Exhibit 10.22
COMMITMENT AND AGREEMENT TO CONVERT
THIS COMMITMENT AND AGREEMENT TO CONVERT dated June 22, 1995, is
executed by and between Gold Capital Corporation (Gold Capital)
whose address is 00 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx
00000, Tonkin Springs Venture Limited Partnership (TSVLP) and
Royalstar Resources Ltd. (Royalstar).
RECITALS
WHEREAS, TSVLP holds 300,000 shares of Series A Preferred
Convertible Stock, par value of $.01 per share and issue price of
$10.00 per share (Preferred Stock), of Gold Capital, which shares
were issued as partial consideration for the purchase by Gold
Capital of an interest in the Tonkin Springs Project under that
certain Purchase and Sale Agreement dated December 31, 1993; and
WHEREAS, the general and limited partners of TSVLP are each
wholly-owned subsidiaries of U.S. Gold Corporation, a Colorado
corporation (collectively U.S. Gold); and
WHEREAS, the parties have entered into a Registration Rights
Agreement dated March 27, 1995, covering Registrable Securities
including the common shares of Gold Capital into which the
Preferred Stock may be converted, a copy of which is attached
hereto as Exhibit A; and
WHEREAS, Gold Capital has previously issued to TSVLP an aggregate
of 127,702 common shares, $.0001 par value, in fulfillment of
Gold Capital's obligations for the 1994 mandatory dividend as
provided under the Preferred Stock agreement (the 1994 Dividend
Shares).
WHEREAS, Gold Capital and Royalstar have entered into a Private
Placement Subscription Agreement dated June 22, 1995, under which
Royalstar has agreed to purchase an additional 2,200,000 shares
of the common stock of Gold Capital for aggregate of US$2.2
million. The closing of the exercise of the purchase of the
additional 2,200,000 shares by Royalstar is referred to
hereinafter as the Second Closing. This Commitment and Agreement
to Convert is a requirement of and is conditioned upon the
successful completion of the Second Closing under the terms and
conditions set forth in the Private Placement Subscription
Agreement dated June 22, 1995; and
WHEREAS, TSVLP is willing to commit to the conversion of its
Preferred Stock into common shares, as provided herein; and
WHEREAS, Gold Capital is willing to commit to undertake and use
its best efforts to include all common shares of Gold Capital
owned by or issuable to TSVLP, for registration on a registration
statement on an appropriate form to be filed with the
Securit1ies and Exchange Commission and the securities commission
of any appropriate states, at the same time Gold Capital files a
registration statement to register the shares of Gold Capital
owned by Royalstar.
WHEREAS, Gold Capital is willing to commit to the terms and
conditions of this Commitment and Agreement to Convert, as
provided herein.
NOW THEREFORE, the parties hereby agree to the following:
1. Notwithstanding the provisions of the Certificate of
designations, Preferences and Rights of the Series A Convertible
Preferred Stock dated December 30, 1993 (the Certificate), TSVLP
agrees as follows:
(a) on receipt by TSVLP of the written direction of Royalstar,
delivered at any time after the Second Closing, TSVLP will
convert its 300,000 shares of Series A Preferred Stock (the
Series A Shares) into 1,500,000 shares of common stock of Gold
Capital, par value $.0001 (the Conversion Shares);
(b) except in accordance with clause 1(a) hereof or with the
prior written consent of Royalstar, TSVLP will not convert the
Series A Shares at any time earlier than November 30, 1995;
(c) the mandatory dividend to be paid by Gold Capital to TSVLP
under the terms of Certificate is eliminated effective on
November 30, 1995;
(d) the pro-rata mandatory dividend owing by Gold Capital to
TSVLP for the period from January 1, 1995 to the date of the
Second Closing (the 1995 Dividend) will be satisfied in full by
the issuance to TSVLP of 70,000 shares of common stock (the 1995
Dividend Shares) of Gold Capital or by payment to TSVLP of the
cash equivalent thereof determined in accordance with the terms
of paragraph 2 of the Certificate, at the option of Royalstar.
The pro-rata mandatory dividend which may accrue and be owing by
Gold Capital for the period from the date of the Second Closing
will be satisfied in full by the payment in cash as determined in
accordance with the terms of paragraph 2 of the Certificate or by
the issuance of such number of common shares of Gold Capital as
is determined by and in accordance with the terms of paragraph 2
of the Certificate except that the deemed issuance price of such
shares shall be determined by reference to the prevailing market
price of such shares for the period from the date of the Second
Closing until November 30, 1995 or until the date of conversion
of the Series A Shares if such conversion occurs prior to
November 30, 1995. Payment of the 1995 Dividend will be made by
Gold Capital to TSVLP on the conversion date;
2. Notwithstanding the terms of the Registration Rights
Agreement, Gold Capital agrees to use its best efforts to effect
registration of the Conversion shares, the 1994 Dividend Shares and the
1995 Dividend Shares, if any, in conjunction with any
registration of the shares acquired by Royalstar but in any event
no later than 90 days from the date of the Second Closing.
3. Miscellaneous.
(a) this Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado;
(b) this Agreement shall bind and inure to the benefit of the
successors and assigns of the respective parties; and
(c) this Agreement constitutes the entire agreement between the
parties regarding the subject matter hereof, and there are no
prior or additional agreements, understandings, representations
or warranties between the parties other than set forth herein.
IN WITNESS WHEREOF, the parties have executed this Commitment and
Agreement to Convert on this 22 day of June, 1995.
GOLD CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx, Director
TONKIN SPRINGS VENTURE LIMITED PARTNERSHIP
By: /s/ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx, President, Tonkin Springs
Gold Mining Company, General Partner and
Manager, TSVLP
U.S. GOLD CORPORATION
By: /s/ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx, President and Chief Executive Officer
ROYALSTAR RESOURCES LTD.
By: /s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx, President and
Chief Executive Officer
