Exhibit 6.a. 10.1
Form of Subscription Agreement
SUBSCRIPTION AGREEMENT
(Non-United States Purchasers)
To: U.S. Gold Corporation
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The undersigned (the "Purchaser") hereby irrevocably
subscribes for and agrees to purchase from U.S. Gold
Corporation (the "Company") on the terms and conditions
set forth in this subscription agreement ("Agreement")
that number of shares of par value US$0.10 par value
common stock of the Company (the "Shares") set forth in
Clause 17 below. Each Share will be issued at a price
of US$0.40 per Share.
1. Conditions of Purchase
The Purchaser acknowledges that the Company's obligation
to sell the Shares to the Purchaser is subject to, among
other things, the conditions that:
(a) the Purchaser executes and returns to the Company
all documents required by this Agreement, including
information demonstrating that the Purchaser is an
"accredited Purchaser", as such term is defined in
Regulation D promulgated by the United States Commission
under the Shares Act of 1933, as amended (the "1933
Act");
(b) all necessary regulatory approvals, if any, being
obtained by the Company prior to the Closing; and
(c) the representations and warranties of the Purchaser
remain true and correct as at the Closing.
2. Delivery and Payment
The Purchaser agrees that the following shall be
delivered to the Company prior to the Closing:
(a) one completed and duly signed copy of this
Agreement;
(b) all other documentation as may be required by
applicable Shares legislation, including a duly
completed Private Placement Questionnaire and
Undertaking in the form of Schedule "B" hereto; and
(c) a certified cheque, bank draft or evidence of a wire
transfer in United States dollars funds to IBK Capital
Corp., as agent for the Company, representing the
Aggregate Purchase Price shown in Clause 17 hereof.
Details concerning the payment procedure are set out in
Schedule "A".
The closing of the Offering pursuant to which this
Subscription is made may be effected by means of a
series of closings, each such closing involving the
Company and one or more purchasers of Shares. Delivery
by the Company of the certificates representing the
Shares, and payment for the Shares by the Purchaser,
shall be completed at a closing (the "Closing") to be
held at such time and place as may be mutually agreed
upon by the Company and the Purchaser (the date of the
Closing being hereinafter called the "Closing Date").
If the Purchaser chooses not to attend the Closing to
receive the Share certificate(s), then the Company shall
deliver such certificates to the Purchaser at the
address set forth below, promptly after the Closing.
3. Purchaser's Acknowledgements
The Purchaser acknowledges and agrees that:
(a) the sale and delivery of the Shares to the Purchaser
is conditional upon such sales being made pursuant to
the exemption from registration under the Securities Act
of 1933, as amended (the "1933 Act") as set forth in
Regulation D ("Regulation D") promulgated thereunder;
(b) the Company will be required to disclose to the
Commission, and thereby though public access to ▇▇▇▇▇
filing, as to the identity of the beneficial purchasers
of the Shares;
(c) the Shares have not been registered under the 1933
Act, by reason of their issuance in a transaction that
does not require registration under the 1933 Act (based
in part on the accuracy of the representations and
warranties of Purchaser hereto), and that such Shares
must be held unless a subsequent disposition is
registered under the 1933 Act or is exempt from such
registration.
