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Exhibit 10.1
GOLD RESOURCE CORPORATION
SUBSCRIPTION AGREEMENT FOR COMMON
STOCK
TO: GOLD
RESOURCE CORPORATION
The Subscriber (as hereinafter defined) hereby
irrevocably subscribes for and agrees to purchase from Gold
Resource Corporation (the “ Corporation ”) that
number of shares of common stock of the Corporation (the
“Shares ”) set out
below at a price of US$
_____ per Share. The Subscriber agrees to be bound by
the terms and conditions set forth in the attached “Terms
and Conditions of Subscription for Common Stock”
including, without limitation, the representations, warranties
and covenants set forth therein. The Subscriber further agrees,
without limitation, that the Corporation may rely upon the
Subscriber’s representations, warranties and covenants
contained in such documents.
SUBSCRIPTION AND SUBSCRIBER
INFORMATION
Please print all information (other
than signatures), as applicable, in the space provided
below
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Number of Shares (“Shares”)
:
x
US$
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(Name of Subscriber)
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Account Reference (if applicable):
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By:
Authorized
Signature
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Aggregate Subscription Cost:$
(the “
Subscription Amount ”
)
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(Official Capacity or Title – if the Subscriber is
not an individual)
(Name of individual whose signature appears above if
different than the name of the subscriber printed above.)
(Subscriber’s Address)
(Telephone
Number)
(Email Address)
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Please complete if purchasing as agent or
trustee for a principal (beneficial purchaser) (a
“Disclosed Principal”) and not purchasing as trustee
or agent for accounts fully managed by it.
_
(Name of Disclosed Principal)
(Address of Disclosed Principal)
(Account Reference, if applicable)
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Account Registration Information
:
(Name)
(Account Reference, if applicable)
(Address, including Postal or Zip Code)
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Delivery Instructions as set forth
below :
(Name)
_
(Account Reference, if applicable)
(Address)
(Contact
Name)
(Telephone Number)
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Number and kind of securities of the Corporation held,
directly or indirectly, if any:
_
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TERMS AND CONDITIONS OF SUBSCRIPTION FOR SHARES
This
Subscription Agreement is entered into between Gold Resource
Corporation (“Corporation”) and the undersigned
individual or entity that has subscribed for Shares of common stock
of the Corporation (“Subscriber”).
ARTICLE 1 — SUBSCRIPTION AND DESCRIPTION OF
SHARES
| 1.1 |
Subscription for Shares |
The Subscriber hereby confirms
its subscription for and offer to purchase the Shares from the
Corporation, on and subject to the terms and conditions set out in
this Subscription Agreement, for the Subscription Amount, which is
payable as described in Article 2 hereto.
| 1.2 |
Acceptance and Rejection of Subscription by the
Corporation |
The Subscriber acknowledges and
agrees that the Corporation reserves the right, in its absolute
discretion, to reject this subscription, in whole or in part, at
any time prior to the Closing Time. If this subscription is
rejected in whole, any checks or other forms of payment delivered
to the Corporation representing the Subscription Amount will be
promptly returned to the Subscriber without interest or deduction.
If this subscription is accepted only in part, a check representing
any refund of the Subscription Amount for that portion of the
subscription for the Shares which is not accepted, will be promptly
delivered to the Subscriber without interest or
deduction.
ARTICLE 2 — CLOSING
The initial delivery and sale
of the Shares and payment of the Subscription Amount (the “
Initial Closing ”) will be completed at the offices of
the Corporation’s counsel, Dufford & Brown, P.C. in
Denver, Colorado at 10:00 a.m. (Denver time) (the “
Closing Time ”) on _____________, 2007 or such other
place, date or time as the Corporation and the Subscribers may
agree (the “ Closing Date ”). At that place and
time, and subject to the conditions set forth in Section 2.2 below,
the Corporation shall deliver or cause to be delivered certificates
representing the Shares that have been subscribed for up to that
date against payment by the Subscriber for the Shares. The
Corporation may hold additional closings for the delivery and sale
of additional Shares after the Initial Closing in its
discretion.
The Subscriber understands and
agrees that the sale of the Shares is being made by the Corporation
on a “best efforts” basis, that there is no minimum
number of shares that must be sold in the offering and that the
proceeds of the sale will immediately be deposited in the
Corporation’s bank account and available for all valid
corporate purposes.
| 2.2 |
Conditions of Closing |
The Subscriber acknowledges and
agrees that the obligations of the Corporation hereunder are
conditional on the accuracy of the representations and warranties
of the Subscriber contained in this Subscription Agreement as of
the date of this Subscription Agreement, and as of the Closing Time
as if made at and as of the Closing Time, and the fulfillment of
the following additional conditions as soon as possible and in any
event not later than the Closing Time:
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(a) |
payment by the Subscriber of the Subscription Amount by
certified check or bank draft in United States dollars payable to
“Gold Resource Corporation”; and |
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(b) |
the Subscriber having properly completed, signed and delivered
this Subscription Agreement to the Corporation at Gold Resources
Corporation, 222 Milwaukee Street, Suite 301, Denver, Colorado
80206. |
ARTICLE 3 — REPRESENTATIONS AND WARRANTIES OFTHE
CORPORATION
| 3.1 |
Representations, Warranties and Covenants of the
Corporation |
The Corporation hereby
represents and warrants to, and covenants with, the Subscriber as
follows and acknowledges that the Subscriber is relying on such
representations and warranties in connection with the transaction
contemplated hereby:
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(a) |
The Corporation and its subsidiaries have been duly
incorporated and are in good standing under the laws of their
respective jurisdictions, and are current and up-to-date with all
filings required to be made by them in such jurisdiction, have all
requisite corporate power and authority and are duly qualified and
possess all certificates, authorizations, permits and licences
issued by the appropriate state, municipal, or federal regulatory
agencies or bodies necessary (and has not received or is aware of
any modification or revocation to such licences, authorizations,
certificates or permits) to carry on its business as now conducted
and to own its properties and assets and the Corporation and its
subsidiaries have all requisite corporate power and authority to
carry out their obligations under this Subscription
Agreement. |
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(b) |
There has been no adverse material change to the Corporation
(actual, proposed or prospective, whether financial or otherwise)
in the business, affairs, operations, assets, liabilities
(contingent or otherwise) or shareholders’ equity of the
Corporation since June 30, 2007, which has not been generally
disclosed to the public and, in all material respects, the business
of the Corporation has been carried on in the usual and ordinary
course consistent with past practice since June 30, 2007 to the
extent that such past practice is consistent with the current
business direction of the Corporation. |
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(c) |
This Subscription Agreement when executed and delivered on
behalf of the Corporation, will have been duly authorized, executed
and delivered by the Corporation and will constitute a valid and
binding obligation of the Corporation enforceable against the
Corporation in accordance with its terms except as limited by (a)
applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and other similar laws affecting the rights
of creditors generally; (b) the requirement that each party act in
good faith with regard to their rights and obligations under this
Subscription Agreement; and (c) general principles of
equity. |
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(d) |
As of the close of business on August 8, 2007, the authorized
capital of the Corporation consists of 60,000,000 shares of common
stock and 5,000,000 shares of preferred stock, of which 28,249,552
shares of common stock are issued and outstanding as fully paid and
non-assessable. |
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(e) |
The common stock currently trades in the Over-the-Counter
market and is quoted on the Bulletin Board system maintained by the
National Association of Securities Dealers, Inc. and no order
ceasing or suspending trading in any securities of the Corporation
or the trading of any of the Corporation’s issued securities
is currently outstanding and no proceedings for such purpose are,
to the knowledge of the Corporation, pending or
threatened. |
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(f) |
The Corporation is not, nor to the knowledge of the
Corporation, is any other person in default in the observance or
performance of any term, covenant or obligation to be performed by
it under any debt instrument, material agreement, contract,
agreement or arrangement to which the Corporation is a party and no
event has occurred which with notice or lapse of time or both would
constitute such a default and all such contracts, agreements and
arrangements are in good standing. |
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(g) |
The Corporation and its subsidiaries hold either freehold
title, mining leases, mining claims or other conventional property,
proprietary or contractual interests or rights, recognized in the
jurisdiction in which a particular property is located in respect
of the ore bodies and minerals located in properties in which the
Corporation and its subsidiaries have an interest under valid,
subsisting and enforceable title documents or other recognized and
enforceable agreements or instruments, which are currently
sufficient to permit the Corporation and its subsidiaries to
explore the minerals relating thereto, and all such property,
leases or claims and all property, leases or claims in which the
Corporation or the subsidiaries have any interest or right have
been validly located and recorded in accordance with all applicable
laws and are valid and subsisting. |
