Under
THE SECURITIES ACT OF 1933
Colorado 1041 84-1473173
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Code Number) Identification No.)
incorporation or
organization)
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222 Milwaukee Street, Suite 301, Denver, Colorado 80206
(303) 320-7708
(Address and telephone number of principal executive offices)
222 Milwaukee Street, Suite 301, Denver, Colorado 80206
(Address of principal place of business or intended place of business)
William W. Reid, President
Gold Resource Corporation
222 Milwaukee Street, Denver, Colorado 80206
(303) 320-7708
(Name, address and telephone number of agent for service)
With a copy to:
David J. Babiarz, Esq.
Dufford & Brown, P.C.
1700 Broadway, Suite 2100
Denver, Colorado 80290-2101
(303) 861-8013
Approximate date of commencement of proposed sale to public: As soon as practical after the effective date of this Registration Statement.
If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.[ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.[ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434, check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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Title of each
class of Proposed Proposed
securities to Amount maximum maximum
registration to be offering price aggregate Amount of
be registered registered(1) per unit offering price registration fee
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Common Stock,
$.001 par value,
to be offered by the
Company 7,000,000 $1.00 $ 7,000,000 $ 823.90
Common Stock,
$.001 par value,
to be offered by the
selling shareholders 9,390,707 $1.00(2) $ 9,390,707 $1,105.29
Total: 16,390,707 $16,390,707 $1,929.19
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(1) In accordance with Rule 416 under the Securities Act of 1933, as amended,
includes an indeterminate number of additional shares to prevent dilution
in the event of stock splits, stock dividends or similar events.
(2) Estimated based on the price of securities offered by the Company.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(A), MAY DETERMINE.
The information in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED OCTOBER 28, 2005
PROSPECTUS
[Logo] GOLD RESOURCE CORPORATION
9,390,707 Shares of Common Stock Offered by Selling Shareholders
We are offering up to 7,000,000 shares of our common stock on a "best efforts" basis at a price of $1.00 per share. We are offering these shares through our officers and directors for a period of 120 days from the date of this prospectus, subject to an extension for up to an additional 60 days. There is no minimum number of shares that must be sold to complete this offering. As a result, any proceeds from the sale of our shares will be immediately deposited into our bank account and available for all valid corporate purposes.
Certain of our shareholders identified in the section of this prospectus titled
"SELLING SHAREHOLDERS," may offer and sell from time to time up to 9,390,707
shares of our common stock owned by those shareholders. We will not receive the
proceeds from the sale of those shares. The selling shareholders may sell these
securities to or through one or more underwriters, broker-dealers or agents, or
directly to purchasers on a continuous or delayed basis. The names of any
underwriters or agents will be included in a prospectus supplement, if required.
See "PLAN OF DISTRIBUTION."
Investing in our common stock involves risks that are described in the "RISK FACTORS" section beginning on page 4 of this prospectus.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF OUR COMMON STOCK OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
Underwriting Discount Net proceeds
Price to the public or commissions(1) to the Company(2)
--------------------------------------------------------------------------------
Per share $1.00 -0- $1.00
Total $7,000,000 -0- $7,000,000
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(1) We may sell the shares through broker-dealers or other intermediaries and
pay a commission or other compensation in an amount up to 10% of the sales
price. However, we have no obligation to do so.
(2) Excludes expenses of the offering presently estimated at $45,000, including
legal and accounting fees, printing expenses, and travel.
The date of this prospectus is October___, 2005
TABLE OF CONTENTS
Page
----
Prospectus Summary................................................... 1
Risk Factors......................................................... 4
Dilution............................................................. 10
Use of Proceeds...................................................... 11
Market Information................................................... 12
Management's Discussion and Analysis or Plan of Operation............ 12
Business and Properties.............................................. 18
Management........................................................... 28
Security Ownership of Certain Beneficial Owners and Management....... 34
Selling Shareholders................................................. 35
Plan of Distribution................................................. 37
Description of Capital Stock......................................... 40
Shares Eligible For Future Sale...................................... 41
Where You Can Find More Information.................................. 42
Legal Matters........................................................ 43
Experts.............................................................. 43
Financial Statements................................................. F-1
About This Prospectus................................................ Back Cover
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Additional Information
This prospectus contains descriptions of certain contracts, agreements or other documents affecting our business. These descriptions are not necessarily complete. For the complete text of these documents, you can refer to the exhibits filed with the registration statement of which this prospectus is a part. See "WHERE YOU CAN FIND MORE INFORMATION."
Special Note Regarding Forward-Looking Statements
Please see the note under "RISK FACTORS" for a description of special factors potentially affecting forward-looking statements included in this prospectus.
SUMMARY
THE FOLLOWING INFORMATION SUMMARIZES INFORMATION CONTAINED ELSEWHERE IN THIS PROSPECTUS. PROSPECTIVE INVESTORS ARE URGED TO READ THE BALANCE OF THIS PROSPECTUS CAREFULLY, INCLUDING THE RISK FACTORS AND FINANCIAL STATEMENTS.
Our Company
We were incorporated in Colorado on August 24, 1998 to engage in the exploration and development of gold and silver mining properties. In August 2001, after a period of dormancy, we leased our first property in the State of Hidalgo, Mexico, known as the Zimapan project. After drilling approximately 1,800 meters of test holes, we abandoned the lease.
In October 2002, we leased a property in the State of Oaxaca, Mexico, designated the El Aguila project. This property covers approximately 1,897 hectares(1) and is located in the historic San Jose del Gracia mining district in the State of Oaxaca. The El Aguila project is an exploration property in which we have a 100% interest. Since acquiring that interest, we have drilled approximately 4,000 meters of test holes in one section of the property and have encountered what we believe to be high grade mineralized material. As of October 25, 2005, we are continuing our exploration efforts on this property, as we believe additional exploration is necessary prior to us making a decision whether to place the property into production. Due to the absence of a feasibility study evaluating the mineralized material which we have discovered to date, we have no proven or probable reserves, and there is no assurance that a commercially viable deposit exists on the property.
In August 2003, we entered into an exploration agreement with Canyon Resources Corporation, a company whose shares trade on the American Stock Exchange. This agreement allowed Canyon to earn a 50% interest in the El Aguila property in exchange for funding of $3.5 million in exploration and development costs. Pursuant to that agreement, Canyon funded $500,000 in an exploratory drilling program which we used to explore the El Aguila property. Canyon elected not to fund the remaining $3 million, and converted its $500,000 of funding into 1,200,000 shares of our common stock. Canyon remains one of our largest shareholders to date.
In 2005, we obtained some additional property in the Mexican State of Oaxaca. The El Rey project is an exploration stage property in which we acquired claims by filing concessions with the Mexican government. We have conducted very limited exploration of this property to date.
From July 2000 to December 31, 2002, the day-to-day management of our company was provided by U.S. Gold Corporation, a company engaged in the exploration and development of gold mining properties with securities traded over the counter and quoted on the OTC Bulletin Board. William and David Reid, the founders of our company, were also the president and vice president, respectively, of U.S. Gold during that time. In 2005, the Reids resigned those positions and the interest in our company owned by U.S. Gold was transferred to the Reids and another individual in satisfaction of certain obligations arising from termination of their employment agreements by U.S. Gold. Since January 2003, our affairs have been managed by the Reids with the oversight of our Board of Directors.
Other than the exploration agreement with Canyon discussed above, our funding since inception has been provided by the private sale of our equity securities. In July and August 2005, we raised $1,200,000 from the sale of our common stock to a natural resource fund and an individual at a price per share of $.50. Since inception, we have issued an aggregate of 18,304,852 shares of common stock for cash, services and other consideration totaling $4,123,341.
Our operations in Mexico are conducted through our wholly-owned Mexican subsidiaries, Don David Gold, S.A. de C.V. and Golden Trump S.A. de C.V. All references to us or our company in this prospectus include our subsidiaries.
Our principal executive offices are located at 222 Milwaukee Street, Suite 301, Denver, Colorado 80206, and our telephone number is (303) 320-7708.
The Offering
Common Stock outstanding before the Offering.................. 18,304,852 shares(1)(2)(3)
Common Stock offered by us.................................... 7,000,000 shares
Common Stock outstanding after the Offering................... 25,304,852 shares(1)(2)(3)
Common Stock offered by the Selling Shareholders.............. 9,390,707
Use of Proceeds............................................... The proceeds from the sale of
common stock offered by us will
be used for additional
exploration of our mining
properties, construction of
improvements to our properties,
working capital and if
warranted, additional property
acquisitions. We will not
receive any proceeds from the
sale of common stock by the
selling shareholders.
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Summary Financial Data
The following table presents certain selected historical consolidated financial data about our company. Historical consolidated financial information as of and for the fiscal year ended December 31, 2004 and 2003 has been derived from our consolidated financial statements, which have been audited by Stark Winter Schenkein & Co., L.L.P., independent accountants. Historical consolidated financial information as of and for the six months ended June 30, 2005 and 2004 have been derived from our unaudited consolidated financial statements. All amounts included in this table and elsewhere in this prospectus are stated in United States dollars. You should read the data set forth below in conjunction with the section entitled "MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATION" and our financial statements and related notes included elsewhere in this prospectus.
Balance Sheet Data
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(Unaudited)
June 30, December 31,
2005 2004 2004 2003
---- ---- ---- ----
Cash $ 6,812 $ 40,217 $ 9,560 $ 135,849
Total Assets 19,357 41,813 11,141 137,786
Current Liabilities 3,164 337,568 408,476 433,455
Total Liabilities 3,164 337,568 408,476 433,455
Shareholders' Equity (Deficit) 16,193 (795,755) (397,335) (695,669)
Operating Data
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(Unaudited)
Six months ended Year ended
June 30, December 31,
2005 2004 2004 2003
---- ---- ---- ----
Exploration Costs $ 72,399 $ 171,130 $ 257,383 $ 391,316
General and Administrative
Expenses 40,137 20,093 527,732 58,173
Net (Loss) (216,718) (292,087) (853,666) (496,017)
Net (Loss) per Share $ (0.02) $ (0.03) $ (0.08) $ (0.05)
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RISK FACTORS
INVESTMENT IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK AND COULD RESULT IN A LOSS OF YOUR ENTIRE INVESTMENT. PRIOR TO MAKING AN INVESTMENT DECISION, YOU SHOULD CAREFULLY CONSIDER ALL OF THE INFORMATION IN THIS PROSPECTUS AND, IN PARTICULAR, YOU SHOULD EVALUATE THE RISK FACTORS SET FORTH BELOW.
RISK RELATING TO OUR COMPANY
SINCE WE ARE A NEW BUSINESS WITH NO OPERATING HISTORY, INVESTORS HAVE NO BASIS TO EVALUATE OUR ABILITY TO OPERATE PROFITABLY. We were organized in 1998 but have had no revenue from operations since our inception. Our activities to date have been limited to organizational efforts, raising financing, acquiring mining properties and conducting limited exploration. We face all of the risks commonly encountered by other new businesses, including the lack of an established operating history, need for additional capital and personnel, and intense competition. There is no assurance our business plan will be successful.
THE REPORT OF OUR INDEPENDENT ACCOUNTANTS ON OUR FINANCIAL STATEMENTS FOR THE
YEAR ENDED DECEMBER 31, 2004 INCLUDES A "GOING CONCERN" QUALIFICATION, MEANING
THAT THERE IS SUBSTANTIAL DOUBT ABOUT OUR ABILITY TO CONTINUE IN OPERATION. The
report cited the following factors in support of our accountant's conclusion:
(i) the substantial losses we incurred for the years ended December 31, 2004 and
2003; (ii) our lack of operating revenue; and (iii) our dependence on sale of
equity securities and receipt of capital from outside sources to continue in
operation. From inception to June 30, 2005, we have accumulated a loss of
$2,907,333. If we are unable to obtain additional financing from outside sources
and eventually produce revenue, we may be forced to sell our assets, curtail or
cease operations. In any event, investors in our common stock could lose all or
part of their investment. (See "FINANCIAL STATEMENTS").
WE ARE DEPENDENT UPON RECEIPT OF ADDITIONAL WORKING CAPITAL TO FUND CONTINUED EXPLORATION AND DEVELOPMENT OF OUR PROPERTIES. Even if we are successful in selling all of the common stock offered by us, we will require substantial additional capital for continued exploration and development of our properties. The proceeds from this offering have been budgeted for a limited period of time and limited purposes. If our exploration program proves successful, we will require significant additional capital to fund development of the El Aguila project and construction of a mill in order to place it into production. In addition, we will require additional working capital to fund operations pending sale of any gold or other precious metals. We are unable at this time to estimate with any reasonable degree of certainty the amount of capital required in the future. However, we believe that amount will be significant. Also, any adverse developments in our exploration efforts may force us to sell our stock at a discount to raise additional funds.
WE HAVE NO PROVED OR PROBABLE RESERVES, MEANING THERE IS NO ASSURANCE THAT WE CAN ECONOMICALLY PRODUCE GOLD OR OTHER PRECIOUS MINERALS FROM OUR PROPERTIES. In order to demonstrate the availability of proved or probable reserves, it will first be necessary for us to continue exploration to demonstrate the availability of sufficient mineralized material. Exploration is inherently risky, with few properties ultimately proving economically successful. If our efforts are successful, it will then be necessary for us to engage an outside engineering firm to assess geological data and develop an economic model demonstrating commercial feasibility of the property. This feasibility study will require significant additional time and investment. There is no assurance we can economically produce gold or other precious metals from our properties.
AT THE PRESENT TIME, WE ARE TOTALLY DEPENDENT UPON PRODUCTION OF GOLD OR OTHER PRECIOUS METALS FROM TWO PROPERTIES, RAISING THE RISK IF EITHER OR BOTH OF THOSE PROPERTIES SHOULD PROVE UNPRODUCTIVE. Since we have never produced gold or other precious metals from either of our properties, and since we have no proved or probable reserves, there is no assurance that gold or other precious metals can be economically produced under existing and future costs and expenses. If we are unable to economically produce gold from either or both of these properties, we would be forced to identify and invest substantial sums in one or more additional properties, and there is no assurance that such properties would be available on terms favorable to us.
OUR PROPERTIES ARE LOCATED IN MEXICO AND ARE SUBJECT TO CHANGES IN POLITICAL CONDITIONS AND REGULATIONS IN THAT COUNTRY. Our existing properties are located in Mexico. In the past, Mexico has been subject to political instability, changes and uncertainties which may cause changes to existing government regulations affecting mineral exploration and mining activities. Civil or political unrest could disrupt our operations at any time. Our mineral exploration and mining activities in Mexico may be adversely affected in varying degrees by changing governmental regulations relating to the mining industry or shifts in political conditions that increase the costs related to our activities or maintaining our properties. Finally, Mexico's status as a developing country may make it more difficult for us to obtain required financing for our project.
OUR MINING CONCESSIONS ARE SUBJECT TO PAYMENT OF CONTINUING CLAIM FEES AND THE RIGHTS OF THE EJIDO (LOCAL INHABITANTS) TO SURFACE USE FOR AGRICULTURAL PURPOSES, AND IF WE FAIL TO SATISFY THESE CLAIMS, WE MAY LOSE OUR INTEREST IN THE PROPERTIES. Mining concessions in Mexico are subject to payment of continuing claim fees to the federal government. Our failure or inability to pay these claim fees as required by the concessions may cause us to risk losing our interest in the properties. Further, if we are successful in discovering sufficient amounts of mineralized material to warrant production, our ability to mine minerals is subject to making satisfactory arrangements with the Ejido. Ejidos are groups of local inhabitants who were granted rights to conduct agricultural activities on the property. We must negotiate a satisfactory arrangement with these inhabitants in order to disturb or discontinue their rights to farm. Our inability to successfully negotiate such agreements could impair or impede our ability to successfully mine the properties.
THE VOLATILITY OF THE PRICE OF GOLD COULD ADVERSELY AFFECT OUR FUTURE OPERATIONS AND OUR ABILITY TO DEVELOP OUR PROPERTIES. The commercial feasibility of our properties and our ability to raise funding to conduct continued exploration and development is dependent on the price of gold and other precious metals. The price of gold may also have a significant influence on the market price of our common stock and the value of our properties. Our decision to put a mine into production and to commit the funds necessary for that purpose must be made long before the first revenue from production would be received. A decrease in the price of gold may prevent our property from being economically mined or result in the writeoff of assets whose value is impaired as a result of lower gold prices. The price of gold is affected by numerous factors beyond our control, including inflation, fluctuation of the United States Dollar and foreign currencies, global and regional demand, the sale of gold by central banks, and the political and economic conditions of major gold producing countries throughout the world. During the last five years, the average annual market price of gold has fluctuated between $271 per ounce and $406 per ounce, as shown in the table below. Although it is possible for us to protect some price fluctuations by hedging in certain circumstances, the volatility of mineral prices represents a substantial risk, which no amount of planning or technical expertise can eliminate.
2000 2001 2002 2003 2004 $279 $271 $310 $364 $406
COMPETITION IN THE MINING INDUSTRY IS INTENSE, AND WE HAVE LIMITED FINANCIAL AND PERSONNEL RESOURCES WITH WHICH TO COMPETE. Competition in the mining industry for desirable properties, investment capital and personnel is intense. Numerous companies headquartered in the United States, Canada and elsewhere throughout the world compete for properties on a global basis. We are an insignificant participant in the gold mining industry due to our limited financial and personnel resources. We may be unable to attract the necessary investment capital to fully develop our properties and unable to acquire other desirable properties.
SINCE MOST OF OUR EXPENSES ARE PAID IN MEXICAN PESOS, AND WE ANTICIPATE SELLING ANY PRODUCTION FROM OUR PROPERTIES IN UNITED STATES DOLLARS, WE ARE SUBJECT TO ADVERSE CHANGES IN CURRENCY VALUES THAT WILL BE DIFFICULT TO PREVENT. Our operations in the future could be affected by changes in the value of the Mexican peso against the United States dollar. At the present time, since we have no production, we have no plans or policies to utilize forward sales contracts or currency options to minimize this exposure. If and when these measures are implemented, there is no assurance they will be cost effective or be able to fully offset the effect of any currency fluctuations.
OUR ACTIVITIES IN MEXICO ARE SUBJECT TO SIGNIFICANT ENVIRONMENTAL REGULATIONS, WHICH COULD RAISE THE COST OF DOING BUSINESS. Mining operations are subject to environmental regulation by SEMARNAP, the environmental protection agency of Mexico. Regulations require that an environmental impact statement, known in Mexico as a Manifesto Impacto Ambiental, be prepared by a third party contractor for submission to SEMARNAP. Studies required to support this impact statement include a detailed analysis of many subject areas, including soil, water, vegetation, wildlife, cultural resources and socio-economic impacts. We may also be required to submit proof of local community support for a project to obtain final approval. Significant environmental legislation exists in Mexico, including fines and penalties for spills, release of emissions into the air, seepage and other environmental damage.
THE NATURE OF MINERAL EXPLORATION AND PRODUCTION ACTIVITIES INVOLVES A HIGH DEGREE OF RISK AND THE POSSIBILITY OF UNINSURED LOSSES. Exploration for minerals is highly speculative and involves greater risk than many other businesses. Many exploration programs do not result in the discovery of mineralization and any mineralization discovered may not be of sufficient quantity or quality to be profitably mined. Uncertainties as to the metallurgical amenability of any minerals discovered may not warrant the mining of these minerals on the basis of available technology. Our operations are subject to all of the operating hazards and risks normally incident to exploring for and developing mineral properties, such as, but not limited to:
o encountering unusual or unexpected formations;
o environmental pollution;
o personal injury, flooding and landslides;
o variations in grades of ore;
o labor disputes; and
o decrease in reserves due to a lower gold price.
We currently have no insurance to guard against any of these risks. If we determine that capitalized costs associated with any of our mineral interests are not likely to be recovered, we would incur a writedown on our investment in such property interest. All of these factors may result in losses in relation to amounts spent which are not recoverable.
IF WE LOSE ANY OF OUR EXISTING OFFICERS OR EMPLOYEES, THERE IS NO ASSURANCE THAT WE WOULD FIND A SUITABLE REPLACEMENT ON ACCEPTABLE TERMS. If either of our current officers or employees or our principal consultant in Mexico were to die, become disabled or leave the company, we would be forced to identify and retain individuals to replace them. Messrs. William and David Reid are our only employees and officers at this time. Jose Perez Reynoso is our consultant in Mexico who oversees our properties and operations. There is no assurance that we can find suitable individuals to replace them or to add to our employee base if that becomes necessary. We are entirely dependent on these individuals as our only personnel at this time. We have no life insurance on any individual at this time, and we may be unable to hire a suitable replacement for them on favorable terms, should that become necessary. None of these individuals have signed an employment agreement with our company.
SINCE WE ARE CONDUCTING THIS OFFERING ON A BEST EFFORTS BASIS, THERE IS NO ASSURANCE THAT WE WILL RECEIVE SUFFICIENT PROCEEDS TO COMPLETE EXPLORATION OF OUR PROPERTIES OR ACQUIRE ANOTHER PROPERTY WITH DEVELOPMENT POTENTIAL. There is no minimum number of shares that we must sell and no minimum amount of proceeds that we must receive in order to utilize investor funds. As a result, each dollar received by us will be deposited in our bank account and available for all valid corporate purposes. There is no assurance that the amount of money we receive will be sufficient to complete exploration of either of our properties and the other purposes for which we have budgeted this money. If the results of this offering are insufficient, we may be forced to sell additional shares of our stock, with the concurrent risk of additional dilution to our then-existing shareholders. If we are unable to sell any additional stock, we may be forced to liquidate our properties, and investors in this offering may lose their investment. (See "PLAN OF DISTRIBUTION").
COLORADO LAW AND OUR ARTICLES OF INCORPORATION MAY PROTECT OUR DIRECTORS FROM CERTAIN TYPES OF LAWSUITS. Colorado law provides that our directors will not be liable to us or our stockholders for monetary damages for all but certain types of conduct as directors. Our Articles of Incorporation permit us to indemnify our directors and officers against all damages incurred in connection with our business to the fullest extent provided or allowed by law. The exculpation provisions may have the effect of preventing stockholders from recovering damages against our directors caused by their negligence, poor judgment or other circumstances. The indemnification provisions may require us to use our limited assets to defend our directors and officers against claims, including claims arising out of their negligence, poor judgment, or other circumstances. (See "MANAGEMENT-Indemnification and Limitation on Liability of Directors").
RISKS RELATING TO OUR COMMON STOCK
A LARGE NUMBER OF OUR SHARES WILL BE ELIGIBLE FOR FUTURE SALE AND MAY DEPRESS THE PRICE OF OUR COMMON STOCK. In addition to the shares registered for sale by the selling shareholders in this prospectus, a large number of shares of our common stock will become eligible for sale in the future under Rule 144. Under Rule 144, and under certain circumstances, an owner is permitted to sell every three months the lesser of: (i) 1% of the amount of our outstanding common stock, or (ii) the average weekly trading volume of our common stock for the four weeks preceding the sale. The sale of common stock by the selling shareholders or other shareholders could depress the price of our common stock in the future. This will be especially true if we are unable to obtain a sufficient number of broker-dealers to buy and sell our stock. (See "SHARES ELIGIBLE FOR FUTURE SALE").
A SMALL NUMBER OF EXISTING SHAREHOLDERS CONTROL OUR COMPANY, WHICH COULD LIMIT YOUR ABILITY TO INFLUENCE THE OUTCOME OF ANY SHAREHOLDER VOTE. Our executive
officers and directors, together with our largest shareholder, beneficially own approximately 62% of our common stock as of the date of this prospectus. Under our Articles of Incorporation and Colorado law, the vote of a majority of the shares outstanding is generally required to approve most shareholder action. As a result, these individuals and entities will be able to control the outcome of shareholder votes for the foreseeable future, including votes concerning the election of directors, amendments to our Articles of Incorporation or proposed mergers or other significant corporate transactions. (See "SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT").
SINCE NO BROKER OR DEALER HAS COMMITTED TO CREATE OR MAINTAIN A MARKET IN OUR STOCK, THERE IS NO ASSURANCE THAT OUR STOCK WILL BE QUOTED IN THE OTC BULLETIN BOARD, AND PURCHASERS OF OUR COMMON STOCK MAY HAVE DIFFICULTY SELLING THEIR SHARES, SHOULD THEY DESIRE TO DO SO. It is our intention to seek one or more broker-dealers to apply for quotation of our common stock in the OTC Bulletin Board following completion of this offering by us. However, we have no agreement with any broker-dealer at this time, and there is no assurance that we will be successful in finding one in the future. In addition, we believe that our stock will be characterized as a "micro-cap" security and therefore subject to increased scrutiny by the NASD. A micro-cap security is generally a low priced security issued by a small company, or the stock of companies with low capitalization. If we are unable to obtain quotation of our common stock on the Bulletin Board, trading in our stock will be limited, and purchasers of our common stock may have difficulty selling their shares, should they desire to do so.
SINCE OUR STOCK WILL NOT BE LISTED ON NASDAQ OR A STOCK EXCHANGE, TRADING IN OUR SHARES WILL LIKELY BE SUBJECT TO RULES GOVERNING "PENNY STOCKS," WHICH WILL IMPAIR TRADING ACTIVITY IN OUR SHARES. It is likely that our common stock will not initially be listed on Nasdaq or a stock exchange and may therefore be subject to rules adopted by the Securities and Exchange Commission regulating broker dealer practices in connection with transactions in penny stocks. Those disclosure rules applicable to penny stocks require a broker dealer, prior to a transaction in a penny stock not otherwise exempt from the rules, to deliver a standardized disclosure document required by the SEC. These rules also require a cooling off period before the transaction can be finalized. These requirements may have the effect of reducing the level of trading activity in any secondary market for our common stock. Many brokers may be unwilling to engage in transactions in our common stock because of the added disclosure requirements, thereby making it more difficult for stockholders to dispose of their shares.
OUR STOCK PRICE MAY BE VOLATILE AND AS A RESULT YOU COULD LOSE ALL OR PART OF YOUR INVESTMENT. In addition to volatility associated with OTC securities in general, the value of your investment could decline due to the impact of any of the following factors upon the market price of our common stock:
o Changes in the worldwide price for gold;
o Disappointing results from our exploration or development efforts;
o Failure to meet our revenue or profit goals or operating budget;
o Decline in demand for our common stock;
o Downward revisions in securities analysts' estimates or changes in general
market conditions;
o Technological innovations by competitors or in competing technologies;
o Investor perception of our industry or our prospects; and
o General economic trends
In addition, stock markets have experienced extreme price and volume fluctuations and the market prices of securities have been highly volatile.
These fluctuations are often unrelated to operating performance and may adversely affect the market price of our common stock. As a result, investors may be unable to resell their shares at a fair price.
ISSUANCES OF OUR STOCK IN THE FUTURE COULD DILUTE EXISTING SHAREHOLDERS AND ADVERSELY AFFECT THE MARKET PRICE OF OUR COMMON STOCK, IF A PUBLIC TRADING MARKET DEVELOPS. We have the authority to issue up to 60,000,000 shares of common stock, 5,000,000 shares of preferred stock, and to issue options and warrants to purchase shares of our common stock without stockholder approval. Because our common stock is not currently quoted in Nasdaq or listed on an exchange, we are not required to solicit shareholder approval prior to issuing large blocks of our stock. These future issuances could be at values substantially below the price paid for our common stock by our current shareholders. In addition, we could issue large blocks of our common stock to fend off unwanted tender offers or hostile takeovers without further stockholder approval. Because we believe that trading in our common stock will initially be limited, the issuance of our stock may have a disproportionately large impact on its price compared to larger companies.
