Exhibit 10.1
SUBSCRIPTION AGREEMENT
FOR
COMMON STOCK
This
Subscription Agreement for Common Stock (“Agreement”) is entered into
this 25th day of February 2009 between GOLD RESOURCE CORPORATION
(“Company”), a corporation incorporated under the laws of the State of
Colorado, and HOCHSCHILD MINING HOLDINGS LIMITED (“Hochschild”), a
private limited company organized under the laws of England and Wales. The Company and
Hochschild may hereinafter be referred to as the “Parties” or individually as a
“Party”.
RECITALS
WHEREAS,
on December 5, 2008, the Parties entered into a Strategic Alliance Agreement
providing, among other things, an Option whereby Hochschild could acquire all, but not
less than all, of 4,330,000 Shares for a purchase price of US$3.00 per share or a total of
US$12,990,000.00; and
WHEREAS,
Hochschild has provided the Option Exercise Notice pursuant to the terms of the Strategic
Alliance Agreement stating its desire to exercise the Option; and
WHEREAS,
the Board of Directors of the Company (“Board of Directors”) has
authorized the Company to enter into this Agreement and the parties wish to memorialize
the terms and conditions of their agreement.
NOW,
THEREFORE, in consideration of the foregoing recitals, which shall be considered an
integral part of this Agreement, the mutual conditions, covenants and agreements
hereinafter set forth, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by both Parties, the Parties hereby agree as
follows:
ARTICLE 1
DEFINITIONS
Definitions.
In this Agreement, unless the context otherwise requires:
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“Affiliate”shall
have the meaning ascribed thereto in the Securities Act; |
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“Agreement”means
this subscription agreement including the Schedules attached hereto and any instrument
amending this Agreement and “hereof”, “hereto”, “hereunder” and
similar expressions mean and refer to this Agreement and not to a particular Article,
Section, Subsection or Paragraph; |
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“Audited
Financial Statements” means the comparative audited consolidated financial
statements of the Company for the years ended December 31, 2007 and December 31, 2006; |
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“Authority”and
“Authorities” means any (i) multinational, federal, provincial, state,
regional, municipal, local or other government, governmental or public department,
securities commission (including the Securities Commissions), central bank, court,
tribunal, arbitral body, commission, board, bureau or agency, domestic or foreign, (ii)
any subdivision, agent, commission, board, or authority of any of the foregoing, or (iii)
any quasi-governmental or private body exercising any regulatory, expropriation or taxing
authority under or for the account of any of the foregoing, and includes a stock exchange
and any other self-regulatory authority; |
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“Board
of Directors” means the board of directors of the Company; |
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“Business
Day” means any day which is not a Saturday, a Sunday or a day on which banks are
generally closed for business in Denver, Colorado or London, England; |
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“Claims”means
all losses, damages, expenses, Liabilities, claims and demands of whatever nature or
kind, including all reasonable legal fees and disbursements; |
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“Closing”means
the completion of the issue and delivery by the Company and the acquisition by Hochschild
of the Purchased Shares pursuant to this Agreement; |
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“Closing
Date” has the meaning given to it in Section 2.5; |
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“Closing
Time”has the meaning given to it in Section 2.5; |
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“Company”has
the meaning given to it in the preamble hereto; |
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“Company
Indemnities” has the meaning given to it in Section 9.2; |
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“Contracts”means
all agreements, arrangements, understandings, commitments and undertakings (whether
written, electronic or oral), to which a Person is a party or a beneficiary or pursuant
to which any of its property or assets are or may be affected; |
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“Convertible
Securities” with respect to a corporation or other person, means all warrants,
rights, agreements or options, present or future, contingent or absolute, or any right or
privilege capable of becoming a right, agreement or option, for the purchase,
subscription or issuance of any shares in the capital of such corporation or other person
or any other security convertible or exchangeable for shares in the capital of such
corporation or other person, including options granted to officers, directors or
employees, whether issued pursuant to an established plan or otherwise; |
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“Debt
Instrument” means any loan, bond, debenture, promissory note or other instrument
evidencing material indebtedness for borrowed money or other material liability; |
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“Environmental
Laws” means federal, state, municipal or local Laws and Permits relating to
environmental, health or safety matters; |
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“Existing
Properties” means the properties, including but not limited to (i) El Xxxxxx,
(ii) Las Margaritas, (iii) Solaga, and (iv) El Rey, each located in Oaxaca, Mexico, over
which the Company holds ownership interests; |
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“Hochschild Indemnitees” has
the meaning given to it in Section 9.1; |
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“Laws” means
any and all applicable (i) laws, constitutions, treaties, statutes, codes, ordinances,
orders, decrees, rules, regulations and municipal by-laws, (ii) judicial, arbitral,
administrative, ministerial, departmental or regulatory judgments or orders of any
Authorities, and (iii) policies, guidelines and protocols; |
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“Liabilities” means,
with respect to any Person, any liability or obligation of such Person of any kind,
character or description, whether known or unknown, absolute or contingent, accrued or
unaccrued, disputed or undisputed, liquidated or unliquidated, secured or unsecured,
joint or several, due or to become due; |
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“Lien” means
any mortgage, easement, encroachment, adverse claim, and assignment by way of security,
security interest, servitude, pledge, charge, lien, assignment, hypothecation,
conditional sale agreement, title retention, preferential right, trust arrangement, right
of set-off, counterclaim or banker’s lien, financing statement, privilege or
priority, or other encumbrance of any kind having the effect of security, any designation
of loss payees or beneficiaries or any similar arrangement under or with respect to any
insurance policy or any preference of one creditor over another arising by operation of
law; |
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“Material
Adverse Effect” means in respect of any Person, individually or together with
other adverse effects, any matter or action that has an effect that is, or would
reasonably be expected to be, material and adverse to (A) the assets, liabilities,
results of operations, capitalization or business condition (financial or otherwise) or
prospects of such Person and its subsidiaries, taken as a whole, or (B) such Person’s
ability to consummate the transactions contemplated by this Agreement; |
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“Options” means
outstanding options to acquire Shares of the Company under the Stock Option Plan; |
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“Parties” means
the Company and Hochschild, collectively, and “Party” means any one of
them; |
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“Permits” means
all permits, consents, waivers, licenses, certificates, approvals, authorizations,
registrations, franchises, rights, privileges, quotas and exemptions, or any item with a
similar effect, issued or granted by any Authority; |
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“Person” means
an individual, partnership, unincorporated association, organization, syndicate,
corporation or trust or a trustee, executor, administrator or other legal or personal
representative; |
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“Purchase
Price” means US$3.00 per share or a total of US$12,990,000. |
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“Purchased
Shares” means the number of Shares subscribed for by Hochschild under Section
2.1 of this Agreement; |
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“Regulatory
Approvals” means those authorizations, sanctions, rulings, consents, orders,
waivers, exemptions, licenses, Permits and other approvals (including a lapse, without
objection, of a prescribed time under a statute or regulation that states that a
transaction may be implemented if a prescribed time lapses following the giving of notice
without an objection being made) of corporate bodies or Authorities or third parties
required in connection with the consummation of the subscription for and issuance of the
Purchased Shares; |
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“Securities
Act” shall have the meaning given to it in Section 2.4; |
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“Securities
Commissions” means the securities regulator in each jurisdiction whose
Securities Laws are applicable to the Company; |
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“Securities
Laws” means the Laws relating to securities of the Company and the regulations
and rules made and forms prescribed thereunder together with all applicable published
policy statements, blanket orders, rulings and notices adopted by the Securities
Commissions of each such jurisdiction or applicable in such jurisdictions; |
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“Shares” means
common shares in the capital of the Company; |
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“Strategic
Alliance Agreement” has the meaning assigned to it in the Recitals of this
Agreement; |
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“Tax
Returns” means any return, declaration, report, schedule, information statement
or return with respect to Taxes required to be filed with an Authority; |
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“Taxes” means,
in respect of a Person, any and all taxes and related governmental charges (including
assessments, charges, duties, rates, fees, imposts, levies or other governmental charges
and interest, penalties or additions associated therewith) including U.S. federal,
provincial, municipal and local, foreign or other income, franchise, capital, real
property, personal property, tangible, withholding, payroll, employer health, social
security, transfer, sales, use, consumption, IVA, excise, anti-dumping, stamp,
countervail and value added taxes, all other taxes of any kind for which the Person may
have any liability whether disputed or not and all employment insurance premiums; |
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“Warrants” means,
collectively, (i) outstanding warrants to acquire Shares in the Company, and “Warrant” means
any one of the foregoing; |
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“Unaudited
Financial Statements” means the comparative unaudited interim financial
statements of the Company for the periods ended March 31, June 30, and September 30,
2008 and 2007. |
Interpretation.
