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EXHIBIT 10.9.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "AGREEMENT"), dated as of DECEMBER 17,
1996 is entered into by and between Laminco Resources, Inc., a British Columbia
corporation and a citizen and resident of Canada, (the "SELLER") and
______________________________, a citizen/corporation and resident/domicile of
______________________________, (the "PURCHASER").
The Seller has offered for sale outside the United States (as that term is
defined in Regulation S ("Regulation S") under the United States Securities Act
of 1933, as amended (the "ACT"), to the Purchaser __________ (UD$__________)
shares of the Common Stock, $.001 par value, of Fremont Gold Corporation, a
Delaware corporation (the "COMPANY").
Capitalized terms used herein and not defined herein shall have the
meanings given to them in Regulation S.
THE PARTIES HERETO AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF SHARES. Upon the basis of the representations and
warranties, and subject to the terms and conditions, set forth in this
Agreement, the Seller covenants and agrees to sell to the Purchaser on the
Closing Date (as hereinafter defined), __________ (UD$__________) shares of the
Common Stock, $.001 par value, of the Company (the "SHARES") at a price equal to
$.42 per Share on the Closing Date (the "PURCHASE PRICE"), and upon the basis of
the representations and warranties, and subject to the terms and conditions, set
forth in this Agreement, the Purchaser covenants and agrees to purchase from the
Seller on the Closing Date the Shares at the Purchase Price.
2. CLOSING. The settlement of the purchase and sale of the Shares pursuant
to Section 1, "Purchase and Sale of Shares," shall take place on or before
DECEMBER 20, 1996 (the "CLOSING DATE"), or such later date as Purchaser and
Seller agree. The certificates representing the Shares to be purchased by the
Purchaser shall be delivered by, or on behalf of, the Seller to a closing trust
account at __________________________________________________ and the Purchaser
shall deliver payment of the Purchase Price therefor in immediately available
UNITED STATES FUNDS to its account at________________________________. Delivery
of the Shares shall be in accordance with the instructions of the Purchaser, and
in such names as the Purchaser shall instruct, subject to customary settlement
procedures, at the end of business on the Closing Date.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
understands, and represents and warrants to, and agrees with, the Seller (all
such representations and warranties being made to and for the benefit of the
Company and any transfer agent of the Company employed for that purpose):
3.1. The Purchaser is a ________________________citizen/corporation
and resident/domicile of _________________________________.
3.2. This Agreement has been duly authorized, executed and delivered
by the Purchaser and is a valid and binding agreement enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium, and similar law of general
applicability relating to or affecting creditors' rights generally and to
general principles of equity; and the Purchaser has full power and
authority necessary to enter into this Agreement and to perform his
obligations
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hereunder.
3.3. No consent, approval, authorization, or order of any court,
governmental agency or body, or arbitrator having jurisdiction over the
Purchaser is required for execution of this Agreement, including, without
limitation, the purchase of the Shares, or the performance of the
Purchaser's obligations hereunder.
3.4. Neither the purchase of the Shares pursuant to, nor the performance of its
obligations under, this Agreement by the Purchaser will:
3.4.1. 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 constitute a default) under (i) any
decree, judgment, order, law, treaty, rule, regulation, or
determination applicable to the Purchaser of any court, governmental
agency or body, or arbitrator having jurisdiction over the Purchaser
or over the properties or assets of the Purchaser; (ii) 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
Purchaser is a party, by which the Purchaser is bound, or to which
any of the properties of the Purchaser is subject; or (iii) the
terms of any "lock-up" or similar provision of any underwriting or
similar agreement to which the Purchaser is a party; or
3.4.2. result in the creation or imposition of any lien,
charge, or encumbrance upon the Shares or any of the assets of the
Purchaser.
3.5. The Purchaser understands that no federal or state agency has
passed on or made any recommendation or endorsement of the Shares.
3.6. The Purchaser acknowledges that, in making the decision to
purchase the Shares, he has relied solely upon independent investigations
made by him and not upon any representations made by the Seller with
respect to the Company or the Shares.
3.7. The Purchaser understands that the Shares are being offered and
sold to him in reliance on specific exemptions or non-application from the
registration requirements of federal and state securities laws and that
the Seller is relying upon the truth and accuracy of the representations,
warranties, agreements, acknowledgments, and understandings of the
Purchaser set forth herein in order to determine the applicability of such
exemptions and the suitability of the Purchaser to acquire the Shares.