WE HAVE NEVER PAID DIVIDENDS ON OUR COMMON STOCK AND THERE IS NO ASSURANCE THAT WE WILL PAY ANY IN THE FUTURE. We have not paid dividends on our common stock to date, and there is no assurance that we will be in a position to pay dividends in the foreseeable future. Our ability to pay dividends is dependent on our ability to successfully develop one or more properties and generate revenue from operations. Further, our initial earnings, if any, may be retained to finance our growth. Any future dividends will be directly dependent upon our earnings, our then-existing financial requirements and other factors. (See "MARKET INFORMATION.")
DUE TO THE ABSENCE OF A TRADING MARKET FOR OUR COMMON STOCK OR THE PARTICIPATION OF AN UNDERWRITER IN THIS OFFERING, THE PRICE OF OUR COMMON STOCK HAS BEEN ARBITRARILY DETERMINED. Investors in this offering will not share the benefit of an established trading market as an indication of the value of our common stock. Furthermore, we have not retained an investment banker to assist in marketing our common stock. The offering price of our stock has been determined arbitrarily by us and bears no necessary relationship to our book value, lack of earnings or other traditional criteria of value. As a result, investors may not be able to sell their stock for a profit, and may realize a loss on their investment.
IN THE EVENT OF A DISPUTE REGARDING TITLE TO OUR PROPERTY OR ANY FACET OF OUR OPERATIONS, IT WILL LIKELY BE NECESSARY FOR US TO RESOLVE THE DISPUTE IN MEXICO, WHERE WE WOULD BE FACED WITH UNFAMILIAR LAWS AND PROCEDURES. The resolution of disputes in foreign countries can be costly and time consuming, similar to the situation in the United States. However, in a foreign country, we face the additional burdens of understanding unfamiliar laws and procedures. We may not be entitled to a jury trial, as we might be in the United States. Further, to litigate in any foreign country, we would be faced with the necessity of hiring lawyers and other professionals who are familiar with the foreign laws. For these reasons, we may incur unforeseen losses if we are forced to resolve a dispute in Mexico or any other foreign country.
Forward-Looking Statements
This prospectus and the information incorporated by reference, contain statements that plan for or anticipate the future. Forward-looking statements include statements about our ability to develop and produce gold or other precious metals, statements about our future business plans and strategies, statements about future revenue and the receipt of working capital, and most other statements that are not historical in nature. In these documents, forward-looking statements are often identified by the words "anticipate," "plan," "believe," "expect," "estimate," and the like. Because forward-looking
statements involve future risks and uncertainties, there are factors that could cause actual results to differ materially from those expressed or implied. Prospective investors are urged not to put undue reliance on these forward-looking statements.
A few of the uncertainties that could affect the accuracy of forward-looking statements, besides the specific Risk Factors identified above, include:
o Changes in the general economy affecting the disposable income of the
public;
o Technological changes in the mining industry;
o Our costs;
o The level of demand for our products; and
o Changes in our business strategy.
The Private Securities Litigation Reform Act of 1995, which provides a "safe harbor" for similar statements by existing public companies, does not apply to our offering, as we were not previously registered as a public company.
DILUTION
The net tangible book value of the 15,736,852 shares of our common stock outstanding at June 30, 2005, was $16,193, or approximately $.0010 per share. Assuming the maximum number of shares offered hereby are sold, of which there is no assurance, that per share value will be increased as a result of this offering to approximately $.3086 (exclusive of other changes in net tangible book value subsequent to June 30, 2005), resulting in immediate substantial dilution to new shareholders of 69%. Dilution is the reduction of value of the purchaser's investment measured by the difference between the price per share in this offering and the sum of the net tangible book value at June 30, 2005 and the increase attributable to purchases by investors in this offering.
The following table illustrates the effect of dilution per share of common stock on purchasers in the offering based on the number of shares outstanding at June 30, 2005 and assuming sales of different amounts of common stock up to and including the maximum, of which there can be no assurance.
Number of Shares Sold
2,000,000 5,000,000 7,000,000
--------------------------------------
Net Tangible Book Value Per Share
June 30, 2005(1) $.0010 $.0010 $.0010
Net Tangible Book Value Per Share
After Offering(2) .1137 .2419 .3086
Increase in Per Share Attributable
to New Shareholders .1127 .2409 .3076
Dilution to Purchasers of Stock 88.63% 75.81% 69.14%
--------------------
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(1) Net tangible book value is equal to tangible assets minus total
liabilities. The net tangible book value excludes any amounts spent on
property acquisition or exploration, as such amounts have been expensed
under relevant accounting principles.
(2) Includes the net tangible book value at June 30, 2005 of $16,193, plus the
gross proceeds of this offering.
The following table summarizes the number of shares of common stock issued by us to current shareholders as of the date of this prospectus, and the total amount paid or received by us for those shares; the number of shares to be issued in this offering, and the total amount to be paid by new investors; the percentage of equity ownership of each group, and the percentage of the total consideration which each group will have paid for issuance of shares following completion of this offering; and finally, the average price per share paid by the current shareholders and the new investors. Since there is no fixed number of shares which must be sold in this offering, we have presented two alternate scenarios, neither of which should be taken as a guarantee of the results of this offering.
Amount of Offering Shares Purchased Total Consideration
------------------ ------------------------- ---------------------------------------
Average
Percent Percent Price
$3,000,000 Number (%) Amount (%) Per Share
---------- ---------- ------- ---------- ------- ---------
Present shareholders 18,304,852 85.9 $4,123,341 57.9 $.225
New Investors 3,000,000 14.1 3,000,000 42.1 $1.00
$7,000,000
Present shareholders 18,304,852 72.3 $4,123,341 37.1 $.225
New investors 7,000,000 27.7 7,000,000 62.9 $1.00
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USE OF PROCEEDS
The following table illustrates the proposed use of proceeds from the offering of shares by us. Since there is no minimum number of shares that must be sold to complete the offering, we have illustrated various amounts. However, there is no assurance that we will sell any or all of the shares. The proposed applications are listed in order of priority.
Amount of Proceeds(1)
----------------------------------------------
Proposed use $2,000,000 $5,000,000 $7,000,000
----------------------------------------------------------------------------------------------
Additional exploration 1,500,000 3,500,000 4,000,000
Property improvements and infrastructure -- 500,000 1,000,000
Feasibility study 1,000,000
Working capital(2) 500,000 1,000,000 1,000,000
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If the results of our continuing exploration program prove unsuccessful, we will increase our efforts to identify and acquire additional properties.
Pending application in accordance with our plan of operation, the proceeds of this offering may be invested in temporary interest-bearing investments such as checking accounts, time deposits, certificates of deposit and short-term government obligations. We do not intend to invest the proceeds of this offering in a manner that would subject us to regulation as an investment company for purposes of United States securities laws.
MARKET INFORMATION
Certain Market Information
There currently exists no public trading market for our common stock. We do not intend to develop a public trading market until we have completed the offering of our shares. At that time, we intend to identify a broker-dealer to make application to the NASD to quote our common stock on the OTC Bulletin Board. There can be no assurance that a public trading market will develop at that time or be sustained in the future. Without an active public trading market, you may not be able to liquidate your shares without considerable delay, if at all. If a market does develop, the price for our securities may be highly volatile and may bear no relationship to our actual financial condition or results of operations. Factors that we discuss in this prospectus, including the many risks associated with an investment in us, may have a significant impact on the market price of our common stock. Also, because of the relatively low price of our common stock, many brokerage firms may not effect transactions in the common stock.
As of October 25, 2005, we had 70 beneficial owners of our common stock.
Dividend Policy
We have never declared or paid dividends on our common stock. Payment of future dividends, if any, will be at the discretion of our board of directors after taking into account various factors, including the terms of any credit arrangements, our financial condition, operating results, current and anticipated cash needs and plans for expansion. At the present time, we are not party to any agreement that would limit our ability to pay dividends.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OR PLAN OF OPERATION
Introduction
The following discussion summarizes our plan of operation for the next twelve months. It also analyzes our financial condition at June 30, 2005, and compares it to our financial condition at year-end December 31, 2004. We also compare our financial condition at December 31, 2004 to that at December 31, 2003, the end of our prior fiscal year. The discussion of our results of operations compares the six months ended June 30, 2005 to the comparable period ended June 30, 2004, and the year ended December 31, 2004 to the year ended December 31, 2003. For additional information about our financial condition and results of operations, please refer to the financial statements and footnotes appearing in this prospectus.
On February 21, 2005, we effected a two-for-one split of our outstanding common stock. All of the financial information included in this discussion and in the financial statements appearing in this prospectus has been adjusted to reflect the results of that stock split.
Plan of Operation
Introduction. Our plan of operation is to continue exploration of the El Aguila property until we discover sufficient mineralization to justify a decision to place the property into production or alternatively, determine to abandon the lease. We also intend to undertake exploration of the El Rey property, although that property is in an earlier stage of exploration. Our ultimate objective is to become a producer of gold and other precious metals. We are unable at this time to predict when, if ever, that objective will be achieved.
Our business plan targets high-grade ore deposits which can be mined with relatively low capital investment. Since we are a relatively small company compared to others operating in the mining industry, we can initially look for smaller deposits with the potential for quicker returns because we do not have to support a larger organization with high overhead. In order to achieve that objective, we hope to mine the ore initially from an open pit. By limiting capital costs necessarily incurred in constructing a mill, we hope to enhance the return on our capital investments. We believe the El Aguila property represents an opportunity to meet these objectives.
In an effort to maintain our low overhead and because we have limited personnel, we anticipate using independent contractors to do most of the work on our projects. We currently retain an independent contractor to manage and oversee our operations in Mexico and we utilize contractors for exploration and other business activities. We expect this situation to continue for the foreseeable future.
As an exploration and mining company, our activities include, at various times and to various degrees, property rights acquisition, geological evaluation, exploration and feasibility studies of properties and, where warranted, development and construction of mining and processing facilities, mining and processing and the sale of gold and silver, other metals and by-products. We may also enter into joint ventures, partnerships or other arrangements to accomplish these activities. All refined bullion would either be sold to outside companies, delivered in satisfaction of spot or forward sale delivery contracts, or held in inventory for later disposition.
Exploration and Development. Our initial drilling program on the El Aguila project commenced in early 2004 and was funded by Canyon Resources Corporation under an exploration agreement which contemplated a 50% earn-in for a total of $3.5 million in costs. The initial drilling program consisted of approximately 3,900 meters of rotary drilling in 69 holes. The results of this initial program suggested the presence of mineralized material in sufficient grade and quantity to justify continued exploration. However, Canyon elected not to fund the remaining $3 million of the program and instead elected to receive 1,200,000 shares our common stock in satisfaction of its initial contribution. (See "BUSINESS AND PROPERTIES" for a more detailed summary of the drilling results).
Our current round of exploratory drilling on the El Aguila project commenced in July 2005 and is being funded with the proceeds of a private placement completed in August 2005. We estimate this phase to include approximately 3,000 meters in 50 holes. While the initial program funded by Canyon involved rotary drilling, our current program involves core drilling where the samples of the rock are left whole for better geologic interpretation and analysis. While core drilling is more expensive, we believe that the quality of the resulting data is superior. In our current program, we hope to refine the results of our initial drilling by defining and extending the boundaries of the mineralized material.
We do not expect the proceeds from the private placement to be sufficient to fund the entire remaining exploration program. Accordingly, significant proceeds from this offering have been budgeted for that purpose. We hope to identify sufficient estimated mineralized material to mine for not less than four years in order to make a decision to commence mining and construction of a mill. For that reason, we anticipate the need for additional exploration following completion of this offering. We cannot accurately estimate at this time the amount of money or the time necessary to complete our exploration activities.
If the results of our exploration program prove successful, we intend to retain one or more consultants to prepare a feasibility study relating to the property prior to making a decision to place the property into production. A feasibility study is designed, as the name implies, to determine the economic feasibility of placing the property into production and producing gold and other metals. It analyzes the estimated quality and quantity of the resource discovered during the exploration stage, estimates the costs of mining and processing the material and compares that to the estimated sales price of the finished product. It includes information on mining, processing, metallurgical, economic and other relevant data. If the results of the feasibility study are positive, and assuming the availability of necessary capital, a decision will be made to place the property into production.
Capital Investment. In addition to expenses of exploration, we also anticipate infrastructure improvements to the El Aguila project. Foremost among these is the construction of a better road to the proposed mill site. As our exploration program continues, we will determine whether and when it is expedient to commence construction of this road and other necessary improvements to continue our activities.
If a decision is made to commence mining, we will incur significant capital costs in construction of a mill and acquisition of necessary equipment. If we determine to place the property in production, it will be necessary for us to conduct a feasibility study relating to the property to raise additional funding to finance the construction of the mill. At present, we anticipate obtaining such funding through additional equity financing, although we have no specific plans at this time.
At some time in the future, we may also investigate the acquisition of additional properties. This decision will be made on the basis of the results of our exploration of the El Aguila and El Rey properties, and the availability and cost of other prospects.
Corporate Overhead. Included in our plan of operation are the expenses of overseeing our business and paying other general and administrative expenses. These expenses primarily include salaries and other compensation, rent and travel. We currently estimate these expenses at $60,000 per month, based on existing commitments and expectations. We expect these expenses will be paid from the proceeds of equity financing until such time, if ever, we are successful in placing one or more of our properties in production.
Liquidity and Capital Resources
June 30, 2005. Our financial condition and liquidity improved significantly at June 30, 2005 compared to the end of our prior fiscal year. At June 30, 2005, we had working capital of $3,648, an improvement of $402,564 from December 31, 2004. Subsequent to June 30, 2005, our financial condition improved even further, when we received an additional $1,200,000 from the sale of our common stock. We are utilizing the proceeds of those transactions to fund our ongoing
exploration program. We anticipate those proceeds to be adequate for continuation of the drilling program and to pay property holding costs and other overhead for the next 12 months.
The report of our independent accountants on our financial statements at December 31, 2004 contains a qualification about our ability to continue as a going concern. This qualification is based on our lack of operating revenue and limited working capital, among other things. During 2005, we have taken significant steps to alleviate this risk. However, we remain dependent on receipt of capital from outside sources, and ultimately, generating revenue from operations, to continue as a going concern.
Due to our lack of proved or probable reserves at this time, all of our investment in mining properties has been expensed, and does not appear as an asset on our balance sheet. However, during the six months ended June 30, 2005, we spent $89,144 on acquisition, exploration and evaluation expenses. This compares to 182,093 for the six months ended June 30, 2004, when we utilized the proceeds of the Canyon funding. During the years 2002 through 2004, we spent $424,325, $438,066 and $325,974 on the acquisition and exploration of our properties. We expect to incur significant additional exploration expenses during the balance of 2005.
Since inception, our capital resources have been provided exclusively through the sale of equity securities. From inception through June 30, 2005, we have received $2,923,341 in cash, services and other consideration through issuance of our common stock in private transactions. Since we have not generated any cash from operations, we have been forced to rely on sale of equity to pay our expenses. During the six months ended June 30, 2005, we issued 558,000 shares of our common stock for cash of $207,500, 40,500 shares for services valued at $15,000, 1,750,000 shares as stock grants valued at $437,500 and 1,280,000 shares in satisfaction of payables totaling $320,000.
December 31, 2004. At December 31, 2004, we had a working capital deficit of $398,916, consisting of current assets of $9,560 and current liabilities of $408,476. This represents a decrease of $101,310 from our working capital deficit at December 31, 2003. A significant portion of the accrued expenses included in that working capital deficit at December 31, 2004 was satisfied during 2005, as discussed above.
Our operating activities during 2004 used $378,289 of cash. Our net loss during 2004 of $853,666 represented the largest portion of that amount. The use of cash from the net loss during the year was reduced by non-cash stock compensation in the amount of $150,000 and stock subscribed in the amount of $350,000.
During 2003, we received $400,000 and during 2004, another $100,000 from Canyon for the exploration program discussed above. As a result of the other transactions discussed above, the shareholders' deficit of $397,335 at December 31, 2004 improved to $16,193 at June 30, 2005.
Results of Operations
We are considered a development stage company for accounting purposes, since we have not received significant revenues from operations. We are unable to predict with any degree of accuracy when that situation will change.
Six Months Ended June 30, 2005. During the six months ended June 30, 2005, we reported a net loss of $216,718, or $.02 per share. This compares to a net loss
of $292,086, or $.03 per share, for the six months ended June 30, 2004. We expect to incur losses until such time, if ever, as we begin generating revenue from operations.
During the six months ended June 30, 2005, general and administrative expenses remained generally constant compared to the same period of the prior year, increasing approximately 16%. Property acquisition and exploration expenses decreased significantly from the six months ended June 30, 2004 to the comparable period of 2005, decreasing $92,949, or 51%. This decrease is attributable to our lack of working capital during early 2005. However, with the proceeds of the recent private placement described above, our exploration program is now proceeding.
Year Ended December 31, 2004. During the year ended December 31, 2004, we reported a net loss of $853,666, or $.08 per share. This compares to a net loss of $496,017, or $.05 per share, for the year ended December 31, 2003. In neither period did we report any revenue except interest income.
General and administrative expenses increased eight-fold in 2004 compared to 2003, showing an increase of $469,559. A majority of the increase in 2004, or $350,000, represents accrued compensation for our employees and a financial consultant. We also granted common stock with a value of $150,000 to our mining consultant and property manager in Mexico. We believe that the stock grant to this individual was a one-time expense. Property acquisition and exploration expenses decreased approximately 26% from 2003 to 2004, reflecting our reduced capital available for such expenditures. As a development-stage company, our acquisition and exploration budget is dependent upon available working capital.
Critical Accounting Policies
We believe the following more critical accounting policies are used in the preparation of our consolidated financial statements.
Exploration and Development Costs: Mineral property acquisition, exploration and related costs are expensed as incurred unless proven and probable reserves exist and the property is a commercially minable property. When it has been determined that a mineral property can be economically developed, the costs incurred to develop such property, including costs to further delineate the ore body and develop the property for production, may be capitalized. In addition, we may capitalize previously expensed acquisition and exploration costs if it is later determined that the property can economically be developed. Interest costs, if any, allocable to the cost of developing mining properties and constructing new facilities are capitalized until operations commence. Mine development costs incurred either to develop new ore deposits, expand the capacity of operating mines, or to develop mine areas substantially in advance of current production are also capitalized.
All such capitalized costs, and estimated future development costs, are then amortized using the units-of-production method over the estimated life of the ore body. Costs incurred to maintain current production or to maintain assets on a standby basis are charged to operations. Costs of abandoned projects are charged to operations upon abandonment. We evaluate, at least quarterly, the carrying value of capitalized mining costs and related property, plant and equipment costs, if any, to determine if these costs are in excess of their net realizable value and if a permanent impairment needs to be recorded. The periodic evaluation of carrying value of capitalized costs and any related property, plant and equipment costs are based upon expected future cash flows and/or estimated salvage value in accordance with Statement of Financial Accounting Standards (SFAS) No. 144, "Accounting for Impairment or Disposal of Long-Lived Assets."
Property Retirement Obligation: We implemented SFAS 143, "Accounting for Asset Retirement Obligations," effective January 1, 2003. SFAS 143 requires the fair value of a liability for an asset retirement obligation to be recognized in the period that it is incurred if a reasonable estimate of fair value can be made. The associated asset retirement costs are capitalized as part of the carrying amount of the long-lived asset. We have determined that we have no property retirement obligations as of December 31, 2004.
Stock Option Plans: We apply APB Opinion 25, "Accounting for Stock Issued to Employees", and related Interpretations in accounting for all stock option plans. Under APB Opinion 25, no compensation cost has been recognized for stock options issued to employees as the exercise price of stock options which we granted equals or exceeds the market price of the underlying common stock on the date of grant.
SFAS 123, "Accounting for Stock-Based Compensation," requires us to provide pro forma information regarding net income as if compensation costs for our stock option plans had been determined in accordance with the fair value based method prescribed in SFAS No. 123. To provide the required pro forma information, we estimate the fair value of each stock option at the grant date by using the Black-Scholes option-pricing model. Since our shares are not publicly traded, the fair value of each stock option or stock grant is determined by us.
Foreign Operations: Our present activities are in Mexico. As with all types of international business operations, currency fluctuations, exchange controls, restrictions on foreign investment, changes to tax regimes, political action and political instability could impair the value of the Company's investments.
Foreign Currency Translation: The local currency is the functional currency for our subsidiaries. Assets and liabilities are translated using the exchange rate in effect at the balance sheet date. Income and expenses are translated at the average exchange rate for the year. Translation adjustments are reported as a separate component of stockholders' equity.
Estimates. The preparation of our consolidated financial statements in conformity with accounting principles generally accepted in the United States of America requires us to make estimates and assumptions that affect the amount of assets and liabilities, the disclosure of contingent assets and liabilities at the date of the financial statements, and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
Recent Accounting Pronouncements
In November 2004, the FASB issued SFAS 151, "Inventory Costs." SFAS 151 amends the accounting for abnormal amounts of idle facility expense, freight, handling costs, and wasted material (spoilage) under the guidance in ARB 43, Chapter 4, "Inventory Pricing." This statement is effective for inventory costs incurred during fiscal years beginning after June 15, 2005. Management does not expect adoption of SFAS 151 to have a material impact on our financial statements.
In December 2004, the FASB issued SFAS 123(R), "Share-Based Payment." SFAS 123(R) amends SFAS 123, "Accounting for Stock-Based Compensation," and APB Opinion 25, "Accounting for Stock Issued to Employees." SFAS 123(R) requires that the cost of share-based payment transactions (including those with
employees and non-employees) be recognized in the financial statements. SFAS 123(R) applies to all share-based payment transactions in which an entity acquires goods or services by issuing (or offering to issue) its shares, share options, or other equity instruments (except for those held by an ESOP) or by incurring liabilities (1) in amounts based (even in part) on the price of the entity's shares or other equity instruments, or (2) that require (or may require) settlement by the issuance of an entity's shares or other equity instruments. This statement is effective (1) for public companies qualifying as SEC small business issuers, as of the first interim period or fiscal year beginning after December 15, 2005, (2) for all other public companies, as of the first interim period or fiscal year beginning after June 15, 2005, or (3) for all nonpublic entities, as of the first fiscal year beginning after December 15, 2005. Management is currently assessing the effect of SFAS No. 123(R) on our financial statements.
BUSINESS AND PROPERTIES
Our History
We were organized under the laws of the State of Colorado in 1998 to engage in the exploration and development of mining properties. From inception to 2000, we were essentially dormant. In July 2000, we entered into a management agreement with U.S. Gold Corporation, a corporation engaged in the exploration and mining business with shares traded over the counter and quoted on the OTC Bulletin Board. Pursuant to that agreement, U.S. Gold managed our affairs, including investigation of mining properties in Mexico, in exchange for an equity interest in our company. Through a transaction completed in July 2005, U.S. Gold disposed of our common stock and no longer owns an interest in our company.
In August 2001, we leased our first property, known as the Zimapan project, located in the State of Hidalgo, Mexico. After drilling approximately 1,800 meters of test holes, we abandoned that property. In connection with the acquisition of the lease and our exploration activities on the Zimapan property, we spent approximately $294,000.
Our Properties
We currently own an interest in two properties, the El Aguila project and the El Rey project. We lease the El Aguila property from an individual who serves as our consultant in Mexico and own mining concessions in the El Rey property. Both of these properties are in the exploration stage and have no proved or probable reserves.
The El Aguila Project
Background. Effective October 14, 2002, we leased a prospective gold/silver property comprised of three concessions, El Aguila, El Aire and La Tehuana, from Jose Perez Reynoso, a consultant to our company. The lease agreement is subject to a 4% net smelter return royalty where production is sold in the form of gold/silver dore and 5% for production sold in concentrate form. We have made periodic advance royalty payments under the lease totaling $160,000 to date with one remaining advance payment of $100,000 due October 14, 2006. There are no advance royalty payments due after that date.
We have acquired additional claims in the area by filing concessions under the Mexican mining laws. The table below summarizes the concessions that give us the
right to explore and mine the properties and the ensuing map shows their general location. The mineral concessions making up the El Aguila project are located within the San Pedro Totolapam Ejido.
El Aguila Project Concessions
Concession Type Expediente/Titulo No. Hectares
---------- ---- --------------------- --------
El Aire Exploitation 158272 72.00
El Aguila Exploitation 222844 899.00
La Tehuana Exploration 210029 925.00
Total 1,896.00
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Location Map for the El Aguila Project
[MAP TO BE INSERTED HERE]
Location and Access. The El Aguila project is located in the Sierra Madre del Sur of southern Mexico, in the central part of the State of Oaxaca. Access to the property is by way of the Pan American Highway (Highway # 190), approximately 120 kilometers southeast of the state's capital city, Oaxaca. At the village of San Jose del Gracia, a gravel road goes approximately four kilometers northwest to the property.
The climate of the El Aguila area is dry and warm to very warm with most rainfall occurring in the summer and annual precipitation averaging only 423.7 mm (17 inches). The average yearly temperature is 26.6 degrees centigrade (80(degree) F). The area is very rocky with scarce vegetation. Subsistence farming occurs and the main agricultural crop is agave cactus that is cultivated for the production of mescal.
Exploration Activities. The early history of activity at the El Aguila property, as known by us, is prospecting and limited mining for gold and silver from the
early 1900's to the mid 1960's. In 1998, Mr. Perez Reynoso acquired the concessions and leased them to Apex Silver Corporation of Denver, Colorado. Apex carried out an exploration program involving geologic mapping, surface sampling and an 11 hole drilling program (1,242 meters). The results did not meet Apex's expectations so it dropped the lease on the property in 2002. We leased the property from Mr. Perez Reynoso in October of 2002.
In August 2003, we entered into an exploration agreement with Canyon Resources Corporation pertaining to our interest in the El Aguila property whereby Canyon paid $500,000 in exploration and development costs. The drilling programs were completed in 2003 and included approximately 3,900 meters of drilling focused on one target area of the property. This exploration drilling encountered some high-grade gold intercepts which will require additional exploration drilling in order to fully evaluate. Through June 30, 2005, we have spent or incurred approximately $853,184 in acquisition, exploration and related costs for the El Aguila project, of which $325,974 was spent in year 2004.
We have carried out exploration on the project that has included geologic mapping, surface sampling and two rounds of exploratory drilling. The results of the drilling programs have resulted in some high-grade gold and silver intercepts which are listed in the table below. The Company has also had preliminary metallurgical recovery tests run on some composites of the intercepts with positive results.