In this Agreement, unless the context otherwise requires, the following
rules apply:
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(a) |
the
use of words in the singular or plural, or with a particular gender, shall not
limit the scope or exclude the application of any provision of this Agreement
to such Person or Persons or circumstances as the context otherwise permits; |
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(b) |
unless
otherwise specified, time periods within, or following which any payment is to
be made or act is to be done shall be calculated by excluding the day on which
the period commences and including the day on which the period ends and by
extending the period to the next Business Day, if the last day of the period is
not a Business Day; |
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(c) |
reference
to legislation or to a provision of legislation includes a modification or
re-enactment of it, a legislative provision substituted for it and a regulation
or statutory instrument issued under it; |
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(d) |
all
amounts expressed herein in terms of money refer to the lawful currency of the
United States of America and all payments made hereunder shall be made in such
currency; |
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(e) |
headings
in this Agreement are for convenience only and shall not affect its
interpretation; and |
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(f) |
references
to “include”, “includes” or “including” and the
like shall be construed, in each case, as if followed by the words “but
without limitation”. |
ARTICLE 2
SUBSCRIPTION
| 2.1 |
Subscription
for Shares |
Subject
to the terms and conditions of this Agreement, Hochschild hereby subscribes for and
agrees to purchase four million three hundred thirty thousand (4,330,000) Shares (the “Purchased
Shares”) at the Purchase Price.
By
its execution of this Agreement, the Company hereby accepts the subscription by Hochschild
for the Purchased Shares and subject to the terms and conditions of this Agreement, agrees
to issue and sell the Purchased Shares to Hochschild on the Closing Date.
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| 2.3 |
Payment
of Purchase Price |
On
the Closing Date and subject to the conditions set forth in Section 3.2 below, Hochschild
shall pay to the Company the Purchase Price by wire transfer in immediately available
funds as the Company shall direct in writing.
| 2.4 |
Restricted
Securities |
Hochschild
hereby acknowledges and agrees that the Purchased Shares have not been and will not be
registered under the United States Securities Act of 1933, as amended (the
“Securities Act”), but will be issued pursuant to an exemption from the
registration requirements of the Securities Act. As a result, the certificate representing
the Purchased Shares shall bear a restrictive legend and transfer of the Purchased Shares
shall be restricted as hereinafter set forth.
Closing
of the sale of the Purchased Shares and payment of the Purchase Price shall be completed
at the offices of the Company in Denver, Colorado at 10:00 a.m. (Denver time) (the
“Closing Time”) on February 27, 2009 or such other place, date or time as
the Company and Hochschild may agree (the “Closing Date”). At that place
and time, and subject to the conditions set forth in Section 3.1 below, the Company
shall deliver or cause to be delivered to Hochschild, one or more certificates
representing the Purchased Shares against payment of the Purchase Price.
ARTICLE 3
CONDITIONS
TO CLOSING DATE
| 3.1 |
Conditions
to the Company’s Obligations to Close |
The
obligation of the Company to complete the issuance and sale of the Purchased Shares and
tender a certificate for the Purchased Shares shall be subject to satisfaction on or
before the Closing Date of the following conditions precedent (each of which is
acknowledged to be for the exclusive benefit of the Company and may be waived in whole or
in part by the Company in its complete discretion):
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(a) |
All
of the representations and warranties made by Hochschild in this Agreement are
true and accurate as of the Closing Date; |
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(b) |
All
covenants to be performed by Hochschild prior to the Closing Date pursuant to
this Agreement have been performed; |
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(c) |
Hochschild
has tendered the Purchase Price to the Company; |
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(d) |
There
shall be no Laws, injunction, order or decree which restrains or enjoins or
otherwise prohibits the issuance and purchase of the Purchased Shares, or any
action or proceeding pending or threatened against the Company or against
Hochschild by any government authority or any other Person (including a Party
hereto) to restrain or prohibit the completion of the transactions contemplated
by this Agreement; and |
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(e) |
All
necessary approvals will have been obtained to permit the Purchased Shares to
be duly issued to, and registered in the name of, Hochschild in compliance with
all applicable Laws, including regulatory approvals. |
| 3.2 |
Conditions
to the Obligations of Hochschild to Close |
The
obligation of Hochschild to complete the purchase of the Purchased Shares pursuant to this
Agreement shall be subject to the fulfillment of, on or before to the Closing Date, each
of the following conditions precedent (each of which is acknowledged to be for the
exclusive benefit of Hochschild and may be waived in whole or in part by the Hochschild in
its complete discretion):
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(a)
All
of the representations and warranties of the Company made in or pursuant to
this Agreement shall be true and correct as of the Closing Date and with the
same effect as if made at and as of the Closing Date; |
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(b)
The
Company shall have performed or complied with, in all respects, all of its
obligations, covenants and agreements under this Agreement to be performed or
complied with at or prior to the Closing Date; |
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(c)
There
shall be no Laws, injunction, order or decree which restrains or enjoins or
otherwise prohibits the issuance and purchase of the Purchased Shares, or any
action or proceeding pending or threatened against Hochschild or against the
Company by any governmental authority or any other Person (including a Party
hereto) to restrain or prohibit the completion of the transactions contemplated
by this Agreement; |
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(d)
Nothing
has occurred which, in Hochschild’s reasonable opinion, has or could
reasonably be expected to have a Material Adverse Effect on the Company; |
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(e)
Hochschild
shall have received (i) such written opinions from counsel to the Company (who
shall not be an employee of the Company or any of its Affiliates) dated as of
the Closing, addressed to Hochschild and in the form acceptable to Hochschild
and its counsel, each acting reasonably, and which shall, among other things,
include opinions as to the Company’s compliance with applicable
requirements under the Securities Act and other United States securities laws
and title to the Existing Properties; |
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(f)
Hochschild
will be furnished with such certificates or other instruments of the Company or
of officers of the Company as Hochschild or Hochschild’s counsel may
reasonably believe necessary in order to establish that the obligations and
covenants contained in this Agreement have been performed or complied with in
accordance with Section 3.2 and that the representations and warranties of the
Company herein given are true and correct at the Closing in accordance with
Section 3.2(a); and |
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(g)
All necessary steps and
proceedings will have been taken to permit the Purchased Shares to be duly
issued to, and registered in the name of, Hochschild in compliance with all
applicable Laws, including the Company having obtained all necessary regulatory
approvals. |
Hochschild,
in the case of a condition set out in Section 3.2, and the Company, in the case of a
condition set out in Section 3.1, will have the exclusive right to waive before the
Closing Date the performance or compliance of such condition in whole or in part and on
such terms as may be agreed upon without prejudice to any of its rights in the event of
non-performance of or non-compliance with any other condition in whole or in part. Any
such waiver will not constitute a waiver of any other conditions in favor of the waiving
party. Such waiving party will retain the right to complete the sale and purchase of the
Purchased Shares herein contemplated and xxx the other party in respect of any breach of
the other party’s covenants or obligations or any inaccuracy or misrepresentation in
a representation or warranty of the other party which gave rise to the non-performance of
or non-compliance with the condition so waived.
| 3.4 |
Actions
to Satisfy Closing Date Conditions. |
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(a) |
The
Company shall take all such actions as are within its power to control and
shall use commercially reasonable efforts to cause other actions to be taken
which are not within its power to control, so as to ensure compliance with all
of the conditions set forth in Section 3.2 (except to the extent any such
condition is waived by Hochschild pursuant to Section 3.3), including ensuring
that during the period from the date hereof to Closing Date, there is no breach
of any of its representations and warranties. |
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(b) |
Hochschild
shall take all such actions as are within its power to control and shall use
commercially reasonable efforts to cause other actions to be taken which are
not within its power to control, so as to ensure compliance with all of the
conditions set forth in Section 3.1 (except to the extent any such condition is
waived by the Company pursuant to Section 3.3), including ensuring that during
the period from the date hereof to Closing Date, there is no breach of any of
its representations and warranties. |
ARTICLE 4
COVENANTS
| 4.1 |
Post-Closing
Date Covenants of the Company |
The
Company shall comply with all securities regulatory filing requirements on a timely basis
in connection with the distribution of the Purchased Shares to Hochschild, including
filing within the periods stipulated under Securities Laws, at the Company’s expense,
all private placement forms required to be filed by the Company and paying all filing fees
required to be paid in connection therewith so that the distribution of the Purchased
Shares may lawfully occur without the necessity of filing a prospectus, registration
statement or any similar document under the Securities Laws.
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(a) |
During
the period from the date hereof to Closing, no press release or other public
announcement with respect to this Agreement or the transactions contemplated
herein will be made by a Party until the text of the announcement and the time
and manner of its release have been approved by the other Party in writing,
acting reasonably. |
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(b) |
Notwithstanding
Section 4.2(a), if at any time up to Closing, a Party is bound by Law to make a
press release or other public announcement, such Party may do so,
notwithstanding the failure of the other Parties to approve same, provided: |
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(i) |
the
other Parties are given at least one (1) Business Day prior written notice of
the intention to make such announcement and have a reasonable opportunity to
comment on the announcement; and |
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(ii) |
the
announcement merely relates the facts and then only to the extent necessary to
satisfy the specific legal requirement. |
| 4.3 |
Commencement
of Production |
The
Company shall use commercially reasonable efforts to apply for and secure all
necessary permits, authorization, agreements and surface rights required to (i) commence
mining operations (exploitation) at the El Xxxxxx project, including but not
limited to, those permits, authorizations and agreements specified in Schedule 5.1(a) and
(ii) conduct exploration and mining development activities at the Existing Properties.
| 4.4 |
Documentation
of Inter-Company Transactions |
Not
later than the filing of its annual report on Form 10-K for the year ended December 31,
2008 with the United States Securities and Exchange Commission, the Company shall execute
appropriate documentation to evidence the inter-company transactions with its Mexican
subsidiaries, and shall provide copies of such documentation to Hochschild.