3.8. The Purchaser is not a U.S. Person (as defined in Regulation S)
and is not an affiliate of the Issuer.
3.9. No offer of the Shares was made to the Purchaser in the United
States.
3.10. At the time the buy order for the Shares was originated the
Purchaser was located outside the United States.
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3.11. The Purchaser is aware that the Shares have not been and will not be
registered under the Act and may only be offered or sold pursuant to
registration under the Act or an available exemption therefrom. Purchaser,
in connection with this Agreement, has entered into a Stockholders
Agreement which, under certain terms and conditions, grants Purchaser the
right to join the Company to register the Shares in any registration
statement under the Securities Act of 1933, as amended, filed by the
Company with the Securities and Exchange Commission.
3.12. The Purchaser:
3.12.1. will not, during the period commencing on the Closing
Date and ending on the day 40 days after the Closing Date (the
"RESTRICTED PERIOD"), offer or sell the Shares in the United States,
to a U.S. Person or for the account or benefit of a U.S. Person or
other than in accordance with Rule 903 or 904 of Regulation S; and
3.12.2. will, after the expiration of the Restricted Period,
offer, sell, pledge, or otherwise transfer the Shares only pursuant
to registration under the Act or an available exemption therefrom
and, in any case, in accordance with applicable state and foreign
securities laws. Notwithstanding the above the Purchaser, in
connection with this Agreement, has entered into a Stockholders
Agreement, the terms of which will restrict transfer of the Shares
for a period of one (1) year from the date of this Agreement.
3.13. None of the Purchaser, its affiliates or any person acting on
behalf of the Purchaser or any such affiliate has engaged, or will engage,
in any Directed Selling Efforts with respect to the Shares or any
distribution, as that term is used in the definition of Distributor, with
respect to the Shares.
3.14. The transactions contemplated by this Agreement:
3.14.1. have not been pre-arranged with a purchaser located in
the United States or who is a U.S. Person, and
3.14.2. are not part of a plan or scheme to evade the
registration provisions of the Act.
3.15. The Purchaser has not entered, or has no intention of
entering, into any put options and short positions or other similar
instruments with respect to the Shares or securities of the same class.
3.16. If the Purchaser offers and sells the Shares during the
Restricted Period, then it will do so only in accordance with the
provisions of Regulation S; pursuant to registration of the Shares under
the Act; or pursuant to an available exemption from the registration
requirements of the Act.
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3.17. Purchaser understands that the Company will place the following legend on
the Shares to be purchased under this Agreement:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED
PURSUANT TO REGULATION S PROMULGATED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED ("ACT"), AND HAVE NOT BEEN REGISTERED
UNDER THE ACT. THESE SHARES MAY NOT BE OFFERED OR SOLD WITHIN
THE UNITED STATES OR TO, OR FOR THE ACCOUNT OF, A "U.S.
PERSON" (AS THAT TERM IS DEFINED IN REGULATION S) UNTIL AFTER
FORTY (40) DAYS FOLLOWING TERMINATION OF THE OFFERING. AFTER
SUCH DATE, THE COMPANY WILL, AT THE REQUEST OF THE PURCHASER,
CAUSE ITS TRANSFER AGENT TO ISSUE CERTIFICATES REPRESENTING
THE COMMON STOCK WITHOUT ANY RESTRICTIVE LEGEND OR STOP
TRANSFER INSTRUCTIONS.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller represents and
warrants to and agrees with the Purchaser that (all such representations and
warranties being made to and for the benefit of any transfer agent of the
Company employed for that purpose):
4.1. The Shares are free and clear of any security interests, liens,
claims, or other encumbrances;
4.2. The Shares have been duly and validly authorized and issued and
are, and on the Closing Date will be, fully paid and non-assessable;
4.3. The Shares will not have been, individually and collectively,
issued or sold in violation of any pre-emptive or other similar rights of
the holders of any securities of the Company;
4.4. The Shares will not subject the holders thereof to personal
liability by reason of being such holders; and
4.5. The Shares are quoted on, and will be, following the completion
of the Restricted Period (if sold in accordance with the provisions of
this Agreement), eligible for trading through the OTC Bulletin Board of
National Association of Securities Dealers.
4.6. There is no pending or, to the best knowledge of the Seller,
threatened action, suit, proceeding, or investigation before any court,
governmental agency or body, or arbitrator having jurisdiction over the
Seller or any of his affiliates that would materially affect the execution
by the Seller of, or the performance by the Seller of his obligations
under, this Agreement.
4.7. The Company is a reporting issuer as defined in Regulation S.
4.8. The Seller is an affiliate of the Company.
4.9. The sale of the Shares pursuant to this Agreement will be made
in accordance with
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the provisions and requirements of Regulation S and applicable to state or
foreign law.
4.10. No offer to buy the Shares was made to the Seller by any
person in the United States.
4.11. None of the Seller, any affiliate of the Seller, or any person
acting on behalf of the Seller or any such affiliate has engaged, or will
engage, in any Directed Selling Efforts with respect to the Shares or any
distribution, as that term is used in the definition of Distributor, with
respect to the Shares.
4.12. The transactions contemplated by this Agreement:
4.12.1. have not been pre-arranged with a purchaser who is in
the United States or who is a U.S. Person; and
4.12.2. are not part of a plan to evade the registration
provisions of the Act.
4.13. Neither the Seller, nor any affiliate of the Seller, nor any
person acting on their behalf has undertaken or carried out any activity
for the purpose of, or that could reasonably be expected to have the
effect of, conditioning the market in the United States for any of the
Shares, including, but not limited to, general solicitation activities or
advertising.
4.14. The Seller is not an officer or director of the Company.
4.15. The Seller has not made within the six months prior hereto,
nor will make within the six months following the date hereof, any offer
or sale of the securities of the Company except for the offers or sales of
securities that are registered with the Securities and Exchange Commission
(the "SEC") or not registered with the SEC upon the advice of counsel.
5. COVENANTS OF THE SELLER. The Seller covenants and agrees with the
Purchaser to refrain from engaging, and insure that none of its affiliates will
engage, in any Directed Selling Efforts with respect to the Shares or any
distribution, as that term is used in the definition of Distributor, with
respect to the Shares.
6. CONDITIONS PRECEDENT TO THE PURCHASER'S OBLIGATIONS. The obligations of
the Purchaser hereunder are subject to the performance by the Seller of its
obligations hereunder and to the satisfaction of the following additional
condition precedent:
6.1. The representations and warranties made by the Seller in this
Agreement shall, unless waived by the Purchaser, be true and correct as of
the date hereof and at the Closing Date, with the same force and effect as
if they had been made on and as of the Closing Date.
6.2. After the date hereof until the Closing Date there shall not
have occurred:
6.2.1. any change, or any development involving a prospective
change, in either (i) the condition, financial or otherwise, or in
the earnings, business or operations, or in or affecting the
properties of the Company of (ii) the financial or market conditions
or circumstances in the United States, in either case which, in the
Purchaser's judgment, is material and adverse and makes it
impractical or inadvisable to proceed with the offering, sale, or
delivery of the Shares;
6.2.2. an imposition of a new legal or regulatory restriction
not in effect on the
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date hereof, or any change in the interpretation of existing legal
or regulatory restrictions, that materially and adversely affects
the offering, sale or delivery of the Shares; or
6.2.3. a suspension, or material limitation of, trading (i)
generally on or by the NASD's OTC Bulletin Board or (ii) of any
securities of the Company on any exchange or in any over-the-counter
market.
7. CONDITIONS PRECEDENT TO THE SELLER'S OBLIGATIONS. The obligations of
the Seller hereunder are subject to the performance by the Purchaser of its
obligations hereunder and to the satisfaction of the following additional
condition precedent:
The representation and warranties made by the Purchaser in this
Agreement shall, unless waived by the Seller, be true and correct at the
Closing Date, with the same force and effect as if they had been made on,
and as of, the Closing Date.
8. FEES AND EXPENSES. Each of the Purchase and the Seller agrees to pay
its own expenses incident to the performance of its obligations hereunder,
including, but not limited to, the fees, expenses, and disbursements of such
party's counsel.
9. INDEMNIFICATION.
9.1. If the Purchaser becomes involved in any capacity in any
action, proceeding, or investigation in connection with any matter
referred to in or relating to this Agreement (except as expressly provided
for in paragraph 9.3 of this Section 9), the Seller will reimburse the
Purchaser for his reasonable legal and other expenses (including the cost
of any investigation and preparation) incurred in connection therewith, as
such expenses are incurred, and will indemnify and hold the Purchaser
harmless from and against any losses, claims, damages, or liabilities to
which Purchaser may become subject in connection with any such action,
proceeding, investigation, or matter, unless such loss, claim, damage, or
liability results primarily from the Purchaser's negligence, recklessness,
or bad faith in performing the services which are the subject of this
Agreement.
9.2. If the Seller becomes involved in any capacity in any action,
proceeding, or investigation in connection with any matter referred to in
or relating to this Agreement (except as expressly provided for in
paragraph 9.3 of this Section 9), the Purchaser will reimburse the Seller
for his reasonable legal and other expenses (including the cost of any
investigation and preparation) incurred in connection therewith, as such
expenses are incurred, and will indemnify and hold the Seller harmless
from and against any losses, claims, damages, or liabilities to which
Seller may become subject in connection with any such action, proceeding,
investigation, or matter, to the extent, but only to the extent, that such
loss, claim, damage, or liability results primarily from the Purchaser's
negligence, recklessness, or bad faith in performing the services which
are the subject of this Agreement.
9.3. Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified
party shall notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not
relieve the indemnifying party from any liability which his may have
pursuant to this Section 9 unless, due to the failure to be so notified,
the indemnifying party is unable to contest the losses or claims
indemnified against, and such omission shall in no event relieve the
indemnifying party from any liability which he may have to any indemnified
party otherwise than under this Section 9. In case any such action shall
be brought against any indemnified party and he shall notify the
indemnifying party
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of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it may elect by written notice
delivered to such indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with
counsel reasonably satisfactory to such indemnified party, (who shall not,
except with the consent of the indemnified party, which consent shall not
be unreasonably withheld, be counsel to the indemnifying party); provided,
however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available
to the indemnified party and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
the indemnified party or parties shall have the right to select separate
counsel to assert such legal defenses and otherwise to participate in the
defense of such action on behalf of such indemnifying party to such
indemnified party of its election so to assume the defense of such action
and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 9 for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party shall
have employed separate counsel in connection with the assertion of legal
defenses in accordance with the provision to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel for each
indemnified party), (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying
party; provided further, however, that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel
referred to in such clauses (i) or (iii).
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10. SURVIVAL OF THE REPRESENTATIONS, WARRANTIES, ETC. The respective agreements,
representations, warranties, indemnities, and other statements made by or on
behalf of the Seller and Purchaser, respectively, pursuant to this Agreement,
shall remain in full force and effect, regardless of any investigation made by
or on behalf of the other party to this Agreement or any officer, director, or
employee of, or person controlling or under common control with, such party and
will survive delivery of any payment of the Shares.
11. NOTICES. All communications hereunder shall be in writing, and, if
sent to the Purchaser shall be sufficient in all respects if delivered, sent by
registered mail, or by telecopy and confirmed to the Purchaser at:
_________________________________
_________________________________
_________________________________
_________________________________
or, if sent to the Seller, shall be delivered, sent by registered mail, or by
telecopy and confirmed to the Seller at:
LAMINCO RESOURCES, INC.
XXXXX XXXXXXXXX
000 XXXXXX XXXXXX, XXXXX 0000
XXXXXXXXX, XXXXXXX XXXXXXXX, XXXXXX, X0X 0X0
12. MISCELLANEOUS.
12.1. This Agreement may be executed in one or more counterparts and
it is not necessary that signatures of all parties appear on the same
counterpart, but such counterparts together shall constitute but one and the
same agreement.
12.2. This Agreement shall inure to the benefit of and be binding
upon the parties hereto, their respective successors and, with respect to
Section 9, "Indemnification," the officers, directors, and controlling persons
thereof and each person under common control therewith, and no other person
shall have any right or obligation hereunder.
12.3. This Agreement shall be governed by, and construed in
accordance with, the laws of the state of Delaware.
12.4. The headings of the sections of this document have been
inserted for convenience of reference only and shall not be deemed to be part of
this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement, all as of the day and year first above written.
LAMINCO RESOURCES, INC.
_____________________________________
by _____________________________
Its ____________________________
PURCHASER
_____________________________________
(Print Name)
_____________________________________
"Purchaser" signature
_____________________________________
"If corporation; official capacity"
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