SALE OF SHARES AGREEMENT between/amongst AFRIORE INTERNATIONAL (BARBADOS) LIMITED WITS BASIN PRECIOUS MINERALS INC and KWAGGA GOLD (BARBADOS) LIMITED
EXHIBIT
10.1
between/amongst
and
TABLE
OF CONTENTS
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1.
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THE
PARTIES
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2
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2.
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INTERPRETATION
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2
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3.
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INTRODUCTION
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7
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4.
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PURCHASE
OF THE SHARES
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7
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5.
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PURCHASE
PRICE
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7
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6.
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PAYMENT
OF THE PURCHASE PRICE
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8
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7.
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DATA
AND INFORMATION
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9
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8.
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CLOSING
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10
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9.
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WARRANTIES
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12
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10.
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BENEFIT
AND ▇▇▇▇
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▇▇
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▇▇.
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GROSS
SALES ROYALTY
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12
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12.
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TRANSACTION
INDIVISIBLE
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13
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13.
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RELEASE
OF ▇▇▇▇▇▇▇▇▇
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▇▇
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▇▇.
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CONDITIONS
PRECEDENT
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14
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15.
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GOVERNING
LAW
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15
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16.
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DISPUTES
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16
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17.
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BREACH
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16
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18.
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ADDRESS
FOR NOTICES
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17
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19.
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COSTS
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18
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20.
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GENERAL
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19
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Dated
the 12th day of December 2007
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1.
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THE
PARTIES
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1.1
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AfriOre
International (Barbados) Limited (“the
Seller”)
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1.2
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Wits
Basin Precious Minerals Inc (“the
Purchaser”)
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1.3
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Kwagga
Gold (Barbados Limited (“the
Company”)
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2.
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INTERPRETATION
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2.1
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The
headnotes to the clauses of this Agreement are inserted for reference
purposes only and shall in no way govern or affect the interpretation
hereof.
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2.2
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Unless
inconsistent with the context, the expressions set forth below shall
bear
the following meanings :
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“the
Act”
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the
Companies Act, Cap. 308 of the Laws of
Barbados;
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“this
Agreement”
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this
agreement including the annexes
hereto;
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“the
Auditors”
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the
auditors of the Company;
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2
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“Bankable
Feasibility Study”
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means
a comprehensive description of the construction, development, mining,
processing, and marketing plan for a mine within a project area in
such
form and detail as is normally required by a bank or other financial
institution (“the bank”) engaged in mining project finance for purposes of
determining whether the bank shall finance and/or participate in
the
development of a mine and mining operations in respect of the whole
or any
part of the project area. The Bankable Feasibility Study shall include
the
confirmation of the estimated recoverable reserves of minerals and
source
material, the conduct of detailed drilling works, hydrological and
geotechnical works, geological, mining, metallurgical, economic,
legal,
environmental, social and governmental studies, and metallurgical
studies.
The Bankable Feasibility Study shall contain estimates of both capital
and
operating costs and shall analyze how to proceed with mining operations
to
economically and commercially extract the target mineral(s), identify
the
optimum structure for the mining venture, and include reference to
relevant financial aspects;
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3
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“Business
Day”
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every
day except Saturdays, Sundays and official public holidays in the
Republic
of South Africa or Barbados;
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“the
Claims”
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all
claims on loan account of the Seller against the Company as at the
Signature Date;
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“the
Closing Date”
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the
date being 3 (THREE) Business Days after the Effective
Date;
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“the
Company"
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Kwagga
Gold (Barbados) Limited (a Company incorporated under the laws of
Barbados
as Company
No. 22715);
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“the
Effective Date”
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the
date of fulfilment of the conditions precedent in clause 14;
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“the
Parties”
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the
Purchaser and the Seller;
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“the
Purchaser”
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Wits
Basin Precious Minerals Inc (a corporation incorporated under the
laws of
State of Minnesota, U.S.A);
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4
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“the
Seller”
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AfriOre
International (Barbados) Limited (a Company incorporated under the
laws of
Barbados as Company No. 12272);
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“the
Shares”
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3 500 000
(THREE MILLION FIVE HUNDRED THOUSAND) Common Shares, fully paid up,
in the
issued share capital of the Company, constituting 65% (SIXTY FIVE
PERCENT)
of the entire issued share capital of the Company as at the Signature
Date
and which will represent 50% (FIFTY PERCENT) of the entire issued
ordinary
share capital of the Company after the acquisition of the further
15%
(FIFTEEN PERCENT) shareholding in the Company to be acquired by the
Purchaser as referred to in clause 6.1;
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“the
Shareholders Agreement”
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the
Shareholders Agreement between the Parties concluded on
27 August 2004 regulating the relationship of the Parties as
shareholders in the Company;
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“Signature
Date”
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the
date of this Agreement;
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5
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“the
Subsidiary”
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Kwagga
Gold (Proprietary) Limited (Registration No. 1998/007520/07), a company
incorporated according to the laws of South Africa, which as at the
Signature Date is a wholly-owned subsidiary of the Company;
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“US$”
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United
States dollars.