(d) the Shares shall bear the following legend, unless
same shall have been included in an effective
registration statement under the 1933 Act:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THESE SHARES MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH SECURITIES
ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED;
(e) the offer to sell the Shares were directly
communicated to the Purchaser and at no time was the
Purchaser presented with or solicited by any leaflet,
newspaper or magazine article, radio or television
advertisement, or any other form of general advertising
or solicited or invited to attend a promotional meeting
otherwise than in connection and concurrently with such
communicated offer;
(f) no agency, governmental authority, regulatory body,
stock exchange or other entity has made any finding or
determination as to the merit for investment of, nor
have any such agencies or governmental authorities made
any recommendation or endorsement with respect to, the
Shares;
(g) Purchaser has been furnished with copies of the
Company's Form 10-KSB/A for the year ended December 31,
2001 as filed with the Securities and Exchange
Commission (the "Commission") together with all
subsequently filed forms 10-QSB, 8-K, and other publicly
available filings made with the Commission and has
received from the Company such other information
concerning its operations, financial condition and other
matters and Purchaser has considered all factors the
Purchaser deems material in deciding on the advisability
of investing in the Shares;
(h) the Shares are being offered for sale only on a
"private placement" basis;
(i) the Shares are being acquired by the Purchaser in
good faith solely for the Purchaser's own account, for
investment purposes only, and are not being purchased
with a view to, or for the resale or distribution
thereof; and
(j) the representations, warranties and covenants
contained in this subscription agreement are made by the
Purchaser with the intent that they may be relied upon
by the Company in determining the Purchaser's
eligibility to purchase the Shares, and the Purchaser
hereby agrees to indemnify the Company against all
losses, claims, costs, expenses and damages or
liabilities which it may suffer or incur caused or
arising from its reliance thereon. The Purchaser
further agrees that by accepting the Shares the
Purchaser shall be representing and warranting that the
foregoing representations and warranties are true as at
the Closing with the same force and effect as if they
had been made by the Purchaser at the Closing and that
they shall survive the Closing Date and shall continue
in full force and effect notwithstanding any subsequent
disposition of the Shares.
4. Purchaser's Representations and Warranties
The Purchaser hereby represents, warrants and covenants
to the Company (which representations, warranties and
covenants shall survive Closing and continue in full
force and effect) that:
(a) the Purchaser is not a resident of the United States
of America and that the Purchaser was offered the Shares
outside of the United States of America;
(b) the Purchaser is an "accredited purchaser" as that
term is defined in Regulation D promulgated by the 1933
Act by virtue of satisfying the indicated criterion in
Schedule "B";
(c) the Purchaser acknowledges that in addition to
compliance with the restrictions on resale applicable
under applicable rules of the Commission, the Purchaser
may be subject to various reporting requirements with
the Commission if Purchaser is a 10% owner of the issued
and outstanding capitalization of the Company;
(d) the Purchaser will execute and deliver all
documentation to the Company as may be required by
applicable rules, regulations and policies of the
Commission and to permit the purchase of the Shares on
the terms herein set forth;
(e) this agreement has been duly authorized, executed
and delivered by, and constitutes a legal, valid and
binding agreement of, the Purchaser subject to:
(i) any applicable bankruptcy, insolvency or other laws
affecting the enforcement of creditors' rights
generally; and
(ii) general principles of equity, including that the
granting of equitable remedies is within the discretion
of a court of competent jurisdiction;
(f) the Purchaser is not, directly or indirectly, the
holder of any common shares in the capital of the
Company other than the number of common shares of the
Company disclosed in Clause 17(d).
5. Company's Representations and Warranties
The Company represents and warrants and agrees with the
Purchaser that:
(a) Due Incorporation. The Company has been organized
under the laws of the State of Colorado, United States
of America. The Company and each of its subsidiaries,
if any, is a corporation or limited partnership or
limited liability company duly organized, validly
existing and in good standing under the laws of the
respective jurisdictions of their incorporation or
registration and have the requisite corporate or other
power to own their properties and to carry on their
business as now being conducted. The Company and each
of its subsidiaries is duly qualified as a foreign
corporation to do business and is in good standing in
each jurisdiction where the nature of the business
conducted or property owned by it makes such
qualification necessary, other than those jurisdictions
in which the failure to so qualify would not have a
material adverse effect on the business, operations or
financial condition of the Company.
(b) Outstanding Stock. All issued and outstanding
shares of common stock of the Company and each of its
subsidiaries has been duly authorized and validly issued
and are fully paid and non-assessable.
(c) Authority; Enforceability. This Agreement and other
agreements delivered together with this Agreement or in
connection herewith have been duly authorized, executed
and delivered by the Company and are valid and binding
agreements enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights
generally and to general principles of equity; and the
Company has full corporate power and authority necessary
to enter into this Agreement, and such other agreements
and to perform its obligations hereunder and under all
other agreements entered into by the Company relating
hereto.
(d) Additional Issuances. There are no outstanding
agreements or preemptive or similar rights affecting the
Company's common stock or equity and no outstanding
rights, warrants or options to acquire, or instruments
convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance of
any shares of common stock or equity of the Company or
other equity interest in any of the subsidiaries of the
Company except as described in the public reports or
otherwise provided Purchaser.
(e) Consents. No consent, approval, authorization or
order of any court, governmental agency or body or
arbitrator having jurisdiction over the Company, or any
of its affiliates, the National Association of
Securities Dealers, Inc. ("NASD") or the Company's
Shareholders is required for execution of this
Agreement, and all other agreements entered into by the
Company relating thereto, including, without limitation,
the issuance and sale of the Shares, and the performance
of the Company's obligations hereunder.
(f) No Violation or Conflict. Assuming the
representations and warranties of the Purchaser in this
Agreement are true and correct and the Purchaser
complies with its obligations under this Agreement, the
issuance and sale of the Shares and the performance of
the Company's obligations under this Agreement will not:
(i) violate, conflict with, result in a breach of, or
constitute a default (or an event which with the giving
of notice or the lapse of time or both would be
reasonably likely to constitute a default) under (A) the
articles of incorporation, charter or bylaws of the
Company, (B) to the Company's knowledge, any decree,
judgment, order, law, treaty, rule, regulation or
determination applicable to the Company of any court,
governmental agency or body, or arbitrator having
jurisdiction over the Company or any of its affiliates
or over the properties or assets of the Company or any
of its affiliates, (C) the terms of any bond, debenture,
note or any other evidence of indebtedness, or any
agreement, stock option or other similar plan,
indenture, lease, mortgage, deed of trust or other
instrument to which the Company or any of its affiliates
is a party, by which the Company or any of its
affiliates is bound, or to which any of the properties
of the Company or any of its affiliates is subject, or
(D) the terms of any "lock-up" or similar provision of
any underwriting or similar agreement to which the
Company, or any of its affiliates is a party except the
violation, conflict, breach, or default of which would
not have a material adverse effect on the Company; or
(ii) result in the creation or imposition of any lien,
charge or encumbrance upon the Shares or any of the
assets of the Company, its subsidiaries or any of its
affiliates.
(g) The Shares. The Shares upon issuance:
(i) are, or will be, free and clear of any security
interests, liens, claims or other encumbrances, but are
subject to restrictions upon transfer under the 1933 Act
and State laws;
(ii) have been duly and validly authorized and on the
date of issuance, fully paid and nonassessable (and if
registered pursuant to the 1933 Act, and resold pursuant
to an effective registration statement will be free
trading and unrestricted, provided that the Purchaser
complies with the Prospectus delivery requirements);
(iii) will not have been issued or sold in violation
of any preemptive or other similar rights of the holders
of any securities of the Company; and
(iv) will not subject the holders thereof to personal
liability by reason of being such holders.
(h) Litigation. There is no pending or, to the best
knowledge of the Company, threatened action, suit,
proceeding or investigation before any court,
governmental agency or body, or arbitrator having
jurisdiction over the Company, or any of its affiliates
that would affect the execution by the Company or the
performance by the Company of its obligations under this
Agreement, and all other agreements entered into by the
Company relating hereto. To the best knowledge of the
Company there are no threatened action, suit, proceeding
or investigation before any court, governmental agency
or body, or arbitrator having jurisdiction over the
Company, or any of its affiliates which litigation if
adversely determined could have a material adverse
effect on the Company.
(i) Reporting Company. The Company is a publicly-held
company subject to reporting obligations pursuant to
Sections 15(d) and 13 of the Securities Exchange Act of
1934, as amended (the "1934 Act") and has a class of
common shares registered pursuant to Section 12(g) of
the 1934 Act. The Company's common stock is listed for
trading on the OTC Bulletin Board ("Bulletin Board").
Pursuant to the provisions of the 1934 Act, the Company
has filed all public reports and other materials
required to be filed thereunder with the Securities and
Exchange Commission during the preceding twelve months.
(j) No Market Manipulation. The Company has not taken,
and will not take, directly or indirectly, any action
designed to, or that might reasonably be expected to,
cause or result in stabilization or manipulation of the
price of the common stock of the Company to facilitate
the sale or resale of the Securities or affect the price
at which the Shares may be resold.
(k) Information Concerning Company. The public reports
provided the Purchaser contain all material information
relating to the Company and its operations and financial
condition as of their respective dates which information
is required to be disclosed therein. Since the date of
the most recent financial statements included in public
documents, and there has been no material adverse change
in the Company's business, financial condition or
affairs not disclosed to the Purchaser. The public
reports do not contain any untrue statement of a
material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances
when made.
(l) Dilution. The Company's executive officers and
directors have studied and fully understand the nature
of the Shares being sold hereby and recognize that they
have a potential dilutive effect. The board of
directors of the Company has concluded, in its good
faith business judgment, that such issuance is in the
best interests of the Company.
(m) Stop Transfer. The Shares are restricted securities
as of the date of this Agreement. The Company will not
issue any stop transfer order or other order impeding
the sale, resale or delivery of the Shares, except as
may be required by federal securities laws.
(n) Defaults. Neither the Company nor any of its
subsidiaries is in violation of its Articles of
Incorporation or ByLaws. Other than as disclosed in
public reports, neither the Company nor any of its
subsidiaries is (i) in default under or in violation of
any other material agreement or instrument to which it
is a party or by which it or any of its properties are
bound or affected, which default or violation would have
a material adverse effect on the Company except as
otherwise disclosed in documents provided or made
available to the Purchaser, (ii) in default with respect
to any order of any court, arbitrator or governmental
body or subject to or party to any order of any court or
governmental authority arising out of any action, suit
or proceeding under any statute or other law respecting
antitrust, monopoly, restraint of trade, unfair
competition or similar matters, or (iii) to its
knowledge in violation of any statute, rule or
regulation of any governmental authority which violation
would have a material adverse effect on the Company.
(o) No General Solicitation. Neither the Company, nor
any of its affiliates, nor to its knowledge, any person
acting on its or their behalf, has engaged in any form
of general solicitation or general advertising (within
the meaning of Regulation D under the Act) in connection
with the offer or sale of the Shares.
(p) Listing. The Company's common stock is quoted on,
and listed for trading on the Bulletin Board. The
Company has not received any oral or written notice that
its Common Stock will be delisted from the Bulletin
Board or that the Company's common stock does not meet
all requirements for the continuation of such listing.
(q) No Undisclosed Liabilities. The Company has no
liabilities or obligations which are material,
individually or in the aggregate, which are not
disclosed in public reports, other than those incurred
in the ordinary course of the Company's businesses since
March 31, 2002 and which, individually or in the
aggregate, would not reasonably be expected to have a
material adverse effect on the Company's financial
condition.
(r) No Undisclosed Events or Circumstances. Since March
31, 2002, no event or circumstance has occurred or
exists with respect to the Company or its businesses,
properties, operations or financial condition, that,
under applicable law, rule or regulation, requires
public disclosure or announcement prior to the date
hereof by the Company but which has not been so publicly
announced or disclosed in the documents provided or made
available to Purchaser.
(s) Capitalization. The authorized and outstanding
capital stock of the Company as of the date of this
Agreement is 18,000,000 common shares authorized of
which 14,883,533 common shares are outstanding as of
June 1, 2002 and prior to the issuance of Shares
hereunder, and, additionally warrants for the purchase
of 428,572 which may be exercised through May 30, 2004
are outstanding. Except as set forth in public reports,
there are no other options, warrants, or rights to
subscribe to, securities, rights or obligations
convertible into or exchangeable for or giving any right
to subscribe for any shares of capital stock of the
Company. All of the outstanding shares of Common Stock
of the Company have been duly and validly authorized and
issued and are fully paid and nonassessable.
(t) Correctness of Representations. The Company
represents that the foregoing representations and
warranties are true and correct as of the date hereof in
all material respects. The foregoing representations
and warranties shall survive during the course and
effectiveness of this Agreement.
6. Covenants of the Company
The Company covenants and agrees with the Purchaser as
follows:
(a) The Company will advise the Purchaser, promptly
after it receives notice of issuance by the Securities
and Exchange Commission, any state securities commission
or any other regulatory authority of any stop order or
of any order preventing or suspending any offering of
any securities of the Company, or of the suspension of
the qualification of the Common Stock of the Company for
offering or sale in any jurisdiction, or the initiation
of any proceeding for any such purpose.
(b) The Company shall promptly secure the listing of the
Shares upon each national securities exchange, or
automated quotation system, if any, upon which shares of
common stock are then listed (subject to official notice
of issuance). The Company will maintain the listing of
its Common Stock on the NASD OTC Bulletin Board
(whichever of the foregoing is at the time the principal
trading exchange or market for the Common Stock (the
"Principal Market")), and will comply in all respects
with the Company's reporting, filing and other
obligations under the bylaws or rules of the National
Association of Securities Dealers ("NASD") and such
exchanges, as applicable. The Company will provide the
Purchaser copies of all notices it receives notifying
the Company of the threatened and actual delisting of
the Common Stock from any Principal Market.
(c) The Company shall notify the Commission, NASD, and
applicable state authorities, in accordance with their
requirements, if any, of the transactions contemplated
by this Agreement, and shall take all other necessary
action and proceedings as may be required and permitted
by applicable law, rule and regulation, for the legal
and valid issuance of the Shares to the Purchaser and
promptly provide copies thereof to Purchaser.
(d) The Company shall use its best efforts to prepare
within thirty (30) days of the final sale of Shares
included in the series of closings contemplated
hereunder, but in no event later than ninety (90) days
from the date of this Agreement, and to file with the
SEC a Registration Statement or Registration Statements
(as is necessary) on Form S-3 covering the resale of all
of the Shares hereunder. In the event that Form S-3 is
unavailable for such a registration, the Company shall
use such other form as is available for such a
registration. The Company shall use its best efforts to
have the Registration Statement declared effective by
the SEC within sixty (60) days from the date of initial
filing of the Registration Statement with the SEC.
(e) From the date of this Agreement and until at least
two (2) years after the effectiveness of the
Registration Statement on Form S-3 or such other
Registration Statement as provided in Section 6(d)
above, the Company will use its best efforts to (i)
cause its Common Stock and the Share to continue to be
registered under Sections 12(b) or 12(g) of the Exchange
Act, (ii) comply in all respects with its reporting and
filing obligations under the Exchange Act, (iii) comply
with all reporting requirements that are applicable to
an issuer with a class of Shares registered pursuant to
Section 12(g) of the Exchange Act, and (iv) comply with
all requirements related to any registration statement
filed pursuant to this Agreement. The Company will use
its best efforts not to take any action or file any
document (whether or not permitted by the Act or the
Exchange Act or the rules thereunder) to terminate or
suspend such registration or to terminate or suspend its
reporting and filing obligations under said Acts until
two (2) years after the actual effective date of the
Registration Statement on Form S-3. Until the resale of
the Shares by the Purchaser, the Company will continue
the listing of the Common Stock on the Bulletin Board
and will comply in all respects with the Company's
reporting, filing and other obligations under the bylaws
or rules of Bulletin Board.
Section 7. Covenants of the Company and Purchaser
Regarding Indemnification.
(a) The Company agrees to indemnify, hold harmless,
reimburse and defend Purchaser, Purchaser's officers,
directors, agents, affiliates, control persons, and
principal shareholders, against any claim, cost,
expense, liability, obligation, loss or damage
(including reasonable legal fees) of any nature,
incurred by or imposed upon Purchaser or any such person
which results, arises out of or is based upon (i) any
material misrepresentation by Company or breach of any
warranty by Company in this Agreement or in any
Schedules attached hereto, or other agreement delivered
pursuant hereto; or (ii) after any applicable notice
and/or cure periods, any breach or default in
performance by the Company of any covenant or
undertaking to be performed by the Company hereunder, or
any other agreement entered into by the Company and
Purchaser relating hereto.
(b) Purchaser agrees to indemnify, hold harmless,
reimburse and defend the Company and each of the
Company's officers, directors, agents, affiliates,
control persons against any claim, cost, expense,
liability, obligation, loss or damage (including
reasonable legal fees) of any nature, incurred by or
imposed upon the Company or any such person which
results, arises out of or is based upon (i) any material
misrepresentation by Purchaser in this Agreement or in
any Schedules hereto, or other agreement delivered
pursuant hereto; or (ii) after any applicable notice
and/or cure periods, any breach or default in
performance by Purchaser of any covenant or undertaking
to be performed by Purchaser hereunder, or any other
agreement entered into by the Company and Purchasers
relating hereto.
8. Anti-Dilution Provisions
In case the Company shall at any time before the Closing
Date subdivide or consolidate its outstanding common
shares into a greater or lesser number of shares, the
purchase price of the Shares and the terms of the Shares
shall be proportionately increased or reduced, and
amended accordingly.
9. Governing Law
This agreement shall be governed by and construed in
accordance with the laws of the State of Colorado and
the federal laws of the United States applicable
therein. The Purchaser hereby irrevocably attorns to
the non-exclusive jurisdiction of the courts of the
State of Colorado with respect to any matters arising
out of this agreement.
10. Assignment
This agreement is not transferable or assignable by the
parties hereto.
11. If Purchaser is Acting as Agent
If the Purchaser is, in signing this Agreement, acting
in whole or in part for any other person(s) or
entity(ies), then all of the representations,
warranties, agreements and acknowledgements herein given
by the Purchaser shall be irrevocably deemed and agreed
to have been given on behalf of, and be binding upon,
such other person(s) or entity(ies) as well as the
Purchaser.
12. Entire Agreement
This agreement contains the entire agreement of the
parties hereto relating to the subject matter hereof and
there are no representations, covenants or other
agreements relating to the subject matter hereof except
as stated or referred to herein or therein.
13. Successors and Assigns
This agreement shall be binding upon and enure to the
benefit of the parties hereto and their respective
successors and permitted assigns, subject to the hold
period restrictions that may be applicable to the
Shares.
14. Currency
All amounts in this agreement are stated and shall be
paid in United States dollar currency.
15. Time of Essence
Time shall be of the essence of this agreement.
16. Headings
The headings contained herein are for convenience only
and shall not affect the meaning or interpretation of
this agreement.
17. Subscription Particulars
(a) The Purchaser hereby agrees to purchase Shares as
set forth below:
Number of Shares:
Aggregate Purchase Price:
(US$0.40 x number of Shares): US$
Name of Purchaser:
Street Address:
City and Country:
Postal Code:
Contact Name:
Alternate Contacts Name:
Phone No.:
Fax No.:
E-mail:
(b) Registration of the certificates representing the
Shares should be made as follows (if space is
insufficient, attach a list) - or leave blank if
registration is to be as detailed in sub-clause (a)
above.
Name:
Registration Address:
City and Country:
Postal Code:
(c) The certificates representing the Shares are to be
delivered as follows (if different from the address set
forth in sub-clause (b) above):
Name:
Address:
City and Country:
Postal Code:
Telephone/Contact:
(d) Number of common shares of the Company owned by the
Purchaser:
18. Signature of Purchaser
Signature of Purchaser (on its own behalf and, if
applicable, on behalf of each principal for whom it is
contracting hereunder).
(Signature or Authorized Signature)
(Name and Official Capacity - please print)
19. Confirmation and Acceptance
This agreement is confirmed and accepted by the Company.
DATED as of the _________ day of ________________, 2002
U.S. GOLD CORPORATION
By:
Name:
Title: