chairman shall not
have a second or a casting vote during the directors or the
shareholders meetings;
3.5.8 Holdings shall also be entitled to appoint a director on the
instructions of Global and Global Diamond Resources
Incorporated, which appointment shall be subject to the
approval of shareholders of Global and Global Diamond
Resources Incorporate.
3.6 The registered office of Nabas shall be Suite 232, SA Diamond Centre,
000 Xxxxxxxxxxxx Xxxxxx, Xxxxxxxxxxxx.
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3.7 Should there be any conflict between the terms of this
agreement and the articles and memorandum of association of
Nabas, then the terms of this agreement shall take precedence
and the shareholders shall immediately amend the articles and
memorandum of association in order to remedy the conflict.
4. SHARE CAPITAL AND THE ISSUE OF SHARES
-------------------------------------
4.1 The authorised share capital of Nabas shall be valued at
R10 000 000 (ten million rand) and shall consist of 10 000 000
(ten million) ordinary shares of R1.00 (one rand) each.
4.2 The issued share capital of Nabas shall be valued at R2.00
(two rand) consisting of 1 (one) share held by each of Global
and Holdings.
4.3 Global undertakes to contribute an amount of R3 000 000 (three
million rand) within a period of 2 (two) years from the date
of acquisition of the mining licence ("the period") which will
enable Nabas to undertake exploratory work.
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4.4 The period shall be subject to review at 6 (six) monthly
intervals as mutually agreed to by the parties.
4.5 Should diamonds be discovered during the period, then the
proceeds thereof shall be used to discharge the operating costs
and the remainder shall be placed in a reserve fund which will
primarily be used to increase capital before additional capital
is acquired through further issuance.
5. THE ISSUE OF FURTHER SHARES
---------------------------
No shares in the capital of the company shall be issued other than by
means of pro rata issue of shares to the holders of existing shares
within the period. Once the original R3 000 000 (three million rand)
contributed by Global and the remainder in the reserve funds have been
exhausted, Nabas shall acquire further capital through the issue of
shares to its shareholders. Should any shareholder not wish to accept
the shares which have been issued to him, he shall be obliged to cede
his rights to those shares to the other shareholders. Should a
shareholder not, due to financial reasons, be able to accept the
shares which have been issued to him, then this
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inability shall not be used to prejudice him unfairly or unreasonably.
6. THE TRANSFER OF SHARES
----------------------
The following conditions shall apply to the transfer of shares in the
share capital of Nabas or in relation to any claims against Nabas. For
the purposes of this clause, "claims" shall mean the sum total of all
claims of a Nabas shareholder in a loan account against Nabas.
6.1 Shares may only be transferred on the basis of a written
agreement between the shareholders.
6.2 No transfer of shares shall be approved or registered unless
the tranferor's claims are also sold as is set out in clause
6.7.
6.3 Whenever a shareholder intends to alienate his shares or
claims to a bona fida seller, then the transferor shall be
obliged to make an offer to the other shareholders wherein the
following details shall be contained:
6.3.1 the number of shares and the amount of the claims;
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6.3.2 the price (valued in rands) and the terms on which the
transferor intends to sell those shares and claims;
6.3.3 the transferee's identity.
6.4 The written notice mentioned in clause 6.3 is an irrevocable offer to
the other shareholders of Nabas, but should such an offer not be
accepted within 60 (sixty) days after the date on which such notice is
given, the other shareholders shall be obliged to reject that offer.
The transferor shall be entitled to dispose of those shares and claims
within a further period of 30 (thirty) days to the transferor referred
to in clause 6.3 on a price and terms neither less nor more favourable
than those set out in the offer.
6.5 Unless the transferor has disposed of all of his shares and claims
within a further period of 30 (thirty) days, he shall not be entitled
after the expiry of that period to depose of his shares and claims
without adhering to the procedure as set out in this clause.
6.6 Except as is expressly indicated in this agreement, shares or claims
may not be sold or
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otherwise encumbered. The transfer or registration of shares shall
not be permitted by the directors of Nabas where that proposed
transfer is contrary to this clause 6. Share certificates issued by
Nabas may be endorsed within the discretion of the directors with
the limitations set out within this agreement.
6.7 Save as is agreed to in writing to the contrary by all of the
shareholders, a shareholder may only depose of his shares if he, in
that same transaction, also deposes of that part of his loan
account against Nabas.
7. ADMISSION OF NEW SHAREHOLDERS
-----------------------------
The shareholders may from time to time agree to admit third shareholders as
additional shareholders in Nabas, provided that no person shall be entitled
to be a shareholder in Nabas, unless and until that person has signed this
agreement and has so bound himself to all the terms and conditions set out
within this agreement.
8. TRANSFER OF THIS AGREEMENT
--------------------------
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Neither this agreement nor any part thereof, or any share or interest
herein shall be transferred or ceded without the prior written consent
of the other shareholders.
9. MINERAL RIGHTS
--------------
9.1 Holdings undertakes to transfer the licence which has been
issued in favour of the Cloete Group by the management
committee of the Northern Richtersveld into the name of Nabas.
9.2 Holdings further undertakes to immediately apply for mining
licences and mineral leases relating to the Grasdrif Property
in favour of Nabas.
9.3 Should the rights as set out above be acquired, they shall be
valued at R3 000 000 (three million rand).
10. WHOLE AGREEMENT
---------------
10.1 This is the entire agreement between the parties. No variation
of or consensual cancellation of this agreement shall be of any
force or effect unless reduced to writing and signed by the
parties.
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10.2 The shareholders confirm that no other terms or conditions,
whether written or oral, whether express or implied, are
applicable to this agreement.
11. WAIVER OF RIGHTS
----------------
11.1 No waiver of any term or condition of this agreement shall be
of binding effect unless it has been committed to writing and
signed by the shareholder making that waiver. Any such waiver
shall only be effective in respect of the specific instance and
purpose for which it has been granted.
11.2 Neither party shall be regarded as having waived or be
precluded in any way from exercising any right under or arising
from this agreement by reason of such party having at any time
granted an extension of time for, or having shown any
indulgence to the other party with reference to, any payment or
performance hereunder, or having failed to enforce or delayed
in the enforcement of, any right of action against the other
party.
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12. NOTICES AND DOMICILIA
---------------------
12.1 Each Party chooses the address set out below as
the address at which all notices, legal
processes and other communications must be
delivered for the purposes of this agreement:
12.1.1 Global
12.1.2 Nabas
12.1.3 Holdings
12.2 Any notice or communication required or
permitted to be given in terms of this agreement
shall be valid and effective only if in writing
but it shall be competent to give notice by
telex or telefax.
12.3 Any notice to a Party contained in a correctly
addressed envelope and:
12.3.1 sent by prepaid registered post to it
at its chosen address; and
12.3.2 delivered by hand to a responsible
person during ordinary business hours
at its chosen address,
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shall be deemed to have been received, (unless the contrary is
proved) in the case of clause 12.3.1 on the 3rd business day
after posting and, in the case of clause 12.3.2, on the day of
delivery.
13. COSTS
-----
All costs incurred in respect of this agreement, including the
negotiations thereto shall be born by NABAS.
SIGNED at JOHANNESBURG on this the 13 day of OCTOBER 1995
FOR GLOBAL DIAMONDS (SA) (PTY) LTD
SIGNED at JOHANNESBURG on this the 13 day of OCTOBER 1995
FOR NABAS DIAMANTE (PTY) LIMITED
XXXXXX XX XXXXX
in his capacity as trustee of NABAS DIAMANTE
(PTY) LIMITED, a company to be formed.
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SIGNED at ATLANTAS on this the 14 day of OCTOBER 1995
FOR NABAS HOLDINGS DIAMANTE (PTY)
LIMITED
XXXXXXX XXXXXX XXXXXXXXX
in his capacity as trustee of NABAS HOLDINGS
DIAMANTE (PTY) LTD a company to be formed
