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EXHIBIT 10.1
AGREEMENT
This Agreement is made and entered into among Alta Gold Co., a Nevada
corporation ("Alta") and Xxxx Resources Corporation ("Xxxx") and Hydro
Resources Corporation ("Hydro"), both New Mexico corporations (collectively
"Xxxx/Hydro"), as of the 13th day of May, 1994.
RECITALS
A. Pursuant to the terms of that certain Agreement between Alta and
Xxxx/Hydro dated the 26th day of January, 1994 (the "Agreement"), Alta was to
provide to Xxxx/Hydro 375,000 restricted shares of Alta $.001 par value common
stock (the "Stock") within 30 days of Alta's acquisition of that certain
property located in Sierra County, New Mexico known as the Copper Flat Property
(the "Copper Flat Property") which Copper Flat Property is more particularly
described on Exhibit "A" attached hereto and incorporated herein by this
reference, according to terms and conditions and for the consideration set forth
in said Agreement.
B. The parties desire to enter into this Agreement to more fully
evidence and memorialize the intent of the parties hereto.
NOW, THEREFORE, for good and valuable consideration, and in
consideration of the execution and delivery by Xxxx and Hydro of that certain
Royalty Deed and Right of First Refusal of even date herewith and in
consideration of the execution and delivery of that certain Right of First
Refusal by the shareholders of Hydro of even date herewith, and in
consideration of the execution and delivery by Hydro of that certain Lease
Agreement of even date herewith, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. Transaction Subject to Closing. The parties hereto understand and
agree this Agreement is entered into in contemplation of Alta exercising its
option to acquire, and proceeding to close the acquisition of the Copper Flat
Property in accordance with its agreement with Gold Express. If Alta fails to
acquire the Copper Flat Property then this Agreement shall be of no affect and
shall be null and void.
2. Transfer to Hydro. Xxxx and Hydro agree and acknowledge that,
though the Special Warranty Deed dated November 16, 1989 ("Deed") reserved
certain rights to Xxxx only, Xxxx subsequently transferred 49 percent of its
interest to Hydro and that Alta make all payments contemplated by the Deed in
accordance with Xxxx'x 51 percent ownership and Hydro's 49 percent ownership of
the rights reserved to the grantor under the Deed.
3. Alta Stock. Upon closing by Alta of the purchase of the Copper
Flat Property from Gold Express Corporation, Alta shall, within 30 days of the
date of such closing issue and deliver to Xxxx and Hydro, in the percentages
set forth below, certificates evidencing 375,000 shares of the $.001 par value,
common stock of Alta. Hydro shall receive 49 percent
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or 183,750 shares and Xxxx shall receive 51 percent or 191,250 shares. Such
Stock shall be fully paid and nonassessable restricted stock in accordance with
applicable state and federal securities laws and regulations and shall bear
thereon restrictive legends as provided on Exhibit B attached hereto and
incorporated herein by this reference. Said Stock shall be sent to the
respective addresses of Xxxx and Hydro as described in paragraph 11 hereof.
4. Repurchase Option.
x. Xxxx agrees and grants to Alta the right, exercisable at any
time within two years from the earlier of the issuance of the Stock to Xxxx or
30 days after the Closing of Alta's purchase of the Copper Flat Property, to
purchase from Xxxx up to 63,750 shares of Stock conveyed pursuant to paragraph
3 hereof at a purchase price of $4.00 per share upon the giving of 30 days
prior written notice by Alta to Xxxx. During such two year period, Xxxx agrees
that Xxxx shall not sell, assign, transfer, convey, or dispose of more than
127,500 shares of such Stock and agrees that it will not encumber, pledge, or
hypothecate said Stock for an amount in excess of the repurchase option price
which can be paid by Alta for said Stock and shall maintain ownership of and
not otherwise convey the 63,750 shares of Stock which are the subject of this
repurchase option.
b. Hydro agrees and grants to Alta the right, exercisable at any
time within two years from the earlier of the issuance of the Stock to Hydro or
30 days after the Closing of Alta's purchase of the Copper Flat Property, to
purchase from Hydro up to 61,250 shares of Stock conveyed pursuant to paragraph
3 hereof at a purchase price of $4.00 per share upon the giving of 30 days
prior written notice by Alta to Hydro. During such two year period, Hydro
agrees that Hydro shall not sell, assign, transfer, convey, or dispose of more
than 122,500 shares of such Stock and agrees that it will not encumber, pledge,
or hypothecate said Stock for an amount in excess of the repurchase option
price which can be paid by Alta for said Stock and shall maintain ownership of
and not otherwise convey the 61,250 shares of Stock which are the subject of
this repurchase option.
5. Make Whole Amount.
x. Xxxx shall have the option upon written demand to Alta
provided within 30 days after the second anniversary date of the date the Stock
is delivered by Alta to Xxxx pursuant to the provisions of paragraph 3 hereof,
to require Alta to pay to Xxxx the difference between $4.00 per share and the
average price per share for the Stock as quoted on the NASDAQ Stock Exchange on
such second anniversary date, should such price be less than $4.00 per share
for up to the lesser of 127,500 shares or the number of shares of the Stock
then owned by Xxxx (the "Make Whole Amount"). Upon receipt of written demand
from Xxxx, Xxxx shall have sixty days from the date of said demand to pay such
Make Whole Amount.
b. Hydro shall have the option upon written demand to Alta
provided within 30 days after the second anniversary date of the date the Stock
is delivered by Alta to Hydro pursuant to the provisions of paragraph 3 hereof,
to require Alta to pay to Hydro the difference between $4.00 per share and the
average price per share for the Stock as quoted on the NASDAQ Stock Exchange on
such second anniversary date should such price be less
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than $4.00 per share, for up to the lesser of 122,500 shares or the number of
shares of the Stock then owned by Hydro. Upon receipt of written demand from
Hydro, Alta shall have sixty days from the date of said demand to pay such Make
Whole Amount.
