EXHIBIT 10.6
DATED , 2004
JHP RESOURCES LIMITED
(the "COMPANY")
AND
KEYGOLD CORPORATION
(the "PURCHASER")
AND
[o]
(the "ORDINARY SHAREHOLDER")
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SHARE SUBSCRIPTION AGREEMENT
RELATING TO
THE SHARE CAPITAL OF
JHP RESOURCES LIMITED
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CONTENTS
PAGE
1. INTERPRETATION ..........................................................1
2. SUBCRIPTION OF SHARES .................................................4
3. CONSIDERATION ...........................................................5
4. COMPLETION ..............................................................6
5. FURTHER OBLIGATIONS OF THE COMPANY AND THE SUBSCRIBER ..................10
6. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS ...........................10
7. ACCESS TO INFORMATION ..................................................11
8. GENERAL ................................................................11
EXHIBITS
Exhibit A Letter Agreement
Exhibit B Deed of Call Option
Exhibit C Deed of Put Option
SCHEDULES
Schedule 1 Representations, Warranties and Undertakings of the Company
THIS AGREEMENT is made on the ___________________ day of _________________ 2004
BETWEEN:
(1) JHP Resources Limited, a company duly organised and existing under the
laws of the Province of British Columbia, Canada with its place of
business at #▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the
"COMPANY");
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
"SUBSCRIBER");
AND
(3) [o, a limited liability company incorporated under the laws of
________________________________, having its registered office at
_____________________/o, an individual Passport No. ________ residing at
__________________ (the "ORDINARY SHAREHOLDER").
WHEREAS:
(A) The Company as at the First Completion (as defined herein) shall have 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");
(B) As at the date of this Agreement, the Ordinary Shareholder owns 2,000
Ordinary Shares being all the issued and outstanding share capital of the
Company; and
(C) The Ordinary Shareholder has consented and the Company has agreed with the
Subscriber that the Company allot and issue an aggregate of 8,000 Series A
Shares (the "SUBSCRIPTION SHARES") to the Subscriber subject to and upon
the terms and conditions of this Agreement.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 In this Agreement, unless the context requires otherwise:
"ARTICLES" means the Articles of Association of the Company;
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"COMPANY'S SOLICITORS" means _____________________________________;
"CONSIDERATION" means the consideration for the subscription of the
Subscription Shares being ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Dollars (US$1,200,000.00) as may be adjusted in accordance with Clause
3.2;
"DEED OF CALL OPTION" means the Deed of Call Option attached hereto as
Exhibit B to be entered into between the Ordinary Shareholder and the
Subscriber;
"DEED OF PUT OPTION" means the Deed of Put Option attached hereto as
Exhibit C to be entered into between the Ordinary Shareholder and the
Subscriber;
"FENGCHENG" means the Fengcheng Gold Corporation, Liaoning, an enterprise
incorporated in Liaoning province, PRC;
"FIRST COMPLETION" means completion of the sale and purchase of the First
Subscription Shares as specified in Clauses 4.1 to 4.7;
"FIRST COMPLETION DATE" has the meaning specified in Clause 3.1;
"FIRST SUBSCRIPTION PRICE" has the meaning specified in Clause 2.1;
"FIRST SUBSCRIPTION SHARES" has the meaning specified in Clause 2.1;
"FORMAL APPROVALS" has the meaning specified in the Letter Agreement;
"FOURTH COMPLETION" means completion of the sale and purchase of the
Fourth Subscription Shares as specified in Clauses 4.19 to 4.22;
"FOURTH COMPLETION DATE" has the meaning specified in Clause 3.1;
"FOURTH STAGE INVESTMENT" has the meaning specified in the Letter
Agreement;
"FOURTH SUBSCRIPTION PRICE" has the meaning specified in Clause 2.4;
"FOURTH SUBSCRIPTION SHARES" has the meaning specified in Clause 2.4;
"GROUP COMPANY" means an entity which controls, is controlled by or is
under common control with a party to this Agreement;
"HONG KONG" means the Hong Kong Special Administrative Region of the