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2.3
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If
any provision in a definition is a substantive provision conferring
rights
or imposing obligations on any Party, notwithstanding that it is
only in
the definition clause, effect shall be given to it as if it were
a
substantive provision of this
Agreement.
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2.4
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Any
reference to an enactment is to that enactment as at the Signature
Date.
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2.5
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Unless
inconsistent with the context, an expression which denotes
:
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2.5.1
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any
gender includes the other genders;
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2.5.2
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a
natural person includes an artificial person and vice
versa;
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2.5.3
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the
singular includes the plural and vice
versa.
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2.6
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Where
any term is defined within the context of any particular clause in
this
Agreement, the term so defined, unless it is clear from the clause
in
question that the term so defined has limited application to the
relevant
clause, shall bear the meaning ascribed to it for all purposes in
terms of
this Agreement, notwithstanding that that term has not been defined
in
this interpretation clause.
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6
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3.
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INTRODUCTION
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3.1
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The
Seller is the beneficial owner of the Shares and the Claims and has
good
right and title to dispose of the
same.
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3.2
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The
Seller wishes to sell, and the Purchaser wishes to purchase, the
Shares
and the Claims upon the terms set out in this
Agreement.
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4.
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PURCHASE
OF THE SHARES
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The
Seller will sell to the Purchaser, and the Purchaser will purchase
from
the Seller the Shares and the Claims with effect from the Closing
Date.
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5.
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PURCHASE
PRICE
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5.1
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The
purchase price for the Shares and the Claims is US$1 162 000
(ONE MILLION ONE HUNDRED AND SIXTY TWO THOUSAND US DOLLARS).
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5.2
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The
purchase price in clause 5.1
shall be allocated to the Claims at the face value thereof and the
balance
to the Shares.
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7
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6.
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PAYMENT
OF THE PURCHASE PRICE
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6.1
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The
purchase price shall be paid by the Purchaser to the Seller in cash
on
31 December 2008, or within 3 (THREE) months after the date of
completion of the exploration expenditure by the Purchaser of
US$1 400 000 (ONE MILLION FOUR HUNDRED THOUSAND US DOLLARS) to
acquire a further 15% (FIFTEEN PERCENT) shareholding in the Company
in
terms of clause 2 of the Shareholders Agreement (to which the Purchaser
commits itself), whichever date is the
earlier.
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6.2
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The
payment in clause 6.1
shall be made by means of telegraphic transfer into a bank account
of the
Seller (the details of which shall be provided to the Purchaser by
the
Seller in writing on the Closing Date) on
the date specified in clause 6.1.
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6.3
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As
security for the due and proper performance of its obligations set
out in
clause 6.1
and clause 6.2,
the Purchaser will grant to the Seller a charge and security interest
to
and in all of the rights, interest and title of the Purchaser in
and to
the Shares with effect from the Closing Date
and, for the purpose thereof and in fulfilment of this condition,
will
execute a Charge Over Shares Agreement, in the form of the draft
attached
hereto Annex 2 to be dated as of the Closing
Date.
