Exhibit 10.5
THE SECURITIES OFFERED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "1933 ACT"), AND SUCH
SECURITIES MAY NOT BE OFFERED OR SOLD IN THE UNITED
STATES OR TO UNITED STATES PERSONS UNLESS THE
SECURITIES ARE REGISTERED UNDER THE 1933 ACT OR AN
EXEMPTION FROM REGISTRATION IS AVAILABLE.
SUBSCRIPTION AGREEMENT
AND INVESTMENT AGREEMENT
Name of Investor: Resource Investment Trust PLC
Number of Shares Subscribed: 1,000,000
THIS SUBSCRIPTION AGREEMENT AND INVESTMENT AGREEMENT
("Agreement") is between U.S. GOLD CORPORATION, a
Colorado corporation (the "Company"), and Resource
Investment Trust PLC (the "Investor") named above who
executes this Agreement as an investor in the
Company.
Section 1. General. This Agreement sets forth the
terms under which the Investor will invest in the
Company. The Investor's execution of this Agreement
constitutes an irrevocable offer to purchase the
number of shares of common stock of the Company, par
value US$0.10 per share (the "Shares"), at the price
of US$0.45 per Share, as set forth in this Agreement.
If the Investor's subscription is accepted by the
Company, the Investor's execution of this Agreement
will constitute his agreement to be bound by all of
the terms and conditions of this Agreement.
By executing this Agreement, the Investor
acknowledges that the Investor understands that the
Company is relying upon the accuracy of the
Investor's representations and warranties contained
in this Agreement in order to comply with its
obligations under the applicable United States
federal and state securities laws.
Section 2. Investor's Subscription. The Investor
hereby subscribes and agrees to pay for 1,000,000
Shares of the Company and hereby tenders the
subscription amount of U.S. $450,000.00 to the
Company.
Section 3. Company Charter and Bylaws. The Company
has been organized under the laws of the State of
Colorado. All the terms and conditions of the
Articles of Incorporation and Bylaws of the Company
shall be incorporated by reference in and become part
of this Agreement.
Section 4. Representations and Warranties of
Investor. The Investor hereby agrees, represents
and warrants to the Company as follows:
(i) Investor (i) is not a U.S. Person (as defined in
Rule 902 of Regulation S ("Regulation S") under the
United States Securities Act of 1933 (the "1933
Act")), which definition includes, but is not limited
to, any natural person resident in the United States,
any corporation or partnership incorporated or
organized under the laws of the United States, or any
estate or trust of which any executor, administrator
or trustee is a U.S. Person); (ii) is not purchasing
any of the Securities for the account or benefit of
any U.S. Person or for offering, resale or delivery
for the account or benefit of any U.S. Person or for
the account of any person in any jurisdiction other
than the jurisdiction set out in the name and address
of Investor below; and (iii) was not offered any
Securities in the United States and was outside the
United States at the time of execution and delivery
of this Subscription Agreement.
(ii) Investor acknowledges that the Securities have
not been registered under the 1933 Act and the
Company has no obligation or present intention of
filing a registration statement under the 1933 Act in
respect of the Securities. The Investor agrees to
resell the Securities only in accordance with the
provisions of Regulation S, pursuant to a
registration under the 1933 Act, or pursuant to an
available exemption from such registration, and that
hedging transactions involving the Securities may not
be conducted unless in compliance with the 1933 Act.
The Investor understands that any certificate
representing the Securities will bear a legend
setting forth the foregoing restrictions. The
Investor understands that the Securities are
restricted securities within the meaning of Rule 144
promulgated under the 1933 Act; that the exemption
from registration under Rule 144 will not be
available in any event for at least one year from the
date of purchase and payment of the Securities by the
Investor, and even then will not be available unless
(i) a public trading market then exists for the
Securities of the Company, (ii) adequate information
concerning the Company is then available to the
public, and (iii) other terms and conditions of Rule
144 are complied with; and that any sale of the
Securities may be made by the Investor only in
limited amounts in accordance with such terms and
conditions.
(iii) No U.S. Person, either directly or indirectly,
has any beneficial interest in any of the Securities
acquired by Investor hereunder, nor does Investor
have any agreement or understanding (written or oral)
with any U.S. Person respecting:
(a) the transfer or any assignment of any rights or
interest in any of the Shares;
(b) the division of profits, losses, fees,
commissions or any financial stake in connection with
this subscription; or
(c) the voting of the Shares.
(iv) the Investor has the requisite knowledge and
experience in financial and business matters for
properly evaluating the risks of an investment in the
Company.
(v) the Investor has received all information
regarding the Company reasonably requested by the
Investor.
(vi) the Investor has evaluated the risks of
investing in the Company.
(vii) the Investor has been given the opportunity to
ask questions of, and to receive answers from, the
Company concerning the terms and conditions of the
offering and to obtain additional information
necessary to verify the accuracy of the information
contained in the information described in
subparagraph (v) above, or such other information as
the Investor desired in order to evaluate an
investment in the Company.
(viii) the residence of the Investor set forth below
is the true and correct residence of the Investor;
the Investor has no present intention of becoming a
resident or domiciliary of any other state or
jurisdiction.
(ix) in making a decision to invest in the Company,
the Investor has relied solely upon independent
investigations made by the Investor, and the
particular tax consequences arising from an
investment in the Company will depend upon the
Investor's individual circumstances.
(x) the Investor understands that an investment in
the Company involves certain risks of which the
Investor has taken full cognizance, and which risks
the Investor fully understands.
(xi) all of the representations and warranties of the
Investor contained in this Agreement and all
information furnished by the Investor to the Company
are true, correct and complete in all respects.
The foregoing representations, warranties,
agreements, undertakings and acknowledgments are made
by the Investor with the intent that they be relied
upon in determining the Investor's suitability as a
purchaser of the Securities, and the Investor agrees
that those representations, warranties, agreements,
undertakings and acknowledgments shall survive this
Agreement. In addition, the Investor undertakes to
notify the Company immediately of any change in any
representation, warranty or other information
relating to the Investor set forth in this Agreement.
The Investor further represents and warrants that the
Investor was not specifically formed to acquire any
of the Securities subscribed for in this Agreement in
violation of the provisions of Regulation S.
Section 5. Indemnification. The Investor shall
indemnify and hold harmless the Company, any
affiliate of the Company, and the officers,
directors, employees and professional advisors of any
of the foregoing, from and against any and all
claims, losses, damages, liabilities or expenses,
including costs and reasonable attorneys' fees, that
any of the foregoing persons or entities may incur by
reason of, or in connection with, any
misrepresentations made by the Investor, any breach
of any of the Investor's representations and
warranties in this Agreement, or the Investor's
failure to fulfill any of the Investor's covenants or
agreements contained in this Agreement.
Section 6. Miscellaneous.
(a) This Agreement shall be irrevocable.
(b) This Agreement may not be assigned by the
Investor, and any attempt by the Investor to assign
this Agreement shall make this Agreement voidable at
the option of the Company. Subject to the preceding
sentence, this Agreement shall be binding upon and
inure to the benefit of the heirs, executors,
administrators, legal representatives, successors and
assigns of the Investor.
(c) All pronouns contained herein and any variations
thereof shall be deemed to refer to the masculine,
feminine or neuter, singular or plural, as the
identity of the parties hereto may require.
IN WITNESS WHEREOF, subject to acceptance by the
Company, the undersigned has completed this
Subscription Agreement to evidence its subscription
to Shares of U.S. GOLD CORPORATION as of this 16th
day of January, 2003.
Amount of Commitment
$450,000.00 (U.S.) for 1,000,000 Shares
INVESTOR:
Resource Investment Trust PLC
/s/ Xxxxx X. Xxxxxxxx
(Signature of Authorized Officer)
Xxxxx Xxxxx, 00/00 Xxxxxx Xxxxxxx Xxxx
Xxxxxx, Xxxxxxx XX0X 0XX