6. Representations and Warranties of Alta. Alta hereby warrants and
represents to Xxxx/Hydro as follows:
a. The execution, delivery and performance of the terms and
provisions of this Agreement have been duly authorized by all necessary
corporate action.
b. The execution, delivery and performance of this Agreement by
Alta shall not require the consent of any third party or lender.
7. Representations and Warranties of Xxxx/Hydro. Xxxx and Hydro each
hereby warrant and represent Alta as follows:
a. The execution, delivery and performance of the terms and
provisions of this Agreement have been duly authorized by all necessary
corporate action.
b. The execution, delivery and performance of this Agreement by
Xxxx and by Hydro, shall not require the consent of any third party or lender.
8. Investment. Each of Xxxx and Hydro (i) understand that the Stock
of Alta to be received by Xxxx and Hydro, respectively, if and when issued to
Xxxx and Hydro, will constitute "restricted securities" as that term is defined
in Rule 144, promulgated under the Securities Act of 1933, as amended
("Securities Act") and as such may not be transferred except pursuant to an
effective registration statement filed under the Securities Act or pursuant to a
valid exemption from the registration requirements of the Securities Act; (ii)
understand that the Stock has not been, and will not be, registered under the
Securities Act, or under any state securities laws, and is being offered and
sold in reliance upon federal and state exemptions for transactions not
involving any public offering, (iii) is acquiring the Stock solely for its own
account for investment purposes only, and not with a present view to, or for
resale in connection with any distribution directly or indirectly of the Stock
or any interest therein, and it has no direct or indirect participation in any
such undertaking or in the underwriting of such undertaking; (iv) is a
sophisticated investor with knowledge and experience in business and financial
matters, (v) has received certain information concerning Alta and has had the
opportunity to obtain additional information as desired in order to evaluate the
merits and the risks inherent in holding the Stock; (vi) is able to bear the
economic risk and lack of liquidity inherent in holding the Stock; (vii) is an
Accredited Investor as defined in Regulation D promulgated under the Securities
Act; (viii) agrees to sign a standard investment letter to the effect of the
representations set forth in subparagraphs, (i)-(vii) above upon the issuance of
the Stock. A legend reflecting the restrictions on the transfer of the Stock
shall be placed upon the certificate or certificates representing the Stock and
Alta may place a "stop transfer order" regarding the Stock with its transfer
agent.
9. Securities. Each of Xxxx and Xxxx hereby acknowledge that Alta has
delivered to it Alta's Annual Report on Form 10-K for the year ended December
31, 1992, its quarterly
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report on Form 10-Q for the quarters ended March 31, 1993, June 30, 1993 and
September 30, 1993, respectively and its proxy statement for the 1993 Annual
Meeting of Shareholders. Each of Xxxx and Hydro has had the opportunity to
review and discuss the foregoing documents with Alta and has had the
opportunity to ask questions and make inquiries of representatives of Alta
respecting Alta's financial condition, assets and operations, and each of Xxxx
and Hydro has received satisfactory answers to such questions and inquiries.
10. Miscellaneous.
a. Notices. All notices required to be given under the terms of
this Agreement shall be in writing and shall be deemed to have been duly given,
when delivered personally or sent by telecopy, or by registered or certified
mail (postage prepaid, return receipt requested) to the respective parties at
the following addresses or at such other addresses as shall be specified by the
parties by like notice:
If to Alta Gold Co.: 000 Xxxxxxx Xxxxx Xxxxx
Xxxxx 00
Xxxxxxxxx, Xxxxxx 00000
If to Xxxx Resources Corporation: 000 Xxxx Xxxxxxx Xxxxxx
X.X. Xxx 000
Xxxx Xxxxxxxx, Xxxxx 00000
If to Hydro Resources Corporation: Xxxxxx Xxxxxxxxx
0000 Xxxx Xxxxx X.X.
Xxxxxxxxxxx, Xxx Xxxxxx 00000
b. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada without giving
effect to principles of conflicts of laws.
c. Assignment. This Agreement shall not be assigned by
assignment, by operation of law, or by change in control, without the written
consent of the other parties hereto. Any assignment in noncompliance with this
section shall be null and void.
d. Severability. Any term or provision of this Agreement which is
invalid or unenforceable shall be ineffective to the extent of such invalidity
or unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement unless as a
result of such invalidity the relative benefits and obligations of the parties
hereto are materially altered. If any provision of this Agreement is so broad
as to be unenforceable, the provision shall be interpreted to be only so broad
as is enforceable.
e. Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto.
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f. Counterparts. This Agreement may be executed in two or more
counterparts each of which shall be deemed an original, but all of which shall
constitute one and the same agreement.
g. Attorneys' Fees. In the event of a breach of any of the terms
and provisions of this Agreement, the nondefaulting party shall be entitled to
a reimbursement of any and all attorneys' fees, costs and expenses incurred by
such nondefaulting party in enforcing their rights under this Agreement.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed as of the date first written above by their respective officers
thereunto duly authorized.
ALTA GOLD CO.
By /s/ XXXXXX X. XXXXX
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Its President
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XXXX RESOURCES CORPORATION
By /s/ XXXXXXX XXXX
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Its President
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HYDRO RESOURCES CORPORATION
By /s/ Xxxxxx Xxxxxxxxx
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Its President
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