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6.4
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Notwithstanding
the grant of security interest in the Shares in clause 6.3,
the Purchaser shall be entitled (prior to transfer of such shares)
to:
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6.4.1
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all
dividends declared in respect of the charged shares;
and
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8
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6.4.2
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exercise
all voting rights attaching to the charged
shares.
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6.5
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The
Parties acknowledge and agree that:
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6.5.1
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the
obligations of the Purchaser secured by such charge are obligations
of a
commercial nature;
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6.5.2
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the
application of the provisions of these clauses 6.3
to
6.7
will confer upon the Seller certain procedural benefits which, in
the
light of this Agreement, are fair, reasonable and necessary to ensure
that
the Seller does not suffer unfair commercial prejudice pursuant to
a
breach by the Purchaser of its obligations in clause 6.1.
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6.6
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The
Purchaser shall on the Closing Date deliver to the Seller the original
share certificates in respect of the charged shares
in the Company and duly signed share transfer forms (which shall
be
undated and blank as to transferee).
No
breach by the Purchaser of any obligation to deliver a document to
the
Seller in terms of this clause 6.6
shall affect the validity or completion of the charge over the shares
in
the Company.
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6.7
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The
charge referred to in clauses 6.3
to
6.6
shall be released by the Seller forthwith upon the payment of the
purchase
price in clause 6.1
by
the Purchaser to the Seller.
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7.
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DATA
AND INFORMATION
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7.1
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The
Seller shall, on or before the Effective Date, furnish to the
Purchaser:
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9
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7.1.1
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the
audited consolidated financial statements for the Company’s previous two
(2) fiscal years, if available (unaudited consolidated financial
statements if audited are unavailable);
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7.1.2
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the
most current interim consolidated financial statements for the Company;
and
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7.1.3
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any
additional relevant financial information that the Seller possesses
or may
reasonably access or obtain and as reasonably requested by the Purchaser
from time to time.
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7.2
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The
Seller shall on the Effective Date furnish to the Purchaser all data
and
information in its possession relating to the Project Area provided
that
the Seller shall give no warranties in regard to the accuracy or
veracity
thereof.
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7.3
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The
Seller shall furnish to the Purchaser all data and information relating
to
the Project Area which comes into its possession any time before
payment
of the purchase price in clause 6.1;
provided that no warranties shall be given to the Purchaser in regard
to
the accuracy or veracity thereof.
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8.
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CLOSING
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8.1
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On
the Closing Date and against the Purchaser furnishing the security
in
accordance with the provisions of clause 6.3
the Seller shall deliver to the Purchaser
:
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8.1.1
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the
written resignations of the directors, secretary and other officers,
if
any, of the Company and the Subsidiary appointed by the
Seller;
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10
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8.1.2
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a
written resignation of the Auditors and the auditors of the Subsidiary,
if
the Purchaser so requires;
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8.1.3
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all
books, documents, titles and records of the Company and the
Subsidiary;
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8.1.4
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original
certificates in respect of the Shares together with a currently dated
transfer form relating thereto, duly signed by the
Seller;
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8.1.5
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a
written release and discharge of the Claims signed by the
Seller;
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8.1.6
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a
certified extract of the resolution of board of directors of the
Company
approving the sale and transfer of the Shares and the release and
discharge of the Claims;
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8.1.7
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a
certified extract of the resolution of shareholders of the Company
approving of the sale and transfer of the Shares and the cession
of the
Claims.
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8.2
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On
the Closing Date the Parties shall meet at the offices of ▇▇▇▇▇▇
and
Associates (Proprietary) Limited, ▇▇ ▇▇▇▇ ▇▇▇▇ , ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇ at 10h00 to exchange the charge documents referred to
in
clause 6.6
and the items mentioned in clause 8.1.
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11
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9.
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WARRANTIES
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The
Seller warrants to the Purchaser that it owns the Shares and is entitled to
give
title thereto to the Purchaser. The Seller gives to the Purchaser no other
warranties, representations or undertakings regarding the Company or the
Subsidiary or any of the assets or liabilities of the Company or the
Subsidiary.
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10.
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BENEFIT
AND RISK
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Notwithstanding
the Signature Date, the benefit and risk relating to the Shares,
shall be
deemed to have passed to the Purchaser with effect from the Closing
Date.
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11.
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GROSS
SALES ROYALTY
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11.1
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Additional
consideration for the sale of the Shares contemplated in this Agreement
shall be payable by the Purchaser to the Seller in the form of the
Gross
Sales Royalty provided for and calculated in accordance with Annex
“1”
hereto.
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11.2
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The
Company hereby binds itself to the provisions of this clause 11
as
read with Annex “1” hereto.
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11.3
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The
Company shall be entitled to buy back 1% (ONE PERCENT) of the 2%
(TWO
PERCENT) Gross Sales Royalty referred to in this clause 11
as
read with Annex “1”, in return for the cash payment of
US$2 000 000 (TWO MILLION U.S. DOLLARS) which right is
exercisable for a period of 6 (SIX) months after completion of a
Bankable
Feasibility Study by the Subsidiary, in respect of the Project Area
(or
any part thereof) as defined in the Shareholders Agreement. The Company
shall advise the Seller (or whoever holds the Gross Sales Royalty
at the
time) of the completion of the Bankable Feasibility Study within
30
(THIRTY) days of its completion.
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12
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11.4
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The
Seller shall be entitled to cede, assign and transfer the Gross Sales
Royalty to any third party at its election without the necessity
for
obtaining the consent of the Purchaser therefor; provided that such
third
party shall be required to agree in writing to be bound by the terms
of
this Agreement relating to the Gross Sales Royalty, including without
limitation the Company’s option to buy back a portion of the Gross Sales
Royalty in accordance with the terms of clause 11.3.
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12.
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TRANSACTION
INDIVISIBLE
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All
the transactions and arrangements contained or contemplated by this
Agreement, including those contemplated in terms of the annexes hereto,
constitute a single and indivisible
transaction.
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13.
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RELEASE
OF GUARANTEE
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13.1
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The
Purchaser shall use reasonable commercial endeavours to procure the
release as soon as possible after the Signature Date, of the Seller
and
any of its subsidiaries from any suretyship/guarantee obligations
which
the Seller or the Subsidiary may have undertaken on behalf of the
Company
or the Subsidiary.
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13
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13.2
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To
the extent necessary to procure the release of any such
suretyship/guarantee, the Purchaser shall
:
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13.2.1
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discharge
or fulfil or procure the discharge or fulfilment of those debts or
obligations set forth on Annex 3 hereto to which any suretyship/guarantee
concerned may relate; or
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13.2.2
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substitute
its suretyship/guarantee in place of the suretyship/ guarantee concerned
for those debts or obligations set forth on Annex 3
hereto.
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13.3
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Pending
the procurement of the release of any suretyship/guarantee as set
out in
clauses 13.1
and 13.2,
the Purchaser hereby indemnifies the Seller (and any of its subsidiaries
concerned all of which shall be deemed to have accepted the benefit
of
this clause on signature hereof by the Seller) against any claims
which
may be made against any of them in terms of the suretyship/guarantee
concerned.
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14.
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CONDITIONS
PRECEDENT
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14.1
|
This
Agreement (save for the provisions of this clause 14)
is subject to the fulfilment of the conditions precedent that on
or before
14 June 2008 (or such extended date as the Parties may agree in writing
from time to time) :
|
14
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14.1.1
|
the
Minister of Minerals and Energy furnishes written consent in terms
of
section 11 of the Mineral and Petroleum Resources Development Act
28 for
the change in controlling interest of the Subsidiary brought about
by the
transaction contemplated in this
Agreement;
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14.1.2
|
the
Articles of Incorporation of the Company are amended to delete the
provisions contained therein which stipulate that no share in the
capital
of the Company may be transferred without the prior approval of the
directors of the Company, or a committee of such
directors
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14.2
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The
Parties shall use their reasonable commercial endeavours to procure
fulfilment of the conditions precedent timeously. The costs related
to
such fulfilment shall be borne by the
Purchaser.
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14.3
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Should
the conditions precedent not be fulfilled timeously this Agreement
shall
lapse and cease to be of any further force or
effect.
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15.
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GOVERNING
LAW
|
|
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The
interpretation and implementation of this Agreement shall be governed
by
and construed in accordance with the laws of Barbados. The parties
hereto
hereby submit to the exclusive jurisdiction of the Supreme Court
of
Barbardos.
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15
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16.
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DISPUTES
|
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The
Parties shall use their reasonable endeavours to resolve any dispute
arising out of or in connection with this Agreement, (including any
question regarding its existence, validity, implementation or
termination), failing which the dispute shall first be referred to
the
Chief Executive Officer of the Purchaser and a director of the Seller
appointed by Lonmin plc. Should such dispute not be resolved between
them
within 30 (THIRTY) days of the referral to them the dispute shall
be
referred to and finally resolved by arbitration in accordance with
the
provisions of clause 11.3 of the Shareholders Agreement the terms
of which
are hereby incorporated by reference.
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17.
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BREACH
|
Should
either Party (“the
Defaulting Party”)
commit
a breach of any of the provisions hereof, then the other Party (“the
Aggrieved Party”)
shall,
if it wishes to enforce its rights hereunder, be obliged to give the Defaulting
Party 30 (THIRTY) Business Days written notice to remedy the breach. If the
Defaulting Party fails to comply with such notice, the Aggrieved Party shall
be
entitled to cancel this Agreement against the Defaulting Party or to claim
immediate payment and/or performance by the Defaulting Party of all of the
Defaulting Party's obligations whether or not the due date for payment and/or
performance shall have arrived, in either event without prejudice to the
Aggrieved Party's rights to claim damages. The foregoing is without prejudice
to
such other rights as the Aggrieved Party may have at law or equity; provided
always that, notwithstanding anything to the contrary contained in this
Agreement, the Aggrieved Party shall not be entitled to cancel this Agreement
for any breach by the Defaulting Party unless such breach is a material breach
going to the root of this Agreement and is incapable of being remedied by a
payment in money, or if it is capable of being remedied by a payment in money,
the Defaulting Party fails to pay the amount concerned within 14 (FOURTEEN)
Business Days after such amount has been finally determined.
16
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18.
|
ADDRESS
FOR NOTICES
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18.1
|
The
Parties hereto choose an address for notices for purposes of and
in
connection with this Agreement as follows
:
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| 18.1.1 | the Seller - | ▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
| ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ |
|
|
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
| ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ |
| ▇▇▇▇▇▇▇▇▇▇▇▇ |
|
▇▇▇▇▇
▇▇▇▇▇▇
Fax
No: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
|
| 18.1.2 | the Purchaser- | ▇▇ ▇▇▇▇▇ |
| ▇▇▇ ▇▇▇▇▇▇ |
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|
▇▇▇▇▇
▇▇▇
|
| ▇▇▇▇▇▇▇▇▇▇▇ |
| ▇▇▇▇▇▇▇▇▇ |
|
▇▇▇▇▇
▇▇▇
|
| 18.1.3 | the Company- | ▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
| ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ |
|
|
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
| ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ |
| ▇▇▇▇▇▇▇▇▇▇▇▇ |
|
▇▇▇▇▇
▇▇▇▇▇▇
Fax
No: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
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18.2
|
Either
Party hereto shall be entitled to change its address for notices
from time
to time, provided that any new domicilium selected by it shall be
an
address at which process may be served, and any such change shall
only be
effective upon receipt of notice in writing by the other Party of
such
change.
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17
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18.3
|
All
notices, demands, communications or payments intended for either
Party
shall be made or given at such Party's chosen address for the time
being.
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18.4
|
A
notice sent by one Party to another Party shall be deemed to be
received :
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18.4.1
|
on
the same day, if delivered by hand;
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18.4.2
|
on
the same day of transmission if sent electronically or by facsimile
with
receipt received confirming completion of
transmission;
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18.4.3
|
on
the 14th (FOURTEENTH) Business Day after posting, if sent by prepaid
registered mail.