ARTICLE 5
REPRESENTATIONS AND
WARRANTIES OF
THE COMPANY
5.1 Representations,
Warranties and Covenants of the Company
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The
Company hereby represents and warrants to, and covenants with, Hochschild as follows and
acknowledges that Hochschild is relying on such representations and warranties in
connection with the transaction contemplated hereby:
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(a) the
Company and its subsidiaries have been duly incorporated and are in good
standing under the laws of their respective jurisdictions, and are current
and up-to-date with all filings required to be made by them in such
jurisdiction, have all requisite corporate power and authority and are
duly qualified and except as disclosed in Schedule 5.1(a),
possess all certificates, authorizations, permits and licences issued by
the appropriate state, municipal, or federal regulatory agencies or bodies
necessary (and has not received or is aware of any modification or
revocation to such licences, authorizations, certificates or permits) to
carry on their business as now conducted and to own the Existing
Properties and assets and the Company and its subsidiaries have all
requisite corporate power and authority to execute, deliver, perform and
carry out their obligations under this Agreement. |
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(b) except
as disclosed in Schedule 5.1(b), since September 30, 2008,
there has been no change to the Company (actual, or to the knowledge of
the Company, proposed or prospective, whether financial or otherwise) that
would cause a Material Adverse Effect to the Company, which has not been
disclosed to the public and, in all material respects, the business of the
Company has been carried on in the usual and ordinary course consistent
with past practice, to the extent that such past practice is consistent
with the current business direction of the Company. |
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(c) this
Agreement constitutes a legal, valid and binding obligation of the Company,
enforceable in accordance with its terms; |
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(d) the
execution, delivery and performance by the Company of its obligations under
this Agreement and the issuance, sale and delivery of the Purchased Shares
by the Company: |
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(i) |
has
been duly authorized by all necessary action on the part of the Company; |
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(ii) |
does
not require the approval, authorization, consent or order of, and no filing,
registration or recording with, any governmental authority having jurisdiction
over the Company in connection with the execution and delivery or with the
performance by the Company of this Agreement; |
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(iii) |
does
not require the consent, approval, authorization, registration or qualification
of or with any governmental authority, stock exchange, securities commission or
other regulatory authority or other third party; and |
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(iv) |
does
not and will not (or will not with the giving of notice, the lapse of time or
the happening of any other event or condition) result in a violation of any of
the terms or provisions of any law applicable to the Company, a breach or a
violation of, or conflict with or result in a default under, or allow any other
person to exercise any rights under, any of the terms or provisions of the
articles, by-laws or resolutions of the Board of Directors (or any committee
thereof) or security holders of the Company, or any judgment, decree, order or
award of any court, governmental body or arbitrator having jurisdiction over
any of them, or any agreement, license or permit to which any of them is a
party; |
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(e) as
of the close of business on February 23, 2009, the authorized capital of the
Company consists of 60,000,000 shares of common stock and 5,000,000 shares
of preferred stock, of which 36,505,982 shares of common stock are issued
and outstanding as fully paid and non-assessable, and the Company has no
other shares of any kind issued and outstanding; |
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(f) as
at the date of this Agreement there are outstanding Options to acquire an
aggregate of up to 3,102,394 shares of Company common stock. Except for
the Options, no person holds any Convertible Securities of the Company or
any of its Subsidiaries or is entitled to any pre-emptive or any similar
rights to subscribe for any Shares or other securities of the Company or
any of its Subsidiaries; |
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(g) immediately
following the Closing Date, Hochschild will own the Purchased Shares and
the Purchased Shares will collectively represent 10.6% of the then-issued
and outstanding Shares on a non-diluted basis, assuming no other issuance
of shares between the date of this Agreement and the Closing Date; |
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(h) as
at the date of this Agreement, there is no Contract or any other right of
another Person binding upon or which at any time in the future may become
binding upon the Company or any of its Subsidiaries: (i) to allot or issue
any unissued shares thereof to any Person; (ii) to create any additional
class of shares of the Company or any of its Subsidiaries; (iii) to sell,
transfer, assign, pledge, mortgage or in any way dispose of or encumber
any securities of the Company or any of its Subsidiaries to or in favour
of any Person; or (iv) to sell, transfer, assign, pledge, mortgage or in
any other way dispose of or encumber any of the assets of the Company or
any of its Subsidiaries other than in the ordinary course of business; |
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(i) to
the knowledge of the Company, no agreement is in force or effect which in any
manner affects the voting or control of any of the securities of the
Company or any of its Subsidiaries and, to the knowledge of the Company,
following the Closing Date and except for the Strategic Alliance
Agreement, there will be no shareholders’ agreement, voting trust
agreement or other agreement (i) governing or otherwise affecting the
voting rights associated with any securities of the Company; or (ii)
restricting or otherwise affecting the power and authority of the
directors of the Company; |
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(j) the
Company is in compliance with its obligations under all applicable
securities laws and has filed and made timely and accurate disclosure in
reports and all other documents required to be filed under securities laws
applicable thereto; |
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(k) neither
the Company, nor any person acting on its behalf has, directly or
indirectly, (i) made offers or sales of any security, or solicited
offers to buy any security, under circumstances that would require the
distribution of the Purchased Shares to be qualified by a prospectus filed
in accordance with the Securities Laws or (ii) has engaged in any
advertisement of Company shares in any printed media of general and
regular paid circulation, radio or television or any other form of
advertising in connection with the offer and sale of Company shares that
would require filing of a prospectus; |
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(l) the
Purchased Shares to be issued have been, or prior to the Closing Time (as
defined in Section 2.5) will have been, duly created and, when issued and
