Exhibit 10.1
STOCK SUBSCRIPTION
AND STOCKHOLDERS AGREEMENT
THIS STOCK SUBSCRIPTION AND STOCKHOLDERS AGREEMENT (this "Agreement")
is made and entered into this 4th day of November, 2004, by and among Global
Gold Corporation, a Delaware corporation (the "Company"), Xxx Xxxxxxxxx, Xxxxx
Xxxxxxxxx, and Xxxxxxxx X. Aynilain for NJA Investments (collectively the "Key
Shareholders"), on the one hand, and Firebird Global Master Fund, Ltd., a Cayman
Islands corporation, Firebird Republics Fund, Ltd., a Cayman Islands
corporation, and Firebird Avrora Fund, Ltd., a Cayman Islands corporation (each
a "Purchaser" and together the "Purchasers"), on the other hand.
RECITALS:
WHEREAS, the Company has proposed to offer (the "Offering") to sell up
to an aggregate for all subscribers to such Offering of 3,000,000 shares of its
common stock, $.001 par value per share ("Common Stock"), with a minimum
purchase of 50,000 shares of Common Stock (unless otherwise permitted by the
Company), with the purchase price for such shares payable in cash upon Closing
(as defined below) and the purchase of each share also entitling the Purchasers
for no additional consideration to a warrant to be delivered to each Purchaser
upon Closing for the purchase on or before December 1, 2006 of one additional
share of Common Stock at an exercise price of $0.75 and subject to the other
terms set forth in such warrant, the form of which is attached to this Agreement
as Exhibit A (collectively, the "Warrants");
WHEREAS, the shares of Common Stock (the "Units" or the "Securities")
are being offered pursuant to the Company's Confidential Private Placement
Memorandum dated October 18, 2004, as may be amended from time to time (the
"Memorandum"), and the Offering is intended to come within the provisions of
Regulation D under the Securities Act of 1933, as amended (the "Act");
WHEREAS, the Key Shareholders are the owners in the aggregate of
4,628,453 shares of Common Stock, and the Key Shareholders, the Purchasers and
the Company wish to provide for certain matters as set forth herein; and
WHEREAS, simultaneously with the closing of the sale of the Shares and
delivery of the Warrants, the Purchasers and the Company shall become
signatories to a Registration Rights Agreement substantially in the form
attached hereto as Exhibit B (the "Registration Rights Agreement).
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AGREEMENT:
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Subscription.
(a) Subject to the terms and conditions hereof, the Purchasers
hereby irrevocably subscribe for the number of Units as are set forth opposite
such Purchaser's name on Schedule A hereto at the aggregate purchase price set
forth opposite such Purchaser's name on Schedule A hereto at the rate of $0.50
per share (the "Purchase Price"), such shares to be issued upon Closing together
with the delivery of the Warrants. The closing of the subscription and issuance
of the Units and Warrants (the "Closing") shall take place at the offices of
Coudert Brothers LLP, counsel to the Purchasers, simultaneously with the
execution and delivery of this Agreement, or at such other location or time as
may be agreed by the parties.
(b) At the Closing, the Purchasers shall deliver the
following:
(i) the Purchase Price in cash or by check (subject
to collection), bank draft or postal or express money order payable in United
States dollars, or by wire transfer, to an account or accounts specified by the
Company;
(ii) an executed copy of this Agreement; and
(iii) an executed copy of the Accredited Investor
Suitability Questionnaire.
(c) At the Closing, the Company shall deliver the following:
(i) certificates representing the Units;
(ii) the Warrants;
(iii) evidence satisfactory to the Purchasers that
the Company has terminated with effect prior to the
Closing any and all agreements for the provision of consulting or related
services, including without limitation, that certain agreement with Analytix
Capital;
(iv) a copy of this Agreement and the Registration
Rights Agreement duly executed by the Company; and
(v) such other documents as the Purchasers shall
reasonably request.
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2. Company and Key Shareholders Representations and Warranties. Except
as set forth on a Schedule of Exceptions (the "Schedule of Exceptions")
furnished to the Purchasers prior to the execution of this Agreement and
attached hereto as Schedule B, the Company and the Key Shareholders hereby
jointly and severally represent and warrant to the Purchasers as follows:
(a) The Memorandum was prepared in connection with the Offering.