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(h) |
There are no actions, suits, proceedings or inquiries pending
or, to the knowledge of the Corporation threatened against or
affecting the Corporation or its subsidiaries or their property or
assets at law or in equity or before or by any federal, municipal
or other governmental department, court, commission, board, bureau,
agency or instrumentality. |
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(i) |
There is and has been no failure on the part of the Corporation
or any of the Corporation’s directors or officers, in their
capacities as such, to comply in all material respects with any
applicable provision of the Sarbanes-Oxley Act of 2002 and the
rules and regulations promulgated in connection therewith,
including Section 402 related to loans and Sections 302 and 906
related to certifications. |
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(j) |
Promptly following the closing of the purchase and sale of the
Shares contemplated by this Subscription Agreement, the Corporation
shall prepare and file with the SEC a registration statement on
Form S-l, S-3 or SB-2 (or, if Form S-l, S-3 or SB-2 is not then
available to the Corporation, on such form of registration
statement as is then available to effect a registration for resale
of the Shares (“Registration Statement”)), covering the
resale of the Shares; provided, however, that if prior to the
filing of the Registration Statement, the provisions of Rule 144 of
the Securities Act of 1933, as amended (the “1933 Act”)
have been amended to reduce to six months or less the holding
period after which the Shares may be sold in compliance with that
Rule, the Corporation shall not be obligated to file such
Registration Statement and shall be entitled to withdraw a
Registration Statement that has previously been filed if it has not
yet been declared effective. Such Registration Statement also shall
cover, to the extent allowable under the 1933 Act and the rules
promulgated thereunder (including Rule 416), such indeterminate
number of additional shares of Common Stock resulting from stock
splits, stock dividends or similar transactions with respect to the
Shares. |
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(k) |
The Corporation shall pay all expenses associated with the
registration, including filing and printing fees, counsel and
accounting fees and expenses, and State “Blue Sky” fees
and expenses. |
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(l) |
The Corporation shall use its commercially reasonable efforts
to have the Registration Statement declared effective by the SEC as
soon as practicable. The Corporation shall notify the Subscriber by
facsimile or e-mail as promptly as practicable, and in any event,
within three (3) business days, after the Registration Statement is
declared effective and shall simultaneously provide the Subscriber
with copies of any related prospectus to be used in connection with
the sale or other disposition of the securities covered
thereby. |
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ARTICLE 4 —ACKNOWLEDGEMENTS, COVENANTS, REPRESENTATIONS
AND WARRANTIES OF THE SUBSCRIBER
| 4.1 |
Acknowledgements, Representations, Warranties and Covenants
of the Subscriber |
The Subscriber, on its own
behalf and, if applicable, on behalf of others for whom it is
acting hereunder, hereby represents and warrants to, and covenants
with, the Corporation as follows and acknowledges that the
Corporation is relying on such representations and warranties in
connection with the transactions contemplated herein:
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(a) |
The Subscriber certifies that it is resident in the
jurisdiction set out on the face page of this Subscription
Agreement. Such address was not created and is not used solely for
the purpose of acquiring the Shares and the Subscriber was
solicited to purchase in such jurisdiction. |
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(b) |
If the Subscriber is not a person in the United States nor a
U.S. Person (as defined in Rule 902(k) of Regulation S under the
U.S. Securities Act) or not purchasing the Shares on behalf of a
person in the United States or a U.S. Person: |
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(i) |
neither the Subscriber nor any disclosed principal is a U.S.
Person nor subscribing for the Shares for the account of a U.S.
Person or for resale in the United States and the Subscriber
confirms that the Shares have not been offered to the Subscriber in
the United States and that this Subscription Agreement has not been
signed in the United States; |
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(ii) |
the Subscriber acknowledges that the Shares have not been
registered under the U.S. Securities Act of 1933, as amended (the
“Securities Act”) and may not be offered or sold in the
United States or to a U.S. Person unless the securities are
registered under the U.S. Securities Act and all applicable state
securities laws or an exemption from such registration requirements
is available, and further agrees that hedging transactions
involving such securities may not be conducted unless in compliance
with the U.S. Securities Act; |
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(iii) |
the Subscriber and if applicable, the disclosed principal for
whom the Subscriber is acting, understands that the Corporation is
the seller of the Shares and that, for purposes of Regulation S, a
“distributor” is any underwriter, dealer or other
person who participates, pursuant to a contractual arrangement, in
the distribution of securities sold in reliance on Regulation S and
that an “affiliate” is any partner, officer, director
or any person directly or indirectly controlling, controlled by or
under common control with any person in question. Except as
otherwise permitted by Regulation S, the Subscriber and if
applicable, the disclosed principal for whom the Subscriber is
acting, agrees that it will not, during a one year distribution
compliance period, act as a distributor, either directly or through
any affiliate, or sell, transfer, hypothecate or otherwise convey
the Shares or underlying securities other than to a non-U.S.