EL AGUILA PROJECT SELECTED DRILL HOLE INTERCEPTS
Hole No. Drill Type Interval Starting At Interval Length Gold Silver
(Meters) (Meters) g/t g/t
-------- -------- --- ---
301 RC 40 16 6.56 23
302 RC 30 6 16.65 112
303 RC 22 6 18.79 133
306 RC 4 4 14.58 74
and 24 6 8.99 76
307 RC 18 4 3.91 84
and 26 2 3.69 70
309 RC 56 2 3.79 37
311 RC 16 2 4.53 25
314 RC 6 2 6.89 69
326 RC 2 4 3.84 83
327 RC 8 8 3.54 136
327A RC 12 8 3.97 78
330 RC 6 6 8.46 111
331 RC 50 4 54.71 701
332 RC 16 8 6.07 18
333 RC 2 2 3.67 63
and 8 6 15.69 101
334 RC 6 6 9.40 25
338 RC 20 10 3.71 65
343 RC 62 14 6.69 38
349 RC 34 6 7.50 78
354 RC 34 4 7.50 68
363 RC 4 6 11.63 100
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365 RC 0 4 5.73 10 366 RC 0 4 3.74 100 509 CORE 20 6 10.20 281 511 CORE 40 12 10.18 20 512 CORE 34.6 12 4.67 74 901 RC 4 12 6.72 51 |
RC: Reverse Circulation Drilling
CORE: Diamond Core Drilling
Facilities. The project is without any plant or equipment at this time. The federal power grid is located along the Pan American Highway and could be utilized in operations, if any. Water would be available from the Totolapam River and would require pumping to any facilities. Water rights are owned by the Mexican nation and administered by an agency of the federal government, the Comision Nacional de Agua ("CNA"). The CNA has granted water concessions to private parties throughout the defined Oaxaca Hydrologic Basis and granting of water concessions for development and operation of the El Aguila properties, if any, is expected to be available.
Geology and Mineralization. The El Aguila Project is located in the San Jose del Gracia Mining District in the Sierra Madre del Sur of southern Mexico. Multiple volcanic domes of various scales, and probably non-vented intrusive domes, dominate the district geology. These volcanogenic features are imposed on a prevolcanic basement of sedimentary rocks. Gold and silver mineralization in this district is related to the manifestations of this classic volcanogenic system and is considered epithermal in character.
The geologic setting for our project area is thought to be along the southern edge of a volcanic caldera (the Las Margerita Caldera) which appears to be 11 kilometers in diameter and is located along a northwest-southeast trending horst-graben fault system. Tertiary age volcanic rocks in the district consist of progressively more felsic units that vary in composition from andesite to rhyolite. Several rhyolite domes occur in the El Aguila area that appear to be outside the southern rim of the caldera and the mineralization appears related to them.
The deposits on the El Aguila property are primarily hosted in a quartz rich, stratiform zone (manto). There appear to be several manto units on the property, one main manto and one or more lower mantos. The main manto is comformable with the sedimentary and volcanic rock above and below the manto. It varies in thickness from less than two meters to more than 30 meters.
Surface sampling yielded significant gold and silver values from early district wide exploration where silicified zones were encountered. In addition, a small, shallow adit and winze provided limited sampling underground yielding indications of high grade gold values (plus 1 oz/ton) in a silicified, sub-horizontal manto. Based on these early anomalous exploration samples a limited drilling program was carried out by us that in fact resulted in defining a central zone of continuous, shallow, sub-horizontal, high-grade gold.
The following diagrams illustrate a cross section of the estimated mineralization at the El Aguila project:
EL AGUILA GEOLOGICAL CROSS SECTION A-A'
The first diagram, the El Aguila geological cross-section labeled A-A' in the prospectus, is described as follows:
The graphic image depicts a cross-section of a portion of the El Aguila property prepared on October 17, 2005. A legend to the image describes various symbols used in the image, including a symbol for an outline of an area estimated to contain at least one gram per tonne of gold, a symbol for higher grade intercepts and a symbol for underground workings. The legend indicates that the geology included in the graphic image was prepared by David Reid.
The graphic image depicts an underground cross-section of the property in which several holes have been drilled and an estimated area of mineralized material which resulted from the drilling. The overall cross section illustrates a section of the El Aguila property that begins at a surface elevation of approximately 1,153 meters on the far left of the image (A), slopes downward to a low point of approximately 1,130 meters of elevation and upward again to a maximum elevation of approximately 1,150 meters on the far right of the image (A'). The image contains an outline of an area within the cross section estimated to contain at least one gram of gold per ton. Higher grade intercepts within the outline are separately indicated. Underground workings are also depicted.
The following narrative summarizes drill hole results depicted in the image (beginning on the left side of the image and continuing in order to the right side of the image):
o ORC-343 depicts a drill hole beginning at a surface elevation of approximately 1,153 meters and dipping to the northeast at an angle of 60 degrees with a total depth of 84 meters. That hole shows a high grade intercept beginning at 62 meters depth for 14 meters at 6.69 grams per tonne of gold.
o ORC-301 depicts a drill hole beginning at a surface elevation of approximately 1,140 meters and dipping to the southwest at an angle of 60 degrees with a total depth of 78 meters. That hole shows a high grade intercept beginning at 40 meters depth for 16 meters at 6.56 grams per tonne of gold.
o ORC-302 depicts a drill hole beginning at a surface elevation of approximately 1,138 meters and drilled vertically for a total depth of 48 meters. That hole shows a high grade intercept beginning at 30 meters depth for 6 meters at 16.65 grams per tonne of gold.
o ORC-303 depicts a drill hole beginning at a surface elevation of approximately 1,138 meters and dipping to the northeast at an angle of 60 degrees with a total depth of 60 meters. That hole shows a high grade intercept beginning at 22 meters depth for 6 meters at 18.79 grams per tonne of gold.
o ARC-1 depicts a drill hole beginning at a surface elevation of approximately 1,135 meters and drilled vertically for a total depth of 148 meters (bottom of the hole is off the cross-section). That hole shows a high grade intercept beginning at 4 meters depth for 8 meters at 6.72 grams per tonne of gold.
o ORC-334 depicts a drill hole beginning at a surface elevation of approximately 1,135 meters and dipping to the northeast at an angle of 60 degrees with a total depth of 40 meters. That hole shows a high grade intercept beginning at 6 meters depth for 6 meters at 9.4 grams per tonne of gold.
o ORC-333 depicts a drill hole beginning at a surface elevation of approximately 1,143 meters and drilled to the southwest at an angle of 70 degrees with a total depth of 58 meters. That hole shows a high grade intercept beginning at 2 meters depth for 2 meters at 3.67 grams per tonne of gold and another high grade intercept at 8 meters depth for 6 meters at 15.69 grams per tonne of gold.
o ORC-306 depicts a drill hole beginning at a surface elevation of approximately 1,143 meters and drilled to the northeast at an angle of 60 degrees with a total depth of 66 meters. That hole shows a high grade intercept beginning at 4 meters depth for 4 meters at 14.58 grams per tonne of gold and another high grade intercept beginning at 24 meters depth for 6 meters at 8.99 grams per tonne of gold.
The image also depicts numerous underground samples taken from underground workings, showing the following:
For samples taken at a depth of approximately 1,102 meters:
Grams of gold/tonne Grams of silver/tonne
35.3 64.8
57.6 61.6
131.5 19.0
15.6 34.0
53.0 74.0
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For samples taken at a depth of approximately 1,120 meters:
Grams of gold/tonne Grams of silver/tonne
50.1 1.6
62.5 90.6
39.2 120.0
26.3 192.0
28.3 193.0
45.0 58.0
20.9 140.0
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The second diagram illustrates an aerial cross section, with the section line going from the northhwest (A) across the area of interest to the northeast (A').
The mineralized zone drilled to date (see previous diagram) is a gently dipping, highly silicified manto that appears to be a silica-replaced rhyolite breccia located below the unconformable contact with the rhyolite flows and overlying the sandstone/shale sequence. This silicified replacement zone appears to be bounded on the west by post mineral faulting but open in the other directions. Field observations and geologic inference suggest that several additional similar zones of mineralization should exist in the immediate vicinity.
The sediments below the silicified manto may also have the potential to be mineralized as possible veins. Higher grade gold and silver values have not been found thus far in the sandstone/siltstone, however, the shale unit has been found to be mineralized, with one sample taken at the bottom of the interior shaft running 3 grams/tonne gold and 485 grams/tonne silver
As stated above, this volcanogenic system is quite large and robust, intruded into very receptive sedimentary basement rocks and exhibits, from surface samples, widespread high-grade gold and silver values. This district, while only in its earliest phase of exploration, holds the possibility for additional mineralization.
The El Rey Property
Location and Access. The El Rey Property is an exploration stage property and is located in the Sierra Madre del Sur of southern Mexico in the central part of the state of Oaxaca. Access to the property is by way of the Pan American Highway (Highway # 190) approximately 80 kilometers southeast of the state's capital city, Oaxaca, where a right turn heads east toward the village of San Baltasar Chichicapan. At the village, another gravel road leads another 15 kilometers to another gravel road, where a turn north leads another 3 kilometers to the site.
Background. We have acquired claims in the area by filing concessions under the Mexican mining laws. The following table summarizes the concessions that give us the right to the properties for exploration and mining purposes and the ensuing map shows their general location. The mineral concessions making up the El Rey Property are located within the San Baltazar Chichicapam Ejido.
El Rey Project Concessions
Concession Type Expediente/Titulo No. Hectares
---------- ---- -------------------- --------
El Rey Exploration 225373 164.00
La Reyna Exploration 225401 700.00
El Virrey Exploration 629662 36.00
------
Total 900.00
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Location Map for the El Rey Project
[TO BE INSERTED HERE]
The El Rey Property is an exploration stage property. Not much is known about this property by us and we have not yet undertaken any exploration except for two surface samples from an existing waste dump to an old existing vertical shaft. These two samples were selected with the intent of sampling only what appeared to be vein material. Those two samples assayed 80 g/tonne gold and 85 g/tonne gold. We intend to explore this property in the future with a view to evaluating the potential for a high-grade gold vein.
If exploration is successful for a high-grade gold vein, any mining would probably require an underground mine but any high-grade material could be processed at the El Aguila project mill if one was to be built in the future. Hauling any El Rey material to the El Aguila project would be approximately 40 miles.
Mineral Concessions
Mineral rights in Mexico belong to the Mexican government and are administered pursuant to Article 27 of the Mexican Constitution. Exploration and exploitation concessions may be granted or transferred to Mexican citizens and corporations. Our leases or concessions are held by our Mexican subsidiaries. Exploration concessions are granted for a term of six years, with the right to convert to an exploitation concession with a term of 50 years. Concessions grant the holder the right to explore and exploit all minerals found in the ground. Maintenance of concessions requires the semi-annual payment of mining duties (due in January and July) and the performance of assessment work, on a calendar year basis, with assessment work reports required to be filed in the month of May for the preceding calendar year. The amount of mining duties and annual assessment are set by regulation and increase over the life of the concession and includes
periodic adjustments for inflation. Mining concessions are registered at the Public Registry of Mining in Mexico City and in regional offices in Mexico.
Ejido Lands and Surface Right Acquisitions
Surface lands in the El Aguila property area are Ejido lands (agrarian cooperative lands granted by the federal government to groups of Campesinos pursuant to Article 27 of the Mexican Constitution of 1917). Prior to January 1, 1994, Ejidos could not transfer Ejido lands into private ownership. Amendments to Article 27 of the Mexican Constitution in 1994 now allow individual property ownership within Ejidos and allow Ejidos to enter into commercial ventures with individuals or entities, including foreign corporations. We have an agreement with the local San Pedro Totolapam Ejido allowing exploration of the El Aguila property. In order to begin mining at the property, we will have to secure surface rights agreements for all lands to be disturbed by, or adjacent to, any such proposed operation.
Competition
The exploration for, and the acquisition and development of, gold properties are subject to intense competition. Due to our recent organization, limited capital and personnel, we may be at a competitive disadvantage compared to other companies with regard to exploration and development. In general, properties with a higher grade of recoverable material or which are more readily mineable afford the owner a competitive advantage. Our present limited funding means that our ability to compete for properties to be explored and developed is limited. We believe that competition for acquiring mineral prospects will continue to be intense in the future. The availability of funds for exploration is sometimes limited, and we may find it difficult to compete with larger and more well-known companies for capital. Even though we have the right to the minerals on our claims, there is no guarantee we will be able to raise sufficient funds in the future to maintain our mineral claims in good standing. Therefore, if we do not have sufficient funds for exploration, our claims might lapse and be staked by other mining interests. We might be forced to seek a joint venture partner to assist in the exploration of our mineral claims. In this case, there is the possibility that we might not be able to pay our proportionate share of the exploration costs and might be diluted to an insignificant carried interest. Our inability to develop our mining properties due to lack of funding could have a material adverse effect on our operation and financial position.
Government Regulations and Permits
In connection with mining, milling and exploration activities, we are subject to extensive Mexican federal, state and local laws and regulations governing the protection of the environment, including laws and regulations relating to protection of air and water quality, hazardous waste management and mine reclamation as well as the protection of endangered or threatened species. The department responsible for environmental protection in Mexico is SEMARNAP, which is similar to the United States Environmental Protection Agency. SEMARNAP has broad authority to shut down and/or levy fines against facilities that do not comply with its environmental regulations or standards. Potential areas of environmental consideration for mining companies, including ours if we are successful in commencing mining operations, include acid rock drainage, cyanide containment and handling, contamination of water courses, dust and noise.
Prior to the commencement of any mining operations at the El Aguila property, if any, we will have to secure various regulatory permits from federal, state and
local agencies. These governmental and regulatory permits generally govern the processes being used to operate, the stipulations concerning air quality and water issues, and the plans and obligations for reclamation of the properties at the conclusion of operations. Regulations require that an environmental impact statement, known in Mexico as a Manifesto Impacto Ambiental ("MIA") be prepared by a third-party contractor for submittal to SEMARNAP. Studies required to support the MIA include a detailed analysis of these areas, among others: soil, water, vegetation, wildlife, cultural resources and socio-economic impacts. Although the regulatory process in Mexico has a public review component, proof of local community support for a project is required to gain final MIA approval. A risk analysis must also be prepared in conjunction with the MIA for approval by SEMARNAP. The most significant other approvals that might be necessary for our operations would be permits to extract water from the Totolapam River and an explosives permit, issued by the Mexican army, to purchase, store and use explosives. In Mexico, water rights are managed by the Comision National del Aqua ("CNA"). According to Mexican water law, all users must pay for the right to use national waters regardless of how the rights were obtained, with the rates being determined by the availability of water and the method of extraction.
We have obtained, and will obtain at the appropriate time, environmental permits, licenses or approvals required for potential operations, if any. We are not aware of any material violations of environmental permits, licenses or approvals issued with respect to our operations.
Glossary
Adit: A more or less horizontal drive (walk-in mine) into a hill
that is usually driven for the purpose of intersecting or
mining an ore body. An adit may also be driven into a hill
to intersect or connect a shaft for the purpose of
dewatering. Adits were commonly driven on a slight incline
to enable loaded mine trucks to have the advantage of a
downhill run out, while the empty (lighter) truck was pushed
uphill back into the hill. The incline also allows water to
drain out of the adit. An adit only becomes a tunnel if it
comes out again on the hill somewhere, like a train tunnel.
Andesite: A gray to black volcanic rock with between about 52 to 63
weight percent silica (SiO2). Andesite magma commonly erupts
from stratovolcanoes as thick lava flows, some reaching
several km in length.
Breccia: A rock consisting of fragment, more or less angular, in a
matrix of finer-grained material or of cementing material.
Caldera: A large depression formed from a collapsed volcano. Calderas
are often circular or elliptical. Crater Lake (in Oregon,
USA) is an example of a large caldera (it is 16 miles
across).
Cretaceous period: Flowering plants appeared and dinosaurs were at
their height during the Cretaceous period. 146-65 million
years ago. There was a mass extinction (the K-T extinction)
at the end of the Cretaceous, marking the end of the
dinosaurs and many other species.
Dore: Unrefined gold and silver bars usually containing more than
90% precious metal.
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Epithermal: Used to describe gold deposits found on or just below the
surface close to vents or volcanoes, formed at low
temperature and pressure.
Felsic: The minerals feldspar and quartz or an igneous rock or
metamorphic rock made predominantly of feldspar and quartz;
poor in iron and magnesium. Light-colored.
Gram: A metric unit of weight and mass, equal to 1/1000th of a
kilogram. One gram equals .035 ounces. One ounce equals
31.103 grams.
Hectare: Another metric unit of measurement, for surface area. One
hectare equals 1/200th of a square kilometer, 10,000 square
meters, or 2.47 acres. A hectare is approximately the size
of a soccer field.
Horst-graben: Horst and graben are formed by widespread block faults
giving rise to a mountain and valley topography that owes
its origin in part at least to regional block faulting.
Kilometer: Another metric unit of measurement, for distance. The prefix
"kilo" means 1000, so one kilometer equals 1,000 meters, one
kilometer equals 3,280.84 feet, which equals 1,093.6 yards,
which equals 0.6214 miles.
Manto: A mineralogy term meaning a layer or stratum.
Minerals or
Mineralized
Material: Any mass of host rock in which minerals of potential
commercial value occur. Net Smelter Return Royalty A share
of the net revenue generated from the sale of metal produced
by the mine.
Ore or Ore
Deposit: Rocks that contain economic amounts of minerals in them and
that are expected to be profitably mined.
Rhyolite: A type of volcanic lava or rock that is usually light in
color: it contains 69% silica and is high in potassium and
sodium.
Silicified: Is combined or impregnated with silicon or silica.
Tertiary period: This period lasted from 65 to 1.8 million years ago. It
followed the Cretaceous period (the end of the Mesozoic Era)
and the K-T extinction. Many mammals developed then,
including primitive whales, rodents, pigs, cats, rhinos,
etc.
Tonne: A metric ton. One tonne equals 1000 kg. It is approximately
equal to 2,204.62262 pounds.
Volcanogenic: Of volcanic origin.
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Volcanic domes: These are mounds that form when viscous lava is erupted
slowly and piles up over the vent, rather than moving away
as lava flow. The sides of most domes are very steep and
typically are mantled with unstable rock debris formed
during or shortly after dome emplacement. Most domes are
composed of silica-rich lava which may contain enough
pressurized gas to cause explosions during dome extrusion.
Winze: Secondary or tertiary vertical or near-vertical opening sunk
from a point inside a mine for the purpose of connecting
with a lower level or of exploring the ground for a limited
depth below a level.
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Employees
We currently have two employees, both of whom serve as our executive officers. These individuals devote a majority of their business time to our affairs. We also engage two consultants, one to oversee our property and activities in Mexico and one to assist with our administrative and financial affairs. Our consultant in Mexico serves on a full-time basis and the other as his services are necessary. We have good relations with our employees and consultants and believe their services will be adequate for the foreseeable future.
We engage independent contractors in connection with the exploration and development of our mining properties.
Facilities
Effective October 1, 2005, we lease approximately 1,000 square feet of office space under a three year agreement with an independent third party. Monthly rent equals $1,428 the first year, $1,469 the second year and $1,490 the third year, plus our share of operating expense escalations. We have prepaid the rent for the first year. We believe this space is adequate for our needs for the foreseeable future.
Legal Proceedings
We are not currently subject to any legal proceedings, and to the best of our knowledge, no such proceeding is threatened, the results of which would have a material impact on our properties, results of operation, or financial condition. Nor, to the best of our knowledge, are any of our officers or directors involved in any legal proceedings in which we are an adverse party.
MANAGEMENT
Directors and Executive Officers
The following individuals presently serve as our officers and directors:
Name Age Positions With the Company Board Position Held Since
---- --- -------------------------- -------------------------
William W. Reid 57 President, Chief Executive Officer 1998
and Director
David C. Reid 55 Vice President, Secretary, Treasurer
and Director 1998
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Each of our Directors is serving a term which expires at the next annual meeting of shareholders and until his successor is elected and qualified or until he resigns or is removed. Our officers serve at the will of our Board of Directors.
Messrs. William and David Reid should be considered founders of our company, as each has taken initiative in the organization of our business. William Reid and David Reid are brothers.
The following information summarizes the business experience of each of our officers and directors for at least the last five years:
William W. Reid. Mr. Reid has served as a director and our President and Chief Executive Officer since our inception in 1998. Since August 2005, Mr. Reid has devoted substantially all of his business time to our affairs. From 1977 to August 18, 2005, he served as the President, Chief Executive Officer and Chairman of the Board of Directors of U.S. Gold Corporation, a Colorado corporation engaged in the exploration and development of gold mining properties. During his tenure with U.S. Gold, that entity acquired, developed and produced gold from five different mines. U.S. Gold had not produced any revenue since 1990. From July 2001 through July 2005, U.S. Gold owned an interest in our company. In August 2005, as part of terminating their employment contracts with U.S. Gold, that interest was distributed to our officers and a financial consultant. The common stock of U.S. Gold is traded over the counter and quoted on the OTC Bulletin Board.
Mr. Reid received a Bachelor of Science in Physics in 1970 and a Master's in Economic Geology in 1972 from Purdue University.
David C. Reid. Mr. David Reid has served as a director and our Vice President since our inception in 1998. Since August 2005, he has devoted substantially all of his time to our business and affairs. From 1977 to August 18, 2005, he was the Vice President and a director of U.S. Gold during the time that it acquired, developed and produced gold. Mr. Reid received a Bachelor of Science degree in geology from Ball State University in 1972.
In addition to our officers and directors, we also utilize the services of the following significant consultants:
William F. Pass. Mr. Pass has served our company as a financial consultant since January 2002, a capacity in which he devotes a minor amount of his business time. Since 1996, he has also been Vice President, Chief Financial Officer and Secretary of U.S. Gold. His responsibilities as a financial consultant include certain administrative duties and assisting in the preparation of filings with the SEC.
Jose Perez Reynoso. Mr. Reynoso, a Mexican national, has served our company as a full time consultant since 2002. In that capacity, he oversees all our operations in Mexico, and provides advice in relations with the Mexican Government. From 1995 to 2002, he was a consulting geologist for mining companies operating in Mexico. Mr. Reynoso received an undergraduate degree in geology and engineering in 1974 and a master's degree in economic geology in 1979 from the National University of Mexico. We leased the El Aguila property from Mr. Reynoso in 2002.
Currently, we do not have a standing audit, compensation or nominating committee of our Board of Directors. During the current fiscal year, we hope to add two or
more independent directors to our Board, and plan to investigate the formation of one or more committees, especially an audit committee. If appointed, an audit committee would be responsible for the following items, among others:
o Overseeing the external audit function, including the annual nomination and compensation of our independent public accountants;
o Reviewing accounting policies and policy decisions;
o Reviewing the financial statements, including interim financial statements and annual financial statements, together with auditor's opinions;
o Inquiring about the existence and substance of any significant accounting accruals, reserves or estimates made by management;
o Reviewing with management the Management's Discussion and Analysis section of our Annual Report;
o Reviewing the letter of management representations given to our independent public accountants;
o Meeting privately with the independent public accountants to discuss all pertinent matters; and
o Reporting regularly to the Board of Directors regarding its activities.
Director Compensation
We have not paid any cash compensation to our directors in their capacities as such in the past. If we retain independent directors in the future, we reserve the right to compensate them in accordance with industry standards as may be determined by our Board of Directors.
All directors are reimbursed for reasonable and necessary expenses incurred in their capacities as such.
Executive Compensation
The following table summarizes the total compensation of our executive officers for the three fiscal years ended December 31, 2004.
Summary Compensation Table
Long Term Compensation Awards
-----------------------------
Securities
Annual Compensation Underlying
Name and Principal Position Year Salary Bonus Options
---------------------------------------------------------------------------------------------
William W. Reid, 2004 $-0- $-0- 400,000(1)
President and CEO 2003 -0- -0- 400,000(1)
2002 -0- -0- $-0-
David C. Reid , 2004 -0- -0- 200,000(1)
Vice President 2003 -0- -0- 400,000(1)
2002 -0- -0- $-0-
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(1) All of the options are immediately exercisable at a price of $.25 per share.
Although our officers were not paid any cash compensation during the last three fiscal years, we began paying them in 2005. During the months of August and
September 2005, each individual was paid at the rate of $4,800 per month. In October 2005, William Reid was paid $20,000 and David Reid was paid $14,167, and it is expected that we will continue to pay them at those rates for the foreseeable future.
Option Grants in Last Fiscal Year
During 2004, we granted the following stock options to our executive officers pursuant to our Non-Qualified Stock Option and Stock Grant Plan (the "Plan"):
Number of % of Total
Securities Options Granted
Underlying to Employees
Options in Fiscal Exercise Expiration
Name Granted Year(1) Price/Share Date(2)
--------------------------------------------------------------------------------
William W. Reid 400,000 66.67% $0.25 10/9/2013
David C. Reid 200,000 33.33% $0.25 10/9/2013
---------------
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Aggregated Option Exercises in Last Fiscal Year and Fiscal Year-End Option Table Value
Shown below is information at December 31, 2004 and for the year then ended with respect to the exercised and unexercised options to purchase our common stock issued to executive officers under the Plan.
Number of
Securities
Underlying Value of
Unexercised Unexercised
Shares Options at Options at
Acquired 12/31/04(#) 12/31/04($)
On Value Exercisable/ Exercisable/
Name Exercise(#) Realized($) Unexercisable Unexercisable(1)
------------------------------------------------------------------------------
William W. Reid 0 0 800,000/0 $N/A
David C. Reid 0 0 600,000/0 $N/A
----------------
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Equity Incentive Plan
Our Non-Qualified Stock Option and Stock Grant Plan (also as referred to as the "Plan") was adopted by us effective March 4, 1999. The Plan terminates by its terms on March 3, 2009. Under the Plan, as approved by shareholders on March 4, 2005, a total of 6,000,000 shares of common stock are reserved for issuance thereunder.
Under the Plan, non-qualified stock options and/or grants of our common stock may be issued to key persons. Key persons include officers, directors,
employees, consultants and others providing service to us. The Plan was established to advance the interests of our company and our stockholders by affording key persons, upon whose judgment, initiative and efforts we may rely for the successful conduct of our businesses, an opportunity for investment in our company and the incentive advantages inherent in stock ownership in our company. This Plan gives our Board of Directors broad authority to grant options and make stock grants to key persons selected by the Board while considering criteria such as employment position or other relationship with us, duties and responsibilities, ability, productivity, length of service or association, morale, interest in us, recommendations by supervisors, and other matters, and to set the option price, term of option, and other broad authorities. Options may not be granted at less than the fair market value at the date of grant and may not have a term in excess of 10 years.
Options granted under the Plan do not generally give rise to taxable income to the recipient or any tax consequence to us, since the Plan requires that the options be issued at a price not less than the fair market value of the common stock on the date of grant. However, when an option is exercised, the holder is subject to tax on the difference between the exercise price of the option and the fair market value of the stock on the date of exercise. We receive a corresponding deduction for income tax purposes. Recipients of stock grants are subject to tax on the fair market value of the stock on the date of grant and we receive a corresponding deduction. The foregoing is intended as a summary of the income tax consequences to an individual recipient of an option or stock grant, and should not be construed as tax advice. Holders of stock options or common stock should consult their own tax advisors.
Shares issued upon exercise of Options or upon stock grants under the Plan are "restricted securities" as defined under the Securities Act of 1933, unless a Registration Statement covering such shares is effective. Restricted shares cannot be freely sold and must be sold pursuant to an exemption from registration (such as Rule 144) which exemptions typically impose conditions on the sale of the shares.
As of October 25, 2005, options to purchase an aggregate of 1,650,000 shares of our common stock have been granted under the Plan, of which 1,640,000 remain outstanding.
Indemnification and Limitation on Liability of Directors
Our Articles of Incorporation and Bylaws provide that we must indemnify, to the fullest extent permitted by Colorado law, any of our directors, officers, employees or agents made or threatened to be made a party to a proceeding, by reason of the person serving or having served in a capacity as such, against judgments, penalties, fines, settlements and reasonable expenses incurred by the person in connection with the proceeding if certain standards are met. At present, there is no pending litigation or proceeding involving any of our directors, officers, employees or agents where indemnification will be required or permitted. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable.
The Colorado Business Corporation Act (the "Act") allows indemnification of directors, officers, employees and agents of a company against liabilities incurred in any proceeding in which an individual is made a party because he was a director, officer, employee or agent of the company if such person conducted himself in good faith and reasonable believed his actions were in, or not opposed to, the best interests of the company, and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was
unlawful. A person must be found to be entitled to indemnification under this statutory standard by procedures designed to assure that disinterested members of the board of directors have approved indemnification or that, absent the ability to obtain sufficient numbers of disinterested directors, independent counsel or shareholders have approved the indemnification based on a finding that the person has met the standard. Indemnification is limited to reasonable expenses.
Our Articles of Incorporation limit the liability of our directors to the fullest extent permitted by the Act. Specifically, our directors will not be personally liable for monetary damages for breach of fiduciary duty as directors, except for:
o any breach of the duty of loyalty to us or our stockholders,
o acts or omissions not in good faith or that involved intentional misconduct
or a knowing violation of law,
o dividends or other distributions of corporate assets that are in
contravention of certain statutory or contractual restrictions,
o violations of certain laws, or
o any transaction from which the director derives an improper personal
benefit. Liability under federal securities law is not limited by the
Articles.
Certain Relationships and Related Transactions
Initial Financing. In 1998 and 1999, we issued a total of 3,800,000 shares of common stock to each of William and David Reid, our officers and directors. The shares, commonly called "founders' shares," were issued for a price of $.0005 per share in the form of services rendered in connection with the organization of our company.
During 2001, William and David Reid purchased an additional 100,000 shares each in exchange for the cancellation of debentures purchased by them. The shares issued in those transactions were valued at a total of $50,000, or $.25 per share.
On January 2, 2005, we issued a total of 1,750,000 shares to William and David Reid and William Pass for services rendered and to be rendered to us. William Pass is our financial consultant, and the owner of more than five percent of our common stock. Of that amount, 1,000,000 shares were issued to William Reid, 500,000 to David Reid and 250,000 shares to William Pass. The shares were valued at a total of $437,500, or $.25 per share, based on the contemporaneous sales of our stock to independent third parties. Messrs. William and David Reid were the only members of our Board of Directors participating in the decision to issue the shares in these transactions. However, our Board determined that the transactions were no less favorable than could have been obtained from an unaffiliated third party.
On March 22, 2005, Mr. Pass exercised an option to acquire an additional 10,000 shares of our common stock for a total of $2,500, or $.25 per share.
U.S. Gold Corporation. During the period July 1, 2000 through December 31, 2001, we issued a total of 2,560,000 shares to U.S. Gold Corporation in connection with a management agreement executed with that entity. U.S. Gold Corporation was previously the owner of more than five percent of our common stock. Each of the shares issued in those transactions was valued at between $.14 and $.17 per share, based on the estimated fair market value of our stock as of the date of the transaction.
Effective January 1, 2002, we executed a new management agreement with U.S. Gold which continued through December 31, 2002. Under the terms of that agreement, we agreed to pay U.S. Gold $30,000 per month, or a total of $360,000. During 2002, we paid a total of $30,000 under that agreement. During 2005, we satisfied the remaining obligation by paying $10,000 in cash and issuing 1,280,000 shares of our common stock valued at $.25 per share. Messrs. William and David Reid were officers and directors of our company and of U.S. Gold at the time of these transactions.
Exploration Agreement with Canyon Resources Corporation. In 2004, we issued 1,200,000 share of our common stock to Canyon Resources Corporation under the terms of an exploration and development agreement. Canyon is the owner of more than five percent of our common stock, and one of its directors is also a director of U.S. Gold. The shares in that transaction were valued at $.423 as set forth in the agreement. Under the terms of this agreement, Canyon also has first right to acquire any shares offered by us in the future. Based on our history with Canyon, we expect that the right will be waived with regard to the sale of the shares offered by this prospectus.
Subscription With Heemskirk. During 2005, we issued a total of 2,150,000 shares of our common stock to Heemskirk Consolidated Limited, an Australian corporation. Heemskirk is the owner of more than five percent of our common stock, but had no relationship before it purchased the stock. Heemskirk paid a total of $1,075,000 for its stock, or $.50 per share.
Under the terms of its agreement with us, Heemskirk also has the first right to acquire all or a part, but not less than 25%, of any securities offered by us in the future, subject to the first right of Canyon set forth above. This right does not apply to the securities offered by this prospectus.
SECURITY OWNERSHIP OF
CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
As of October 25, 2005, there are a total of 18,304,852 shares of our common stock outstanding, our only class of voting securities currently outstanding. The following table describes the ownership of our voting securities by: (i) each of our officers and directors; (ii) all of our officers and directors as a group; and (iii) each shareholder known to us to own beneficially more than 5% of our common stock. All share amounts have been adjusted to reflect a two-for-one split of our outstanding stock effective February 21, 2005. Unless otherwise stated, the address of each of the individuals is our address, 222 Milwaukee Street, Suite 301, Denver, Colorado 80206. All ownership is direct, unless otherwise stated.
In calculating the percentage ownership for each shareholder, we assumed that any options owned by an individual exercisable within 60 days is exercised, but not the options owned by any other individual.
Name and Address of Shares Beneficially Owned Beneficial Owner Number Percentage (%) ---------------- ------ -------------- William W. Reid(1) 5,219,606(2)(3) 27.3 David C. Reid(1) 4,311,539(4) 22.8 Beth Reid 5,219,606(5) 27.3 25 Downing Street, #1-501 Denver, CO 80218 |
Heemskirk Consolidated Limited 2,150,000 11.75 Box 96 Collins Street West Melbourne, Victoria 8007 Australia William F. Pass 1,561,207(6) 8.4 14820 W. 58th Pl Golden, CO 80403 Canyon Resources Corporation 1,200,000 6.56 14142 Denver West Pkwy., Suite 250 Golden, CO 80401 All officers and director as as a group (2 persons) 9,531,145(2)(3)(4) 48.4 -------------------- |
Changes in Control
Two holders of our common stock, Canyon Resources Corporation and Heemskirk Consolidated Limited, hold the first right to acquire any stock offered by us in the future except the stock offered by this prospectus. While we have no immediate plans to issue any other stock in the future, to the extent we do and either or both of these entities exercise their right to acquire all or a portion of that stock, the percentage interest in our company owned by one or both of these entities may increase. This may result in a change in control.
SELLING SHAREHOLDERS
On behalf of certain of our shareholders, we have agreed to file a registration statement with the SEC covering the resale of our common stock as described in the table below. The shares offered by the selling shareholders are all of our outstanding shares that have been held by our shareholders for less than two years except some of the shares held by our officers and a member of their family, which are not being offered. We have also agreed to use our best efforts to keep the registration statement effective and update the prospectus until the securities owned by the selling shareholders have been sold or may be sold without registration or prospectus delivery requirements under the Securities Act of 1933. We will pay the costs and fees of registering the shares, but the selling shareholders will pay any brokerage commissions, discounts or other expenses relating to the sale of the shares.
The registration statement which we have filed with the SEC, of which this prospectus forms a part, covers the resale of our common stock by the selling shareholders from time to time under Rule 415 of the 1933 Act. Our agreement with the selling shareholders is designed to provide those shareholders some liquidity in their ownership of common stock and to permit secondary public trading of our securities. The selling shareholders may offer our securities covered under this prospectus for resale from time to time. The selling shareholders may also sell, transfer or otherwise dispose of all or a portion of our securities in transactions exempt from the registration requirements of the 1933 Act. See "PLAN OF DISTRIBUTION."
The table below presents information as of October 25, 2005 regarding the selling shareholders and our common stock that the selling shareholders may offer and sell from time to time under this prospectus. The table is prepared based on information supplied to us by those shareholders. Although we have assumed, for purposes of the table below, that the selling shareholders will sell all of the securities offered by this prospectus, because they may offer all or some of the securities in transactions covered by this prospectus or in another manner, no assurance can be given as to the actual number of shares that will be resold by the selling shareholders. Information covering the selling shareholders may change from time to time, and changed information will be presented in a supplement to this prospectus if and when required. Except as described above, there are no agreements, arrangements or understandings with respect to resale of any of the securities covered by this prospectus.
Number of Number Shares Owned
Shares Owned of Shares After Offering (1)(2)
Name of Prior to the to be -------------------------
Selling Shareholder Offering Offered Number Percentage(%)
-------------------------------------------------------------------------------------------------
Beth Reid 2,200,000(3) 1,000,000 1,200,000 6.55
David C. Reid 3,711,529(4) 1,000,000 2,711,529 14.8
Heemskirk Consolidated Limited 2,150,000 2,150,000 0 0
William F. Pass 1,321,207(4) 1,321,207 0 0
Canyon Resources Corporation 1,200,000 1,200,000 0 0
Jose Perez Reynoso 600,000 600,000 0 0
Don I. and Dorothera Philips 480,000 240,000 240,000 1.3
Philip Katz 400,000 400,000 0 0
David F. Wersebe 286,000 206,000 80,000 *
Declan J. Costelloe 218,500 178,500 40,000 *
TSC Enterprises, Inc. 200,000 200,000 0 0
J. Paul Consulting Corporation 200,000 200,000 0 0
Ciliamarie F. McGinnis Trust 120,000 20,000 100,000 *
Erica Johnson 60,000 60,000 0 0
Patrick Bartz 40,000 40,000 0 0
Julia K. Reid, Custodian for
Katherine Louise Patterson 52,000 52,000 0 0
Julia K. Reid, Custodian for
Jack Everett Patterson 52,000 52,000 0 0
Jason D. Reid, Custodian for
Bailey Dylan Reid 52,000 52,000 0 0
Jason D. Reid, Custodian for
Cailan Riley Reid 52,000 52,000 0 0
Thomas W. and
Marjorie G. Clarke 50,000 50,000 0 0
Jack Noble 40,000 40,000 0 0
Don I. and Thomas Phillips 40,000 28,000 12,000 *
Virgil and Jeane Lamb 40,000 40,000 0 0
36
|
Number of Number Shares Owned
Shares Owned of Shares After Offering (1)(2)
Name of Prior to the to be -------------------------
Selling Shareholder Offering Offered Number Percentage(%)
-------------------------------------------------------------------------------------------------
Anthony R. McGinnis 30,000 10,000 20,000 *
Lee C. Pegorsch 20,000 20,000 0 0
R. Brock Silverstein 20,000 20,000 0 0
C. William Reid 10,000 10,000 0 0
Carolyn P. McFarland 10,000 10,000 0 0
Allee Messina 10,000 10,000 0 0
Jeffrey R. Pass 37,000 37,000 0 0
Daniel C. Pass 36,500 36,500 0 0
Molly B. Pass 36,500 36,500 0 0
Claude W. & Elizabeth Pass 5,000 5,000 0 0
John T. Upmeier 2,500 2,500 0 0
Darleen M. Upmeier 2,500 2,500 0 0
Jennifer A.C. Eis 2,500 2,500 0 0
Deborah M. Bangoli 2,500 2,500 0 0
Caycee Poole 2,000 2,000 0 0
Sean C. McGinnis 2,000 2,000 0 0
---------
TOTAL: 9,390,707
|
To the best of our knowledge, none of the selling shareholders are affiliates of United States broker-dealers, nor at the time of purchase did any of the selling shareholders have any agreements or understandings, directly or indirectly, with any persons to distribute the securities.
PLAN OF DISTRIBUTION
Our Distribution
We are offering a total of 7,000,000 shares on a "best efforts" basis at an offering price of $1.00 per share. The shares are being offered by us through our officers and directors, who will rely on the "safe harbor" provisions of Rule 3a4-1 of the Securities Exchange Act of 1934. Generally, Rule 3a4-1 provides an exemption from the broker-dealer registration requirements for persons associated with the issuer of the securities. No commission will be paid by us to our officers or directors for sales of shares made by them. However, we may retain broker-dealers or other intermediaries to assist in the sale of our shares, and we reserve the right to pay a commission up to 10% of the offering price for sales effectuated through these intermediaries.
No one, including us, or our officers and directors, has made any commitment to purchase any or all of the shares. Rather, we will use our best efforts to find purchasers for the shares for a period of 120 days from the date of this prospectus, subject to any extension in our discretion for up to an additional 60 days. There is no minimum number of shares which must be sold, or sales proceeds which must be received, to complete this offering. As a result, all proceeds will be immediately deposited in our bank account and available for all corporate purposes. Purchasers in this offering will not be entitled to a return of their investment following receipt by us.
We anticipate offering the shares to individuals or entities whom we believe may be interested or who have contacted us with an interest in purchasing the shares. We may sell the shares to a person or entity if they are resident in a state in which we may legally offer and sell the shares. We may also offer the shares to non-residents of the United States. However, we are not obligated to sell the shares to anyone. Due to the restrictions on resale imposed by applicable securities laws, it is not anticipated that any individual or entity will purchase 10% or more of the amount of our stock outstanding at the time of the sale.
In the view of the SEC, any broker-dealer participating in this offering that sells securities would be deemed an "underwriter" as defined in Section 2(11) of the Securities Act of 1933. Further, prior to the participation of any broker-dealer, we may be required to obtain the consent of the NASD to the underwriting compensation and arrangements.
The offering price of the shares was determined by us primarily with reference to recent sales prices of our common stock. We also considered factors such as our history and lack of revenue, our assets and the anticipated expenses of exploring and developing our mining properties. However, the offering price of the common stock should not be used as an indication of the value of the securities or an assurance that purchasers will be able to resell the securities for an amount equal to the offering price or an amount in excess thereof.
Inasmuch as we are offering the common stock directly, and we have not retained an underwriter as might be the case in other offerings, our determination of the offering price has not been determined through negotiation with an underwriter. To the extent that an underwriter has not been involved in determining the price of our securities, investors are subject to an increased risk that the price of our securities have been arrived at arbitrarily.
Selling Shareholder Distribution
The selling shareholders and their pledgees, donees, transferees or other successors in interest may offer the shares of our common stock from time to time after the date of this prospectus and will determine the time, manner and size of each sale in the over-the-counter market, in privately negotiated transactions or otherwise, at market prices prevailing at the time of sale, at prices related to prevailing market prices, or at negotiated prices. The selling shareholders may negotiate, and may pay, brokers or dealers commissions, discounts or concessions for their services. In effecting sales, brokers or dealers engaged by the selling shareholders may allow other brokers or dealers to participate. However, the selling shareholders and any brokers or dealers involved in the sale or resale of the shares may qualify as "underwriters" within the meaning of Section 2(a)(11) of the 1933 Act. In addition, the brokers' or dealers' commissions, discounts or concessions may qualify as underwriters' compensation under the 1933 Act.
The methods by which the selling shareholders may sell the shares of our common stock include:
o A block trade in which a broker or dealer so engaged will attempt to sell the shares as agent but may position and resell a portion of the block, as principal, in order to facilitate the transaction;
o Sales to a broker or dealer, as principal, in a market maker capacity or otherwise and resale by the broker or dealer for its account;
o Ordinary brokerage transactions and transactions in which a broker solicits purchases;
o Privately negotiated transactions;
o Short sales;
o Any combination of these methods of sale; or
o Any other legal method.
In addition to selling their shares under this prospectus, the selling
shareholders may transfer their shares in other ways not involving market makers
or established trading markets, including directly by gift, distribution, or
other transfer, or sell their shares under Rule 144 of the Securities Act rather
than under this prospectus, if the transaction meets the requirements of Rule
144. Any selling shareholder who uses this prospectus to sell his shares will be
subject to the prospectus delivery requirements of the 1933 Act.
Regulation M under the Securities Exchange Act of 1934 provides that during the period that any person is engaged in the distribution of our shares of common stock, as defined in Regulation M, such person generally may not purchase our common stock. The selling shareholders are subject to these restrictions, which may limit the timing of purchases and sales of our common stock by the selling shareholders. This may affect the marketability of our common stock.
The selling shareholders may use agents to sell the shares. If this happens, the agents may receive discounts or commissions. The selling shareholders do not expect these discounts and commissions to exceed what is customary for the type of transaction involved. If required, a supplement to his prospectus will set forth the applicable commission or discount, if any, and the names of any underwriters, brokers, dealers or agents involved in the sale of the shares. The selling shareholders and any underwriters, brokers, dealers or agents that participate in the distribution of our common stock offered hereby may be deemed to be "underwriters" within the meaning of the Securities Act of 1933, and any profit on the sale of shares by them and any discounts, commissions, concessions or other compensation received by them may be deemed to be underwriting discounts and commissions under the 1933 Act. The selling shareholders may agree to indemnify any broker or dealer or agent against certain liabilities relating to the selling of the shares, including liabilities arising under the Securities Act.
Upon notification by the selling shareholders that any material arrangement has been entered into with a broker or dealer for the sale of the shares through a block trade, special offering, exchange distribution or secondary distribution or a purchase by a broker or dealer, we will file a supplement to this prospectus, if required, pursuant to Rule 424(b) under the Securities Act, disclosing the material terms of the transaction.
DESCRIPTION OF CAPITAL STOCK
Our authorized capital consists of 60,000,000 shares of common stock, $.001 par value per share, and 5,000,000 shares of preferred stock, $.01 per share. As of October 25, 2005, we had 18,304,852 shares of common stock issued and outstanding, and no shares of preferred stock outstanding.
The following discussion summarizes the rights and privileges of our capital stock. This summary is not complete, and you should refer to our Articles of Incorporation, as amended, which have been filed as an exhibit to the registration statement of which this prospectus forms a part.
Common Stock
The holders of our common stock are entitled to one vote for each share held of record on all matters submitted to stockholders, including the election of directors. Cumulative voting for directors is not permitted. Except as provided by special agreement, the holders of common stock are not entitled to any preemptive rights and the shares are not redeemable or convertible. All outstanding common stock is, and all common stock offered hereby will be, when issued and paid for, fully paid and nonassessable. The number of authorized shares of common stock may be increased or decreased (but not below the number of shares then outstanding or otherwise reserved under obligations for issuance by us) by the affirmative vote of a majority of shares cast at a meeting of our shareholders at which a quorum is present.
Our Articles of Incorporation and Bylaws do not include any provision that would delay, defer or prevent a change in control of our company. However, as a matter of Colorado law, certain significant transactions would require the affirmative vote of a majority of the shares eligible to vote at a meeting of shareholders which requirement could result in delays to or greater cost associated with a change in control of the company.
The holders of our common stock are entitled to dividends if, as and when declared by our Board of Directors from legally available funds, subject to the preferential rights of the holders of any outstanding preferred stock. Upon any voluntary or involuntary liquidation, dissolution or winding up of our affairs, the holders of our common stock are entitled to share, on a pro rata basis, all assets remaining after payment to creditors and prior to distribution rights, if any, of any series of outstanding preferred stock.
The SEC has adopted regulations which generally define a penny stock to be any equity security that has a market price of less than $5.00 per share or that is not registered or authorized on a national securities exchange or Nasdaq. As our common stock will likely fall within the definition of a penny stock, these regulations will require the delivery, prior to any transaction involving our common stock, of a risk disclosure schedule explaining the penny stock market and the risks associated with it. Disclosure is also required to be made regarding the compensation payable to both the broker-dealer and the registered representative, and current quotations for the securities. In addition, monthly statements are required to be sent disclosing recent price information for the penny stock. As a result, the ability of both the dealers and our shareholders to sell our common stock in the secondary market would be limited, and the market liquidity for our common stock could be severely and adversely affected. We can provide no assurance that trading in our common stock will not be subject to these or other regulations in the future, which would negatively affect the market for our stock.
Preferred Stock
Our Articles of Incorporation vest our Board of Directors with authority to
divide the preferred stock into series and to fix and determine the relative
rights and preferences of the shares of any such series so established to the
full extent permitted by the laws of the State of Colorado and our Articles of
Incorporation in respect to, among other things, (i) the number of shares to
constitute such series and the distinctive designations thereof; (ii) the rate
and preference of dividends, if any, the time of payment of dividends, whether
dividends are cumulative and the date from which any dividend shall accrue;
(iii) whether preferred stock may be redeemed and, if so, the redemption price
and the terms and conditions of redemption; (iv) the liquidation preferences
payable on preferred stock in the event of involuntary or voluntary liquidation;
(v) sinking fund or other provisions, if any, for redemption or purchase of
preferred stock; (vi) the terms and conditions by which preferred stock may be
converted, if the preferred stock of any series are issued with the privilege of
conversion; and (vii) voting rights, if any.
As of the date of this prospectus, we have not designated or authorized any preferred stock for issuance.
Restrictions on Future Sales of Our Common Stock
Under the terms of agreements entered into with certain purchasers of our common stock, we are obligated to offer these entities the first right to purchase our common stock in any future offering. The holders of this right are Canyon Resources Corporation and Heemskirk Consolidated Limited. We do not believe the terms of this arrangement will affect any market for our common stock which may develop, or our future operations. However, it provides the holders the ability to preserve or increase their percentage interest in the company.
Transfer Agent
We have appointed Corporate Stock Transfer, Inc. ("CST") in Denver as transfer agent for our common stock. CST is located at 3200 Cherry Creek Drive South, Suite 430, Denver, Colorado 80209 and its telephone number is (303) 282-4800.
Reports to Shareholders
In connection with the offer of our shares under this prospectus, we have registered our common stock with the SEC under the Securities Exchange Act of 1934. As a result, we will be required to file periodic reports with the SEC and to deliver an annual report to our shareholders in conjunction with each annual meeting of shareholders. Copies of the reports that we file with the SEC can be viewed on the SEC website. See, "WHERE YOU CAN FIND MORE INFORMATION." We may also deliver quarterly or other periodic information to our shareholders.
We are also subject to the proxy solicitation rules established by the SEC.
SHARES ELIGIBLE FOR FUTURE SALE
Sales of substantial amounts of common stock (including shares issued upon the exercise of outstanding options) in the public market after this offering could cause the market price of our common stock to decline. Those sales also might
make it more difficult for us to sell equity-related securities in the future or reduce the price at which we could sell any equity-related securities.
All of the shares sold in this offering will be freely tradable without restriction under the Securities Act of 1933 unless those shares are held by "affiliates," as that term is defined in Rule 144 under the Securities Act of 1933. Of the outstanding shares not sold in this offering, 3,409,000 shares will be eligible for sale immediately as of the date of this prospectus, a portion of which will be subject to Rule 144 volume limitations.
Rule 144
In general, under Rule 144 as currently in effect, beginning 90 days after the date of this prospectus, a person deemed to be our affiliate, or a person holding restricted shares who beneficially owns shares that were not acquired from us or our affiliate within the previous one year, would be entitled to sell within any three-month period a number of shares that does not exceed the greater of:
o 1% of the then outstanding shares of our common stock, or
o the average weekly trading volume of our common stock during the four calendar weeks preceding the date on which notice of the sale is filed with the Securities and Exchange Commission.
Sales under Rule 144 are subject to requirements relating to manner of sale, notice and availability of current public information about us.
Rule 144(k)
A person who is not deemed to have been our affiliate at any time during the 90 days immediately preceding a sale and who owned shares for at least two years, including the holding period of any prior owner who is not an affiliate, would be entitled to sell restricted shares following this offering under Rule 144(k) without complying with the volume limitations, manner of sale provisions, public information or notice requirements of Rule 144.
WHERE YOU CAN FIND MORE INFORMATION
You may read and copy any document we file at the SEC's Public Reference Rooms at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the Public Reference Rooms. You can also obtain copies of our SEC filings by going to the SEC's website at http://www.sec.gov.
We have filed with the SEC a Registration Statement on Form SB-2 to register the shares of our common stock. This prospectus is part of that Registration Statement and, as permitted by the SEC's rules, does not contain all of the information set forth in the Registration Statement. For further information about us or our common stock, you may refer to the Registration Statement and to the exhibits filed as part of the Registration Statement. The description of all agreements or the terms of those agreements contained in this prospectus are specifically qualified by reference to the agreements, filed or incorporated by reference in the Registration Statement.
Prior to the date of this prospectus, we were not subject to the informational filing requirements of the Exchange Act. However, as a result of this offering, we have become subject to these requirements and will file periodic reports, including annual reports containing audited financial statements, reports containing unaudited interim financial statements, quarterly and special reports, proxy statements and other information with the SEC. We will provide copies of our reports and other information which we file with the SEC without charge to each person who receives a copy of this prospectus. Your request for this information should be directed to our President, William Reid, at our corporate office in Denver, Colorado. You can also review this information at the public reference rooms of the SEC and on the SEC's website as described above.
LEGAL MATTERS
We have been advised on the legality of the shares included in this prospectus by Dufford & Brown, P.C., of Denver, Colorado.
EXPERTS
Our financial statements as of December 31, 2004 and for the two years then ended included in this prospectus have been included in reliance on the report of Stark Winter Schenkein & Co., LLP, our independent accountants. These financial statements have been included on the authority of this firm as an expert in auditing and accounting.
FINANCIAL STATEMENTS
Page
----
Index to Financial Statements F-1
Six Month Periods Ended June 30, 2005 and 2004 (Unaudited)
Consolidated Statements of Operations for the six
months ended June 30, 2005 and 2004 F-2
Consolidated Balance Sheet at June 30, 2005 F-3
Consolidated Statements of Cash Flows for the six months F-4
ended June 30, 2005 and 2004
Notes to Consolidated Financial Statements F-5
Year Ended December 31, 2004 and 2003
Report of Independent Auditors F-7
Consolidated Statements of Operations for the years
ended December 31, 2004 and 2003 F-8
Consolidated Balance Sheet at December 31, 2004 F-9
Consolidated Statements of Changes in Shareholders'
Equity for the years ended December 31, 2004 and 2003 F-10
Consolidated Statements of Cash Flows for the
years ended December 31, 2004 and 2003 F-11
Notes to Consolidated Financial Statements F-12
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GOLD RESOURCE CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
For the Six Months Ended June 30, 2005 and 2004
(Unaudited)
2005 2004
---- -----
Revenues:
Interest income $ 63 $ 99
--------- ---------
Costs and Expenses:
General, administration 40,137 20,093
Stock compensation 87,500 90,000
Property acquisition related cost 16,745 10,963
Property exploration and
evaluation 72,399 171,130
--------- ---------
Total expenses 216,781 292,186
--------- ---------
Net (loss) (216,718) (292,087)
--------- ---------
Comprehensive income (loss):
Translation gain 246 1
--------- ---------
Net comprehensive (loss) $(216,472) $(292,086)
========= =========
Basic and diluted per share data:
Net (loss)
Basic and diluted $ (0.02) $ (0.03)
========= =========
|
The accompanying notes are an integral part of these consolidated financial statements.
GOLD RESOURCE CORPORATION
CONSOLIDATED BALANCE SHEET
June 30, 2005
(Unaudited)
ASSETS
Current assets:
Cash and cash equivalents $ 6,812
-----------
Total current assets 6,812
-----------
Investment in mineral properties --
Other assets 12,545
-----------
Total assets $ 19,357
===========
LIABILITIES & SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable and accrued liabilities $ 1,456
Other liabilities-related parties 1,708
-----------
Total current liabilities 3,164
-----------
Shareholders' equity:
Preferred stock, $.001 par value, 5,000,000
shares authorized, none issued or
outstanding --
Common stock, $.001 par value, 60,000,000
shares authorized, 15,736,852 shares
issued and outstanding 15,737
Additional paid-in capital 2,907,604
Accumulated (deficit) (2,907,333)
Other comprehensive income:
Currency translation adjustment 185
-----------
Total shareholders' equity 16,193
-----------
Total liabilities and shareholders' equity $ 19,357
===========
|
The accompanying notes are an integral part of these consolidated financial statements.