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18.5
|
Notwithstanding
anything to the contrary herein contained a written notice or
communication actually received by a Party shall be an adequate written
notice or communication to it notwithstanding that it was not sent
to or
delivered at its chosen address.
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19.
|
COSTS
|
Each
Party shall bear its own costs of and incidental to the preparation, negotiation
and execution of this Agreement. Any stamp duty or other costs and duties
payable in connection with the transfer of the Shares shall
be
paid by the ▇▇▇▇▇▇▇▇▇.
▇▇
|
▇▇.
|
GENERAL
|
|
20.1
|
This
Agreement constitutes the sole record of the agreement between the
Parties, in regard to the subject matter thereof, and supersedes
all prior
agreements entered into between the Parties in regard to the subject
matter thereof, including but not limited to the Shareholders
Agreement.
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20.2
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Neither
Party shall be bound by any express or implied term, representation,
warranty, promise or the like, not recorded
herein.
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20.3
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No
addition to, variation or consensual cancellation of this Agreement
shall
be of any force or effect unless in writing and signed by or on behalf
of
both the Parties.
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20.4
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No
indulgence which either of the Parties (“the
Grantor”)
may grant to the other (“the
Grantee”)
shall constitute a waiver of any of the rights of the Grantor, who
shall
not thereby be precluded from exercising any rights against the Grantee
which might have arisen in the past or which might arise in the
future.
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20.5
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The
Parties undertake at all times to do all such things, to perform
all such
acts and to take all such steps and to procure the doing of all such
things, the performance of all such actions and the taking of all
such
steps as may be open to them and necessary for or incidental to the
putting into effect or maintenance of the terms, conditions and import
of
this Agreement.
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19
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20.6
|
Neither
Party shall be entitled to cede, assign or otherwise transfer all
or any
of its rights, interest or obligations under and in terms of this
Agreement to any person, without the prior written consent of the
other
Party which consent may not be unreasonably withheld; provided that
the
Purchaser may assign its rights and obligations under this Agreement
to a
controlled subsidiary of the Purchaser without the prior written
consent
of the Seller or the Company, provided that prior to the effective
date of
such assignment the Purchaser gives written notice of such assignment
to
the Seller and the controlled subsidiary executes a charge over the
Shares
in favour of the Seller on substantially the same terms and conditions
as
the draft attached hereto as Annex 2. For purposes of this
clause 20.6,
the term “controlled subsidiary” shall include any entity of which (i) the
Purchaser possesses, directly or indirectly, 50% (FIFTY PERCENT)
or more
of the beneficial ownership or voting power, or (ii) the Purchaser
possesses, directly or indirectly, 25% (TWENTY FIVE PERCENT) or more
of
the beneficial ownership or voting power and has the ability to control
the composition of the board of directors or other governing body
of the
entity; provided that if the controlled subsidiary ceases to be a
controlled subsidiary of the Purchaser prior to both of the payments
in
clauses 5.1
and 6.2
having been made, such rights and obligations shall be re-ceded back
to
the Purchaser.
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20.7
|
Each
provision of this Agreement shall be interpreted in such manner as
to be
effective and valid under applicable law, but if any provision of
this
Agreement shall be held to be prohibited by or invalid under applicable
law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remaining provisions
of this Agreement.
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20
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20.8
|
This
Agreement may be executed in one or more counterparts and by different
parties in separate counterparts, each of which when so executed
and
delivered shall be deemed to be an original, but all of which counterparts
taken together shall constitute but one and the same
Agreement.
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for
and on behalf of
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the
Seller
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/s/
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
|
|
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by
: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
|
|
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who
warrants his authority hereto
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|
|
for
and on behalf of :
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|
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the
Purchaser
|
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/s/
▇. ▇▇▇▇▇ White
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by
: ▇. ▇▇▇▇▇ White, Chairman
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who
warrants his authority hereto
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for
and on behalf of :
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the
Company
|
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/s/
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
|
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by
: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
|
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who
warrants his authority hereto
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21