The Memorandum and any amendments or supplements thereto did not and will not,
as of the date thereof, contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(b) Each of the Company and its subsidiaries has been duly
incorporated or formed, is validly existing, and in good standing under the laws
of its jurisdiction of incorporation or formation and is licensed or qualified
to do business and in good standing in each jurisdiction in which it is required
to be so licensed or qualified, and has all requisite power and authority to own
its properties and carry on its businesses as presently conducted and as
proposed to be conducted.
(c) (i) Immediately prior to the Closing, the capitalization of
the Company consists of 100,000,000 shares of Common Stock, of which 9,281,301
shares are duly and validly issued and outstanding, fully paid, and
non-assessable, and all such issued and outstanding shares have been issued in
compliance with all applicable federal and state laws concerning the issuance of
securities.
(ii) Other than as described in this paragraph 2(c) or as
disclosed in paragraph 2(c) of the Schedule of Exceptions, the Company does not
have authorized or outstanding any stock or securities, or any options,
warrants, convertible securities, or any other right (whether contingent or
otherwise) to purchase or convert any obligations into stock or securities of
the Company, nor is the Company obligated to issue any stock, securities,
options, warrants, or other such rights. Except for the rights provided in this
Agreement and the Registration Rights Agreement, there are no voting trusts,
proxies, shareholders agreements or other agreements or understandings with
respect to the voting of any shares of capital stock of the Company, nor any
pre-emptive rights, rights of first refusal, registration rights, or other
transfer rights of any person.
(d) The Securities and Warrants have been duly authorized and
when issued, sold and delivered in accordance with the terms of this Agreement,
will be duly and validly issued and outstanding, fully paid, and non-assessable
and will be free and clear of any liens or encumbrances except to the extent set
forth in this Agreement, and the offer, sale and issuance of the Securities and
the Warrants will be in compliance with all applicable federal and state
securities laws. The shares of Common Stock issuable upon exercise of the
Warrants have been duly and validly reserved and, upon issuance in accordance
with the terms of the Warrants, will be duly and validly issued and outstanding,
fully paid and nonassessable, will be free and clear of any liens or
encumbrances except to the extent set forth in this Agreement, and will be
issued in compliance with all applicable federal and state securities laws.
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(e) The Company and the Key Shareholders have full, complete and
unrestricted legal right, power and authority to execute and deliver this
Agreement and the Registration Rights Agreement and to duly perform and observe
the terms and conditions hereof and thereof. All corporate action on the part of
the Company and its officers, directors and stockholders that is necessary for
the authorization, execution and delivery of this Agreement and the Registration
Rights Agreement by the Company, for the performance of the Company's
obligations hereunder or thereunder, and for the authorization (or reservation
for issuance), issuance and delivery of the Securities, the Warrants and the
Common Stock issuable upon exercise of the Warrants, has been taken.
(f) This Agreement and the Registration Rights Agreement have
been duly authorized and constitute the legal, valid and binding obligation of
the Company and the Key Shareholders, enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
conservatorship, receivership, liquidation, reorganization, moratorium or
similar laws or equitable principles affecting the enforcement of creditors'
rights generally.
(g) The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and the performance by the
Company and the Key Shareholders of the terms and conditions hereof shall not
(i) require the approval or consent of any governmental authority or the
approval or consent of any other person; or (ii) conflict with or result in a
breach or violation of any of the terms or conditions of or constitute (or with
notice or lapse of time or both would constitute) a default under any agreement,
statute, regulation, order, judgment or decree applicable to such party or any
instrument, contract or other agreement to which party is a party or to which
such party is bound or subject.
(h) The Common Stock is registered pursuant to Section 12(b) or
12(g) of the Exchange Act of 1934, as amended (the "Exchange Act") and as of the
date hereof the Company has timely filed all Commission Documents (as defined
below). The Company has not provided to the Purchasers any information which,
according to applicable law, rule or regulation, should have been disclosed
publicly by the Company but which has not been so disclosed, other than with
respect to the transactions contemplated by this Agreement. As of their
respective dates, the Commission Documents complied in all material respects
with the requirements of the Exchange Act and other federal, state and local
laws, rules and regulations applicable to them, and, as of their respective
dates, such Commission Documents did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. The financial statements of the
Company filed with the Securities and Exchange Commission (the "Commission") on
the Company's most recently-filed Form 10KSB and Form 10QSB (the "Most Recent
Financial Statements") have been duly filed with the Commission and certified in
accordance with applicable law and regulation. Except for obligations or
liabilities reflected in the Most Recent Financial Statements or incurred in the
ordinary course of business since the date thereof, the Company had no material
(individually or in the aggregate) obligations or liabilities, absolute, accrued
or contingent, as of the date of such Most Recent Financial Statements and has
no such obligations or liabilities as of the date hereof. There has been no
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undisclosed material adverse change in the business, assets, properties,
operations, condition (financial or other) or prospects of the Company since the
date of such Most Recent Financial Statements. For purposes hereof, "Commission
Documents" shall mean all reports, schedules, forms, statements and other
documents filed by the Company with the Commission pursuant to the reporting
requirements of the Exchange Act, including material filed pursuant to Section
13(a) or 15(d) of the Exchange Act, which have been previously filed by the
Company and which shall be filed by the Company in the future, including,
without limitation the Annual Report on Form 10-KSB filed by the Company for the
year ended December 31, 2003, the Quarterly Reports on Form 10-QSB and the
Current Reports on Form 8-K filed by the Company after December 31, 2003.