Person; |
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(iv) |
the Subscriber and if applicable, the disclosed principal for
whom the Subscriber is acting, acknowledges and understands that in
the event the Shares are offered, sold or otherwise transferred by
the Subscriber or if applicable, the disclosed principal for whom
the Subscriber is acting, to a non-U.S Person prior to the
expiration of a one year distribution compliance period, the
purchaser or transferee must agree not to resell such securities
except in accordance with the provisions of Regulation S, pursuant
to registration under the Securities Act, or pursuant to an
available exemption from registration; and must further agree not
to engage in hedging transactions with regard to such securities
unless in compliance with the Securities Act; and |
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(v) |
neither the Subscriber nor any disclosed principal will offer,
sell or otherwise dispose of the Shares in the United States or to
a U.S. Person unless (A) the Corporation has consented to such
offer, sale or disposition and such offer, sale or disposition is
made in accordance with an exemption from the registration
requirements under the Securities Act and the securities laws of
all applicable states of the United States or (B) the SEC has
declared effective the Registration Statement in respect of such
securities. |
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(c) |
If the Subscriber is a person in the United States or a U.S.
person, or is purchasing the Shares on behalf of a person in the
United States or a U.S. person, the Subscriber: |
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(i) |
or each beneficial purchaser as to which the Subscriber
exercises sole investment discretion for whom it is purchasing, is
acquiring the Shares to be held for investment only and not with a
view to resale, distribution or other disposition of the Shares and
without any present intention of selling, offering to sell or
otherwise disposing of or distributing such securities, or any
portion thereof; |
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(ii) |
is aware that the Shares have not been registered under the
Securities Act and the sale contemplated hereby is being made in
reliance on a private placement exemption to Accredited Investors
(as defined in Rule 501 of the Securities Act); |
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(iii) |
the Subscriber is an Accredited Investor within the meaning of
Rule 501 of Regulation D of the Securities Act; or each beneficial
purchaser as to which the Subscriber exercises sole investment
discretion for whom it is purchasing is an Accredited
Investor; |
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(iv) |
if the undersigned is the Subscriber, he or she is making the
above statement based on personal knowledge of his or her financial
situation and has reviewed personal financial documentation with an
accountant, financial advisor or other financial professional, if
necessary, to determine that the above statement is true; or (b) if
the undersigned is other than the Subscriber, he or she is making
the above statement based on a review, if necessary, of the
financial statements of the Subscriber for the most recently
completed financial year and any interim financial statements
prepared since the end of such financial year and has undertaken
such other review and due diligence necessary to determine and
certify that the Subscriber is an “Accredited Investor”
as that term is defined in Rule 501(a) of the U.S. Securities
Act; |
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(v) |
is not purchasing the Shares as a result of any “general
solicitation or general advertising” (as such term is defined
in Regulation D), including any advertisement, article, notice or
other communication published in any newspaper, magazine, or
similar media or broadcast over television or radio, or any seminar
or meeting where the attendees have been invited by general
solicitation or general advertising; |
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(vi) |
understands that if it decides to offer, sell, pledge or
otherwise transfer the Shares, and, prior to the Registration
Statement becoming effective, the Shares may be offered, sold or
otherwise transferred only: (A) to the Corporation; (B) in
compliance with Rule 904 under Regulation S, (C) in accordance with
Rule 144 or Rule 144A under the U.S. Securities Act, if available,
and in compliance with applicable local laws and regulations, or
(D) in a transaction that does not otherwise require registration
under the Securities Act or any applicable state securities laws if
an opinion of counsel, of recognized standing reasonably
satisfactory to the Corporation has been provided to the
Corporation to that effect. |
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(d) |
If the Subscriber or any disclosed principal is not a person
described in paragraphs 4.1(b) or 4.1(c) above, the subscription
for the Shares by the Subscriber does not contravene any of the
applicable securities legislation in the jurisdiction in which the
Subscriber resides and does not give rise to any obligation of the
Corporation to prepare and file a prospectus or similar document or
to register the Shares or to be registered with, or to file any
report or notice with, any governmental or regulatory
authority. |
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(e) |
The execution and delivery of this Subscription Agreement, the
performance and compliance with the terms hereof, the subscription
for the Shares and the completion of the transactions described
herein by the Subscriber will not result in any material breach
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