EX-10.41 10 v109705_ex10-41.htm
Exhibit 10.41
 
OPTION AGREEMENT
 
1 PARTIES
 
1.1
The parties to this agreement are –
 
1.1.1
Wits Basin Precious Minerals Inc.;
 
1.1.2
SSC Mandarin Financial Services Limited; and
 
1.1.3
SSC-Sino Gold Consulting Co. 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 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;
 
2.1.4
"the company board" means the board members of the company as at the signature date, being Norman Lowenthal, Lee Sing Leung, Robin, Lixun, Ma Xiaona, Lu Wenyuan, Zhang Yongtao and Wan Guoli;
 
2.1.5
"the documents of title" means collectively –
 
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2.1.5.1
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;
 
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 interest in the name of the purchaser or its nominee;
 
2.1.5.3
the written and signed cession of the claims in favour of the purchaser or its nominee;
 
2.1.6
"the effective date" means the signature date;
 
2.1.7
"the exercise date" means the date on which the purchaser exercises the option, which date shall be within the option period;
 
2.1.8
"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;
 
2.1.9
"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;
 
2.1.10
"the option period" means 36 months from the effective date;
 
2.1.11
"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;
 
2.1.12
"the parties" means all the parties to this agreement;
 
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2.1.13
"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 Stephen David King, he having been duly authorised hereto;
 
2.1.14
"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 Lee Sing Leung, Robin, he being duly authorised thereto;
 
2.1.15
"the signature date" means the date of signature of this agreement as identified on the signature page;
 
2.1.16
"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;
 
2.1.17
"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;
 
2.1.18
any reference to the singular includes the plural and vice versa;
 
2.1.19
any reference to natural persons includes legal persons and vice versa;
 
2.1.20
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.
 
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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 interest and the subject claims;
 
3.1.2
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.
 
3.2
The parties accordingly agree as set out herein.
 
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.
 
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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
 
7.1
The seller warrants that on the exercise date –
 
7.1.1
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;
 
7.1.2
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;
 
7.1.3
the company will not have declared any dividends which will not have been paid in full.
 
7.2
Except as set out above, the shares or interest and claims are sold without any warranties of any nature, either express or implied.
 
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.
 
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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
 
10.1
All risk in and benefit to the subject interest and subject claims shall pass to the purchaser or its nominee on the exercise date.
 
10.2
Ownership of the subject interest and subject claims shall pass to the purchaser or its nominee with effect from the exercise date.
 
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
 
12.1
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.
 
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12.2
For purposes of this agreement the parties' respective addresses shall be –
 
12.2.1
the seller at Suite 3015, 301F, One International Finance Centre, 1 Harbour View Street, Central, Hong Kong;
 
facsimile number ~ +852 2504 3232;
 
12.2.2
the purchaser at 900 IDS Center 80 South 8. Street Minneapolis, MN 55402, United States for attention Mr. Mark D. Dacko,
 
facsimile number ~ +1 612 395 5276;
 
12.2.3
the company at No. 1-505, Qingnianhubeijie, Dongcheng District, Beijing;
 
facsimile number +86106 588 5786,
 
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.
 
12.3
Any notice given in terms of this agreement shall be in writing and shall –
 
12.3.1
if delivered by hand be deemed to have been duly received by the addressee on the date of delivery;
 
12.3.2
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.
 
12.4
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.
 
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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.
 
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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
 
 
 
 
 
 
 
 
(Name of witness in print)
 
Duly Authorised
 
 
 
 
SIGNED at ________________________________________
 
as of _________________________________________
 
 
 
 
AS WITNESS:
 
 
 
 
 
 
 
 
 
 
SSC-SINO GOLD
 
 
For: 
CONSULTING CO. LIMITED
 
 
 
 
 
 
 
 
(Name of witness in print)
 
Duly Authorised
 
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