(i) Neither the Company nor any subsidiary of the Company is a
party to any written or oral contract, instrument, agreement, commitment,
obligation, plan or arrangement, a copy of which would be required to be filed
with the Commission as an exhibit to an annual report on Form 10-KSB
(collectively, "Material Agreements"). The Company and each of its subsidiaries
has in all material respects performed all the obligations required to be
performed by them to date under the Material Agreements, have received no notice
of default by the Company thereunder and are not in default under any Material
Agreement now in effect, the result of which would result in a Material Adverse
Effect.
(j) Each of the Company and its subsidiaries has good and
marketable title to the assets reflected as owned (or current, valid and binding
leases with respect to assets reflected as leased) on its Most Recent Financial
Statements (other than properties and assets disposed of in the ordinary course
of business since the date of such balance sheet), free and clear of any
mortgages, pledges, security interests, liens, charges and other encumbrances,
except (i) liens for current taxes not yet due or which are being contested in
good faith, (ii) mechanic's, materialmen's and similar liens which may have
arisen in the ordinary course of business and which, in the aggregate, would not
be material to the financial condition of the Company and (iii) security
interests securing indebtedness not in default for the purchase price of or
rental payments on property purchased or leased under capital lease arrangements
in the ordinary course of business. All real and personal property, fixtures and
equipment comprising the assets of the Company are in good state of repair
(ordinary wear and tear excepted) and operating condition and are sufficient and
adequate to conduct the business of the Company on the date hereof.
(k) Except as publicly disclosed, there is no action, suit or
proceeding pending or, to the knowledge of the Company, threatened against or
affecting the Company, or any of its properties or rights, before any court or
by or before any governmental body or arbitration board or tribunal, nor is
there any judgment, decree, injunction or order of any court, governmental
department, commission, agency, instrumentality or arbitrator against the
Company. In addition, to the knowledge of the Company, there does not exist any
basis for any action, suit, investigation or proceeding against the Company, in
each case which, if adversely determined, would reasonably be expected to have a
material adverse effect on the business, assets, properties or operating
condition (financial or otherwise) of the Company (a "Material Adverse Effect").
The foregoing includes without limitation, actions pending or threatened against
any Key Shareholder or against any employee, prospective employee or consultant
to the Company involving such person's relationship to the Company.
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(l) Each of the Company and its subsidiaries have duly and
timely filed or caused to be filed (or obtained valid, currently effective
extensions for filing) all Federal, state, local and foreign income, franchise,
excise, payroll, sales and use, property and withholding tax returns, reports,
estimates and information and other statements or returns (collectively "Tax
Returns") required to be filed by or on behalf of it pursuant to any applicable
federal, state, local or foreign tax laws for all years and periods for which
such Tax Returns have become due. All such Tax Returns were correct in all
material respects as filed and correctly reflect the Federal, state, local and
foreign income, franchise, excise, payroll, sales and use, property, withholding
and other taxes, duties, imposts and governmental charges (and charges in lieu
of any thereof), together with interest and penalties (collectively "Taxes")
required to be paid or collected by (or allocable to) the Company. Each of the
Company and its subsidiaries (i) has paid or caused to be paid all Taxes
required to be paid by it through the date hereof except for those Taxes, if
any, being contested in good faith and (ii) has properly and fully accrued on
its Most Recent Financial Statements (and on its books and records if arising
after the date thereof), all Taxes for any period from the date of the last
reporting period covered by such Tax Returns up to and including the date
hereof. There is no pending or potential audit, dispute or claim concerning any
tax return or tax liability of the Company or its subsidiaries as to which the
Company or its subsidiaries either (i) has been notified in writing by any tax
authority or (ii) has knowledge based on personal contact with any agent of such
authority.
