AMENDMENT TO BUSINESS COMBINATION AGREEMENT BY AND BETWEEN CAPITAL GOLD COPORATION AND NAYARIT GOLD INC. DATED AS OF APRIL 29, 2010
Exhibit
10.25
AMENDMENT
TO
BY
AND BETWEEN
CAPITAL
GOLD COPORATION
AND
NAYARIT
GOLD INC.
DATED
AS OF APRIL 29, 2010
AMENDMENT
TO BUSINESS COMBINATION AGREEMENT
THIS
AMENDMENT (this “Amendment”) to the
Business Combination Agreement dated as of February 10, 2010 by and among
Capital Gold Corporation, a Delaware corporation (“Parent”), Nayarit
Gold Inc., a corporation organized under the Ontario Business Corporation Act
(“Nayarit”),
Xxxx Xxxxxxxx, Xxxxx Xxxxxxxxxx and Xxxxxxx Xxxxxxxx (the “Agreement”) is
entered into by the Parties hereto as of this 29th day of April,
2010.
RECITALS:
A. The
Parties desire to amend and modify the Agreement as set forth in this
Amendment.
B. The
boards of directors of each of Parent and Nayarit have determined that it is
advisable and in the best interests of each of Parent and Nayarit, and their
respective shareholders, that the Agreement be amended and modified as set forth
in this Amendment.
NOW,
THEREFORE, in consideration of the premises, the mutual promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto agree as
follows:
1.
All capitalized terms used and not defined herein shall have the meanings
ascribed thereto in the Agreement.
2.
Section 1.6 of the Agreement is hereby amended in its entirety to read as
follows:
“1.6 Directors and Officers; Lock
Up.
(a) At
the Effective Time, the Board of Directors of Parent shall consist of either
five (5) or seven (7) directors, in any event to include Xxxxxxx X. Xxxxxx, Xxxx
X. Xxxxxx, Xxxxxxx X. Xxxxx, one (1) nominee of Parent and one (1) nominee of
Nayarit. For a period of thirty-six (36) months following the
Effective Time, the Parties hereto agree that they shall cause their nominees on
the Board of Directors to execute and deliver an undertaking whereby such
nominees agree to: (i) nominate the foregoing individuals for re-election at
each annual meeting of the shareholders of Parent; and (ii) cause any successors
chosen by such nominees to comply with the foregoing provision at each annual
meeting of the shareholders of Parent. The Parties intend to appoint an
independent director as chair of the Board of Directors of Parent.
(b) At
the Effective Time, the officers of Parent shall include a chief executive
officer of Parent, who shall be determined by the Board of Directors and at
least two senior executive officers, two of whom shall be Xxxxx Xxxxxxxxxx
Xxxxxxx Xxxxxxxx.
(c) At
the Closing, Xxxxx Xxxxxxxxxx and Xxxxxxx Xxxxxxxx each shall enter into a
“lock-up” agreement substantially in the form set forth on Exhibit B attached
hereto (a “Lock Up
Agreement”) pursuant to which such Persons shall agree, for a period of
six (6) months from the Closing Date, that they each shall neither, on his, her
or its own behalf or on behalf of entities, family members or trusts affiliated
with or controlled by him, her or it, offer, issue, grant any option on, sell or
otherwise dispose of any portion of the Amalgamation Consideration issued to
such Person.”
2
3. Section
1.10 of the Agreement is hereby amended in its entirety to read as
follows:
“1.10 Headquarters. The
headquarters of Parent following the Effective Time will be located in
Philadelphia, Pennsylvania, and Parent shall further (so long as it sees fit)
maintain satellite or home offices in Xxxxxxx, Xxxx Xxxxxx,
Xxxxxx.”
4. Section
6.3(k) of the Agreement is deleted in its entirety.
5. Section
7.1(b) of the Agreement is hereby amended in its entirety to read as
follows:
“(b) by
written notice by either Parent or Nayarit if the Closing conditions set forth
in Section 6.1 have not been satisfied by Nayarit or Parent, as the case may be
(or waived by Parent or Nayarit as the case may be) by 150 days after the date
of this Agreement (the “Completion
Deadline”). Notwithstanding the foregoing, the right to
terminate this Agreement under this Section 7.1(b) shall not be available to any
Party whose action or inaction is the primary cause of, or resulted in, any such
condition set forth in Section 6.1 to fail to be fulfilled;”
6. The
first part of Section 8.2(ii) of the Agreement is hereby amended in its entirety
to read as follows:
“if to Parent, to:
Capital Gold Corporation
00 Xxxxxx
Xxxxxx, 00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Chief
Executive Officer
Facsimile: (000)
000-0000”
7. The
Parties hereto hereby ratify and reaffirm the Agreement, as amended and modified
by this Amendment.
* * *
*
[Remainder
of Page Left Blank – Signature Page Follows]
3
IN WITNESS WHEREOF, the
Parties hereto have caused this Amendment to be signed and delivered by their
respective duly authorized officers as of the date first above
written.
| CAPITAL GOLD CORPORATION | |||
|
|
By:
|
/s/ Xxxxxxxxxxx Xxxxxxx | |
| Name: Xxxxxxxxxxx Xxxxxxx | |||
| Title: Chief Financial Officer | |||
| NAYARIT GOLD INC. | |||
|
|
By:
|
/s/ Xxxxx Xxxxxxxxxx | |
| Name: Xxxxx Xxxxxxxxxx | |||
| Title: President and CEO | |||
| /s/ Xxxxx Xxxxxxxxxx | |||
|
Xxxxx
Xxxxxxxxxx
(with
respect to Section 1.6(c) of the Agreement only)
|
|||
| /s/ Xxxxxxx Xxxxxxxx | |||
|
Xxxxxxx
Xxxxxxxx
(with
respect to Section 1.6(c) of the Agreement only)
|
|||
[Signature
Page to Amendment to Business Combination Agreement]