People's Republic of China;
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"JOINT VENTURE COMPANY" means the Sino-foreign cooperative joint venture
company to be set up by Fengcheng and the Company pursuant to the Letter
Agreement;
"LETTER AGREEMENT" means the letter agreement between Fengcheng and the
Company dated 21 April 2004 and attached hereto as Exhibit A;
"OPINION" means the PRC legal opinion to be delivered to the Company
confirming that Fengcheng has complied with the Formal Approvals;
"ORDINARY SHARES" has the meaning specified in Recital A;
"PRC" means the People's Republic of China;
"SERIES A SHARES" has the meaning specified in Recital A;
"SUBSCRIPTION SHARES" has the meaning specified in Recital C and includes
the First Subscription Shares, the Second Subscription Shares, the Third
Subscription Shares and the Fourth Subscription Shares;
"SECOND COMPLETION" means completion of the sale and purchase of the
Second Subscription Shares as specified in Clauses 4.8 to 4.12;
"SECOND COMPLETION DATE" has the meaning specified in Clause 3.1;
"SECOND STAGE INVESTMENT" has the meaning specified in the Letter
Agreement;
"SECOND SUBSCRIPTION PRICE" has the meaning specified in Clause 2.2;
"SECOND SUBSCRIPTION SHARES" has the meaning specified in Clause 2.2;
"SHARES" means the shares of the Company;
"THIRD COMPLETION" means completion of the sale and purchase of the Third
Subscription Shares as specified in Clauses 4.13 to 4.18;
"THIRD COMPLETION DATE" has the meaning specified in Clause 3.1;
"THIRD STAGE INVESTMENT" has the meaning specified in the Letter
Agreement; and
"THIRD SUBSCRIPTION PRICE" has the meaning specified in Clause 2.3;
"THIRD SUBSCRIPTION SHARES" has the meaning specified in Clause 2.3; and
"US$" means the lawful currency of the United States of America for the
time being and from time to time.
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1.2 References to statutory provisions shall be construed as references
to those provisions as amended or re-enacted or as their application
is modified by other provisions (whether before or after the date
hereof) from time to time and shall include any provisions of which
they are re-enactments (whether with or without modification).
1.3 References herein to Clauses, Schedules and Exhibits are to clauses
in and schedules and exhibits to this Agreement unless the context
requires otherwise and the Schedules to this Agreement shall be
deemed to form part of this Agreement.
1.4 The expressions "the Company" and "the Purchaser" shall, where the
context permits, include their respective successors, personal
representatives and permitted assigns.
1.5 The headings are inserted for convenience only and shall not affect
the construction of this Agreement.
1.6 Unless the context requires otherwise, words importing the singular
include the plural and vice versa and words importing a gender
include every gender.
2. SUBCRIPTION OF SHARES
2.1 Subject to the terms of this Agreement, the Subscriber shall
subscribe for 2,000 Subscription Shares in cash at the subscription
price of Three Hundred Thousand Dollars United States Currency
(US$300,000) (the "FIRST SUBSCRIPTION PRICE"), and the Company shall
validly allot and issue 2,000 Subscription Shares (the "FIRST
SUBSCRIPTION SHARES") to the Subscriber on the First Completion Date
which shall be issued and allotted as fully paid and with the rights
and obligations as set out in the Articles. The First Subscription
Price for the First Subscription Shares shall be paid by the
Subscriber in full at the First Completion in the manner as set out
in Clause 3.1(a).
2.2 Subject to the terms of this Agreement, the Subscriber shall
subscribe for 2,000 Subscription Shares in cash at the subscription
price of Three Hundred Thousand Dollars United States Currency
(US$300,000) (the "SECOND SUBSCRIPTION PRICE"), and the Company
shall validly allot and issue 2,000 Subscription Shares (the "SECOND
SUBSCRIPTION SHARES") to the Subscriber on the Second Completion
Date which shall be issued and allotted as fully paid and with the
rights and obligations as set out in the Articles. The Second
Subscription Price for the Second Subscription Shares shall be paid
by the Subscriber in full at the Second Completion in the manner as
set out in Clause 3.1(b).
2.3 Subject to the terms of this Agreement, the Subscriber shall
subscribe for 2,000 Subscription Shares in cash at the subscription
price of Three Hundred Thousand Dollars United States Currency
(US$300,000) (the "THIRD SUBSCRIPTION PRICE"), and the Company shall
validly allot and issue 2,000 Subscription Shares (the "THIRD
SUBSCRIPTION SHARES") to the Subscriber on the Third Completion Date
which shall be issued and allotted as fully paid and with the rights
and obligations as set out in the Articles. The Third Subscription
Price for the Third Subscription Shares shall be paid by the
Subscriber in full at the Third Completion in the manner as set out
in Clause 3.1(a).
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2.4 Subject to the terms of this Agreement, the Subscriber shall
subscribe for 2,000 Subscription Shares in cash at the subscription
price of Three Hundred Thousand Dollars United States Currency
(US$300,000) (the "FOURTH SUBSCRIPTION PRICE"), and the Company
shall validly allot and issue 2,000 Subscription Shares (the "FOURTH
SUBSCRIPTION SHARES") to the Subscriber on the Fourth Completion
Date which shall be issued and allotted as fully paid and with the
rights and obligations as set out in the Articles. The Fourth
Subscription Price for the Fourth Subscription Shares shall be paid
by the Subscriber in full at the Fourth Completion in the manner as
set out in Clause 3.1(a).
3. CONSIDERATION
3.1 Subject to Clauses 3.2 and 3.3, the total consideration payable for
the Subscription Shares shall be US$1,200,000.00 (One Million Two
Hundred Thousand United States Dollars) to be paid as follows:
(a) US$300,000.00 shall be payable within two (2) days following
the date of the delivery of the Opinion to the Company (the
"FIRST PAYMENT DATE");
(b) US$300,000.00 shall be payable within seventy-five (75) days
after the incorporation of the Joint Venture Company (the
"SECOND PAYMENT DATE");
(c) US$300,000.00 shall be payable within six (6) months after the
Second Payment Date (the "THIRD PAYMENT DATE"); and
(d) US$300,000.00 shall be payable within six (6) months after the
Third Payment Date (the "FOURTH PAYMENT DATE").
3.2 (a) In the event that either: (i) the Company determines not to
proceed with the Second Stage Investment and the Company
notifies the Subscriber in writing of same prior to the Second
Payment Date; or (ii) the Subscriber notifies the Company in
writing prior to the Second Payment Date that it will not
proceed with the Second Completion, the Third Completion and
the Fourth Completion, the Company and the Subscriber shall
have no obligation to complete the subscriptions under the
Second Completion, the Third Completion and the Fourth
Completion and the Subscriber shall have no obligation to make
the payments under Clauses 3.1(b), 3.1(c) and 3.1(d);
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(b) In the event that either: (i) the Company determines not to
proceed with the Third Stage Investment and the Company
notifies the Subscriber in writing of same prior to the Third
Payment Date; or (ii) the Subscriber notifies the Company in
writing prior to the Third Payment Date that it will not
proceed with the Third Completion and the Fourth Completion,
the Company and the Subscriber shall have no obligation to
complete the subscriptions under the Third Completion and the
Fourth Completion and the Subscriber shall have no obligation
to make the payments under Clauses 3.1(c) and 3.1(d); and
(c) In the event that either: (i) the Company determines not to
proceed with the Fourth Stage Investment and the Company
notifies the Subscriber in writing of same prior to the Fourth
Payment Date; or (ii) the Subscriber notifies the Company in
writing prior to the Fourth Payment Date that it will not
proceed with the Fourth Completion, the Company and the
Subscriber shall have no obligation to complete the
subscription under the Fourth Completion and the Subscriber
shall have no obligation to make the payment under Clause
3.1(d).
3.3 (a) In the event that the Company does not proceed with the Second
Stage Investment and the Subscriber has completed the
subscription under the Second Completion, the Second
Subscription Shares shall be forthwith redeemed by the Company
for the consideration of Second Subscription Price and the
Subscriber shall have no obligation to complete the
subscriptions under the Third Completion and the Fourth
Completion;
(b) In the event that the Company does not proceed with the Third
Stage Investment and the Subscriber has completed the
subscription under the Third Completion, the Third
Subscription Shares shall be forthwith redeemed by the Company
for the consideration of Third Subscription Price and the
Subscriber shall have no obligation to complete the
subscription under the Fourth Completion; and
(c) In the event that the Company does not proceed with the Fourth
Stage Investment and the Subscriber has completed the
subscription under the Fourth Completion, the Fourth
Subscription Shares shall be forthwith redeemed by the Company
for the consideration of Fourth Subscription Price.
4. COMPLETION
4.1 The First Completion shall take place at offices of the Company's
Solicitors at 10:00 a.m. on the First Completion Date or at such
other place and time as shall be mutually agreed. The Company and
the Subscriber hereby authorise their respective solicitors to
complete the subscription of the First Subscription Shares on the
basis of cross undertakings insofar as it may be necessary to do so.
4.2 At the First Completion, the Company shall allot and issue to the
Subscriber, as fully paid, the First Subscription Shares free from
all charges, liens, encumbrances, equities or other third party
rights, claims or interests, and shall procure the Subscriber be
registered as holder of the First Subscription Shares in the
register of members of the Company.
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4.3 At the First Completion, the Company shall deliver to the Subscriber
a certified true copy of the board resolutions of the Company
approving the subscription of the First Subscription Shares in
accordance with the terms of this Agreement.
4.4 At the First Completion, the Ordinary Shareholder shall deliver to
the Subscriber:
(a) the Deed of Call Option duly executed by the Ordinary
Shareholder; and
(b) the Deed of Put Option duly executed by the Ordinary
Shareholder.
4.5 At the First Completion, the Subscriber shall deliver or cause to be
delivered to the Company:
(a) a bankers' draft drawn on a reputable bank in the United
States for US$300,000.00 in favour of the Company or as the
Company in writing may direct (the receipt of which shall be
an absolute discharge therefor);
(b) a letter applying for the First Subscription Shares at the
First Subscription Price signed by the Subscriber; and
(c) a certified true copy of the board resolutions of the
Subscriber approving the subscription of the First
Subscription Shares in accordance with the terms of this
Agreement.
4.6 At the First Completion, the Subscriber shall deliver or cause to be
delivered to the Ordinary Shareholder:
(a) the Deed of Call Option duly executed by the Subscriber; and
(b) the Deed of Put Option duly executed by the Subscriber.
4.7 The Company shall not be obliged to complete the First Completion
unless the Subscriber shall have fully complied with all of its
requirements in Clauses 4.5 and 4.6.
4.8 Subject to Clause 3.2(a), the Second Completion shall take place at
offices of the Company's Solicitors at 10:00 a.m. on the Second
Completion Date or at such other place and time as shall be mutually
agreed. The Company and the Subscriber hereby authorise their
respective solicitors to complete the subscription of the Second
Subscription Shares on the basis of cross undertakings insofar as it
may be necessary to do so.
4.9 At the Second Completion, the Company shall allot and issue to the
Subscriber, as fully paid, the Second Subscription Shares free from
all charges, liens, encumbrances, equities or other third party
rights, claims or interests, and shall procure the Subscriber be
registered as holder of the Second Subscription Shares in the
register of members of the Company.
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4.10 At the Second Completion, the Company shall deliver to the
Subscriber a certified true copy of the board resolutions of the
Company approving the subscription of the Second Subscription Shares
in accordance with the terms of this Agreement.
4.11 At the Second Completion, the Subscriber shall deliver or cause to
be delivered to the Company:
(a) a bankers' draft drawn on a reputable bank in the United
States for US$300,000.00 in favour of the Company or as the
Company in writing may direct (the receipt of which shall be
an absolute discharge therefor);
(b) a letter applying for the Second Subscription Shares at the
Second Subscription Price signed by the Subscriber; and
(c) a certified true copy of the board resolutions of the
Subscriber approving the subscription of the Second
Subscription Shares in accordance with the terms of this
Agreement.
4.12 The Company shall not be obliged to complete the Second Completion
unless the Subscriber shall have fully complied with all of its
requirements in Clause 4.11.
4.13 Subject to Clause 3.2(b), the Third Completion shall take place at
offices of the Company's Solicitors at 10:00 a.m. on the Third
Completion Date or at such other place and time as shall be mutually
agreed. The Company and the Subscriber hereby authorise their
respective solicitors to complete the subscription of the Third
Subscription Shares on the basis of cross undertakings insofar as it
may be necessary to do so.
4.14 At the Third Completion, the Company shall allot and issue to the
Subscriber, as fully paid, the Third Subscription Shares free from
all charges, liens, encumbrances, equities or other third party
rights, claims or interests, and shall procure the Subscriber be
registered as holder of the Third Subscription Shares in the
register of members of the Company.
4.15 At the Third Completion, the Company shall deliver to the Subscriber
a certified true copy of the board resolutions of the Company
approving the subscription of the Third Subscription Shares in
accordance with the terms of this Agreement.
4.16 At the Third Completion, the Subscriber shall deliver or cause to be
delivered to the Company:
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(a) a bankers' draft drawn on a reputable bank in the United
States for US$300,000.00 in favour of the Company or as the
Company in writing may direct (the receipt of which shall be
an absolute discharge therefor);
(b) a letter applying for the Third Subscription Shares at the
Third Subscription Price signed by the Subscriber; and
(c) a certified true copy of the board resolutions of the
Subscriber approving the subscription of the Third
Subscription Shares in accordance with the terms of this
Agreement.
4.17 The Company shall not be obliged to complete the Third Completion
unless the Subscriber shall have fully complied with all of its
requirements in Clause 4.16.
4.18 Subject to Clause 3.2(c), the Fourth Completion shall take place at
offices of the Company's Solicitors at 10:00 a.m. on the Fourth
Completion Date or at such other place and time as shall be mutually
agreed. The Company and the Subscriber hereby authorise their
respective solicitors to complete the subscription of the Fourth
Subscription Shares on the basis of cross undertakings insofar as it
may be necessary to do so.
4.19 At the Fourth Completion, the Company shall allot and issue to the
Subscriber, as fully paid, the Fourth Subscription Shares free from
all charges, liens, encumbrances, equities or other third party
rights, claims or interests, and shall procure the Subscriber be
registered as holder of the Fourth Subscription Shares in the
register of members of the Company.
4.20 At the Fourth Completion, the Company shall deliver to the
Subscriber a certified true copy of the board resolutions of the
Company approving the subscription of the Fourth Subscription Shares
in accordance with the terms of this Agreement.
4.21 At the Fourth Completion, the Subscriber shall deliver or cause to
be delivered to the Company:
(a) a bankers' draft drawn on a reputable bank in the United
States for US$300,000.00 in favour of the Company or as the
Company in writing may direct (the receipt of which shall be
an absolute discharge therefor);
(b) a letter applying for the Fourth Subscription Shares at the
Fourth Subscription Price signed by the Subscriber; and
(c) a certified true copy of the board resolutions of the
Subscriber approving the subscription of the Fourth
Subscription Shares in accordance with the terms of this
Agreement.
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4.22 The Company shall not be obliged to complete the Fourth Completion
unless the Subscriber shall have fully complied with all of its
requirements in Clause 4.21.
5. FURTHER OBLIGATIONS OF THE COMPANY AND THE SUBSCRIBER
5.1 The Company shall procure that the business of the Company has and
is being operated in a manner consistent with past practices during
the period from the date of this Agreement until the Fourth
Completion.
5.2 Provided that the Subscriber has not given notice not to proceed
with either the Second Completion, Third Completion, or Fourth
Completion under Clauses 3.2(a), 3.2(b) or 3.2(c) and the Subscriber
is not in default under this Agreement, the Company shall not,
either directly or indirectly through any representatives or
otherwise, solicit or entertain any offers from, negotiate with or
in any manner encourage, discuss, accept or consider any proposal
of, any third party relating to the subscription of any shares of
the Company or any subsidiary of the Company after the date hereof
and until the Fourth Completion,.
5.3 Save as otherwise provided in this Agreement, the Deed of Call
Option and the Deed of Put Option, the Subscriber and the Ordinary
Shareholder each covenant to the other not to sell, transfer,
charge, incumber, grant options over or otherwise dispose of any of
the Shares or any beneficial interest in any of the Shares now owned
or to be acquired after the date of this Agreement by them to any
person without prior written consent of the other shareholders of
the Company.
5.4 The Subscriber covenants to the Company that it shall not convert
any of the Series A Shares unless and until the Third Completion has
been completed and the Subscriber is the holder in aggregate of
6,000 Series A Shares.
6. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
6.1 The Company represents, warrants and undertakes to the Subscriber in
the terms set out in Schedule 1.
6.2 The Subscriber represents, warrants and undertakes to the Company as
follows:
(a) The Subscriber has due and sufficient right and authority to
enter into this Agreement on the terms and conditions herein
set forth, the Deed of Call Option, and the Deed of Put
Option; and
(b) The Subscriber is quoted on the OTC Bulletin Board.
6.3 The representations, warranties and undertakings set out in each
paragraph of Schedule 1 and this Clause 6 shall be deemed to be
repeated as at Completion as if all references therein to the date
of this Agreement were references to the date of Completion.
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7. ACCESS TO INFORMATION
7.1 The Company shall give and shall procure that the Subscriber and any
persons authorised by it will be given all such information relating
to the Company and such access to the premises and all books, title
deeds, records, accounts and other documentation of the Company as
the Subscriber may reasonably request.
7.2 The Subscriber hereby undertakes that it will not prior to Fourth
Completion, save as required by law, divulge any confidential
information relating to the Company obtained by it pursuant to this
Clause to any person other than its own officers, employees or
professional advisers.
8. GENERAL
8.1 The Subscriber shall pay to the Company on or before the First
Completion the amount of ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars
(US$100,000.00) a fee for services performed by the Company in
connection with the preparation, execution and delivery of the
Letter Agreement and this Agreement, the issuance of the Series A
Shares and other related matters. Otherwise, each party shall pay
his or its own costs and disbursements of and incidental to this
Agreement.
8.2 Each notice, demand or other communication given or made under this
Agreement 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 Company:
-------------------------------------------------
Fax Number:
------------------------------------
Attention:
------------------------------------
To the Subscriber:
-------------------------------------------------
Fax Number:
------------------------------------
Attention:
------------------------------------
To the Ordinary Shareholder:
------------------------------------
Fax Number:
----------------------------
Attention:
----------------------------
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.
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8.3 No failure or delay by the Subscriber in exercising any right, power
or remedy under this Agreement 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 the
Subscriber of any breach by the Company 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
Agreement is or becomes illegal, invalid or unenforceable in any
respect, the legality, validity and enforceability of the remaining
provisions of this Agreement shall not be affected or impaired
thereby.
8.4 This Agreement (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 Agreement 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 Company, the Subscriber and the Ordinary Shareholder 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 Agreement.
8.7 This Agreement shall be governed by and construed in accordance with
the laws of the 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 Agreement shall be binding on and enure to the benefit of the
parties hereto and their respective successors.
8.9 Each of the Company and the Purchaser is expressly permitted to
assign or transfer its rights or obligations under this Agreement to
one of their Group Companies provided that such party assigning or
transferring such rights or obligations shall notify the other
parties to this Agreement of the assignment or transfer prior to
such assignment or transfer. Except as permitted herein, no party
hereto may assign or transfer any of its rights or obligations under
this Agreement.
8.10 This Agreement 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 Agreement shall only
take effect upon the execution by each of the parties hereto. This
Agreement may be executed by the parties in original or telecopy
produced by fax machine or other means of electronic communication
producing a printed copy.
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8.11 The Subscriber hereby irrevocably appoints _______________________
as its agent to receive and acknowledge on its behalf service of any
writ, summons, order, judgement or other notice of legal process in
the State of Nevada, United States of America . If for any reason
the agent named above (or its successor) no longer serves as agent
of the Subscriber for this purpose, the Subscriber shall promptly
appoint a successor agent and notify the Company and the Ordinary
Shareholder thereof. The Subscriber agrees that any such legal
process shall be sufficiently served on it if delivered to such
agent for service at its address for the time being in the State of
Nevada, United States of America whether or not such agent gives
notice thereof to the Subscriber.
8.12 The Company hereby irrevocably appoints _________________________
as their agent to receive and acknowledge on their behalf, service
of any writ, summons, order, judgment or other notice of legal
process in the State of Nevada, United States of America. If for any
reason the agent named above or its successor no longer serves as
agent of the Company for this purpose, the Company shall promptly
appoint a successor agent and notify the Subscriber and the Ordinary
Shareholder thereof. The Company agrees that any such legal process
shall be sufficiently served on them if delivered to such agent for
service at its address for the time being in the State of Nevada,
United States of America, whether or not such agent gives notice
thereof to the Company.
8.13 The Ordinary Shareholder hereby irrevocably appoints _____________
as his or her agent to receive and acknowledge on his or her behalf,
service of any writ, summons, order, judgment or other notice of
legal process in the State of Nevada, United States of America. If
for any reason the agent named above or his or her successor no
longer serves as agent of the Ordinary Shareholder for this purpose,
the Ordinary Shareholder shall promptly appoint a successor agent
and notify the Subscriber and the Company thereof. The Ordinary
Shareholder agrees that any such legal process shall be sufficiently
served on them if delivered to such agent for service at its address
for the time being in the State of Nevada, United States of America,
whether or not such agent gives notice thereof to the Ordinary
Shareholder.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF this Agreement has been executed on the day and year first
above written.
SIGNED by )
)
for and on behalf of )
Company )
in the presence of: )
)
SIGNED by )
)
for and on behalf of )
Keygold Corporation )
in the presence of: )
)
SIGNED by )
)
for and on behalf of )
[o] )
in the presence of: )
)
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EXHIBIT A
THE LETTER AGREEMENT
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EXHIBIT B
DEED OF CALL OPTION
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EXHIBIT C
DEED OF PUT OPTION
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SCHEDULE 1
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS OF THE COMPANY
1. The Company has been duly incorporated and is validly existing under the
laws of the Province of British Columbia, Canada and has full power,
authority and legal right to own its assets and carry on its business and
is not in receivership or liquidation, it has taken no steps to enter
liquidation and no petition has been presented for winding up the Company
and there are no grounds on which a petition or application could be based
for the winding up or appointment of a receiver of the Company.
2. The Company has due and sufficient right and authority to enter into this
Agreement on the terms and conditions herein set forth.
3. The Company is duly authorized to allot and issue the Subscription Shares
free and clear of any lien, charge or encumbrance whatsoever to the
Subscriber.
4. The Subscription Shares shall constitute 80% of the issued shares in the
capital of the Company.
5. Except in accordance with this Agreement, the Company has never reduced,
repaid or purchased any of its share capital.
6. Except in respect of this Agreement, the Deed of Call Option and the Deed
of Put Option, there are no options or other agreements outstanding which
call for the issue of, sale of or accord to any person, corporation, or
other entity the right to call for the issue or transfer of any shares in
the capital of the Company or the right to require the creation of any
mortgage, charge, pledge, lien or other security or encumbrance over the
Subscription Shares.
7. All information contained in this Agreement (including the recitals) is
true and accurate.
8. All written information given to the Subscriber and its professional
advisers by the Company, the officers and employees of the Company during
the negotiations prior to the Completion Date was when given, and is at
the date hereof, true and accurate and there is no fact, matter or
circumstance which has not been disclosed in writing to the Subscriber or
its professional advisers which renders any such information untrue,
inaccurate or misleading or which might reasonably affect the willingness
of the Subscriber to proceed with the purchase of the Subscription Shares
on the terms of this Agreement.
9. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby will not result in the breach or
cancellation or termination of any of the terms or conditions of or
constitute a default under any agreement, commitment or other instrument
to which the Company is a party or by which the Company or its property or
assets may be bound or affected or violate any law or any rule or
regulation of any administrative agency or governmental body or any order,
writ, injunction or decree of any court, administrative agency or
governmental body affecting the Company.
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10. No consent, approval, order, or authorization of, or registration,
declaration, or filing with, any governmental authority is required in
connection with the execution and delivery of this Agreement by the
Company, or the consummation of the transactions contemplated hereby. No
consent of any third party is necessary to permit the consummation of the
transactions contemplated hereby.
11. As at Completion, the Company shall hold all licenses, franchises,
permits, and other governmental authorizations necessary and material to
the conduct of its business. Such licenses, franchises, permits, and other
governmental authorizations are valid, and the Company has not received
any notice that any governmental authority intends to cancel, terminate,
or not renew any such license, franchise, permit, or other governmental
authorization.
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