(m) Neither the Company nor any of its subsidiaries is in
violation or default of any provisions of the Certificate of Incorporation, as
amended or the Bylaws or other organizational documents. The execution, delivery
and performance of this Agreement and the Registration Rights Agreement, and the
consummation of the transactions contemplated hereby or thereby will not result
in any such violation or default, or be in conflict with or constitute, with or
without the passage of time or the giving of notice or both, either a default
under the Certificate of Incorporation, as amended or the Bylaws, or any
agreement, contract, instrument, judgment, decree or order binding on the
Company, or, to the best of the Company's knowledge, a violation of any
statutes, laws, regulations, rules, ordinances or orders, or an event which
results in the creation of any lien, charge or encumbrance upon any asset of the
Company.
(n) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
(o) The business and activities of the Company and its
subsidiaries have been and are being conducted in compliance with all provisions
of all applicable Federal, state, local and foreign statutes, ordinances, rules
and regulations. The Company is not in violation of or in default under (i) any
order, judgment or decree of any court, arbitration panel or other tribunal or
(ii) any administrative order, rulemaking, procedure, policy or other published
declaration of (x) any Federal, state, local or foreign governmental agency or
other authority or (y) any professional society, board or other similar
organization, except in the case of clauses (i) or (ii) above, such violations
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or defaults that would not, singly or in the aggregate, reasonably be expected
to have a Material Adverse Effect. The Company holds all governmental licenses,
permits, franchises and other governmental authorizations necessary to the
ownership of its properties or the conduct of its business as currently
conducted and as proposed to be conducted after the Closing, except for those
which failure to obtain would not have a Material Adverse Effect, and all such
licenses, permits, franchises and other governmental authorizations will remain
in full force and effect following the Closing.
(p) Neither the Company nor any officer, director, employee or
agent thereof, nor any other person or entity acting on behalf of the Company,
acting alone or together, has (a) received, directly or indirectly, any rebates,
payments, commissions, promotional allowances or any other economic benefits,
regardless of their nature or type, from any person or entity with whom the
Company has done business directly or indirectly, or (b) directly or indirectly,
given or agreed to give any gift or similar benefit to any person or entity who
is or may be in a position to help or hinder the business (or assist the Company
in connection with any actual or proposed transaction) which in the case of
either clause (a) or clause (b) above have not been fully and accurately
described and reflected in the Company's financial statements and books and
records and which, (i) if not given in the past, would reasonably be expected to
have had a Material Adverse Effect or (ii) if not continued in the future, would
reasonably be expected to have a Material Adverse Effect. The Company has not
taken any action which would cause it to be in violation of the Foreign Corrupt
Practices Act of 1977, as amended, or any rules or regulations thereunder. To
the Company's knowledge, there is not now, and there has never been, any
employment by the Company of, or beneficial ownership in the Company by, any
governmental or political official in any country in the world.
(q) Neither the Company nor any Key Shareholder has committed
any act or omission which would give rise to any claim against any party hereto
for a brokerage commission, finder's fee, or other like payment in connection
with the transactions contemplated hereby.
3. Purchasers Representations and Warranties. The Purchasers represent
and warrant to the Company that:
(a) The Purchasers have received a copy of the Memorandum, and
have carefully read and fully understand the Memorandum, including the Risk
Factors set forth therein and any additional risk factors reflected in any
annual, quarterly and other reports filed by the Company with the Securities and
Exchange Commission or press releases;
(b) THE UNDERSIGNED UNDERSTANDS THAT THIS INVESTMENT IN THE
COMPANY IS ILLIQUID AND INVOLVES A HIGH DEGREE OF RISK AND IS ONLY SUITABLE FOR
AN INVESTOR WHO CAN AFFORD TO LOSE HIS ENTIRE INVESTMENT IN THE SECURITIES;
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(c) The Purchasers understand that the Securities offered
herein have not been registered under the Act or the securities laws of any
state of the United States and will be subject to substantial restrictions on
transferability unless and until the Securities registered or an exemption from
registration becomes available;
(d) The Purchasers understand that an appropriate stop
transfer order will be placed on the books of the Company's transfer agent
respecting the certificates evidencing the Securities and such certificates
shall bear such legend until such time as the respective securities in question
shall have been registered under the act or shall have been transferred in
accordance with an opinion of counsel acceptable to counsel for the Company that
such registration is not required;
(e) The Purchasers meet the suitability standards set forth in
the Memorandum under "Who May Invest" and specifically satisfy the definition of
an "accredited investor" or as otherwise set forth therein;
(f) The Accredited Investor Suitability Questionnaire executed
and delivered by each of the Purchasers is true and complete in all respects;
(g) The Purchasers (A) have been given the opportunity to ask
questions of, and receive answers from, the Company concerning the terms and
conditions of the Offering and other matters pertaining to this investment, and
all such questions have been answered to the satisfaction of the Purchasers; (B)
have been given the opportunity to obtain such additional information necessary
to verify the accuracy of the information contained in the Memorandum or that
which has been otherwise provided in order for them to evaluate the merits and
risks of investment in the Securities; and (C) have been given the opportunity
to obtain additional information from the Company, in each case except to the
extent the Company has informed the Purchasers that it does not possess such
information and cannot acquire it without unreasonable effort to expense, or
that the requested information is proprietary and confidential, and the
Purchasers have not been furnished with any other offering literature or
prospectus except as referred to herein in the Memorandum;
(h) Each of the Purchasers is purchasing the Securities for
its own account for investment purposes only and not with a view to the sale or
other distribution thereof, and that the Purchasers presently have no intention
of offering, selling, transferring, pledging, hypothecating, or otherwise
disposing of all or any part of the Securities at any particular time, for any
particular price, or upon the happening of any particular event or
circumstances.
4. Due Formation Representations. If the Purchasers are corporations,
partnerships, limited liability companies, estates or trusts, the Purchasers
represent and warrant that:
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(a) The Purchasers have been duly formed and are validly
existing in good standing under the laws of the jurisdiction of their formation
with full power and authority to enter into the transactions contemplated by
this Agreement;
(b) This Agreement has been duly and validly authorized,
executed and delivered, and, when executed and delivered by the entity, will
constitute the valid, binding and enforceable agreement of the Purchasers;
(c) The person signing this Agreement and any other instrument
delivered on behalf of such entity has been duly authorized by such entity and
has full power and authority to do so; and
(d) Such entity has not been formed for the specific purposes
of acquiring the Securities.
5. Purchaser Rights.
(a) The Purchasers shall have the registration rights as set
forth in the Registration Rights Agreement.
(b) If at any time following the Closing any of the Key
Shareholders (a "Selling Shareholder") proposes to sell, transfer or dispose of
any shares of Common Stock or securities convertible into or exercisable for
shares of Common Stock ("Common Stock Equivalents") held or controlled directly
or indirectly by such person in a single bona fide arm's length transaction (or
a series of related transactions in any twenty-four (24) month period) to one or
more third parties, the following rights shall apply: Not later than thirty (30)
days prior to proposed closing of such transaction, such Selling Shareholder
shall deliver to each Purchaser a notice of intention to sell (a "Tag-Along
Notice"), setting forth the number of shares of Common Stock or Common Stock
Equivalents proposed to be sold (the Common Stock and the Common Stock issuanble
upon conversion or exercise of the Common Stock Equivalents, the "Subject
Shares") and all terms and conditions of such proposed sale. The Selling
Shareholder shall offer to include in such proposed sale, on the same terms and
conditions (and no Purchaser shall be required to make any representation or
warranty in respect of such sale other than as to its ownership thereof and
authority to enter into such transaction), a number of shares of Common Stock of
each Purchaser equal to such Purchaser's pro rata percentage of the issued and
outstanding shares of Common Stock as of the date of the Tag-Along Notice
multiplied by the number of Subject Shares. Each Purchaser shall notify the
Selling Shareholder of its election to participate in such transaction and the
number of shares of Common Stock to be included therein not later than 20 days
following receipt of the Tag-Along Notice. The number of Subject Shares shall be
reduced by the number of shares of Common Stock of each Purchaser to be included
in such transaction. Each party hereto shall use its commercially reasonable
efforts to cause the prompt consummation of the transactions contemplated by
this section.
(c) If the Company proposes to issue any Common Stock or other
securities containing options or rights to acquire any Common Stock or any
securities convertible or exchangeable for Common Stock ("New Securities") after
the date hereof to any person, then the Company will offer to sell to each
Purchaser a number of shares of Common Stock or such New Securities such that
the ratio of such Purchaser's shares of Common Stock to all shares of Common
Stock outstanding on the date hereof shall (upon exercise by Purchaser of the
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pre-emptive right set forth herein) be equal to the ratio of such Purchaser's
shares of Common Stock to all shares of Common Stock outstanding immediately
following such issuance (after giving effect to any exercise, conversion or
exchange of all such New Securities). The Company shall give each Purchaser not
less than thirty (30) days prior written notice of any proposed issuance, which
notice shall disclose in reasonable detail the proposed terms and conditions of
such issuance (the "Issuance Notice"). The Purchasers will be entitled to
purchase such New Securities at the same price, on the same terms, and at the
same time as the New Securities are issued to the proposed purchaser(s) thereof
by delivery of written notice to the Company of such election within twenty (20)
days after delivery of the Issuance Notice (the "Election Notice"). If any
Purchaser has elected to purchase any New Securities, the sale of such New
Securities shall be consummated as soon as practical (but in any event within
fifteen (15) days) after the delivery of the Election Notice. It is agreed that
the term "New Securities" shall not include any issuance of securities or
options to purchase securities described in this Section 5(c) to employees,
officers, directors or consultants of the Company pursuant to any employee
compensation plan or arrangement approved by the Board of Directors of the
Company.
(d) The Purchasers shall have the right, but not the
obligation, to designate one (1) individual (the "Purchaser Designee") to serve
as a member of the Board of Directors of the Company. At all times following the
Closing, Purchasers may designate a Purchaser Designee upon ten (10) days'
notice given to each Key Shareholder by Purchasers. Promptly upon receipt of
such notice, each Key Shareholder shall take such actions as may be necessary or
appropriate to cause an annual or special meeting of shareholders to be held for
the purpose of electing the Board of Directors of the Company. At each annual
or special shareholder's meeting called for such purpose and whenever
stockholders of the Company act by written consent in respect of the election of
directors, each Key Shareholder agrees to vote or otherwise give such party's
consent in respect of all shares of capital stock of the Company owned at such
time by such party or as to which such party is entitled to vote, and the
Company shall take all necessary and desirable actions within its control,
in order to cause the election to the board of the Purchaser Designee, which
Purchaser Designee shall hold office until his successor shall have been duly
elected and qualified. The Purchasers shall be entitled to cause the removal of
such Purchaser Designee at any time in their sole discretion. Upon the
resignation or removal of the Purchaser Designee for any reason, the
Purchasers shall be entitled, but not obligated, to designate a successor
Purchaser Designee pursuant hereto. The right of the Purchasers to designate
the Purchaser Designee shall terminate if at any time the aggregate number
of shares of Common Stock held by the Purchasers is less than 1,000,000, as
adjusted to reflect any stock split, combination, reclassification or change
of the Common Stock after the Closing.
(e) If at any time following the Closing while Purchasers hold
any shares of Common Stock any party hereto enters into any agreement or
understanding (whether written or oral) granting any person any of the rights
granted to Purchasers hereunder but which are more favorable to such person than
to Purchasers, each Key Shareholder entering into such agreement or
understanding shall notify the Purchasers in advance thereof and this Agreement
shall be deemed automatically and without further action to be amended or
modified to provide Purchasers with rights equal in all respects to such more
favorable rights.
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6. Reliance. The representations, warranties and agreements made by the
Purchasers and the Company herein have been made with the intent that they be
relied upon by the other parties for purposes of the Offering. All parties
further undertake to notify the other parties immediately of any change in any
information supplied by the other parties.
7. Indemnification.
(a) Each Key Shareholder and the Company jointly and severally
agrees to indemnify each Purchaser against, and to protect, save and keep
harmless each Purchaser from, and to assume liability for, payment of all
liabilities that may be imposed on or incurred by such Purchaser as a
consequence of or in connection with (a) any breach by any Key Shareholder or
the Company of a representation or warranty contained in this Agreement; or
(b) any failure by any Key Shareholder or the Company to perform any agreement
or covenant contained herein. The foregoing indemnity shall include reasonable
attorneys' fees incurred in connection with the enforcement of this indemnity.
(b) Each Purchaser, jointly and not severally, agrees to
indemnify each Key Shareholder against, and to protect, save and keep harmless
each Key Shareholder from, and to assume liability for, payment of all
liabilities that may be imposed on or incurred by any Key Shareholder as a
consequence of or in connection with (a) any breach by a Purchaser of a
representation or warranty contained in this Agreement; or (b) any failure by a
Purchaser to perform any agreement or covenant contained herein.
(c) The parties shall, in a timely manner, provide each other
with notice of all third party actions, suits, proceedings, claims, demands or
assessments subject to the indemnification provisions of this Section 7
(collectively, "Third Party Claims"), brought at any time following the date
hereof, and shall otherwise make available all relevant information material to
the defense of any such Third Party Claims. The indemnifying party shall have
the right to participate in and, to the extent it shall wish, to assume and
undertake the defense of any such Third Party Claim at its sole expense. No
claim shall be settled or compromised without the consent of the indemnifying
party unless the indemnifying party shall have failed, after the lapse of a
reasonable time, but in no event more than 30 days, after notice to it of such
third Party Claim, to participate in the defense of the same. The indemnified
party shall have the right to participate, with separate counsel (which counsel
shall act in an advisory capacity only), in any such defense. After notice by
the indemnifying party to the indemnified party of the indemnifying party's
election to assume the defense of any such Third Party Claim, the indemnifying
party shall not be liable to the indemnified party for any expenses of the
indemnified party's counsel that are subsequently incurred in connection with
such defense; provided, however, that the expense of such indemnified party's
separate counsel shall be paid by the indemnifying party if (i) the indemnifying
party requests such separate counsel to participate, or (ii) in the reasonable
opinion of such separate counsel, a significant conflict of interest exists
between the indemnifying party and the indemnified party that would make such
separate representation clearly advisable. A party's failure to give timely
notice or to provide copies of documents or to furnish relevant data in
connection with any Third Party Claim shall not constitute a defense (in part or
in whole) to any claim for indemnification or such party, except and only to the
extent that such failure shall result in any prejudices to the indemnifying
party.
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8. Choice of Law; Jurisdiction. This Agreement and the rights of the
parties hereunder shall be governed by and construed in accordance with the laws
of the State of New York, without regard to its conflicts of law principles. All
parties hereto (i) agree that any legal suit, action or proceeding arising out
of or relating to this Agreement shall be instituted only in a federal or state
court in the City of New York in the State of New York (ii) waive any objection
which they may now or hereafter have to the laying of the venue of any such
suit, action or proceeding, and (iii) irrevocably submit to the exclusive
jurisdiction of any federal or state court in the City of New York in the State
of New York in any such suit, action or proceeding, but such consent shall not
constitute a general appearance or be available to any other person who is not a
party to this Agreement. All parties hereto agree that the mailing of any
process in any suit, action or proceeding in accordance with the addresses
reflected in this Agreement shall constitute personal service thereof.
9. General Provisions.
(a) All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by registered or certified
mail, postage prepaid, or otherwise delivered by hand or by messenger to such
party, at the address set forth in the signature pages hereto, or at such other
address as such party shall have furnished to the other parties in writing.
Notice shall be deemed effectively given upon actual receipt when sent by hand
or messenger, or three days after having been sent by registered or certified
mail.
(b) No delay or omission to exercise any right, power or
remedy accruing to any party, upon any breach or default by a party under this
Agreement, shall impair any such right, power or remedy of such party nor shall
it be construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any party of any
breach or default under this Agreement, or any waiver on the part of any party
of any provisions or conditions of this Agreement, must be in writing and shall
be effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement, or by law or otherwise afforded to any
party, shall be cumulative and not alternative.
(c) Except as otherwise provided herein, the provisions hereof
shall inure to the benefit of, and be binding upon, the successors, assigns,
heirs, executors and administrators of the parties hereto; provided, however,
that the rights of the Purchasers to purchase the Units shall not be assignable
without the consent of the Company.
(d) This Agreement and the other documents delivered pursuant
hereto, including the Registration Rights Agreement, constitute the full and
entire understanding and agreement between the parties with regard to the
subject matter hereof and thereof and no party shall be liable or bound to any
12
other party in any manner by any representations, warranties or covenants except
as specifically set forth herein or therein.
(e) This Agreement may be executed by facsimile and in
counterparts, each of which shall be enforceable against the party actually
executing such counterpart, and all of which together shall constitute one
instrument.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the undersigned has executed this Stock
Subscription and Stockholders Agreement as of the date first above written.
GLOBAL GOLD CORPORATION
By:_____________________________
Xxxxx X. Xxxxxxxxx, Chairman
and Chief Executive Officer
Firebird Global Master Fund, Ltd. Firebird Republics Fund, Ltd.
--------------------------------- -----------------------------
Print Name of Subscriber Print Name of Subscriber
By:_____________________________ By:___________________________
Xxxxx Xxxxxx, Director Xxxxxx Xxxxxxx, Director
-------------------------------------- ----------------------------
Print Name and Title of Person Signing Print Name and Title of Person
Signing
Mailing Address: Mailing Address:
X/x Xxxxx Xxxx Xxxxxxxx (Xxxxxx Xxxxxxx) Ltd. C/o Trident Trust Co., (Cayman)
Ltd.,
Regatta Xxxxxx Xxxx Xxxxxxx Xxxxx, Xxx 000
Xxxx Xxx Xxxx
P.O. Box 31106 SMB
Street Address Street Address
Grand Cayman, Cayman Islands Grand Cayman, Cayman Islands
---------------------------- ----------------------------
City, State and Zip Code City, State and Zip Code
_________CR-71007 _______________
--------- -------------------
Taxpayer Identification Number Taxpayer Identification Number
_Cayman Islands___________________ Cayman Islands
-------------- --------------
Country of incorporation Country of incorporation
14
[Signature page to the Global Gold Corporation
Stock Subscription and Stockholders Agreement]
Firebird Avrora Fund, Ltd. Signed:______________________________
-----------------------------------------
Print Name of Subscriber Name: Xxx Xxxxxxxxx
By:_____________________________ Mailing Address:
Xxxxxx Xxxxxxx, Director 0 Xxxxxxxxx Xxxxx
Print Name and Title of Person Signing Xxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Mailing Address: City, State and Zip Code
C/o Trident Trust Co., (Cayman) Ltd., ###-##-####
0 Xxxxxxx Xxxxx, Xxx 000 Social Security Number
------------------------
Xxxxxx Xxxxxxx
Xxxxx Xxxxxx, Xxxxxx Xxxxxxx
Xxxx, Xxxxx and Zip Code Signed: ____________________________
Name: Xxxxxxxx X Xxxxxxxx for NJA
Investments
_______ ______________
-------------------
Taxpayer Identification Number Mailing Address:
X.X Xxx 0000 Xxxxx Xxxxxx Xxxxxxx
_Cayman Islands___________________
Country of incorporation New York,NY 10013
-----------------
City, State and Zip Code
Signed:__________________________ ###-##-####
-----------
Name: Xxxxx Xxxxxxxxx Taxpayer ID Number
Mailing Address:
000 Xxxxxx Xxxx
Xxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
City, State and Zip Code
###-##-####
Social Security Number
15
Schedule A
Purchasers
Purchaser Units Purchase Price
Firebird Global Master Fund, Ltd. 1,500,000 USD 0.50
Firebird Republics Fund, Ltd. 750,000 USD 0.50
Firebird Avrora Fund, Ltd. 750,000 USD 0.50
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Schedule B
----------
Schedule of Exceptions
Section 2 (c)(ii)-The Company has outstanding certain options and warrants as
are disclosed in its Most Recent Financial Statements. The Company also has debt
to NJA Investments and Xxxxx Xxxxxxxxx which if unpaid may be converted into
common stock, reflected in agreements dated September 8, 2004. The Company
represents and warrants that within thirty days of closing and funding this
transaction such debt will be extinguished and the right to convert the debt to
common shares will no longer exist.
Section 2 (c)(ii)-A Shareholder Agreement was executed in 1995, but that
Agreement did not come into force and was terminated in 1999.
Section 2 (c)(ii)-The Stockholders Agreement dated as of January 1, 2004 by and
among NJA Investments, Xxxxx Xxxxxxxxx, Van X.Xxxxxxxxx, and Xxxxxx Xxxxxxxx is
in effect, although Xx. Xxxxxxxx has withdrawn from the agreement.
Section 2 (k)-The Company has a dispute with its former auditors, Xxxxxx &
Xxxxxxxx, LLP regarding billing which may be submitted to arbitration. The firm
nevertheless signed off on the Company's 2003 annual report filed with the SEC.
Section 2(n)-The Company has a consulting and advisory agreement with Analytix
Capital which includes a commission provision. The Company and Analytix have
entered a termination agreement, copy attached.
General-The Company has disclosed its accounts payable information as of
September 30, 2004, and agrees to meet certain mutually agreed conditions in
connection with the use of proceeds from this transaction.
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