delivered to Hochschild, the Purchased Shares will be validly issued as
fully paid Shares and will not have been issued in violation of or subject
to any pre-emptive rights or contractual rights to purchase securities
issued by the Company; |
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(m) no
securities commission, stock exchange or comparable authority has issued any
order preventing or suspending the distribution of the Purchased Shares or
the trading of securities of the Company generally and the Company is not
aware of any investigation, order, inquiry or proceeding which has been
commenced or which is pending, contemplated or threatened by any such
authority; |
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(n) the
common stock currently trades in the Over-the-Counter market and is quoted
on the Bulletin Board system maintained by the Nasdaq Stock Market and no
order ceasing or suspending trading in any securities of the Company or
the trading of any of the Company’s issued securities is currently
outstanding and no proceedings for such purpose are, to the knowledge of
the Company, pending or threatened; |
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(o) except
as otherwise publicly disclosed by the Company, the Company has carried
out its affairs in compliance in all material respects with the terms and
provisions of applicable Laws and is not in material violation of or in
material default in the performance of any mortgage, note, indenture, deed
of trust, contract, agreement (written or oral), instrument, lease,
licence or other document to which it is a party or by which it is bound
or to which its property or assets or any of them is subject, and no event
has occurred which with notice or lapse of time or both would constitute
such a default and all such contracts, agreements and arrangements are in
good standing; |
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(p) the
Company and each of its subsidiaries has duly and in a timely manner filed
all Tax Returns that are required to be filed by them and all such Tax
Returns are correct or complete in all respects; and, to the knowledge of
the Company and except as disclosed in Schedule 5.1(p), there
are no audits of the Tax Returns of the Company or any of its Subsidiaries
by any Authority pending and there are no outstanding claims or Liens for
Taxes on the assets of the Company or any of its Subsidiaries; |
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(q) except
as disclosed in Schedule 5.1(q), there is no Contract to which the
Company or its subsidiaries is a party or by which any of them or their
respective properties or assets are bound that (a) if terminated, would
reasonably be expected to have a material adverse effect on the Company;
or (b) is a contract that contains any non-competition obligations or
otherwise restricts in any material way the business of the Company or its
subsidiaries; |
12
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(r) the
Company and each of its subsidiaries has performed in all material respects
all respective obligations required to be performed by them to date under
any material contracts and are not, and are not to the knowledge of the
Company, alleged to be in breach or default in any material respect
thereunder; |
|
(s) except
as disclosed in Schedule 5.1(s), neither the Company nor its
Subsidiaries are parties to, bound by or subject to any debt instrument,
or any agreement, contract or commitment to create, assume or issue any
debt instrument; |
|
(t) the
Audited Financial Statements and the Unaudited Financial Statements have
been prepared in accordance with generally accepted accounting principles
(“GAAP”) applied on a basis consistent with those of preceding
fiscal periods (except that the unaudited, interim statements do not
contain all of the footnotes that would be required by GAAP and have been
prepared in accordance with the rules of the United States Securities and
Exchange Commission pertaining to condensed interim statements) and the
statements present fairly the assets, liabilities and financial condition
of the Company as at the dates and for the periods indicated in such
financial statements; |
|
(u) neither
the Company nor any of its subsidiaries has been in material violation of
any Environmental Laws or Permits and there are no orders, rulings or
directives issued, pending or, to the knowledge of the Company, threatened
against the Company or any of its Subsidiaries under or pursuant to any
Environmental Laws; |
|
(v) the
Company and its subsidiaries hold either freehold title, mining leases,
mining claims or other conventional property, proprietary or contractual
interests or rights, recognized in the jurisdiction in which a particular
property is located in respect of the ore bodies and minerals located in
its properties under valid, subsisting and enforceable title documents or
other recognized and enforceable agreements or instruments, which are
currently sufficient to permit the Company through its subsidiaries to
explore the minerals relating thereto, and all such property, leases or
claims and all property, leases or claims in which the Company or the
subsidiaries have any interest or right have been validly located and
recorded in accordance with all applicable laws and are valid and
subsisting; |
|
(w) the
Company’s Subsidiaries have obtained surface rights, access rights and
other rights to only portions of its holdings as follows: the El Xxxxxx
Project has been granted surface rights for exploration and surface rights
for exploitation in the area of its mining sites and mill site, Las
Margaritas has been granted surface rights for exploration on a portion of
its claims, El Rey has been granted surface rights for exploration on a
portion of its claims, and no surface rights have been obtained for
exploration at the Sologa property; |
|
(x) the
Company has not declared or paid, or committed to declare or pay, any amount
to any person in respect of a performance or incentive or other bonus in
connection with the completion of the transaction contemplated by this
Agreement; |
13
|
(y) the
Company’s Subsidiaries have timely filed applications with the relevant
authorities to obtain all necessary permits known to the Company required
to commence mining operations (exploitation) at the El Xxxxxx project,
including but not limited to: (i) the rights to use groundwater; and (ii)
authorization for the purchase, storage and use of explosives; |
|
(z) neither
the Company nor any of its subsidiaries is subject to any claim for
wrongful dismissal, constructive dismissal or any other claim, actual or
threatened, or any litigation, actual or threatened, relating to its
employees or independent contractors (including any termination of such
persons) other than those claims or such litigation as would individually
or in the aggregate not have a material adverse effect on the Company; |
|
(aa) the
Company and each Subsidiary has timely filed with all applicable securities
regulatory authorities, and all applicable self-regulatory organizations
true and complete copies of all forms, reports, schedules, statements and
other document required to be filed by it, and all such documents complied
in all material respects with the requirements of applicable securities
laws; |
|
(bb) There
are no actions, suits, proceedings or inquiries pending or, to the
knowledge of the Company threatened against or affecting the Company or
its subsidiaries or their property or assets at law or in equity or before
or by any federal, municipal or other governmental department, court,
commission, board, bureau, agency or instrumentality; |
|
(cc) there
is and has been no failure on the part of the Company or any of the Company’s
directors or officers, in their capacities as such, to comply in all
material respects with any applicable provision of the Xxxxxxxx-Xxxxx Act of
2002 and the rules and regulations promulgated in connection therewith,
including Section 402 related to loans and Sections 302 and 906 related to
certifications. |
|
(dd) the
Company acknowledges that the representations, warranties, acknowledgements
and agreements contained herein are made by the Company with the intent
that they may be relied upon by Hochschild in deciding to subscribe for
the Purchased Shares. The Company further agrees that it shall represent
and warrant that except as set forth in such representation or warranty,
the foregoing representations and warranties will be true and correct as
at the Closing with the same force and effect as if they had been made by
the Company at the Closing and that they shall survive the purchase by
Hochschild of the Purchased Shares. The Company undertakes to notify
Hochschild immediately of any change in any representation, warranty or
other information relating to the Company set forth herein which takes
place prior to the time of the Closing. For greater certainty, the Company
acknowledges that Hochschild is relying upon the representations and
warranties of the Company in entering into this Agreement and confirms
that no investigation made by Hochschild or its representatives will
affect Hochschild’s right to rely on any such representation and
warranty made by the Company in this Agreement. |
14
ARTICLE 6
ACKNOWLEDGEMENTS,
COVENANTS, REPRESENTATIONS
AND WARRANTIES OF HOCHSCHILD
| 6.1 |
Acknowledgements,
Representations, Warranties and Covenants of Hochschild |
Hochschild
hereby represents and warrants to, and covenants with, the Company as follows and
acknowledges that the Company is relying on such representations and warranties in
connection with the transactions contemplated herein:
|
(a) Hochschild
certifies that it is resident in the jurisdiction set out on the signature
page of this Agreement. Such address was not created and is not used
solely for the purpose of acquiring the Shares and Hochschild was
solicited to purchase in such jurisdiction; |
|
(b) Hochschild
is not a U.S. Person (as defined in Rule 902(k) of Regulation S under the
Securities Act); |
|
(c) Hochschild
is subscribing for the Purchased Shares for its own account and not for
the account of a U.S. Person or for resale in the United States and
Hochschild confirms that the Purchased Shares have not been offered to
Hochschild in the United States and that this Agreement has not been
signed in the United States; |
|
(d) Hochschild
acknowledges that the Purchased Shares have not been registered under the
Securities Act and may not be offered or sold in the United States or to a
U.S. Person unless the securities are registered under the Securities Act
and all applicable state securities laws or an exemption from such
registration requirements is available, and further agrees that hedging
transactions involving such securities may not be conducted unless in
compliance with the Securities Act; |
|
(e) Hochschild
understands that the Company is the seller of the Purchased Shares and
that, for purposes of Regulation S, a “distributor” is any
underwriter, dealer or other person who participates, pursuant to a
contractual arrangement, in the distribution of securities sold in
reliance on Regulation S and that an “affiliate” is any partner,
officer, director or any person directly or indirectly controlling,
controlled by or under common control with any person in question. Except
as otherwise permitted by Regulation S, Hochschild agrees that it will
not, during a one year distribution compliance period, act as a
distributor, either directly or through any affiliate, or sell, transfer,
hypothecate or otherwise convey the Purchased Shares or underlying
securities other than to a non-U.S. Person; |
|
(f) Hochschild
acknowledges and understands that in the event the Purchased Shares are
offered, sold or otherwise transferred by Hochschild to a non-U.S Person
prior to the expiration of a one year distribution compliance period, the
purchaser or transferee must agree not to resell such securities except in
accordance with the provisions of Regulation S, pursuant to registration
under the Securities Act, or pursuant to an available exemption from
registration; and must further agree not to engage in hedging transactions
with regard to such securities unless in compliance with the Securities
Act; |
15
|
(g) Hochschild
will not offer, sell or otherwise dispose of the Purchased Shares in the
United States or to a U.S. Person unless (A) the Company has consented to
such offer, sale or disposition and such offer, sale or disposition is
made in accordance with an exemption from the registration requirements
under the Securities Act and the securities laws of all applicable states
of the United States or (B) the SEC has declared effective a Registration
Statement in respect of such securities; |
|
(h) The
execution and delivery of this Agreement, the performance and compliance
with the terms hereof, the subscription for the Purchased Shares and the
completion of the transactions described herein by Hochschild will not
result in any material breach of, or be in conflict with, or constitute a
material default under, or create a state of facts that, after notice or
lapse of time, or both, would constitute a material default under any term
or provision of the constating documents, by-laws or resolutions of
Hochschild, the securities laws or any other laws applicable to
Hochschild, any agreement to which Hochschild is a party, or any judgment,
decree, order, statute, rule or regulation applicable to Hochschild; |
|
(i) Hochschild
is subscribing for the Purchased Shares as principal for its own account
and not for the benefit of any other person (within the meaning of
applicable securities laws); |
|
(j) This
Agreement has been duly authorized, executed and delivered by, and
constitutes a legal, valid and binding agreement of, Hochschild. This
Agreement is enforceable in accordance with its terms against Hochschild; |
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(k) Hochschild
is duly incorporated and is validly subsisting under the laws of its
jurisdiction and has all requisite legal and corporate power and authority
to execute and deliver this Agreement, to subscribe for the Purchased
Shares as contemplated herein and to carry out and perform its obligations
under the terms of this Agreement; |
|
(l) Hochschild
is not, with respect to the Company or any of its affiliates, a “control
person” as defined under the Securities Act and the purchase of the
Purchased Shares hereunder will not result in Hochschild becoming a
control person; |
|
(m) Hochschild
has been advised to consult its own legal advisors with respect to trading
in the Purchased Shares, and with respect to the resale restrictions
imposed by the securities laws of the jurisdiction in which Hochschild
resides and other applicable securities laws, and acknowledges that no
representation has been made respecting the applicable hold periods
imposed by the securities laws or other resale restrictions applicable to
such securities that restrict the ability of Hochschild to resell such
securities, that Hochschild is solely responsible to find out what these
restrictions are and Hochschild is solely responsible (and the Company is
not in any way responsible) for compliance with applicable resale
restrictions and Hochschild is aware that it may not be able to resell
such securities except in accordance with limited exemptions under the
securities laws and other applicable securities laws; |
16
| |
(n) |
No
person has made any written or oral representations: |
| |
(i) |
that
any person will resell or repurchase the Purchased Shares; |
| |
(ii) |
that
any person will refund the Purchase Price; or |
| |
(iii) |
as
to the future price or value of the Purchased Shares; |
|
(o) There
are risks associated with the purchase of and investment in the Purchased
Shares and Hochschild has such knowledge and experience that it is capable
of evaluating the merits and risks of an investment in the Purchased
Shares and fully understands the restrictions on resale of the Purchased
Shares and is capable of bearing the economic risk of the investment; |
|
(p) The
funds representing the Purchase Price that will be paid by Hochschild to the
Company hereunder, will not represent proceeds of crime for the purposes
of United States anti-terrorist legislation and Hochschild acknowledges
that the Company may in the future be required by law to disclose
Hochschild’s name and other information relating to this Agreement
and Hochschild’s subscription hereunder pursuant to such legislation.
To the best of its knowledge (a) none of the Purchase Price to be provided
by Hochschild (i) has been or will be derived from or related to any
activity that is deemed criminal under the laws of the United States of
America, or any other jurisdiction, or (ii) is being tendered on behalf of
a person or entity who has not been identified to Hochschild, and (b) it
shall promptly notify the Company if Hochschild discovers that any of such
representations ceases to be true, and to provide the Company with
appropriate information in connection therewith; |
|
(q) Hochschild
acknowledges that no securities commission, agency, governmental
authority, regulatory body, stock exchange or other regulatory body or
similar regulatory authority has reviewed or passed on the merits of the
Purchased Shares; |
|
(r) Hochschild
acknowledges that the Purchased Shares shall be subject to statutory
resale restrictions under the securities laws of the jurisdiction in which
Hochschild resides and under other applicable securities laws, and
Hochschild covenants that it will not resell the Shares except in
compliance with such laws and Hochschild acknowledges that it is solely
responsible (and in no way is the Company responsible) for such
compliance; |
|
(s) Hochschild
acknowledges that the certificates representing the Purchased Shares, and
all certificates issued in substitution or exchange thereof, will bear a
legend substantially in the following form: |
17
| |
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THESE SECURITIES MAY BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) TO GOLD RESOURCE CORPORATION (“GRC”),
(B) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (C) IN COMPLIANCE WITH RULE 144 OR 144A THEREUNDER, IF AVAILABLE, AND
IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, (D) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT, OR (E) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE
SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS, AND THE HOLDER HAS, PRIOR
TO SUCH SALE, FURNISHED TO GRC AN OPINION OF COUNSEL OR OTHER EVIDENCE OF EXEMPTION,
IN EITHER CASE REASONABLY SATISFACTORY TO GRC. HEDGING TRANSACTIONS INVOLVING
THESE SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE U.S. SECURITIES
ACT. |
|
(t) Hochschild
acknowledges that the Company is relying on the representations,
warranties and covenants contained herein to determine Hochschild’s
eligibility to subscribe for the Purchased Shares under applicable
securities laws. Hochschild undertakes to immediately notify the Company
of any change in any statement or other information relating to Hochschild
set forth in this Agreement which takes place prior to the Closing Time; |
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(u) Hochschild
acknowledges that it is responsible for obtaining such legal and tax
advice as it considers appropriate in connection with the execution,
delivery and performance of this Agreement and the transactions
contemplated under this Agreement; |
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(v) Hochschild
has reviewed (i) the prospectus of the Company dated October 17,
2008; (ii) the quarterly reports on Form 10-Q for the quarters ended March
31, June 30, and September 30, 2008; (iii) all other reports filed
with the United States Securities and Exchange Commission by the Company
since March 31, 2008, each of which is available from the Public Reference
Room of the SEC or on its web site at xxxx://xxx.xxx.xxx. Hochschild’s
decision to purchase the Purchased Shares was based solely on the
representations in this Agreement and the filings of the Company with the
SEC itemized immediately above, and no person or entity has made any
representations or warranties excepts as set forth herein; |
|
(w) There
are risks associated with the purchase of the Shares and Hochschild may
lose its entire investment. These risks include those itemized in the
Company’s filings with the SEC itemized above. Hochschild
acknowledges having read these risks and understands them. |
|
(x) Hochschild
has had the opportunity to ask questions of, and receive answers from, the
officers and directors of the Company regarding the offering, the Company
or any other information relevant to Hochschild’s investment; |
18
|
(y) Hochschild
acknowledges the following: (i) this Agreement requires Hochschild to
provide certain information to the Company; (ii) such information is being
collected by the Company for the purposes of completing the offering,
which includes, without limitation, determining Hochschild’s
eligibility to purchase the Purchased Shares under the applicable
securities laws, preparing and registering certificates representing
Purchased Shares to be issued to Hochschild and completing filings
required by any stock exchange or securities regulatory authority; (iii)
Hochschild’s information may be disclosed by the Company to: (A)
stock exchanges or securities regulatory authorities; and (B) the Company’s
advisors, including legal counsel and may be included in record books in
connection with the offering. By executing this Agreement, Hochschild is
deemed to be consenting to the foregoing collection, use and disclosure of
Hochschild’s information. Hochschild also consents to the filing of
copies or originals of this Agreement as may be required to be filed with
any stock exchange or securities regulatory authority in connection with
the transactions contemplated hereby; |
|
(z) Hochschild
consents to the Company making a notation on its records and giving
instructions to any transfer agent of the Company in order to implement
the restrictions on transfers set forth and described herein, and
Hochschild understands and acknowledges that the Company may instruct the
registrar and transfer agent of the Company not to record a transfer
without first being notified by the Company that it is satisfied that such
transfer is exempt from or not subject to registration under the
Securities Act. |
ARTICLE 7
SURVIVAL OF
REPRESENTATIONS,
WARRANTIES AND COVENANTS
| 7.1 |
Survival
of Representations, Warranties and Covenants of the Company |
Unless
otherwise stated herein, the representations, warranties and covenants of the Company
contained in this Agreement shall survive the Closing Date for a period of two years and,
notwithstanding such Closing Date or any investigation made by or on behalf of Hochschild
with respect thereto, shall continue in full force and effect for the benefit of
Hochschild.
| 7.2 |
Survival
of Representations, Warranties and Covenants of Hochschild |
The
representations, warranties and covenants of Hochschild contained in this Agreement shall
survive the Closing Date for a period of two years and, notwithstanding such Closing Date
or any investigation made by or on behalf of the Company with respect thereto and
notwithstanding any subsequent disposition by Hochschild of any of the Purchased Shares,
shall continue in full force and effect.
ARTICLE 8
TERMINATION
19
This
Agreement may be terminated at any time prior to the Closing Date by:
| |
(a) |
Hochschild
if (i) at the time of Closing, any of the conditions specified in Section 3.2
has not been satisfied in full; (ii) there has been a material violation or
material breach by the Company of any covenant, representation or warranty or
other agreement contained in this Agreement such that any condition specified
in Section 3.2 would be incapable of being satisfied at Closing, and such
violation or breach is not waived by Hochschild or, in the case of a covenant
breach, cured by the Company by the earlier of ten days (or such longer period
of time as may be required provided the Company is diligently pursuing such
cure) after written notice thereof by Hochschild, or the Closing; and |
| |
(b) |
the
Company if (i) at the time of Closing, any of the conditions specified in
Section 3.1 has not been satisfied in full; (ii) there has been a material
violation or material breach by Hochschild of any covenant, representation or
warranty or other agreement contained in this Agreement such that any condition
specified in Section 3.1 would be incapable of being satisfied at Closing, and
such violation or breach is not waived by the Company or, in the case of a
covenant breach, cured by Hochschild by the earlier of ten days (or such longer
period of time as may be required provided the Company is diligently pursuing
such cure) after written notice thereof by the Company, or the Closing; |
| |
(c) |
by
written agreement of the Parties; or |
| |
(d) |
by
either Hochschild or the Company if the Closing Date has not occurred by March
10, 2009 (other than due to the fault or negligence of the Party purporting to
exercise this termination right), which date may be extended with the written
consent of both Parties. |
| 8.2 |
Effect
of Termination. |
If
this Agreement is terminated pursuant to Sections 8.1, all obligations of the Parties
under or pursuant to this Agreement will terminate without further liability of any Party
to the other except for the provision of Section 10.3 relating to expenses, Section 4.2
relating to press releases and this Section 8.2, provided that nothing herein will relieve
any Party from liability for any breach of this Agreement occurring before its
termination.
ARTICLE 9
INDEMNIFICATION
| 9.1 |
Indemnification
by the Company |
The
Company will indemnify and save harmless Hochschild and the directors, officers, employees
and agents of Hochschild (collectively, the “Hochschild Indemnitees”)
from and against all Claims incurred by any one or more of Hochschild Indemnitees directly
or indirectly resulting from any breach of any covenant of the Company contained in this
Agreement or from any inaccuracy or misrepresentation in any representation or warranty
set forth in Section 5.1.
20
| 9.2 |
Indemnification
by Hochschild |
Hochschild
will indemnify collectively and save harmless the Company and the directors, officers,
employees and agents of the Company (collectively, the “Company
Indemnitees”) from and against all Claims incurred by any one or more of the
Company Indemnitees directly or indirectly resulting from any breach of any covenant of
Hochschild contained in this Agreement or from any inaccuracy or misrepresentation in any
representation or warranty set forth in Section 6.1.
ARTICLE 10
MISCELLANEOUS
All
notices or other communications required or permitted to be given by one party to another
by the terms hereof shall be given in writing by personal delivery or facsimile delivered
to such other party as follows:
| |
Gold Resource Corporation
000 Xxxxxxxxx Xx., Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxx, President
Facsimile No.: (000) 000-0000 |
| |
Hochschild Mining Holdings Limited
Xxxxx Xx Xxxxxxx 000 Xxxxx, Xxxx 00, Xxxx
Attention: Xxxx X. Xxxxx
Facsimile No.: x000-000-0000 |
or at such other address or facsimile
number as may be given by either of them to the other in writing from time to time and
such other notices or communications shall be deemed to have been received when delivered
or, if by facsimile, on the next business day after such notice or other communication has
been transmitted by facsimile (with receipt confirmed).
Each
of the parties hereto upon the request of each of the other parties hereto, whether before
or after the Closing Date Time, shall do, execute, acknowledge and deliver or cause to be
done, executed, acknowledged and delivered all such further acts, deeds, documents,
assignments, transfers, conveyances, powers of attorney and assurances as may reasonably
be necessary or desirable to complete the transactions contemplated herein.
21
All
costs and expenses (including, without limitation, the fees and disbursements of legal
counsel) incurred in connection with this Agreement and the transactions herein
contemplated shall be paid and borne by the party incurring such costs and expenses.
Hochschild
does not assume and will not be liable for any Taxes which may be or become payable by the
Company, including any Taxes resulting from or arising as a consequence of the issuance by
the Company of any Purchased Shares to Hochschild herein contemplated, and the Company
will indemnify and save harmless Hochschild, its Affiliates and their respective
directors, officers, employees and agents from and against all such Taxes.
This
Agreement shall be construed and enforced in accordance with, and the rights of the
parties shall be governed by, the laws of the State of New York and the laws of the United
States applicable therein. Any and all disputes arising under this Agreement, whether as
to interpretation, performance or otherwise, shall be subject to the non-exclusive
jurisdiction of the courts of Colorado and each of the parties hereto hereby irrevocably
attorns to the jurisdiction of the courts of such state.
This
Agreement, together with the Confidentiality and Non-Disclosure Agreement and the
Strategic Alliance Agreement, constitute the entire agreement between the parties with
respect to the transactions contemplated herein and cancels and supersedes any prior
understandings, agreements, negotiations and discussions between the parties. There are no
representations, warranties, terms, conditions, undertakings or collateral agreements or
understandings, express or implied, between the parties hereto other than those expressly
set forth in this Agreement or in any such agreement, certificate, affidavit, statutory
declaration or other document as aforesaid. This Agreement may not be amended or modified
in any respect except by written instrument executed by each of the parties hereto.
This
Agreement may be executed in two or more counterparts, each of which shall be deemed to be
an original and all of which together shall constitute one and the same Agreement.
Counterparts may be delivered either in original or faxed form and the parties adopt any
signature received by a receiving fax machine as original signatures of the parties.
22
This
Agreement may not be assigned by either party except with the prior written consent of the
other parties hereto.
This
Agreement shall enure to the benefit of and be binding upon the parties hereto and their
respective heirs, executors, successors (including any successor by reason of the
amalgamation or merger of any party), administrators and permitted assigns.
It
is the express wish of Hochschild that the Agreement and any related documentation be
drawn up in English.
|
HOCHSCHILD MINING HOLDINGS LTD.
|
|
By: |
/s/ Xxxxxxx Xxxxxx
|
|
|
Authorized Signing Officer |
| |
|
CFO - Xxxx
|
|
|
|
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|
|
00
Schedule 5.1(a)
COMPANY GOOD STANDING
DISCLOSURES
The
Company requires various permits to construct, develop and operate its proposed mill and
mine at the El Xxxxxx project. The Company believes that it has applied for all of the
necessary permits to construct and operate the mill and open pit mine; however, some
additional applications may need to be filed. To date, the Company has not received its
mining permit for the open pit mine nor has it received the following authorizations and
permits:
1. Authorization
of the environmental impact study (Estudio de Riesgo Ambiental) for
the processing plant granted by the Dirección General de Impacto y
Riesgo Ambienta (DGIRA) of the SEMARNAT;
2. Authorization
of the Comisión Nacional del Agua (CNA) for the exploitation
and use of groundwater;
3. Permit
for the purchase, storage and use of explosives granted by Secretaría
de la Defensa Nacional (SEDENA);
4. Authorization
for the construction of power transmission lines (“lineas de
transmision”) and use of electrical energy granted by Comisión
Federal de Electricidad (C.F.E.).
5. Registry
of existing agreements for the Use of Land Ejidal with the Registro
Agrario Nacional (RAN).
6. Execution
of the labor agreements (“Contrato Colectivo de Trabajo”)
to formalize the employment status of 47 workers of the Company.
7. IMMEX
permit, to allow transport of equipment into Mexico under NAFTA
8. Diesel
and Gasoline Storage Permit
9. Propane
Storage Permit
Schedule 5.1(b)
COMPANY PUBLIC
DISCLOSURES
| |
While
not acknowledging that such information must be disclosed to the public, the Company has
continued to spend cash and deplete its working capital in pursuit of constructing its
mill and mine at El Xxxxxx and further pursuing other aspects of its business plan. As of
December 31, 2008, the Company had remaining cash and cash equivalents on an
unaudited basis of US$2,545,796.
|
Schedule 5.1(p)
COMPANY TAX DISCLOSURES
| |
The
Company’s subsidiaries have filed for a refund of IVA (value added) taxes from the
Mexican government. In order to respond to the request, the Mexican tax authorities have
commenced an audit of the subsidiaries’ IVA tax returns.
|
Schedule 5.1(q)
NON-COMPETITION AND
OTHER AGREEMENTS DISCLOSURE
| 1. |
Contract
of Exploration and Exploitation between Don Xxxxx Xxxx, S.A. de C.V. and Xxxx Xxxxx
Xxxxxxx dated November 21, 2002. |
| 2. |
Lease
Agreement between The Rollnick Building and GRC dated September 2005. |
| 3. |
Contract
of Purchase of Mining Rights between Xxxx Xxxxx Xxxxxxx and Don
Xxxxx Xxxx, S.A. de C.V. dated December 21, 2006. |
| 4. |
Contract
of Exploration and of Exploitation between Xxxx Xxxxx Xxxxxxx,
Xxxxxx Holmex, S.A. de C.V. and Don Xxxxx Xxxx, S.A. de C.V. dated April 5,
2007. |
| 5. |
Contract
of Concession, Use and Usufruct of Ejido Land between Ejido of San Xxxxx
Totolapa and Golden Xxxxx Resources, S.A. de C.V. dated September 6, 2007. |
| 6. |
Accessory
Agreement deriving from the Contract of Concession, Use and Usufruct of Ejido
Land between Ejido of San Xxxxx Totolapa and Golden Xxxxx Resources, S.A. de
C.V. dated September 10, 2007. |
| 7. |
Contract
of Exploration and of Exploitation between Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxx
del Real and Don Xxxxx Xxxx, S.A. de C.V. This contract does not contain a date
of execution and is registered with the Public Registry of Mining. |
| 8. |
Executive
Employment Agreement between GRC and Xxxxxxx Xxxx dated January 1, 2008. |
| 9. |
Executive
Employment Agreement between GRC and Xxxxx X. Xxxx dated January 1, 2008. |
| 10. |
Executive
Employment Agreement between GRC and Xxxxx Xxxx dated January 1, 2008. |
| 11. |
Employment
Agreement between Golden Xxxxx Resources, S.A. de C.V. and Xxxxx Xxxxxxx del
Torro (project manager) dated August 1, 2008. |
Schedule 5.1(s)
COMPANY DEBT DISCLOSURE
(a) As
of December 31, 2008, GRC’s two Subsidiaries are indebted to GRC in the
aggregate amount of US$22,495192 (Golden Xxxxx Resources, $16,046,914 and
Don Xxxxx Xxxx, $6,448,278). The loans are non-interest bearing and
payable on demand. There are currently no written agreements representing
these loans.
(b) The
Company also has outstanding purchase orders for equipment and services in
connection with the construction of the mill and mine at the El Xxxxxx project,
as well as other activities conducted in the ordinary course of its
business. As of December 31, 2008, the most recent date for which complete
financial data is available, the Company had accounts payable related to
the mill and the mine on an unaudited basis equal to approximately
$138,594.