GOLD RESOURCE CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Six Months Ended June 30, 2005 and 2004
(Unaudited)
2005 2004
---- ----
Cash flows from operating activities:
Cash paid to property owners, consultants,
contractors and suppliers $(200,311) $(297,731)
Interest received 63 99
Income taxes paid -- --
--------- ---------
Cash (used in) operating activities (200,248) (297,632)
--------- ---------
Cash flows from investing activities:
Cash provided by (used in) investing activities -- --
--------- ---------
Cash flows from financing activities:
Repayment of borrowing - U.S. Gold (10,000) --
Sale of stock for cash 207,500 102,000
Exploration agreement funding - Canyon Resources -- 100,000
--------- ---------
Cash provided by financing activities 197,500 202,000
--------- ---------
Increase (decrease) in cash and cash equivalents (2,748) (95,632)
--------- ---------
Cash and cash equivalents, beginning of year 9,560 135,849
--------- ---------
Cash and cash equivalents, end of period $ 6,812 $ 40,217
========= =========
Reconciliation of net (loss) to cash (used in)
operating activities:
Net (loss) $(216,472) $(292,086)
Items not requiring cash:
Currency translation adjustment 246 1
Stock compensation 87,500 90,000
(Increase) decrease in assets related to operations (10,963) 439
Increase (decrease) in liabilities related to operations-
Other liabilities-related parties (57,271) 768
Accounts payable and accrued liabilities (3,288) (96,754)
--------- ---------
Cash (used in) operating activities $(200,248) $(297,632)
========= =========
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The accompanying notes are an integral part of these consolidated financial statements.
GOLD RESOURCE CORPORATION
NOTES TO CONOLIDATED FINANCIAL STATEMENTS
June 30, 2005
(Unaudited)
1. Summary of Significant Accounting Policies
Basis of Presentation: The interim consolidated financial statements included herein have been prepared by the Company in accordance with the rules and regulations of the Securities and Exchange Commission, without audit. Certain information and footnote disclosures normally included in financial statements prepared in accordance with accounting principles generally accepted in the United States of America have been condensed or omitted pursuant to such rules and regulations, although the Company believes that the disclosures are adequate to make the information presented not misleading.
Certain reclassifications have been made in the financial statements for June 30, 2004, to conform to accounting and financial statement presentation for the period ended June 30, 2005. The changes had no effect on Net (loss) for the three and six months ended June 30, 2004.
These statements reflect all adjustments, consisting of normal recurring adjustments which, in the opinion of management, are necessary for fair presentation of the information contained therein. However, the results of operations for the interim period may not be indicative of results expected for the full fiscal year. It is suggested that these financial statements be read in conjunction with the audited financial statements and notes thereto as of and for the year ended December 31, 2004.
Per Share Amounts: SFAS 128, "Earnings Per Share", provides for the calculation of "Basic" and "Diluted" earnings per share. Basic earnings per share includes no dilution and is computed by dividing income available to common shareholders by the weighted-average number of shares outstanding during the six month period ended June 30, 2005 and 2004 (14,384,076 for June 30, 2005 and 9,892,208 for 2004). As of June 30, 2005 and 2004, stock options are not considered in the computation of diluted earnings per share as their inclusion would be antidilutive.
2. Going Concern
The Company's financial statements are prepared on a going concern basis, which contemplates the satisfaction of obligations in the normal course of business. The Company has no source of operating revenue and has financed operations through the sale and exchange of equity. The Company has incurred losses since its inception and has working capital of $3,648 at June 30, 2005.
The Company's ability to continue as a going concern is contingent upon its abilities to raise funding through the sale of equity, joint venture or sale of its assets, and to attain profitable operations. The financial statements do not include any adjustments to the amount and classification of assets and liabilities that may be necessary should the Company not continue as a going concern.
3. Mineral Properties
In 2005 the Company paid the lessor of the El Aguila property $30,000 of the remaining 2004 amount due under the lease. The lease payment required for 2005 of $75,000 was paid subsequent to June 30, 2005.
4. Shareholders' Equity
Effective February 21, 2005, the Company declared and effected a 100% forward stock split where one additional share of common stock, par value $.001, was issued for each common share outstanding as of that date, in the form of new stock certificates aggregated by shareholder. These financial statements have been restated to retroactively reflect the effect of this 100% stock split.
Effective January 2, 2005, the Company made common stock awards to its two executive officers and an consultant of aggregate 1,750,000 shares valued at $.25/share, or $437,500, for services to the Company for 2004 and through June 30, 2005 of which $350,000 was for 2004 and $87,500 was for 2005. Of this total William W. Reid received 1,000,000 shares, David C. Reid received 500,000 shares and William F. Pass received 250,000 shares. Also effective January 2, 2005, a stock option agreement with William F. Pass covering 400,000 shares of common stock at exercise price of $.25/share was reduced by 250,000 shares leaving 150,000 shares remaining subject to option.
During the six months ended June 30, 2005, the Company issued 588,500 shares for aggregate $220,000. In addition, an individual exercised stock options for 10,000 shares for $2,500 in exercise price. In June 2005, the Company issued 1,280,000 shares to U.S. Gold Corporation in satisfaction of $320,000 owed for a prior years management contract.
Subsequent to June 30, 2005 the Company issued 2,568,000 shares raising $1,200,000. In July and August of 2005, the Company closed transactions under a Subscription Agreement and Stock Purchase Option Agreement with Heemskirk Consolidated Limited ("Heemskirk"), an Australian global mining investment institution, whereby Heemskirk purchased 2,000,000 shares of common stock of the Company at $.467 per share net of a finders fee paid to a third party of 140,000 shares also valued at $.467 per share. Heemskrik had already been a shareholder of the Company and with these transactions they currently own a total of 2,150,000 shares as of September 30, 2005, representing approximately 11.75% of the outstanding shares of the Company. The Company agreed to give Heemskirk a first right of offer for any financings, including sale of equity, the Company may pursue, subject to the prior rights of Canyon discussed below. During August 2005, the Company sold 400,000 shares to another investor raising $200,000 with a finders fee paid to a third party of 28,000 shares.
In August 2003 the Company entered into an exploration agreement with Canyon Resources Corporation, a public company with shares traded on the American Stock Exchange under symbol "CAU" ("Canyon"), whereby Canyon, effective September 1, 2004 elected to convert their prior funding of $500,000 into 1,200,000 shares of common stock of the Company representing approximately 6.56% of the outstanding shares as of September 30, 2005. Related to this agreement, Canyon shall have a right of first offer related to any sale of common shares by the Company with 14 days after written notice by the Company to elect to accept the offer and 10 days thereafter to close any such purchase.
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Shareholders and Board of Directors
Gold Resource Corporation
We have audited the accompanying consolidated balance sheet of Gold Resource Corporation as of December 31, 2004, and the related consolidated statements of operations, shareholders' (deficit) and cash flows for the years ended December 31, 2004 and 2003. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with the auditing standards of the Public Company Accounting Oversight Board (United States.) Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates be management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Gold Resource Corporation as of December 31, 2004, and the results of its operations and its cash flows for the years ended December 31, 2004 and 2003, in conformity with accounting principles generally accepted in the United States of America.
The accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 2 to the consolidated financial statements, the Company has suffered recurring losses and has working capital and shareholders' deficits. These factors raise substantial doubt about the Company's ability to continue as a going concern. Management's plans in regard to these matters are also discussed in Note 2. The consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty.
/s/ Stark Winter Schenkein & Co., LLP Stark Winter Schenkein & Co., LLP Certified Public Accountants March 22, 2005 Denver, Colorado |
GOLD RESOURCE CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
For the Years Ended December 31, 2004 and 2003
2004 2003
---- -----
Revenues:
Interest income $ 113 $ 193
--------- ---------
Costs and Expenses:
General, administration 527,732 58,173
Property acquisition related costs 68,591 46,750
Property exploration and
evaluation 257,383 391,316
--------- ---------
Total Expenses 853,706 496,239
--------- ---------
Net (Loss) (853,593) (496,046)
--------- ---------
Comprehensive income (loss):
Translation gain (charge) (73) 29
--------- ---------
Net comprehensive (loss) $(853,666) $(496,017)
========= =========
Basic and diluted per share data:
Net (loss)
Basic and diluted $ (0.08) $ (0.05)
========= =========
|
The accompanying notes are an integral part of these consolidated financial statements.
GOLD RESOURCE CORPORATION
CONSOLIDATED BALANCE SHEET
December 31, 2004
ASSETS
Current assets:
Cash and cash equivalents $ 9,560
-----------
Investment in mineral properties --
Other assets 1,581
-----------
Total Assets $ 11,141
===========
LIABILITIES AND SHAREHOLDERS' (DEFICIT)
Current liabilities:
Accounts payable and accrued liabilities $ 4,744
-----------
Property lease payment 30,000
Management contract fees payable to U.S. Gold 330,000
Other liabilities-related parties 43,732
-----------
Total current liabilities 408,476
-----------
Shareholders' (deficit):
Preferred stock, $.001 par value, 5,000,000 shares
authorized, none issued or outstanding --
Common stock, $.001 par value, 20,000,000 shares
Authorized, 12,108,352 shares issued and outstanding 12,108
Additional paid-in capital 2,281,233
Accumulated (deficit) (2,690,615)
Other comprehensive income:
Currency translation adjustment (61)
-----------
Total shareholders' (deficit) (397,335)
-----------
Total Liabilities and Shareholders' (Deficit) $ 11,141
===========
|
The accompanying notes are an integral part of these consolidated financial statements.
GOLD RESOURCE CORPORATION
CONSOLIDATED STATEMENT OF CHANGES IN SHAREHOLDERS' (DEFICIT)
December 31, 2002 to December 31, 2004
Number of Stock Additional Total
Common Par Paid-in Accumulated Comprehensive Shareholders'
Shares Value Capital (Deficit) Income (Loss) (Deficit)
----------- ----------- ----------- ------------ ------------- -------------
Balance,
December 31, 2002 9,123,352 $ 9,123 $ 962,641 $(1,340,976) $ (17) $ (369,229)
Shares issued for cash at $.25
per share 577,000 577 143,673 -- -- 144,250
Share issuance costs
forgiven -- -- 25,327 -- -- 25,327
Net (loss) -- -- -- (496,046) 29 (496,017)
----------- ----------- ----------- ----------- ----------- -----------
Balance, December 31, 2003 9,700,352 9,700 1,131,641 (1,837,022) 12 (695,669)
----------- ----------- ----------- ----------- ----------- -----------
Shares issued for cash at $.25
per share 608,000 608 151,392 -- -- 152,000
Shares under exploration
agreement at $.42 per share 1,200,000 1,200 498,800 -- -- 500,000
Shares issued as stock grant
at $.25 per share 600,000 600 149,400 -- -- 150,000
Shares subscribed -- -- 350,000 -- -- 350,000
Net (loss) -- -- -- (853,593) (73) (853,666)
----------- ----------- ----------- ----------- ----------- -----------
Balance, December 31, 2004 12,108,352 $ 12,108 $ 2,281,233 $(2,690,615) $ (61) $ (397,335)
=========== =========== =========== =========== =========== ===========
The accompanying notes are an integral part of these consolidated financial statements.
|
GOLD RESOURCE CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Years Ended December 31, 2004 and 2003
2004 2003
---- ----
Cash flows from operating activities:
Cash paid to property owners, consultants,
contractors and suppliers $(387,402) $(413,045)
Interest received 113 193
Income taxes paid -- --
--------- ---------
Cash (used in) operating activities (378,289) (412,852)
--------- ---------
Cash flows from investing activities:
Cash provided by (used in) investing activities -- --
--------- ---------
Cash flows from financing activities:
Borrowing - U.S. Gold -- 30,000
Repayment of borrowing - U.S. Gold -- (30,000)
Sale of stock for cash 152,000 144,250
Exploration agreement funding - Canyon Resources 100,000 400,000
--------- ---------
Cash provided by financing activities 252,000 544,250
--------- ---------
Increase (decrease) in cash and cash equivalents (126,289) 131,398
--------- ---------
Cash and cash equivalents, beginning
of year 135,849 4,451
--------- ---------
Cash and cash equivalents, end of year $ 9,560 $ 135,849
========= =========
Reconciliation of net comprehensive (loss) to cash (used in) operating
activities:
Net comprehensive (loss) $(853,666) $(496,017)
Items not requiring cash:
Currency translation adjustment 73 29
Issuance costs forgiven -- 25,327
Stock compensation 150,000 --
Stock subscribed 350,000 --
(Increase) decrease in assets related to operations-
Other 268 194
Increase (decrease) in liabilities related to operations-
Property lease payment 30,000 --
Other liabilities-related parties 38,635 (9,375)
Accounts payable and accrued liabilities (93,599) 67,019
--------- ---------
Cash (used in) operating activities $(378,289) $(412,852)
========= =========
Non-cash financing and investing activities:
Conversion of Canyon Resources funding
to common stock $ 500,000 $ --
========= =========
The accompanying notes are an integral part of these consolidated financial statements.
|
GOLD RESOURCE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2004
1. Summary of Significant Accounting Policies
Basis of Presentation: Gold Resource Corporation (the "Company") was organized under the laws of the State of Colorado on August 24, 1998. The Company has been engaged in the exploration for precious and base metals, primarily in Mexico. The Company has not generated any revenues from operations. The consolidated financial statements included herein are expressed in United States dollars.
Effective February 21, 2005, the Company declared and effected a 100% forward stock split where one additional share of common stock, par value $.001, was issued for each common share outstanding as of that date, in the form of new stock certificates aggregated by shareholder. These financial statements have been restated to retroactively reflect the effect of this 100% stock split.
Basis of Consolidation: The consolidated financial statements include the accounts of the Company and its wholly owned Mexican corporation subsidiaries, Don David Gold S.A. de C.V. and Golden Trump S.A. de C.V. The expenditures of Don David Gold and Golden Trump are generally incurred in Mexican Pesos. Significant intercompany accounts and transactions have been eliminated.
Statements of Cash Flows: The Company considers cash in banks, deposits in transit, and highly liquid debt instruments purchased with original maturities of three months or less to be cash and cash equivalents.
Exploration and Development Costs: Mineral property acquisition, exploration and related costs are expensed as incurred unless proven and probable reserves exist and the property is a commercially minable property. When it has been determined that a mineral property can be economically developed, the costs incurred to develop such property, including costs to further delineate the ore body and develop the property for production, may be capitalized. In addition, the Company may capitalize previously expensed acquisition and exploration costs if it is later determined that the property can economically be developed. Interest costs, if any, allocable to the cost of developing mining properties and to constructing new facilities are capitalized until operations commence. Mine development costs incurred either to develop new ore deposits, expand the capacity of operating mines, or to develop mine areas substantially in advance of current production are also capitalized. All such capitalized costs, and estimated future development costs, are then amortized using the units-of-production method over the estimated life of the ore body. Costs incurred to maintain current production or to maintain assets on a standby basis are charged to operations. Costs of abandoned projects are charged to operations upon abandonment. The Company evaluates, at least quarterly, the carrying value of capitalized mining costs and related property, plant and equipment costs, if any, to determine if these costs are in excess of their net realizable value and if a permanent impairment needs to be recorded. The periodic evaluation of carrying value of capitalized costs and any related property, plant and equipment costs are based upon expected future cash flows and/or estimated salvage value in accordance with Statement of Financial Accounting Standards (SFAS) No. 144, "Accounting for Impairment or Disposal of Long-Lived Assets."
Equipment: Equipment is carried at cost not in excess of their estimated net realizable value. Normal maintenance and repairs are charged to earnings while expenditures for major maintenance and betterments are capitalized. Gains or losses on disposition are recognized in operations. Equipment is depreciated over the estimated economic lives ranging from 3 to 5 years.
Property Retirement Obligation: The Company implemented SFAS 143, "Accounting for Asset Retirement Obligations," effective January 1, 2003. SFAS 143 requires the fair value of a liability for an asset retirement obligation to be recognized in the period that it is incurred if a reasonable estimate of fair value can be made.
GOLD RESOURCE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2004
The associated asset retirement costs are capitalized as part of the carrying amount of the long-lived asset. The Company has determined that it has no property retirement obligations as of December 31, 2004.
Stock Option Plans: The Company applies APB Opinion 25, "Accounting for Stock Issued to Employees", and related Interpretations in accounting for all stock option plans. Under APB Opinion 25, no compensation cost has been recognized for stock options issued to employees as the exercise price of the Company's stock options granted equals or exceeds the market price of the underlying common stock on the date of grant.
SFAS 123, "Accounting for Stock-Based Compensation", requires the Company to provide pro forma information regarding net income as if compensation costs for the Company's stock option plans had been determined in accordance with the fair value based method prescribed in SFAS No. 123. To provide the required pro forma information, the Company estimates the fair value of each stock option at the grant date by using the Black-Scholes option-pricing model. Since the shares of the Company are not publically traded the fair value of each stock option or stock grant is determined by the Company.
Per Share Amounts: SFAS 128, "Earnings Per Share", provides for the calculation of "Basic" and "Diluted" earnings per share. Basic earnings per share includes no dilution and is computed by dividing income available to common shareholders by the weighted-average number of shares outstanding during the period (10,827,672 for 2004 and 9,386,958 for 2003). Diluted earnings per share reflect the potential dilution of securities that could share in the earnings of the Company, similar to fully diluted earnings per share. As of December 31, 2004 and 2003, stock options are not considered in the computation of diluted earnings per share as their inclusion would be antidilutive.
Income Taxes: The Company accounts for income taxes under SFAS 109, "Accounting for Income Taxes". Temporary differences are differences between the tax basis of assets and liabilities and their reported amounts in the financial statements that will result in taxable or deductible amounts in future years.
Use of Estimates: The preparation of the Company's consolidated financial statements in conformity with generally accepted accounting principles requires the Company's management to make estimates and assumptions that affect the amounts of assets and liabilities, the disclosure of contingent assets and liabilities at the date of the financial statements, and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
Business Risks: The Company continually reviews the mining and political risks it encounters in its operations. It mitigates the likelihood and potential severity of these risks through the application of high operating standards. The Company's operations have been and in the future may be, affected to various degrees by changes in environmental regulations, including those for future site restoration and reclamation costs. The Company's business is subject to extensive license, permits, governmental legislation, control and regulations. The Company endeavors to be in compliance with these regulations at all times.
Fair Value of Financial Instruments: SFAS 107, "Disclosures About Fair Value of Financial Instruments," requires disclosure of fair value information about financial instruments. Fair value estimates discussed herein are based upon certain market assumptions and pertinent information available to management as of December 31, 2004.
The respective carrying value of certain on-balance-sheet financial instruments approximate their fair values. These financial instruments include cash, cash equivalents, accounts payable and accrued liabilities. Fair values were assumed to approximate carrying values for these financial instruments since they are short term in nature and their carrying amounts approximate fair value or they are receivable or payable on demand.
GOLD RESOURCE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2004
Concentration of Credit Risk: The Company's cash balances are maintained in bank depositories and periodically exceed federally insured limits. At December 31, 2004, the Company's balance did not exceeded insured limits.
Foreign Operations: The Company's present activities are in Mexico. As with all types of international business operations, currency fluctuations, exchange controls, restrictions on foreign investment, changes to tax regimes, political action and political instability could impair the value of the Company's investments.
Foreign Currency Translation:
The local currency, the Mexican Peso, is the functional currency for the
Company's subsidiaries. Assets and liabilities are translated using the exchange
rate in effect at the balance sheet date. Income and expenses are translated at
the average exchange rate for the year. Translation adjustments are reported as
a separate component of stockholders' (deficit).
Recent Pronouncements:
In November 2004, the FASB issued SFAS 151, "Inventory Costs." SFAS 151 amends
the accounting for abnormal amounts of idle facility expense, freight, handling
costs, and wasted material (spoilage) under the guidance in ARB 43, Chapter 4,
"Inventory Pricing." Paragraph 5 of ARB 43, Chapter 4, previously stated that
"...under some circumstances, items such as idle facility expense, excessive
spoilage, double freight, and rehandling costs may be so abnormal as to require
treatment as current period charges...." This Statement requires that those
items be recognized as current-period charges regardless of whether they meet
the criterion of "so abnormal." In addition, this Statement requires that
allocation of fixed production overheads to the costs of conversion be based on
the normal capacity of the production facilities. This statement is effective
for inventory costs incurred during fiscal years beginning after June 15, 2005.
Management does not expect adoption of SFAS 151 to have a material impact on the
Company's financial statements.
In December 2004, the FASB issued SFAS 153, "Exchanges of Nonmonetary Assets," an amendment to Opinion No. 29, "Accounting for Nonmonetary Transactions." Statement 153 eliminates certain differences in the guidance in Opinion No. 29 as compared to the guidance contained in standards issued by the International Accounting Standards Board. The amendment to Opinion No. 29 eliminates the fair value exception for nonmonetary exchanges of similar productive assets and replaces it with a general exception for exchanges of nonmonetary assets that do not have commercial substance. Such an exchange has commercial substance if the future cash flows of the entity are expected to change significantly as a result of the exchange. SFAS 153 is effective for nonmonetary asset exchanges occurring in periods beginning after June 15, 2005. Earlier application is permitted for nonmonetary asset exchanges occurring in periods beginning after December 16, 2004. Management does not expect adoption of SFAS 153 to have a material impact on the Company's financial statements.
GOLD RESOURCE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2004
In December 2004, the FASB issued SFAS 123(R), "Share-Based Payment." SFAS 123(R) amends SFAS 123, "Accounting for Stock-Based Compensation," and APB Opinion 25, "Accounting for Stock Issued to Employees." SFAS 123(R) requires that the cost of share-based payment transactions (including those with employees and non-employees) be recognized in the financial statements. SFAS 123(R) applies to all share-based payment transactions in which an entity acquires goods or services by issuing (or offering to issue) its shares, share options, or other equity instruments (except for those held by an ESOP) or by incurring liabilities (1) in amounts based (even in part) on the price of the entity's shares or other equity instruments, or (2) that require (or may require) settlement by the issuance of an entity's shares or other equity instruments. This statement is effective (1) for public companies qualifying as SEC small business issuers, as of the first interim period or fiscal year beginning after December 15, 2005, or (2) for all other public companies, as of the first interim period or fiscal year beginning after June 15, 2005, or (3) for all nonpublic entities, as of the first fiscal year beginning after December 15, 2005. Management is currently assessing the effect of SFAS No. 123(R) on the Company's financial statements.
2. Going Concern
The Company's financial statements are prepared on a going concern basis, which contemplates the satisfaction of obligations in the normal course of business. The Company has no source of operating revenue and has financed operations through the sale and exchange of equity. The Company has incurred losses since its inception aggregating $2,690,615 and has a working capital deficit of $(398,916) and a shareholders' deficit of $(397,335) at December 31, 2004.
The Company's ability to continue as a going concern is contingent upon its abilities to raise funding through the sale of equity, joint venture or sale of its assets, and to attain profitable operations. The financial statements do not include any adjustments to the amount and classification of assets and liabilities that may be necessary should the Company not continue as a going concern.
3. Mineral Properties
Effective November 1, 2002, the Company, through its subsidiary, Don David Gold S.A. de C.V. leased a prospective gold/silver property located in the state of Oaxaca, Mexico, designated the "El Aguila" property, from Jose Perez Reynoso, a consultant to the Company. The El Aguila property is an exploration stage property and incorporates approximately 7.3 square miles as of December 31, 2004. The lease agreement for El Aguila is subject to a 4% net smelter return royalty to the lessor where production is sold in the form of gold/silver dore and 5% for production sold in concentrate form. The Company has made periodic payments required under the lease of $30,000 in 2003 and $20,000 in 2004 with an additional $30,000 remaining due and payable at December 31, 2004. In January 2005 the Company paid the lessor $20,000 of the remaining amount due for 2004. As of December 31, 2004, the lease requires future periodic advance royalty payments to the lessor as follows:
Remaining due for 2004 $ 30,000
Due November 1, 2005 75,000
Due November 1, 2006 100,000
----------
Total future payments $ 205,000
==========
|
In August 2003 the Company entered into an exploration agreement with Canyon Resources Corporation, a public company with shares traded on the American Stock Exchange under symbol "CAU" ("Canyon"), whereby Canyon had the right to earn a 50% interest in the El Aguila property from the Company in exchange for funding $3.5 million in exploration and development costs at the El Aguila property, or alternatively, Canyon could receive 1,200,000 shares of the common stock of the Company for funding $500,000 for Phase I and Phase II exploration drilling program at El Aguila. The drilling programs were completed in 2003 and included approximately 12,939 feet of drilling focused on one target area of the property. This exploration drilling encountered some high-grade gold intercepts which will require additional exploration drilling in order to fully evaluate. Effective September 1, 2004, Canyon elected to convert their prior funding of $500,000 into 1,200,000 shares of common stock of the Company, which represent approximately 9.9% of the outstanding shares at December 31, 2004.
GOLD RESOURCE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2004
Through December 31, 2004, the Company has spent or incurred approximately $605,000 in acquisition, exploration and related costs for El Aguila of which approximately $255,000 was spent in 2004.
Effective August 23, 2001 the Company, through its subsidiary Don David Gold S.A. de C.V., leased a prospective mining property in the Zimapan Mining District in Mexico designated the "Zimapan" property. During August 2003 the Company terminated the Zimapan property lease. The Company spent a total of $293,763 related to acquisition, exploration and evaluation of the Zimapan property which was expended in 2002.
4. Income Taxes
At December 31, 2004, the Company estimates that tax loss carry forwards to be approximately $1,980,000 expiring through 2024. The principal difference between the net loss for book purposes and the net loss for income tax purposes relates to the $330,000 liability to U.S. Gold Corporation ("U.S. Gold") which is deductible for tax purposes when paid by the Company, and $650,000 expense for stock grants and stock bonus accruals.
The tax effects of temporary differences that give rise to significant portions of the deferred tax assets and deferred tax liabilities at December 31, 2004 are presented below:
Deferred tax assets:
Net operating (loss) carryforward $ 436,000
---------
Total gross deferred tax assets 436,000
---------
Less valuation allowance (436,000)
---------
Net deferred tax assets -
---------
Deferred tax liabilities: -
---------
Total net deferred tax asset $ -
=========
|
The Company believes at this time that it is unlikely that the net deferred tax asset will be realized. Therefore, a valuation allowance has been provided for net deferred tax assets. The change in valuation allowance was approximately $76,000 during 2004.
A reconciliation of the tax provision for 2004 and 2003 at statutory rates is comprised of the following components:
2004 2003
---- ----
Statutory rate tax provision on book (loss) $(295,000) $(171,000)
Book to tax adjustments:
Valuation allowance 295,000 171,000
--------- ---------
Tax provision $ - $ -
========= =========
5. Shareholders' (Deficit)
|
Effective February 21, 2005, the Company declared and effected a 100% forward stock split where one additional share of common stock, par value $.001, was issued for each common share outstanding as of that date, in the form of new stock certificates aggregated by shareholder. These financial statements have been restated to retroactively reflect the effect of this 100% stock split.
GOLD RESOURCE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2004
The Company was formed August 24, 1998 by William W. Reid and David C. Reid (the "Founders"). As of December 31, 2004, the Founders directly hold a total of 2,826,000 shares or approximately 23% of the outstanding shares.
During 2003, the Company sold 577,000 shares at $.25 per share raising net proceeds of $144,250. Effective September 30, 2003, U.S. Gold acquired the shares of the institutional investor in exchange for U.S. Gold shares, and terminated the obligation of the Company to pay the institutional investor approximately $25,327 in transaction costs, which has been added back into paid-in-capital. At December 31, 2004, U.S. Gold owns approximately 32% of the Company. During 2004, the Company sold 608,000 shares at $.25 per share raising net proceeds of $152,000. Also during 2004, as explained further in Note 3, the Company issued 1,200,000 shares at approximately $.42 per share to Canyon for $500,000 in prior funding of exploration cost at the El Aguila property.
In 2005, through March 22, 2005, the Company has sold 286,000 shares raising net proceeds of $71,500 and as discussed in Note 7 the Company issued aggregate 1,750,000 shares to the executive officers of the Company and to a consultant, for services. The Company may continue to raise capital through the sale of its common shares and may also seek other funding or corporate transactions to achieve its business objectives, including possible merger of the Company into another entity, which would normally require approval by shareholders of the Company.
The Company has a non-qualified stock option and stock grant plan under which stock options and stock grants may be granted to key employees, directors and others (the "Plan"). Options to purchase shares under the Plan must be granted at fair value as of the date of the grant. A total of 3,000,000 common shares have been reserved under the Plan. During 2003, the company granted 400,000 share stock options exercisable for 10 years with exercise price of $0.25 per share to both William Reid and David Reid, the executive officers of the Company. In 2004 the option agreement with Mr. Reynoso was terminated and the Company awarded Mr. Reynoso a stock award of 600,000 common shares outside of the Plan valued at $.25 per share. Also during 2004, the Company granted stock options with an exercise price of $.25 per share of 400,000 shares to William Reid, 200,000 shares to David Reid and 100,000 shares to Mr. Pass. All of these individuals were determined to be a key person to the benefit of the Company. The Company recorded expense of $150,000 related to the stock grant to Mr. Reynoso. No compensation costs were recorded related to the issuances of stock options. No other stock options have been granted under the Plan.
2004 2003
------------------------ ----------------------
Weighted Weighted
Average Average
Exercise Exercise
Shares Prices Shares Prices
--------- -------- --------- --------
Outstanding, beginning of year 1,800,000 $.25 1,000,000 $.25
Granted 700,000 $.25 800,000 $.25
Terminated (600,000) $.25 - -
Exercised - - - -
--------- ---------
Outstanding, end of year 1,900,000 $.25 1,800,000 $.25
Options exercisable, end of year 1,900,000 $.25 1,600,000 $.25
========= ==== ========= ====
Weighted average fair value of
Option granted during year $.25 $.25
==== ====
|
SFAS 123 requires the Company to provide proforma information regarding net income and earnings per share as if compensation cost for the Company's stock option plans had been determined in accordance with the fair value based method prescribed in SFAS 123. The fair value of the option grants is estimated on the
GOLD RESOURCE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2004
date of grant utilizing the minimum value option-pricing model using the following assumptions: Expected life 10 years, stock price on date of grant $.25, fair market value on date of grant $.25, dividend yield 0% and interest rate 3%. These results may not be representative of those to be expected in future years. The pro-forma results of operations for 2004 and 2003 are as follows:
2004 2003
---- ----
Net (loss)
As reported $(853,666) $(496,046)
Proforma $(899,166) $(561,046)
Basic and diluted (loss) per share
As reported $(.08) $(.05)
Proforma $(.08) $(.06)
|
6. Related Party Transactions:
U.S. Gold-
Effective July 1, 2000, the Company and U.S. Gold entered into a management contract whereby U.S. Gold provided general management of the business activities of the Company through December 31, 2001 in exchange for 2,560,000 shares of common stock of the Company valued at $392,191 or approximately $.15 per share, representing the actual allocated internal costs recorded by U.S. Gold in its performance of the contract. Effective January 1, 2002, the Company and U.S. Gold entered into a second Management Contract with a duration of one year (the "2002 Management Contract"). Under the 2002 Management Contract U.S. Gold provided general management of the business activities of the Company through December 31, 2002 in exchange for the obligation of $30,000 per month to U.S. Gold. The Company has paid U.S. Gold only $30,000 under the 2002 Management Contract and owes U.S. Gold $330,000 at December 31, 2004. U.S. Gold is an affiliate of the Company and the executive officers of the Company are executive officers of U.S. Gold. U.S. Gold owns approximately 32% of the Company as of December 31, 2004. Since January 1, 2003, Company has managed its own affairs. During 2003, U.S. Gold made a non-interest bearing $30,000 loan to the Company that was repaid during that year.
Jose Perez Reynoso-
The Company has certain contractual business arrangements with Jose Perez Reynoso, a Mexican national and consultant to the Company. Mr. Reynoso has been retained as a full-time consultant to the Company at $5,000 per month under a month-to-month arrangement since September 2001. Mr. Reynoso was granted as a finders fee a 1% percent net smelter return royalty on the Zimapan property which royalty was terminated upon the Company dropping the Zimapan lease in August 2003. The Company also leased the El Aguila Property from Mr. Reynoso, paying him $5,000 advance royalty during 2002, $25,000 in 2003, and $20,000 of a total obligation of $50,000 in 2004. Of the $30,000 remaining owned to Mr. Reynoso as of December 31, 2004, $20,000 was paid in January 2005, as further discussed further in Footnote 3. Also as noted in Footnote 4 above, Mr. Reynoso was granted a stock bonus of 600,000 common shares valued at $.25 per share for $150,000 during 2004 and a stock option agreement with Mr. Reynoso covering 600,000 common shares at exercise price of $.25 per share of the Company was terminated by mutual consent.
GOLD RESOURCE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2004
Other-
During 2004 the executive officers and Mr. Reynoso have made certain cash advances to the Company to allow payment of certain obligations. As of December 31, 2004, the net amount of such advances was $43,732 which is reflected as a liability on the consolidated balance sheet as of December 31, 2004.
7. Subsequent Events:
Effective January 2, 2005, the Company made common stock awards to its two executive officers and a consultant of aggregate 1,750,000 shares valued at $.25 per share for aggregate $437,500 for services to the Company both prior and through June 30, 2005. Of this total William W. Reid received 1,000,000 shares, David C. Reid received 500,000 shares and William F. Pass received 250,000 shares. Related to this stock award and as of December 31, 2004, the Company recorded a stock subscription of $350,000 representing the portion awarded for services through that date. Also effective January 2, 2005, a stock option agreement with William F. Pass covering 400,000 shares of common stock at exercise price of $.25 per share was reduced by 250,000 leaving 150,000 shares remaining subject to option.
You should rely only on the information contained in this document or that we have referred you to. We have not authorized anyone to provide you with information that is different. This prospectus is not an offer to sell common stock and is not soliciting an offer to buy common stock in any state where the offer or sale is not permitted.
Until _______________, 2006, all dealers that effect transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to the dealers' obligation to deliver a prospectus when acting as underwriters and with respect to their unsold allotments or subscriptions.
TABLE OF CONTENTS
Prospectus Summary..................................1 Risk Factors........................................4 Dilution...........................................10 Use of Proceeds....................................11 Market Information.................................12 Management's Discussion and Analysis Or Plan of Operation............................12 Business and Properties............................18 Management.........................................28 Security Ownership of Certain Beneficial Owners and Management................34 Selling Shareholders...............................35 Plan of Distribution...............................37 Description of Capital Stock.......................40 Shares Eligible For Future Sale....................41 Where You Can Find More Information................42 Legal Matters......................................43 Experts............................................43 Financial Statements..............................F-1 |
16,390,707 Shares
GOLD RESOURCE CORPORATION
Common Stock
PROSPECTUS
October __, 2005
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 24. Indemnification of Directors and Officers
Included in the prospectus.
Item 25. Other Expenses of Issuance and Distribution.
We will pay all expenses in connection with the issuance and distribution of the securities being registered except selling discounts and commissions of the selling shareholders. The following table sets forth expenses and costs related to this offering (other than underwriting discounts and commissions) expected to be incurred with the issuance and distribution of the securities described in this registration statement. All amounts are estimate except for the Securities and Exchange Commission's registration fee:
SEC registration fee $ 1,930
Legal fees 30,000
Accounting fees 10,000
Blue Sky filing fees and expenses 500
Printing and engraving expenses 500
Transfer Agent fees and expenses 1,000
Miscellaneous 1,070
Total $45,000
=======
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Item 26. RECENT SALES OF UNREGISTERED SECURITIES.
During the preceding three years, the Company has issued an aggregate of 11,844,852 shares of its common stock and 1,500,000 options without registering those securities under the Securities Act of 1933, as amended. The following information describes the transactions in which those securities were issued.
During the period September 2001 through December 2002, the Company sold an aggregate of 1,312,000 shares of its common stock to 20 individuals or entities at a price of $.25 per share. No underwriting discounts or commissions were paid by the Company in any of these transactions, since the shares were offered through its officers and directors. The Company relied on the exemption from registration provided by Rule 504 of Regulation D of the Securities Act in connection with the offer and sale of these shares.
On November 6, 2002, the Company sold a total of 1,351,352 shares to RMB International (Dublin) Ltd. at a price of $224,673, or $.166 per share. RMB is a natural resource investment company. No underwriting discounts or commissions were paid in connection with this transaction. As in the foregoing offering, the Company relied on the exemption provided by Rule 504 of Regulation D of the Securities Act.
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Between June 2003 and February 2005, the Company sold an additional 1,583,000 shares of common stock to 26 individuals or entities at a price of $.25 per share, or a total of $395,750. Again, the Company relied on the exemption from registration provided by Rule 504 of Regulation D of the Securities Act.
On April 4, 2004, the Company issued 600,000 shares of its common stock to Jose Perez Reynoso for services rendered to the Company valued at $150,000, or $.25 per share. The Company relied on the exemption provided by Section 4(2) of the 1933 Act.
On September 1, 2004, the Company issued 1,200,000 shares of its common stock to Canyon Resources Corporation in connection with an exploration and development agreement executed with that entity. Canyon was afforded the opportunity to earn up to 50% of the Company's interest in the El Aguila project in exchange for funding $3.5 million of exploration and development costs. After funding a minimum of $500,000, Canyon was afforded the option to convert its investment into 1,200,000 shares of the Company's common stock, which option was exercised in September 2004. The Company relied on the exemption provided by Section 4(2) of the Securities Act in connection with this transaction.
On October 10, 2003, the Company granted a total of 800,000 options to acquire
its common stock to its two employees. On April 23, 2004, the Company issued an
additional 600,000 options to these employees and 100,000 options to a
consultant. On March 22, 2005, the consultant exercised 10,000 options at a
price of $.25 per share, or a total of $2,500. All of these options and the
shares were issued pursuant to the exemption from registration provided by
Section 4(2) of the Securities Act. All of the individuals were employees or
consultants of the Company and each of the individuals was afforded access to
the type of information that would have been included in a registration
statement. Certificates representing the securities issued in the transaction
were embossed with a restricted legend required by Rule 144.
On January 2, 2005, the Company issued 1,750,000 shares of its common stock to
its two employees and a financial consultant for total consideration valued at
$437,500, or $.25 per share. The Company relied on the exemption provided by
Section 4(2) of the Securities Act in offering these shares.
On February 21, 2005, the Company's Board of Directors declared a two-for-one split of all outstanding common stock.
On April 18, 2005, the Company issued 150,000 shares to Heemskirk Consolidated Limited, a natural resource investment fund, for a total of $75,000, or $.50 per share. On July 15, 2005 and August 2, 2005, the Company sold an additional 600,000 and 1,400,000 shares of its common stock, respectively, to Heemskirk, also at a price of $.50 per share. On August 5, 2005, the Company sold 400,000 shares to a single, accredited investor, for a price of $.50 per share. The Company relied on the exemption from registration provided by Regulation 506 of Regulation D in connection with these transactions.
On three separate occasions in 2005, the Company issued a finder's fee to Declan Costelloe for services rendered in connection with locating two investors in the Company's placements described in the immediately preceding paragraph. Those issuances equaled 10,500, 42,000 and 126,000 shares. In June 2005, the Company also issued 30,000 shares to David Wersebe for services rendered in connection with locating an investor. The Company relied on the exemption from registration provided by Section 4(2) of the Securities Act in connection with these transactions.
Finally, on June 3, 2005, the Company issued 1,280,000 shares of its common stock to U.S. Gold Corporation in exchange for services rendered in the amount of $320,000, or $.25 per share. Again, the Company relied on the exemption from registration provided by Section 4(2) of the Securities Act in connection with this transaction. The officers and directors of the Company were also officers of the directors of U.S. Gold, so U.S. Gold was provided the same type of information that would have been included in a registration statement.
In each transaction where the Company relied on Rule 504 or 506, it did not engage in any general solicitation or advertising. In each case, the subscriber was provided with a subscription agreement detailing the restrictions on transfer of the shares. Further, stop transfer restrictions were placed on each of the certificates issued in connection with the offering.
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In each case where the Company relied on the exemption provided by Section 4(2) of the Securities Act, it had a preexisting relationship with the investor. The Company also took steps to insure that the investor had available the same type of information that would be included in a registration statement. Finally, each of certificates representing shares issued pursuant to that exemption has been inscribed by the restrictive legend described in Rule 144.
Item 27. EXHIBITS
The following exhibits are filed with, or incorporated by reference in, this registration statement:
3.1 Articles of Incorporation of the Company as filed with the Colorado
Secretary of State on August 24, 1998.
3.1.1 Articles of Amendment to the Articles of Incorporation as filed with
the Colorado Secretary of State on September 16, 2005.
3.2 Bylaws of the Company dated August 28, 1998.
*4. Specimen Stock Certificate.
*5. Opinion on Legality (Included in Exhibit 23.2).
10.1 Exploitation and Exploration Agreement between the Company and Jose
Perez Reynoso dated October 14, 2002.
10.2 Non-Qualified Stock Option and Stock Grant Plan.
10.3 Form of Stock Option Agreement.
10.4 Lease Agreement dated September 2005.
10.5 Agreement dated July 28, 2003 between the Company and Canyon Resources
Corporation.
10.6 Agreement dated August 2, 2005 between the Company and Heemskirk
Consolidated Limited.
10.7 Agreement dated July 15, 2005 by and between the Company and
Heemskirk Consolidated Limited.
21. Subsidiaries of the Company.
23.1 Consent of Stark Winter Schenkein & Co., LLP.
*23.2 Consent of Dufford & Brown, P.C.
---------------
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* To be filed by amendment.
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Item 28. UNDERTAKINGS.
The undersigned registrant hereby undertakes that it will:
1. File, during any period in which it offers or sells securities, a post-effective amendment to this registration statement:
a. To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
b. To reflect in the prospectus any facts or events which, individually or together, represent a fundamental change in the information in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement.
c. Include any additional or changed material information on the plan of distribution.
2. For the purposes of determining liability under the Securities Act of 1933, treat each post-effective amendment as a new registration statement of the securities offered, and the offering of the securities at that time to be the initial bona fide offering.
3. To file a post effective amendment to remove from registration any of the securities that remain unsold at the end of the offering.
4. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question, whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form SB-2 and authorized this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Lakewood, State of Colorado, on October 27, 2005.
GOLD RESOURCE CORPORATION
(Registrant)
/s/ William W. Reid By: William W. Reid President and Chief Executive Officer |
In accordance with the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacity and on the dates stated.
/s/ William W. Reid ------------------------------------------- Date: October 27, 2005 William W. Reid Title: President, Chief Executive Officer and Chairman of the Board of Directors /s/ David C. Reid ------------------------------------------- Date: October 27, 2005 David C. Reid Title: Vice President and Member of the Board of Directors /s/ William F. Pass ------------------------------------------- Date: October 27, 2005 William F. Pass Title: Financial Consultant |
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EXHIBIT INDEX
The following Exhibits are filed or incorporated by reference as part of this registration statement on Form SB-2.
Item No. Description
-------- -----------
3.1 Articles of Incorporation of the Company as filed with the Colorado
Secretary of State on August 24, 1998.
3.1.1 Articles of Amendment to the Articles of Incorporation as filed with
the Colorado Secretary of State on September 16, 2005.
3.2 Bylaws of the Company dated August 28, 1998.
*4. Specimen Stock Certificate.
*5. Opinion on Legality (Included in Exhibit 23.2).
10.1 Exploitation and Exploration Agreement between the Company and Jose
Perez Reynoso dated October 14, 2002.
10.2 Non-Qualified Stock Option and Stock Grant Plan.
10.3 Form of Stock Option Agreement.
10.4 Lease Agreement dated September 2005.
10.5 Agreement dated July 28, 2003 between the Company and Canyon Resources
Corporation.
10.6 Agreement dated August 2, 2005 between the Company and Heemskirk
Consolidated Limited.
10.7 Agreement dated July 15, 2005 by and between the Company and
Heemskirk Consolidated Limited.
21. Subsidiaries of the Company.
23.1 Consent of Stark Winter Schenkein & Co., LLP.
*23.2 Consent of Dufford & Brown, P.C.
---------------
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* To be filed by amendment.
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Colorado Secretary of State
Date and Time: 09/16/2005
11:22 AM Entity
Id: 19981153919
Document processing fee
If document is filed on paper Document number: 20051350434
If document is filed electronically
Fees & forms/cover sheets are subject to change.
To file electronically, access instructions
for this form/cover sheet and other
information or print copies of filed
documents, visit www.sos.state.co.us and
select Business Center.
Paper documents must be typewritten or machine printed.
Articles of Amendment
filed pursuant toss.7-90-301, et seq. andss.7-110-106 of the Colorado Revised Statutes (C.R.S.)
1. Entity name:
2. New Entity name: (if applicable)
3. Use of Restricted Words (if any of |_| "bank" or "trust" or any
these terms are contained in an derivative thereof
entity name, true name of an entity, |_| "credit union" |_| "savings
trade name or trademark stated in this and loan"
document, mark the applicable box |_| "insurance", "casualty",
"mutual", or "surety"
|
4. Other amendments, if any, are attached.
5. If the amendment provides for an exchange, reclassification or cancellation of issued shares, the attachment states the provisions for implementing the amendment.
OR
If the corporation's period of duration as amended is perpetual, mark this box: [x]
Notice:
Causing this document to be delivered to the secretary of state for filing shall constitute the affirmation or acknowledgment of each individual causing such delivery, under penalties of perjury, that the document is the individual's act and deed, or that the individual in good faith believes the document is the act and deed of the person on whose behalf the individual is causing the document to be delivered for filing, taken in conformity with the requirements of part 3 of
article 90 of title 7, C.R.S., the constituent documents, and the organic statutes, and that the individual in good faith believes the facts stated in the document are true and the document complies with the requirements of that Part, the constituent documents, and the organic statutes.
This perjury notice applies to each individual who causes this document to be delivered to the secretary of state, whether or not such individual is named in the document as one who has caused it to be delivered.
8. Name(s) and address(es) of the individual(s) causing the document
to be delivered for filing: Reid David
-----------------------------------
(Last) (First) (Middle) (Suffix)
2201 Quitman Street
--------------------------------------
(Street name and number or Post Office
information)
Denver CO 80212
--------------------------------------
(City) (State) (Postal/Zip Code)
United States
------------------------ -------------------
(Province-if applicable) (Country if not US)
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(The document need not state the true name and address of more than one individual. However, i fyou wish to state the name and address of any additional individuals causing the document to be delivered for filing, mark this box 1:1 and include an attachment stating the name and address of such individuals.)
Disclaimer:
This form, and any related instructions, are not intended to provide legal, business or tax advice, and are offered as a public service without representation or warranty. While this form is believed to satisfy minimum legal requirements as of its revision date, compliance with applicable law, as the same may be amended from time to time, remains the responsibility of the user of this form. Questions should be addressed to the user's attorney.
Gold Resource Corporation
Articles of Amendment to Articles of Incorporation
Article IV. Capital Stock was amended effective April 1, 2005 by striking the words: "The aggregate number of shares of all classes of capital stock that this Corporation shall have authority to issue is 20,000,000 shares of $.001 par value common stock and 5,000,000 shares of $.001 par value preferred stock." And then inserting the words "The aggregate number of shares of all classes of capital stock that this Corporation shall have authority to issue is 60,000,000 shares of $.001 par value common stock and 5,000,000 shares of $.001 par value preferred stock."
(No further changes were made to Article IV by the amendment.)
By: David C. Reid
Its Vice President and Secretary
Mail to: Secretary of State
Corporations Section
1560 Broadway, Suite 200
Denver, CO 80202
(303) 894-2251
Fax (303) 894-2242
MUST BE TYPED FILING FEE:
$50.00
MUST SUBMIT TWO COPIES
Please include a typed ARTICLES OF INCORPORATION self-addressed envelope
I/We the undersigned natural person(s) of the age of eighteen years or more, acting as incorporator of a corporation under the Colorado Business Corporation Act, adopt the following Articles of Incorporation for such corporation:
ARTICLE I
The name of the corporation shall be Gold Resource Corporation. The period of duration of the Corporation shall be perpetual.
ARTICLE II
(a) Registered Office and Agent. The registered office of the Corporation is 5445 DTC Parkway, Suite 850, Englewood, CO 80111. The registered agent at such office is Herrick K. Lidstone, Jr. His signature following this paragraph evidences his consent to serve as registered agent for the Corporation.
/s/ Herrick K. Lidstone
------------------------------------------
Herrick K. Lidstone, Jr., Registered Agent
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Principle Office and Address.
David Reid
9070 East Jewell Circle Denver,
CO 80231
(b) Initial Board of Directors. The following persons constitute the initial board of directors of the Corporation:
William Reid 338 Clayton St., #1
Denver, CO 80206
David Reid 9070 East Jewell Circle
Denver, CO 80231
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ARTICLE III
The purpose for which this Corporation is organized is to transact any lawful business or businesses for which corporations may be incorporated pursuant to the Colorado Business Corporation Act. In furtherance of the foregoing purpose, this Corporation shall have and may exercise any and all of the powers now or hereafter conferred upon corporations incorporated pursuant to the Colorado Business Corporation Act.
ARTICLE IV
The aggregate number of shares of all classes of capital stock that this Corporation shall have authority to issue is 20,000,000 shares of $.001 par value common stock and 5,000,000 shares of $.001 par value preferred stock.
(a) Preferred Stock. The designations and the powers, preferences and rights, and the qualifications, limitations or restrictions of the Preferred Stock, the establishment of different series of Preferred Stock, and variations in the relative rights and preferences as between different series shall be established in accordance with the Colorado Business Corporation Act by the Board of Directors.
Except for such voting powers with respect to the election of directors or other matters as may be stated in the resolutions of the Board of Directors creating any series of Preferred Stock, the holders of any such series shall have no voting power whatsoever.
(b) Common Stock. The holders of Common Stock shall have and possess all rights as shareholders of the corporation, including such rights as may be granted elsewhere by these Articles of Incorporation, except as such rights may be limited by the preferences, privileges and voting powers, and the restrictions and limitations of the Preferred Stock.
Subject to preferential dividend rights, if any, of the holders of Preferred Stock, dividends upon the Common Stock may be declared by the Board of Directors and paid out of any funds legally available therefor at such times and in such amounts as the Board of Directors shall determine.
(c) General. The capital stock, after the amount of the subscription price has been paid in, shall not be subject to assessment to pay the debts of the corporation.
Any stock of the corporation may be issued for money, property, services rendered, labor done, cash advances for the corporation, or for any other assets of value in accordance with the action of the Board of Directors, whose judgment as to value received in return therefor shall be conclusive and said stock, when issued, shall be fully paid and non-assessable.
ARTICLE V
The Shareholders shall not be entitled to cumulative voting.
ARTICLE VI
No holder of any stock of the Corporation shall be entitled, as a matter of right, to purchase, subscribe for or otherwise acquire any new or additional shares of stock of the Corporation of any class, or any options or warrants to purchase, subscribe for or otherwise acquire any such new or additional shares, or any shares, bonds, notes, debentures or other securities convertible into or carrying options or warrants to purchase, subscribe for or otherwise acquire any such new or additional shares.
ARTICLE VII
This Corporation shall have the right to impose restrictions upon the transfer of any of its authorized shares or any interest therein. The Board of Directors is hereby authorized on behalf of this Corporation to exercise this Corporation's right to so impose such restrictions.
ARTICLE VIII
The number of Directors shall be fixed in accordance with the Bylaws.
ARTICLE IX
In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, alter or repeal the Bylaws of the Corporation.
ARTICLE X
Election of Directors need not be by written ballot unless the Bylaws of the Corporation shall so provide.
ARTICLE XI
The Corporation shall indemnify, to the fullest extent permitted by applicable law in effect from time to time, any person, and the estate and personal representative of any such person, against all liability and expense (including attorneys' fees) incurred by reason of the fact that he is or was a director or officer of the Corporation or, while serving as a director or officer of the Corporation, he is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee, fiduciary, or agent of, or in any similar managerial or fiduciary position of, another domestic or foreign corporation or other individual or entity or of an employee benefit plan. The Corporation shall also indemnify any person who is serving or has served the Corporation as director, officer, employee, fiduciary, or agent, and that person's estate and personal representative, to the extent and in the manner provided in any bylaw, resolution of the shareholders or directors, contract, or otherwise, so long as such provision is legally permissible. The foregoing right of indemnification shall not be exclusive of other rights to which he may be entitled under applicable state law.
ARTICLE XII
A director of the Corporation shall not be personally liable to the
Corporation or its Shareholders for monetary damages for breach of fiduciary
duty as a director; except that this provision shall not eliminate or limit the
liability of a director to the Corporation or its Shareholders for monetary
damages otherwise existing for (i) any breach of the director's duty of loyalty
to the Corporation to or its Shareholders; (ii) acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law;
(iii) acts specified in Section 7-108-403 of the Colorado Business Corporation
Act; or (iv) any transaction from which the director directly or indirectly
derived any improper personal benefit. If the Colorado Business Corporation Act
is hereafter amended to eliminate or limit further the liability of a director,
then, in addition to the elimination and limitation of liability provided by the
preceding sentence, the liability of each director shall be eliminated or
limited to the fullest extent permitted by the Colorado Business Corporation Act
as so amended. Any repeal or modification of this Article XIII by the
Shareholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation under this Article XIII, as in
effect immediately prior to the repeal or modification, with respect to any
liability that would have accrued, but for this Article XIII, prior to the
repeal or modification.
The undersigned incorporator does hereby confirm, under penalties of perjury, that the foregoing Articles of Incorporation of Gold Resource Corporation constitute the act and deed of the undersigned incorporator and the facts stated herein are true.
July 31, 1998 By: /s/ David Reid
------------------------
David Reid, incorporator
9070 E. Jewell Cir.
Denver, CO 80231
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BYLAWS
OF
GOLD RESOURCE CORPORATION
Article I
SHAREHOLDERS
1. ANNUAL SHAREHOLDERS' MEETING. The annual shareholders' meeting shall be held on the date and at the time and place fixed from time to time by the board of directors; provided, however, that the first annual meeting shall be held on a date that is within six months after the close of the first fiscal year of the Corporation, and each successive annual meeting shall be held on a date that is within the earlier of six months after the close of the last fiscal year or fifteen months after the last annual meeting.
2. SPECIAL SHAREHOLDERS' MEETING. A special shareholders' meeting for any purpose or purposes, may be called by the board of directors or the president. The Corporation shall also hold a special shareholders' meeting in the event it receives, in the manner specified in Section VII.3., one or more written demands for the meeting, stating the purpose or purposes for which it is to be held, signed and dated by the holders of shares representing not less than one- tenth of all of the votes entitled to be cast on any issue at the meeting. Special meetings shall be held at the principal office of the Corporation or at such other place as the board of directors or the president may determine.
3. RECORD DATE FOR DETERMINATION OF SHAREHOLDERS.
(a) In order to make a determination of shareholders (1) entitled to notice of or to vote at any shareholders' meeting or at any adjournment of a shareholders' meeting, (2) entitled to demand a special shareholders' meeting, (3) entitled to take any other action, (4) entitled to receive payment of a share dividend or a distribution, or (5) for any other purpose, the board of directors may fix a future date as the record date for such determination of shareholders. The record date may be fixed not more than seventy days before the date of the proposed action.
(b) Unless otherwise specified when the record date is fixed, the time of day for determination of shareholders shall be as of the Corporation's close of business on the record date.
(c) A determination of shareholders entitled to be given notice of or to vote at a shareholders' meeting is effective for any adjournment of the meeting unless the board of directors fixes a new record date, which the board shall do if the meeting is adjourned more than one hundred twenty days after the date fixed for the original meeting.
(d) If no record date is otherwise fixed, the record date for determining shareholders entitled to be given notice of and to vote at an annual or special shareholders' meeting is the date before the first notice is given to shareholders.
(e) The record date for determining shareholders entitled to take action without a meeting pursuant to Section 1.10 is the date a writing upon which the action is taken is first received by the Corporation.
4. VOTING LIST.
(a) After a record date is fixed for a shareholders'meeting, the secretary shall prepare a list of the names of all its shareholders who are entitled to be given notice of the meeting. The list shall be arranged by voting groups and within each voting group by class or series of shares, shall be alphabetical within each class or series, and shall show the address of, and the number of shares of each such class and series that are held by, each shareholder.
(b) The shareholders' list shall be available for inspection by any shareholder, beginning the earlier of ten days before the meeting for which the list was prepared or two business days after notice of the meeting is given and continuing through the meeting, and any adjournment thereof, at the Corporation's principal office or at a place identified in the notice of the meeting in the city where the meeting will be held.
(c) The secretary shall make the shareholders' list available at the meeting, and any shareholder or agent or attorney of a shareholder is entitled to inspect the list at any time during the meeting or any adjournment.
5. NOTICE TO SHAREHOLDERS.
(a) The secretary shall give notice to shareholders of the date, time, and place of each annual and special shareholders' meeting no fewer than ten nor more than sixty days before the date of the meeting; except that, if the articles of incorporation are to be amended to increase the number of authorized shares, at least thirty days r notice shall be given. Except as otherwise required by the Colorado Business Corporation Act, the secretary shall be required to give such notice only to shareholders entitled to vote at the meeting.
(b) Notice of an annual shareholders' meeting need not include a description of the purpose or purposes for which the meeting is called unless a purpose of the meeting is to consider an amendment to the articles of incorporation, a restatement of the articles of incorporation, a plan of merger or share exchange, disposition of substantially all of the property of the Corporation, consent by the Corporation to the disposition of property by another entity, or dissolution of the Corporation.
(c) Notice of a special shareholders' meeting shall include a description of the purpose or purposes for which the meeting is called.
(d) Notice of a shareholders' meeting shall be in writing and shall BE given
(1) by deposit in the United States mail, properly addressed to the shareholder's address shown in the Corporation's current record of shareholders, first class postage prepaid, and, if so given, shall be effective when mailed; or
(2) by telegraph, teletype, electronically transmitted facsimile, electronic mail, mail, or private carrier or by personal delivery to the shareholder, and, if so given, shall be effective when actUally received by the shareholder.
(e) If an annual or special shareholders' meeting is adjourned to a different date, time, or place, notice need not be given of the new date, time, or place if the new date, time, or place is announced at the meeting before adjournment; provided, however, that, if a new record date for the adjourned meeting is fixed pursuant to Section I.3.(c), notice of the adjourned meeting shall be given to persons who are shareholders as of the new record date.
(f) If three successive notices are given by the Corporation, whether with respect to a shareholders' meeting or otherwise, to a shareholder and are returned as undeliverable, no further notices to such shareholder shall be necessary until another address for the shareholder is made known to the Corporation.
6. QUORUM. Shares entitled to vote as a separate voting group may take action on a matter at a meeting only if a quorum of those shares exists with respect to that matter. One-third of the votes entitled to be cast on the matter by the voting group shall constitute a quorum of that voting group for action on the matter. If a quorum does not exist with respect to any voting group, the president or any shareholder or proxy that is present at the meeting, whether or not a member of that voting group, may adjourn the meeting to a different date, time, or place, and (subject to the next sentence) notice need not be given of the new date, time, or place if the new date, time, or place is announced at the meeting before adjournment. Ifa new record date for the adjourned meeting is or must be fixed pursuant to Section I.3.(c), notice of the adjourned meeting shall be given pursuant to Section I.5. to persons who are shareholders as of the new record date. At any adjourned meeting at which a quorum exists, any matter may be acted upon that could have been acted upon at the meeting originally called; provided, however, that, if new notice is given of the adjourned meeting, then such notice shall state the purpose or purposes of the adjourned meeting sufficiently to permit action on such matters. Once a share is represented for any purpose at a meeting, including the purpose of determining that a quorum exists, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or shall be set. for that adjourned meeting.
7. VOTING ENTITLEMENT OF SHARES. Except as stated in the articles of incorporation, each outstanding share, regardless of class, is entitled to one vote, and each fractional share is entitled to a corresponding fractional yote, on each matter voted on at a shareholders' meeting.
8. PROXIES; ACCEPTANCE OF VOTES AND CONSENTS.
(a) A shareholder may vote either in person or by proxy.
(b) An appointment of a proxy is not effective against the Corporation until the appointment is received by the Corporation. An appointment is valid for eleven months unless a different period is expressly provided in the appointment form.
(c) The Corporation may accept or reject any appointment of a proxy, revocation of appointment of a proxy, vote, consent, waiver, or other writing purportedly signed by or for a shareholder, if such acceptance or rejection is in accordance with the provisions of Sections 7-107-203 and 7-107-205 of the Colorado Business Corporation Act.
9. WAIVER OF NOTICE.
(a) A shareholder may waive any notice required by the Colorado Business Corporation Act, the articles of incorporation or these bylaws, whether before or after the date or time stated in the notice as the date or time when any action will occur or has occurred. The waiver shall be in writing, be signed by the shareholder entitled to the notice, and be delivered to the Corporation for inclusion in the minutes or filing with the corporate records, but such delivery and filing shall not be conditions of the effectiveness of the waiver. (b) A shareholder's attendance at a meeting waives objection to lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting because of lack of notice or defective notice, and waives objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented.
10. ACTION BY SHAREHOLDERS WITHOUT A MEETING. Any action required or permitted to be taken at a shareholders' meeting may be taken without a meeting if all of the shareholders entitled to vote thereon consent to such action in writing. Action taken pursuant to this section shall be effective when the Corporation has received writings that describe and consent to the action, signed by all of the shareholders entitled to vote thereon. Action taken pursuant to this section shall be effective as of the date the last writing necessary to effect the action is received by the Corporation, unless all of the writings necessary to effect the action specify another date, which may be before or after the date the writings are received by the Corporation. Such action shall have the same effect as action taken at a meeting of shareholders and may be described as such in any document. Any shareholder who has signed a writing describing and consenting to action taken pursuant to this section may revoke such consent by a writing signed by the shareholder describing the action and stating that the shareholder's prior consent thereto is revoked, if such writing is received by the Corporation before the effectiveness of the action.
11. MEETINGS BY TELECOMMUNICATIONS. To the extent provided by resolution of the Board of Directors or in the notice of the meeting, any or all of the shareholders may participate in an annual or special shareholders I meeting by, or the meeting may be conducted through the use of, any means of communication by which all persons participating in the meeting may hear each other during the meeting. A shareholder participating in a meeting by this means is deemed to be present in person at the meeting.
Article II
DIRECTORS
1. AUTHORITY OF THE BOARD OF DIRECTORS. The corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be managed under the direction of, a board of directors.
2. NUMBER. Subject to the provisions of the Articles of Incorporation, the number of directors shall be fixed by resolution of the board of directors from time to time and may be increased or decreased by resolution adopted by the board of directors from time to time, but no decrease in the number of directors shall have the effect of shortening the term of any incumbent director.
3. QUALIFICATION. Directors shall benaroral persons at least eighteen years old but need not be residents of the State of Colorado or shareholders of the Corporation.
4. ELECTION. The Board of directors shall be elected at the annual meeting of shareholders or at a special meeting called for that purpose.
5. TERM. Each director shall be elected to hold office until the next annual meeting of shareholders and until the director's successor is elected and qualified.
6. RESIGNATION. A director may resign at any time by giving written notice of his or her resignation to any other director or (if the director is not also the secretary) to the secretary. The resignation shall be effective when it is received by the other director or secretary, as the case may be, unless the notice of resignation specifies a later effective date. Acceptance of such resignation shall not be necessary to make it effective unless the notice so provides.
7. REMOVAL. Any director may be removed by the shareholders of the voting group that elected the director, with or without cause at a meeting called for that purpose. The notice of the meeting shall state that the purpose, or one of the purposes, of the meeting is removal of the director. A director may be removed only if the number of votes cast in favor of removal exceeds the number of votes cast against removal.
8. VACANCIES.
(a) If a vacancy occurs on the board of directors, including a vacancy resulting from an increase in the number of directors:
(1) The shareholders may fill the vacancy at the next annual meeting or at a special meeting called for that purpose; or
(2) The board of directors may fill the vacancy; or
(3) If the directors remaining in office constitute fewer than a quorum of the board, they may fill the vacancy by the affIrmative vote of a majority of all the directors remaining in office.
(b) Notwithstanding Section II.8.(a), if the vacant office was held by a director elected by a voting group of shareholders, then, if one or more of the remaining directors were elected by the same voting group, only such directors are entitled to vote to fill the vacancy if it is filled by directors, and they may do so by the affIrmative vote of a majority of such directors remaining in office; and only the holders of shares of that voting group are entitled to vote to fill the vacancy if it is filled by the shareholders.
(c) A vacancy that will occur at a specific later date, by reason of a resignation that will become effective at a later date under Section II.6. or otherwise, may be filled before the vacancy occurs, but the new director may not take office until the vacancy occurs.
9. MEETINGS. The board of directors may hold regular or special meetings in or out of Colorado. A regular meeting shall be held in the principal office of the Corporation on such date or dates, and at such time, as may be established by resolution of the board of directors. If the board shall establish a date and time for a regular meeting of the board, such meeting may be held without notice of the date, time, place, or purpose of the meeting The board of directors may, by resolution, establish other dates, times and places for additional regular meetings, which may thereafter be held without further notice. Special meetings may be called by the president or by any two directors and shall be held at the principal office of the Corporation unless another place is consented to by every director. At any time when the board consists of a single director, that director may act at any time, date, or place without notice.
10. NOTICE OF SPECIAL MEETING. Notice ofa special meeting shall be given to every director at least twenty four hours before the time of the meeting, stating the date, time, and place of the meeting. The notice need not describe the purpose of the meeting. Notice may be given orally to the director, personally or by telephone or other wire or wireless communication. Notice may also be given in writing by telegraph, teletype, electronically transmitted facsimile, electronic mail, mail, or private carrier. Notice shall be effective at the earliest of the time it is received; five days after it is deposited in the United States mail, properly addressed to the last address for the director shown on the records of the Corporation, fIrst class postage prepaid; or the date shown on the return receipt if mailed by registered or certified mail, return receipt requested, postage prepaid, in the United States mail and if the return receipt is signed by the director to which the notice is addressed.
11. QUORUM. Except as provided in Section II.8., a majority of the number of directors fixed in accordance with these Bylaws shall constitute a quorum for the transaction of business at all meetings of the board of directors. The act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, except as otherwise specifically required by law.
12. WAIVER OF NOTICE.
(a) A director may waive any notice of a meeting before or after the
time and date of the meeting stated in the notice. Except as provided by
Section II.12.(b), the waiver shall be in writing and shall be signed by
the director. Such waiver shall be delivered to the secretary for filing
with the corporate records, but such delivery and filing shall not be
conditions of the effectiveness of the waiver.
(b) A director's attendance at or participation in a meeting waives any required notice to him or her of the meeting unless, at the beginning of the meeting or promptly upon his or her later arrival, the director objects to holding the meeting or transacting business at the meeting because of lack of notice or defective notice and does not thereafter vote for or assent to action taken at the meeting.
13. ATTENDANCE BY TELEPHONE. One or more directors may participate in a regular or special meeting by, or conduct the meeting through the use of, any means of communication by which all directors participating may hear each other during the meeting. A director participating in a meeting by this means is deemed to be present in person at the meeting.
14. DEEMED ASSENT TO ACTION. A director who is present at a meeting of the board of directors when corporate action is taken shall be deemed to have assented to all action taken at the meeting unless:
(1) The director objects at the beginning of the meeting, or promptly upon his or her arrival, to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to any action taken at the meeting;
(2) The director contemporaneously requests that his or her dissent or abstention as to any specific action taken be entered in the minutes of the meeting; or
(3) The director causes written notice of his or her dissent or abstention as to any specific action to be received by the presiding officer of the meeting before adjourrunent of the meeting or by the secretary (or, if the director is the secretary, by another director) promptly after adjournment of the meeting.
The right of dissent or abstention pursuant to this Section II.14. as to a specific action is not available to a director who votes in favor of the action taken.
15. ACTION BY DIRECTORS WITHOUT A MEETING. Any action required or permitted by law to be taken at a board of directors' meeting may be taken without a meeting if all members of the board consent to such action in writing. Action shall be deemed to have been so taken by the board at the time the last director signs a writing describing the action taken, unless, before such time, any director has revoked his or her consent by a writing signed by the director and received by the secretary or any other person authorized by the bylaws or the board of directors to receive such a revocation. Such action shall be effective at the time and date it is so taken unless the directors establish a different effective time or date. Such action has the same effect as action taken at a meeting of directors and may be described as such in any document.
16. NOMINATIONS OF DIRECTORS. The Board of Directors may nominate persons to stand for election to the board of directors at any time prior to a meeting of shareholders at which directors are to be elected. Any shareholder may nominate a person to stand for election to the Board of Directors provided such shareholder provides written notification of the intention to nominate such persons at the next shareholder meeting not less than 90 days in advance of such meeting, and provided further such notice is accompanied by information regarding the proposed nominee meeting the requirements of part III of SEC Regulation SB or Regulation SK (as applicable to the Corporation) and information regarding all direct and indirect business or personal relationships between the shareholder and the proposed nominee.
Article III
COMMITTEES OF THE BOARD OF DIRECTORS
1. COMMITTEES OF THE BOARD OF DIRECTORS.
(a) Subject to the provisions of section 7-108-206, the board of directors may create one or more committees and appoint one or more members of the board of directors to serve on them. The creation of a committee and appointment of members to it shall require the approval of a majority of all the directors in office when the action is taken, whether or not those directors constitute a quorum of the board.
(b) The provisions of these bylaws governing meetings, action without meeting, notice, waiver of notice, and quorum and voting requirements of the board of directors apply to committees and their members as well.
(c) To the extent specified by resolution adopted from time to time by a majority of all the directors in office when the resolution is adopted, whether or not those directors constitute a quorum of the board, each committee shall exercise the authority of the board of directors with respect to the corporate powers and the management of the business and affairs of the Corporation; except that a committee shall not:
(1) Authorize distributions;
(2) Approve or propose to shareholders action that the Colorado Business Corporation Act requires to be approved by shareholders;
(3) Fill vacancies on the board of directors or on any of its committees;
(4) Amend the articles of incorporation pursuant to section 7-110-102 of the Colorado Business Corporation Act;
(5) Adopt, amend, or repeal bylaws;
(6) Approve a plan of merger not requiring shareholder approval;
(7) Authorize or approve reacquisition of shares, except according to a formula or method prescribed by the board of directors; or
(8) Authorize or approve the issuance or sale of shares, or a contract for the sale of shares, or detemIine the designation and relative rights, preferences, and limitations of a class or series of shares; except that the board of directors may authorize a conunittee or an officer to do so within limits specifically prescribed by the board of directors.
(d) The creation of, delegation of authority to, or action by, a committee does not alone constitute compliance by a director with applicable standards of conduct.
Article IV
OFFICERS
1. GENERAL. The Corporation shall have as officers a president, a secretary, and a treasurer, who shall be appointed by the board of directors. The board of directors may appoint as additional officers a chairman and other officers of the board. The board of directors, the president, and such other subordinate officers as the board of directors may authorize from time to time, acting singly, may appoint as additional officers one or more vice presidents, assistant secretaries, assistant treasurers, and such other subordinate officers as the board of directors, the president, or such other appointing officers deem necessary or appropriate. The officers of the Corporation shall hold their offices for such terms and shall exercise such authority and perform such duties as shall be determined from time to time by these Bylaws, the board of directors, or (with respect to officers whom are appointed by the president or other appointing officers) the persons appointing them; provided, however, that the board of directors may change the term of offices and the authority of any officer appointed by the president or other appointing officers. Any two or more offices may be held by the same person. The officers of the Corporation shall be natural persons at least eighteen years old.
2. TERM. Each officer shall hold office from the time of appointment until the time of removal or resignation pursuant to Section IV.3. or until the officer's death.
3. REMOVAL AND RESIGNATION. Any officer appointed by the board of directors may be removed at any time by the board of directors. Any officer appointed by the president or other appointing officer may be removed at any time by the board of directors or by the person appointing the officer. Any officer may resign at any time by giving written notice of resignation to any director (or to any director other than the resigning officer if the officer is also a director), to the president, to the secretary, or to the officer who appointed the officer. Acceptance of such resignation shall not be necessary to make it effective, unless the notice so provides.
4. PRESIDENT. The president shall preside at all meetings of shareholders, and the president shall also preside at all meetings of the board of directors unless the board of directors has appointed a chairman, vice chairman, or other officer of the board and has authorized such person to preside at meetings of the board of directors instead of the president. Subject to the direction and control of the board of directors, the president shall be the chief executive officer of the Corporation and as such shall have general and active management of the business of the Corporation and shall see that all orders and resolutions of the board of directors are carried into effect. The president may negotiate, enter into, and execute contracts, deeds, and other instruments on behalf of the Corporation as are necessary and appropriate to the conduct to the business and affairs of the Corporation or as are approved by the board of directors. The president shall have such additional authority and duties as are appropriate and customary for the office of president and chief executive officer, except as the same may be expanded or limited by the board of directors from time to time.
5. VICE PRESIDENT. The vice president, if any, or, if there are more than one, the vice presidents in the order determined by the board of directors or the president (or. if no such determination is made, in the order of their appointment), shall be the officer or officers next in seniority after the president. Each vice president shall have such authority and duties as are prescribed by the board of directors or president. Upon the death, absence, or disability of the president, the vice president, if any, or, if there are more than one, the vice presidents in the order determined by the board of directors or the president, shall have the authority and duties of the president.
6. SECRETARY. The secretary shall be responsible for the preparation and maintenance of minutes of the meetings of the board of directors and of the shareholders and of the other records and information required to be kept by the Corporation under section 7-116-101 of the Colorado Business Corporation Act and for authenticating records of the corporation. The secretary shall also give, or cause to be given, notice of all meetings of the shareholders and special meetings of the board of directors, keep the minutes of such meetings, have charge of the corporate seal, if any, and have authority to affix the corporate seal to any instrument requiring it (and, when so affixed, it may be attested by the secretary's signature), be responsible for the maintenance of all other corporate records and files and for the preparation and filing of reports to governmental agencies (other than tax returns), and have such other authority and duties as are appropriate and customary for the office of secretary, except as the same may be expanded or limited by the board of directors from time to time.
7. ASSISTANT SECRETARY. The assistant secretary, if any, or, if there are more than one, the assistant secretaries in the order determined by the board of directors or the secretary (or, if no such determination is made, in the order of their appointment) shall, under the supervision of the secretary, perform such duties and have such authority as may be prescribed from time to time by the board of directors or the secretary. Upon the death, absence, or disability of the secretary, the assistant secretary, if any, or, if there are more than one, the assistant secretaries in the order designated by the board of directors or the secretary (or, if no such determination is made, in the order of their appointment), shall have the authority and duties of the secretary.
8. TREASURER. The treasurer shall have control of the funds and the care and custody of all stocks, bonds, and other securities owned by the Corporation, and shall be responsible for the preparation and filing of tax returns. The treasurer shall receive all moneys paid to the Corporation and, subject to any limits imposed by the board of directors, shall have authority to give receipts and vouchers, to sign and endorse checks and warrants in the Corporation's name and on the Corporation's behalf, and give full discharge for the same. The treasurer shall also have charge of disbursement of funds of the Corporation, shall keep full and accurate records of the receipts and disbursements, and shall deposit all moneys and other valuable effects in the na.I11e and to the credit of the Corporation in such depositories as shall be designated by the board of directors. The treasurer shall have such additional authority and duties as are appropriate' and customary for the office of treasurer, except as the same may be expanded or limited by the board of directors from time to time.
9. ASSISTANT TREASURER. The assistant treasurer, if any, or, if there are more than one, the assistant treasurers in the order determined by the board of directors or the treasurer (or, if no such determination is made, in the order of their appointment) shall, under the supervision of the treasurer, have such authority and duties as may be prescribed from time to time by the board of directors or the treasurer. Upon the death, absence, or disability of the treasurer, the assistant treasurer, if any, or if there are more than one, the assistant treasurers in the order determined by the board of directors or the treasurer (or, if no such determination is made, in the order of their appointment), shall have the authority and duties of the treasurer.
10. COMPENSATION. Officers shall receive such compensation for their services as may be authorized or ratified by the board of directors. Election or appointment of an officer shall not of itself create a contractual right to compensation for services performed as such officer.
Article V
INDEMNIFICATION
1. DEFINITIONS. As used in this article:
(a) "Corporation" includes any domestic or foreign entity that is a predecessor of the Corporation by reason of a merger or other transaction in which the predecessor's existence ceased upon consummation of the transaction.
(b) "Director" means an individual who is or was a director of the Corporation or an individual who, while a director of the Corporation, is or was serving at the Corporation's request as a director, officer, partner, trustee, employee, fiduciary, or agent of another domestic or foreign corporation or other person or of an employee benefit plan. A director is considered to be serving an employee benefit plan at the Corporation's request if his or her duties to the Corporation also impose duties on, or otherwise involve services by, the director to the plan or to participants in or beneficiaries of the plan. "Director" includes, unless the context requires otherwise, the estate or personal representative of a director.
(c) "Expenses" includes counsel fees.
(d) "Liability" means the obligation incurred with respect to a proceeding to pay a judgment, settlement, penalty, fine, including an excise tax assessed with respect to an employee benefit plan, or reasonable expenses.
(e) "Official capacity)! means, when used with respect to a director, the office of director in the Corporation and, when used with respect to a person other than a director as contemplated in Section V.2.(a), the office in the Corporation held by the officer or the employment, fiduciary, or agency relationship undertaken by the employee, fiduciary, or agent on behalf of the Corporation. "Official capacity" does not include service for any other domestic or foreign corporation or other person or employee benefit plan.
(f) "Party" includes a person who was, is, or is threatened to be made a named defendant or respondent in a proceeding.
(g) "Proceeding" means any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative and whether formal or informal.
2. AUTHORITY TO INDEMNIFY DIRECTORS.
(a) Except as provided in Section V.2.(d), the Corporation shall indemnify a person made a party to a proceeding because the person is or was a director against liability incurred in the proceeding if:
(1) The person conducted himself or herself in good faith; and
(2) The person reasonably believed:
(A) In the case of conduct in an official capacity with the Corporation, that his or her conduct was in the Corporation's best interests; and
(B) In all other cases, that his or her conduct was at least not opposed to the Corporation's best interests; and
(3) In the case of any criminal proceeding, the person had no reasonable cause to believe his or her conduct was unlawful.
(b) A director's conduct with respect to an employee benefit plan for a purpose the director reasonably believed to be in the interests of the participants in or beneficiaries of the plan is conduct that satisfies the requirement of Section V.2.(a)(2)(B). A director's conduct with respect to an employee benefit plan for a purpose that the director did not reasonably believe to be in the interests of the participants in or beneficiaries of the plan shall be deemed not to satisfy the requirements of Section V.2.(a)(1).
(c) The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent is not, of itself, determinative that the director did not meet the standard of conduct described in this Section V.2.
(d) The Corporation may not indemnify a director under this Section V.2.
(1) connection with a proceeding by or in the right of the Corporation in which the director was adjudged liable to the Corporation; or
(2) In connection with any other proceeding charging that the director derived an improper personal benefit, whether or not involving action in an official capacity, in which proceeding the director was adjudged liable on the basis that he or she derived an improper personal benefit.
(e) Indemnification permitted under this Section V.2 in connection with a proceeding by or in the right of the Corporation is limited to reasonable expenses incurred in connection with the proceeding.
3. MANDATORY INDEMNIF1CATION OF DIRECTORS. The Corporation shall indemnify a person who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the person was a party because the person is or was a director, against reasonable expenses incurred by him or her in connection with the proceeding.
4. ADVANCE OF EXPENSES TO DIRECTORS.
(a) The Corporation may pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding in advance of final disposition of the proceeding if:
(1) The director furnishes to the Corporation a written affirmation of the director's good faith belief that he or she has met the standard of conduct described in Section V.2.
(2) The director furnishes to the Corporation a written undertaking, executed personally or on the director's behalf, to repay the advance if it is ultimately determined that he or she did not meet the standard of conduct; and
(3) A determination is made that the facts then known to those making the determination would not preclude indemnification under this article.
(b) The undertaking required by Section V.4.(a)(2) shall be an unlimited general obligation of the director but need not be secured and may be accepted without reference to financial ability to make repayment.
(c) Determinations and authorizations of payments under this Section V.4 shall be made in the manner specified in Section V.6.
5. COURT-ORDERED INDEMNIFICATION OF DIRECTORS. A director who is or was a party to a proceeding may apply for indemnification to the court conducting the proceeding or to another court of competent jurisdiction. On receipt of an application, the court, after giving any notice the court considers necessary, may order indemnification in the following manner:
(1) If it determines that the director is entitled to mandatory indemnification under Section V.3., the court shall order indemnification, in which case the coun shall also order the Corporation to pay the director's reasonable expenses incurred to obtain court-ordered indemnification.
(2) If it determines that the director is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, whether or not the director met the standard of conduct set forth in Section V.2.(a) or was adjudged liable in the circumstances described in Section V.2.(d), the court may order such indemnification as the court deems proper; except that the indemnification with respect to any proceeding in which liability shall have been adjudged in the circumstances described in Section V.2.(d) is limited to reasonable expenses incurred in connection with the proceeding and reasonable expenses incurred to obtain court-ordered indemnification.
6. DETERMINATION AND AUTHORIZATION OF INDEMNIFICATION OF DIRECTORS.
(a) The Corporation may not indemnify a director under Section V.2 unless authorized in the specific case after a determination has been made that indemnification of the director is permissible in the circumstances because the director has met the standard of conduct set forth in Section V.2. The Corporation shall not advance expenses to a director under Section V.4 unless authorized in the specific case after the written affirmation and undertaking required by Section V.4(a)(1) and V.4.(a)(2) are received and the determination required by Section V.4.(a)(3) has been made.
(b) The determinations required by Section V.6.(a) shall be made:
(1) By the board of directors by a majority vote of those present at a meeting at which a quorum is present, and only those directors not parties to the proceeding shall be counted in satisfying the quorum; or
(2) If a quorum cannot be obtained, by a majority vote of a committee of the board of directors designated by the board of directors, which committee shall consist of two or more directors not parties to the proceeding; except that directors who are parties to the proceeding may participate in the designation of directors for the committee.
(c) If a quorum cannot be obtained as contemplated in Section V.6.(b)(1), and a committee cannot be established under Section V.6.(b)(2) if a quorum is obtained or a committee is designated, if a majority of the directors constituting such quorum or such committee so directs, the determination required to be made by Section V.6.(a) shall be made:
(1) By independent legal counsel selected by a vote of the board of directors or the committee in the manner specified in Section V.6.(b)(1) or V.6.(b)(2), or, if a quorum of the full board cannot be obtained and a committee cannot be established, by independent legal counsel selected by a majority vote of the full board of directors; or
(2) By the shareholders.
(d) Authorization of indemnification and advance of expenses shall be made in the same manner as the determination that indemnification or advance of expenses is permissible; except that, if the determination that indemnification or advance of expenses is permissible is made by independent legal counsel, authorization of indemnification and advance of expenses shall be made by the body that selected such counsel.
7. INDEMNIFICATION OF OFFICERS, EMPLOYEES, FIDUCIARIES, AND AGENTS.
(a) An officer is entitled to mandatory indemnification under Section
V .3. and is entitled to apply for court-ordered indemnification under
Section V.5., in each case to the same extent as a director;
(b) The Corporation may indemnify and advance expenses to an officer, employee, fiduciary, or agent of the Corporation to the same extent as to a director; and
(c) The Corporation may also indemnify and advance expenses to an officer, employee, fiduciary, or agent who is not a director to a greater extent than is provided in these bylaws, if not inconsistent with public policy, and if provided for by general or specific action of its board of directors or shareholders or by contract.
8. INSURANCE. The Corporation may purchase and maintain insurance on behalf of a person who is or was a director, officer, employee, fiduciary, or agent of the Corporation, or who, while a director, officer, employee, fiduciary, or agent of the Corporation, is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee, fiduciary, or agent of another domestic or foreign corporation or other person or of an employee benefit plan, against liability asserted against or incurred by the person in that capacity or arising from his or her status as a director, officer, employee, fiduciary, or agent, whether or not the Corporation would have power to indemnify the person against the same liability under Section V.2., V.3., or V.7. Any such insurance may be procured from any insurance company designated by the board of directors, whether such insurance company is formed under the laws of this state or any other jurisdiction of the United States or elsewhere, including any insurance company in which the Corporation has an equity or any other interest through stock ownership or otherwise.
9. NOTICE TO SHAREHOLDERS OF INDEMNIFICATION OF DIRECTOR. If the Corporation indemnifies or advances expenses to a director under this article in connection with a proceeding by or in the right of the Corporation, the Corporation shall give written notice of the indemnification or advance to the shareholders with or before the notice of the next shareholders' meeting. If the next shareholder action is taken without a meeting at the instigation of the board of directors, such notice shall be given to the shareholders at or before the time the first shareholder signs a writing consenting to such action.
Article VI
SHARES
1. CERTIFICATES. Cenificates representing shares of the capital stock of the Corporation shall be in such form as is approved by the board of directors and shall be signed by the chairman or vice chairman of the board of directors (if any), or the president or any vice president, and by the secretary or an assistant secretary or the treasurer or an assistant treasurer. All certificates shall be consecutively numbered, and the names of the owners, the number of shares, and the date of issue shall be entered on the books of the Corporation. Each certificate representing shares shall state upon its face
(a) That the Corporation is organized under the laws of the State of Colorado;
(b) The name of the person to whom issued;
(c) The number and class of the shares and the designation of the series, if any, that the cenificate represents;
(d) The par value, if any, of each share represented by the certificate;
(e) A summary, on the front or the back, of the designations, preferences, limitations, and relative rights applicable to each class, the variations in preferences, limitations, and rights determined for each series, and the authority of the board of directors to determine variations
for future classes or series. A conspicuous statement, on the front or the back, that the Corporation will furnish to the shareholder, on request in writing and without charge, information concerning the designations, preferences, limitations, and relative rights applicable to each class, the variations in preferences, limitations, and rights determined for each series, and the authority of the board of directors to determine variations for future classes or series; and
(f) Any restrictions imposed by the Corporation upon the transfer of the shares represented by the certificate.
2. FACSIMILE SIGNATURES. Where a certificate is signed
(a) By a transfer agent other than the Corporation or its employee, or
(b) By a registrar other than the Corporation or its employee, any or
all of the officers' signatures on the certificate required by Section
VI.1. may be facsimile. If any officer, transfer agent or registrar who has
signed, or whose facsimile signature or signatures have been placed upon,
any certificate, shall cease to be such officer, transfer agent, or
registrar, whether because of death, resignation, or otherwise, before the
certificate is issued by the Corporation, it may nevertheless be issued by
the Corporation with the same effect as if he or she were such officer,
transfer agent or registrar at the date of issue.
3. TRANSFERS OF SHARES. Transfers of shares shall be made on the books of the Corporation only upon presentation of the certificate or certificates representing such shares properly endorsed by the person or persons appearing upon the face of such certificate to be the owner, or accompanied by a proper transfer or assignment separate from the certificate, except as may otherwise be expressly provided by the statutes of the State of Colorado or by order of a court of competent jurisdiction. The officers or transfer agents of the Corporation may, in their discretion, require a signature guaranty before making any transfer. The Corporation shall be entitled to treat the person in whose name any shares are registered on its books as the owner of those shares for all purposes and shall not be bound to recognize any equitable or other claim or interest in the shares on the part of any other person, whether or not the Corporation shall have notice of such claim or interest.
4. SHARES HELD FOR ACCOUNT OF ANOTHER. The board of directors may adopt by resolution a procedure whereby a shareholder of the Corporation may certify in writing to the Corporation that all or a portion of the shares registered in the name of such shareholder are held for the account of a specified person or persons. The resolution shall set forth
(a) The classification of shareholders who may certify;
(b) The purpose or purposes for which the certification may be made;
(c) The form of certification and infonnation to be contained herein;
(d) If the certification is with respect to a record date or closing of the stock transfer books, the time after the record date or the closing of the stock transfer books within which the certification must be received by the Corporation; and
(e) Such other provisions with respect to the procedure as are deemed necessary or desirable. Upon receipt by the Corporation of a certification complying with the procedure, the persons specified in the certification shall be deemed, for the purpose or purposes set forth in the certification, to be the holders of record of the number of shares specified in place of the shareholder making the certification.
Article VII
MISCELLANEOUS
1. CORPORATE SEAL. The board of directors may adopt a seal, circular in form and bearing the name of the Corporation and the words "SEAL" and "COLORADO," which, when adopted, shall constitute the seal of the Corporation. The seal may be used by causing it or a facsimile of it to be impressed, affixed, manually reproduced, or rubber stamped with indelible ink. Even if the Corporation has adopted a corporate seal, properly authorized actions of the Corporation are effective whether or not any writing evidencing such action is sealed.
2. FISCAL YEAR. The board of directors may, by resolution, adopt a fiscal year for the Corporation.
3. RECEIPT OF NOTICES BY THE CORPORATION. Notices, shareholder writings consenting to action, and other documents or writings shall be deemed to have been received by the Corporation when they are received
(a) At the registered office of the Corporation in the State of Colorado;
(b) At the principal office of the Corporation (as that office is designated in the most recent document fIled by the Corporation with the Secretary of State for the State of Colorado designating a principal office) addressed to the attention of the secretary of the Corporation;
(c) By the secretary of the corporation wherever the secretary may be found; or
(d) By any other person authorized from time to time by the board of directors, the president, or the secretary to receive such writings, wherever such person is found.
4. FACSIMILE SIGNATURE. Where, under these Bylaws or under the Colorado Business Corporation Act, as amended, a signature of a director, officer or shareholder of the Corporation is required, such signature may be presented either in original fonn or by a facsimile copy thereof, to the extent permitted by law.
5. AMENDMENT OF BYLAWS. be amended, supplemented, or repealed by the board of directors.
The undersigned directors have adopted the foregoing bylaws as the initial Bylaws of Gold Resource Corporation, effective August 28, 1998.
EXPLORATION AND EXPLOITATION AGREEMENT EXECUTED ON THE ONE PART BY JOSE PEREZ REYNOSO (HEREINAFTER CALLED "THE CONCESSIONAIRE") AND, ON THE OTHER PART BY DON DAVID GOLD, S. A. DE C. V. (HEREINAFTER CALLED "THE COMPANY"), REPRESENTED BY MR. VICTOR GARCIA JIMENEZ, IN ACCORDANCE WITH FOLLOWING STATEMENTS AND CLAUSES
STATEMENTS
I. THE CONCESSIONAIRE states:
a) To be Mexican citizen, of legal age, single and to be legally qualified to be owner of mining concessions and to execute this agreement;
b) That he is the legal owner of the rights derived from the following mining concessions existing over the following lots ("THE LOTS"):
NAME OF THE LOT TITLE NO. HS. TYPE OF CONCESSION --------------- --------- --- ------------------ LA TEHIJANA 210029 925 Exploration EL AGUILA 206772 899.6 Exploration EL AIRE 158272 72 Exploitation |
THE LOTS are located in the Municipality of San Pedro Totolapam, State of Oaxaca, within the circumscription of the Mining Agency of Oaxaca, Oaxaca.
d) That as owner of the rights derived from the mining concessions existing over THE LOTS, up to date, he have fulfilled with all the obligations imposed upon him by the Mining Law, its Regulations and all other applicable legal dispositions, specially as to the filing of assessment works reports and the payment of taxes on mining concessions;
e) That the rights derived from the mining concessions existing over THE LOTS are free and clear from any lien, encumberance or limitation of dominion; and
f) That he is willing to enter into this agreement to grant THE COMPANY the right to explore and, in its case, exploit THE LOTS, in accordance with the terms and conditions stipulated in this agreement
II. THE COMPANY states:
a) To be a mining corporation legally incorporated according to the laws of the Mexican Republic, legally qualified to execute agreements and to be owner of mining concessions;
b) That its attorney Mr. Victor Garcia-Jimenez is dully empowered to represent it and to execute this agreement; and
c) That it is willing to be granted with the right to explore and, in its case, exploit THE LOTS, on the terms and conditions stipulated in this agreement.
In accordance with the former statements, the parties grant the following
CLAUSES
FIRST. Right to explore and exploit THE LOTS. THE CONCESSIONAIRE hereby grant THE COMPANY the exclusive right to explore an exploit THE LOTS during the all the term there will exist a mining concession over the claims, being entitled THE COMPANY to execute during said term all exploration and exploitation works it may deem necessary, convenient or advisable and will be permitted according to the existing mining concessions.
THE COMPANY may assign or sublease its interest in this Agreement or enter into joint operating agreements with any other person or entity without the need of the consent of THE CONCESSIONAIRE, provided, such an assignment, sublease or joint operating agreement shall provide such parties to be bound by all the terms and conditions of this Agreement.
SECOND. Right to terminate this agreement in advance. The term of this agreement wilt be compulsory for THE CONCESSIONAIRE and optional for THE COMPANY, who consequently will be able to terminate it at any moment by means of a simple written notice to be sent to THE CONCESSIONAIRE to inform them the date of termination.
Nevertheless, THE CONCESSIONAIRE will have also the right to terminate this agreement at any moment, in accordance with provisions of Clauses Nineth and Tenth, in case THE COMPANY does not fulfil with the obligations it undertakes in this agreement.
Upon such termination by THE COMPANY, any remaining obligation to pay Advance Minimum Royalty or Production Royalty due after the date of termination shall also terminate.
THIRD. Advance Minimum Royalty Payments. As retribution for the granting of this Exploration and Exploitation Agreement and, in its case, as advance minimum royalty ("Advance Minimum Royalty") on the dates hereinbelow mentioned, for so long as this Agreement remains in effect and there will not be production or it will not be sufficient to pay royalties, THE COMPANY will pay THE CONCESSIONAIRE the following amounts in dollars of the United States of America or its equivalent in national currency, plus the 15 % Aggregate Value Tax (TVA)
a) At the execution of this agreement by THE CONCESSIONAIRE US$ 5,000
b) Three months after the execution of the agreement US$ 5,000
c) Twelve months after the execution of the agreement US$ 25,000
d) Twenty four months after the execution of the agreement US$ 50,000
e) Thirty six months after the execution of the agreement US$ 75,000
Once the above-mentioned amounts have been paid THE COMPANY'S obligation to make the Advance Minimum Royalty payments will terminate. All of said Advance Minimum Royalty payments shall be deemed a prepayment of Production Royalty payable under the following Clause Fourth, and from and after the Production Date, THE COMPANY may recover all sums paid to THE CONCESSIONAIRE, as Advance Minimum Royalty, by crediting and applying said Advance Minimum Royalty against and in
reduction of the Production Royalty payments accruing and becoming due at any time hereafter, until by such application all Advance Minimum Royalty previously paid by THE COMPANY has been exhausted. If within the term of forty-eight months to which this Clause refers production starts and it is not be sufficient to pay the "Production Royalty", THE COMPANY shall pay to THE CONCESSIONAIRE the Advance Minimum Royalty to which this clause refers.
FOURTH. Royalties. THE COMPANY shall pay THE CONCESSIONAIRE a net smelter return royalty (hereinafter "Production Royalty") on net smelter returns or invoices for first hand sales of minerals paid to THE COMPANY from minerals, ore or other valuable products obtained and sold from THE LOTS. Production Royalty shall be calculated as follow:
a) in case of use of smelting services by THE COMPANY: A Production Royalty of five percent (5%) of the net smelter returns from all substances obtained and sold from THE LOTS.
b) In the case of sale of dore bullion or other sales of substances obtained and sold from THE LOTS by THE COMPANY: A Production Royalty of five percent 5 o/o of the actual sales price of all minerals, ore or valuable products as shown on the purchaser's settlement sheet, after first deducting all treatment charges, penalties and all other costs and deductions from the net sales price of the product shown on the smelter settlement sheet or other bona fide document for each separate sale thereof and after deducting the actual cost of transportation of the above mentioned substances to the smelter or other bona fide document for each separate sale of the above mentioned substances.
The Production Royalty to be paid to THE CONCESSIONAIRE hereunder shall be paid after first deducting and exhausting all Advance Minimum Royalty payments provided under Clause THIRD above.
THE COMPANY, shall make the payment of Production Royalty to THE CONCESSIONAIRE by wire transfer to a hank account against receipt of the corresponding invoice or invoices (IVA added and mentioned separately), on a monthly basis within thirty (30) days after the end of each month during which THE COMPANY receives final payments for the sale of minerals, ore or other valuable products.
FIFTH. Commingling. THE COMPANY shall have the right to commingle minerals, ore or other valuable products obtained from THE LOTS with ores, concentrates or other products produced from other properties provided that prior to such commingling, THE COMPANY shall adopt and employ reasonable practices and procedures for weighing, determination of moisture content, sampling and assaying, as well as utilizing reasonable accurate recovery factors in order to determine the amounts of products derived from, or attributed to minerals, ores or other valuable products obtained from THE LOTS. THE COMPANY shall maintain accounts and records of the results of such sampling, weighing and analysis as pertaining to ore mined, concentrates or other products obtained from THE LOTS, and shall notify THE CONCESSIONAIRE at any time that such commingling is taking place, and shall provide to TH CONCESSIONAIRE on request complete copies of all the records maintained as required hereby, and an accounting of the results thereof.
SIXTH. Fees, Duties, Taxes and Expenses. All fees, duties, taxes and expenses incurred on the granting and execution of this agreement will be paid by THE COMPANY, except for those taxes imposed on the income obtained by TIIE CONCESSIONAIRE, which will be paid by him. Consequently, THE CONCESSIONAIRE will
have to issue invoices to THE COMPANY, including the IVA but mentioned separately from the amount of the Production Royalty to be received by him.
SEVENTH. Labor responsibility. Since it will not exist any labor relation between the workers and contractors of each party and the other party, each party expressly agree that with respect to its workers and contractors, it or its contractors, as to their workers, will assume all labor responsibility and therefore, it compromise with the other party to maintain it free and clear from any reclamation, claim, accusation or complaint which may be filed against the first party by its workers or employees, or those of its contractors, or by the labor or administrative authorities.
EIGHTH. Additional obligations of THE CONCESSIONAIRE. In addition to the obligations assumed by THE CONCESSIONAIRE at the preceding clauses, during all the term this agreement will be in force, he will have also the following:
a) Maintain valid and in force the rights derived from the mining concessions existing over THE LOTS and, likewise, to maintain them free and clear from any lien, encumberance or limitation of dominion. Committing herself, specially, to make that the Direction of Mines recognize his title to the mining concessions existing over THE LOTS and to register it at the Public Registry of Mining;
b) Not to transfer the rights derived from the mining concessions existing over THE LOTS, without the previous authorization of THE COMPANY and in case he will be willing to transfer the rights to grant preferential right to THE COMPANY to acquire them in the same terms and conditions that any third Party;
c) Maintain THE COMPANY free and clear from any claim or responsibility that may be addressed against it due to acts directly imputable to THE CONCESSIONAIRE or which will be of their exclusive responsibility. Committing herself to indemnify and pay THE. COMPANY for all losses and damages it may suffer in case it will be deprived of the right to explore and exploit THE LOTS granted in this Agreement; and
d) In case this Agreement will be terminated, to grant THE COMPANY a term of ninety (90) days to take away all its equipment and machinery from THE LOTS.
NINETH. Additional obligations of THE COMPANY. In addition to the obligations assumed by THE COMPANY at the preceding clauses, during all the term this agreement will be in force, it also will have the following:
a) To carry out the exploration and exploitation at THE LOTS in the best possible manner, according to the most appropriate and rational mining practices and in accordance with all legal dispositions, executing enough exploration works in order to fulfil with the provisions of the Mining Law and its Regulations and not to stop the exploration and exploitation works without a justified cause;
b) To undertake and fulfil with the obligations to prepare and file the exploration assessment works and to pay the duties on mining concessions;
c) To permit THE CONCESSIONAIRE or his representatives to inspect the works that will be carried out in THE LOTS, on the dates and hours mutually agreed not to interfere with the activities that would be being carried out and for safety reasons. Likewise, it will permit THE CONCESSIONAIRE or his
representatives, the access to all information related to said works, specially, when existing, to metallurgical balances on the production obtained in THE LOTS;
d) To undertake and fulfil with the obligations of Police and Security of the mine works and those of environmental control; and
e) To maintain THE LOTS in good shape as to their exploration and exploitation conditions.
If at any moment during the term of this agreement THE COMPANY would not fulfil with the obligations assumed by it and specially with those mentioned in this Clause, THE CONCESSIONAIRE will have the right to terminate this agreement under the terms of Clause Tenth hereinbelow, independently of their right to ask an indemnification for damages.
TENTH. Unfulfilment. The unfulfilment of any of the parties with the obligations they assume in this agreement , will grant the other party the right to ask the immediate fulfillment of the non fulfilled obligations. For said purpose, it will have to ask by written to the party in default to fulfil said obligations and if after a ninety days period from the date of delivering said petition, the unfulfilment still exist and no reasonable effort to remedy it has been made, then the affected party will have the right, at its option, to ask in court the fulfillment of the unfulfilled obligations or to terminate this agreement, being entitled in both cases to ask for indemnification for damages,
ELEVENTH. Force majeur. It will not be considered that the parties have incurred in unfulfilment when due to force majeur they will be unable to fulfil with the obligations they assume under this agreement.
It will be considered as force majeur, in an enunciative but not in a limitative way: earthquakes, fires, floods, collapses, riots, rebellions, wars, strikes, revolutions, acts of authority, and, in general, any other fact or act totally out of the will of the parties and of their control and which prevent them to fulfil, totally or partially, with their obligations.
When any of the parties will be affected by force majeur and therefore unable to fulfil with its obligations, it shall notify so to the other party, informing about the estimated time said force majeur will prevent said party to fulfil with its obligations.
If after twelve months from the date in which such force majeur have occurred it prevails, then the other party will have the right to terminate this agreement.
TWELVETH. Total agreement of the parties. This agreement reflects the total agreement between the parties with respect to its purpose, therefore, it cancels and left without effects any other agreements, contracts or letters of intent, executed previously between them with respect to the same purpose.
This agreement will oblige under its terms and conditions to the heirs, assignees or beneficiaries of the parties.
The parties agree to ratify this agreement before a Notary Public and to register it with the Public Registry of Mining in accordance with the provisions of the Mining Law and its Regulations
THIRTEENTH. Notices and notifications. All notices and notifications to be made between the parties in accordance with this agreement, shall be made, by one
part to the other, either verbally or written, being understood that when it be desired that a notice or notification be on record, it shall be made before a Notary Public.
For the purposes of this agreement the parties hereby set the following addresses:
THE CONCESSIONAIRE THE COMPANY
Mr. Jose Perez Reynoso DON DAVID GOLD, S. A. DE C. V.
Cerro del Chiquihuite N(degree)22 San Francisco N(degree)656 - 601
Col. Campestre Churubusco Col. Del Valle, C.P. 03100
Mexico, D. C.P. 04200 Mexico, D. F.
Tel.: (55) 55 49 63 90 Tel/Fax: (5) 536-2028
Atn: Mr. Victor Garcia-Jimenez
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Any change in the above mentioned addresses shall be notified by one part to the other when it occurs.
FOURTEENTH. Applicable Laws and Courts. For every thing not expressly stipulated in this agreement the parties submit themselves to the applicable laws in Mexico, Federal District, specially to those of the Mining Law, its Regulations, the Federal Duties Law, the Commerce Code and the Civil Code for the Federal District, and they agree to also to submit to the jurisdiction of the competent courts in Mexico City, Federal District, waiving to the jurisdiction of any other courts to which they may be entitled by reason of their present or future domiciles.
This agreement is signed by quadruplicate the 14th day of October, 2002.
THE CONCESSIONAIRE THE COMPANY
DON DAVID GOLD, S.A. DE C.V.
/s/ Jose Perez Reynoso /s/ Victor Garcia Jimenez
---------------------- -------------------------
Mr. Jose Perez Reynoso Per: Victor Garcia Jimenez
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GOLD RESOURCE CORPORATION
NON-QUALIFIED STOCK OPTION AND STOCK GRANT PLAN
This Non-Qualified Stock Option and Stock Grant Plan (the "Plan") is adopted in consideration of services rendered and to be rendered by key personnel to Gold Resource Corporation, its subsidiaries and affiliates.
1. Definitions.
The terms used in this Plan shall, unless otherwise indicated or required by the particular context, have the following meanings:
Board: The Board of Directors of Gold Resource Corporation, or any duly authorized committee of the Board.
Common Stock: The $.001 par value Common Stock of Gold Resource Corporation.
Company: Gold Resource ,Corporation, a corporation incorporated under the laws of Colorado, and any successors in interest by merger, operation of law, assignment or purchase of all or substantially all of the property, assets or business of the Company.
Date of Grant: The date on which an Option (see below) is granted under the Plan.
Fair Market Value: The Fair Market Value of the Option Shares. Such Fair Market Value as of any date shall be reasonably determined by the Board; provided, however, that if there is a public market for the Common Stock, the Fair Market Value of the Option Shares as of any date shall not be less than the bid price for the Common Stock on that date (or on the preceding business day if such date is a Saturday, Sunday, or a holiday), on either an over-the-counter market or national exchange, as reported by NASDAQ, The Denver Post, Denver, Colorado, or if not available there, in the Wall Street Journal, or if not available there, as available from internet sources such as America On-Line or other reporters of such financial data; provided, further, that if no such reported bid price is available, the Fair Market Value of such shares shall not be less than the average of the means between the bid and asked prices quoted on that date by any two independent persons or entities making a market for the Common Stock, such persons or entities to be selected by the Board. Fair Market Value shall be determined without regard to any restriction other than a restriction which, by its terms, will never lapse.
Key Person: A person (including, without limitation, employees, directors, officers, consultants or advisors) designated by the Board upon whose judgment, initiative and efforts the Company or a Related Company may rely.
Option: The rights granted to a Key Person to purchase Common Stock pursuant to the terms and conditions of an Option Agreement (see below).
Option Agreement: The written agreement (and any amendment or supplement thereto) between the Company and a Key Person designating the terms and conditions of an Option.
Option Shares: The shares of Common Stock underlying an Option granted to a Key Person.
Optionee: A Key Person who has been granted an Option. Recipient: A Key Person who has been granted a Stock Grant.
Related Company: Any subsidiary or affiliate of the Company. The determination of whether a corporation is a Related Company shall be made without regard to whether the entity or the relationship between the entity and the Company now exists or comes into existence hereafter.
Stock Grant: The grant of shares of the Company's Common Stock to a Key Person pursuant to the terms of the Plan.
Stock Grant Shares: The shares of Common Stock represented by a Stock Grant.
2. Purpose and Scope.
(a) The purpose of the Plan is to advance the interests of the Company and its stockholders by affording Key Persons, upon whose judgment, initiative and efforts the Company may rely for the successful conduct of their businesses, an opportunity for investment in the Company and the incentive advantages inherent in stock ownership in the Company.
(b) This Plan authorizes the Board to grant Options and make Stock Grants to Key Persons selected by the Board while considering criteria such as employment position or other relationship with the Company, duties and responsibilities, ability, productivity, length of service or association, morale, interest in the Company, recommendations by supervisors, and other matters.
3. Administration of the Plan.
The Plan shall be administered by the Board. The Board shall have the authority granted to it under this section and under each other section of the Plan.
In accordance with and subject to the provisions of the Plan, the Board shall select the Optionees and Recipients, shall determine (i) the number of shares of Common Stock to be subject to each Option and/or Stock Grant, (ii) the time at which each Option and/or Stock Grant is to be granted, (iii) whether an Option shall be granted in exchange for the cancellation and termination of a previously granted option or options under the Plan or otherwise, (iv) the purchase price for Option Shares, (v) the option period, (vi) the consideration (if any) for a Stock Grant, and (vii) the manner in which an Option becomes exercisable. In addition, the Board shall fix such other terms of each Option and/or Stock Grant as it may deem necessary or desirable. The Board shall determine the form of Option Agreement to evidence each Option.
The Board from time to time may adopt such rules and regulations for carrying out the purposes of the Plan as it may deem proper and in the best interests of the Company including, but in no way limiting, the use of attestation proceedings related to shares owned by an Optionee and the retention by Gold Resource Corporation of exercised shares for payment of taxes related to the exercise of Options.
The Board may from time to time make such changes in and additions to the Plan as it may deem proper and in the best interest of the Company provided, however, that no such change or addition shall impair any Option or Stock Grant previously granted under the Plan.
Each determination, interpretation or other action made or taken by the Board shall be final, conclusive and binding on all persons, including without limitation, the Company, the Related Companies, the stockholders, directors, officers and employees of the Company and the Related Companies, and the Optionees, the Recipients and their respective successors in interest.
4. The Common Stock.
The Board is authorized to appropriate, grant Options and make Stock Grants with respect to, and otherwise issue and sell for the purposes of the Plan, a total number not in excess of 1,500,000 shares of Common Stock, either treasury or authorized but unissued, or the number and kind of shares of stock or other securities which in accordance with Section 9 shall be substituted for the 1,500,000 shares or into which such 1,500,000 shares shall be adjusted. All or any unsold shares subject to an Option or Stock Grant that for any reason expires or otherwise terminates may again be made subject to Options and Stock Grants under the Plan.
5. Eligibility.
Options and Stock Grants shall be granted only to Key Persons. