SUBSCRIPTION AGREEMENT FOR SOLITARIO EXPLORATION & ROYALTY CORP.
EXHIBIT 99.1
FOR
SOLITARIO EXPLORATION & ROYALTY CORP.
June 26, 2012
Solitario Exploration & Royalty Corp.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
1. Subscription. The undersigned (the “Purchaser”) will purchase 180,000 shares of the Company’s common stock (the “Shares”) at a price per share of $1.22 for a total purchase price of $219,600 (the “Offering”).
The Shares will be sold at the closing of the Offering which shall occur immediately upon the approval within of the Company’s request for the additional listing of the Shares issued in connection with the Offering on both the Toronto Stock Exchange and the NYSE MKT (formerly known as the NYSE Amex) (collectively the “Exchanges”). The subscription for the Shares will be made in accordance with and subject to the terms and conditions of the Subscription Agreement.
2. Acceptance of Subscription. The Purchaser understands and agrees that the Company, in its sole discretion, reserves the right to accept this subscription for the Shares, in whole or in part, notwithstanding prior receipt by the Purchaser of notice of acceptance of this or any other subscription. The Company will have no obligation hereunder until the Company executes and delivers to the Purchaser an executed copy of the Subscription Agreement. If Purchaser’s subscription is rejected in whole (at the sole discretion of the Company) this Subscription Agreement will thereafter be of no further force or effect. If Purchaser’s subscription is rejected in part (at the sole discretion of the Company) and the Company accepts the portion not so rejected this Subscription Agreement will continue in full force and effect to the extent such subscription was accepted.
3. Representations and Warranties of the Purchaser. The Purchaser hereby acknowledges, represents, warrants, and agrees as follows:
(a) The Shares are not registered under the Securities Act of 1933, as amended (the “Securities Act”) or any state securities laws. The Purchaser understands that the offer and sale of the Securities is intended to be exempt from registration under the Securities Act, by virtue of Section 4(2) thereof in part, upon the representations, warranties and agreements of the Purchaser contained in this Subscription Agreement;
(b) The Purchaser, either alone or together with its Advisors, if any, has such knowledge and experience in financial, tax, and business matters, and, in particular, investments in securities, so as to enable him to evaluate the merits and risks of an investment in the Shares and the Company and to make an informed investment decision with respect thereto;
(c) The Purchaser is acquiring the Shares solely for such Purchaser’s own account for investment and not with a view to resale or distribution thereof, in whole or in part. The Purchaser has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of any of the Shares and the Purchaser has no plans to enter into any such agreement or arrangement;
| 1 |
(d) The Purchaser understands and agrees that purchase of the Shares is a high risk investment and the Purchaser is able to afford an investment in a speculative venture having the risks and objectives of the Company. The Purchaser must bear the substantial economic risks of the investment in the Shares indefinitely because the Shares may not be sold, hypothecated or otherwise disposed of unless subsequently registered under the Securities Act and applicable state securities laws or an exemption from such registration is available. Legends will be placed on the certificates representing the Shares to the effect that such securities have not been registered under the Securities Act or applicable state securities laws and appropriate notations thereof will be made in the Company’s books. The Offering and the Shares have not been registered or qualified under the applicable securities laws and rules of Canada or the Exchanges. Furthermore, the Shares will include legends in substantially the following forms:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR APPLICABLE STATE SECURITIES LAWS, AND NO INTEREST MAY BE SOLD, DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (A) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLIABLE STATE SECURITIES LAWS COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITES (B) THE COMPANY RECEIVES AN OPINION OF LEGAL COUNSEL FOR THE HOLDER THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION OR (C) THE COMPANY OTHERWISE SATISFIES ITSELF THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION.
UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY IN CANADA BEFORE [INSERT DATE THAT IS FOUR (4) MOUNTHS AND ONE (1) DAY AFTER THE DATE OF ISSUE]
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE LISTED ON THE TORONTO STOCK EXCHANGE (“TSX”); HOWEVER, THE SAID SECURITIES CANNOT BE TRADED THROUGH THE FACILITIES OF THE TSX SINCE THEY ARE NOT FREELY TRANSFERABLE, AND CONSEQUENTLY AND CERTIFICATE REPRESENTING SUCH SECURITIES IS NOT ‘GOOD DELIVERY’ IN SETTLEMENT OF TRANSACTIONS ON THE TSX.
(e) The Purchaser has adequate means of providing for such Purchaser’s current financial needs and foreseeable contingencies and has no need for liquidity from its investment in the Shares for an indefinite period of time. The Purchaser has a sufficient net worth to sustain a loss of the entire investment in the event such loss should occur;
(f) The Purchaser represents to the Company that any information which the undersigned has heretofore furnished or is furnishing herewith to the Company is complete and accurate and may be relied upon by the Company in determining the availability of an exemption from registration under Federal and state securities laws in connection with the offering of securities as described in the Transaction Documents; and
(g) The
Purchaser acknowledges that the Shares have not been recommended by any federal, state or provincial
securities commission or regulatory authority. In making an investment decision, investors must rely on their own examination of
the Company and the terms of the Offering, including the merits and risks involved. Furthermore, the foregoing authorities have
not confirmed the
| 2 |
accuracy or determined the adequacy of this Subscription Agreement or the other Transaction Documents. Any representation
to the contrary is a criminal offense. The Securities are subject to restrictions on transferability and resale and may not be
transferred or resold except as permitted under the Securities Act, and the applicable state securities laws, pursuant to registration
or exemption therefrom. Investors should be aware that they will be required to bear the financial risks of this investment for
an indefinite period of time.
4. Indemnification. The Purchaser agrees to indemnify and hold harmless the Company and its officers, directors, managers, employees, agents, attorneys, control persons and affiliates from and against all losses, liabilities, claims, damages, costs, fees and expenses whatsoever (including, but not limited to, any and all expenses incurred in investigating, preparing or defending against any litigation commenced or threatened) based upon or arising out of any actual or alleged false acknowledgment, representation or warranty, or misrepresentation or omission to state a material fact, or breach by the Purchaser of any covenant or agreement made by the Purchaser herein or in any other document delivered in connection with this Subscription Agreement.
5. Irrevocability; Binding Effect. The Purchaser hereby acknowledges and agrees that the subscription hereunder is irrevocable by the Purchaser, except as required by applicable law, and that this Subscription Agreement will survive the death or disability of the Purchaser and will be binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives, and permitted assigns.
6. Modification. This Subscription Agreement will not be modified or waived except by an instrument in writing signed by the party against whom any such modification or waiver is sought.
7. Assignability. This Subscription Agreement and the rights, interests and obligations hereunder are not transferable or assignable by the Purchaser and the transfer or assignment of any of the Securities will be made only in accordance with all applicable laws.
8. Applicable Law. This Subscription Agreement will be governed by and construed under the laws of the State of Colorado as applied to agreements among Colorado residents entered into and to be performed entirely within Colorado. Each of the parties hereto (1) agree that any legal suit, action or proceeding arising out of or relating to this Subscription Agreement will be instituted exclusively in the courts of the City and County of Denver, State of Colorado, or, if it has or can acquire jurisdiction, in the United States District Court for the District of Colorado, (2) waive any objection which the parties may have now or hereafter to the venue of any such suit, action or proceeding, and (3) irrevocably consent to the jurisdiction of the courts of the City and County of Denver, State of Colorado, the United States District Court for the District of Colorado and the appropriate appellate courts in any such suit, action or proceeding. THE PARTIES HERETO AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS SUBSCRIPTION AGREEMENT OR ANY DOCUMENT OR AGREEMENT CONTEMPLATED HEREBY.
9. Blue Sky Qualification. The purchase of Securities pursuant to this Subscription Agreement is expressly conditioned upon the exemption from qualification of the offer and sale of the Securities from applicable federal and state securities laws.
10. Conditions
to Closing. The Company’s obligation to issue and sell the Shares to the Purchaser and the Purchaser’s
obligation to purchase the Shares from the Company shall be conditioned on the Company obtaining listing approval for the Shares
on both of the Exchanges, subject
| 3 |
only to the customary post-closing conditions imposed by such Exchanges in similar circumstances
(if any).
11. Miscellaneous.
(a) This Subscription Agreement, constitutes the entire agreement between the Purchaser and the Company with respect to the subject matter hereof and supersede all prior oral or written agreements and understandings, if any, relating to the subject matter hereof. The terms and provisions of this Subscription Agreement may be waived, or consent for the departure therefrom granted, only by a written document executed by the party entitled to the benefits of such terms or provisions.
(b) Each of the Purchaser’s representations and warranties made in this Subscription Agreement will survive the execution and delivery hereof and delivery of the Securities.
(c) Each of the parties hereto will pay its own fees and expenses (including the fees of any attorneys, accountants, appraisers or others engaged by such party) in connection with this Subscription Agreement and the transactions contemplated hereby whether or not the transactions contemplated hereby are consummated.
(d) This Subscription Agreement may be executed in one or more counterparts each of which will be deemed an original, but all of which will together constitute one and the same instrument.
(e) Each provision of this Subscription Agreement will be considered separable and, if for any reason any provision or provisions hereof are determined to be invalid or contrary to applicable law, such invalidity or illegality will not impair the operation of or affect the remaining portions of this Subscription Agreement.
(f) Paragraph titles are for descriptive purposes only and will not control or alter the meaning of this Subscription Agreement as set forth in the text.
* * * * *
IN WITNESS WHEREOF, the undersigned have caused this Subscription Agreement to be executed as of the date set forth above.
PURCHASER:
/s/ Xxxxxxxxxxx X. Herald
Xxxxxxxxxxx X. Herald
AGREED AND ACCEPTED:
SOLITARIO EXPLORATION AND ROYALTY CORP.
By:/s/ Xxxxx X. Xxxxxxxx June 26, 2012
Name: Date
Title: CFO
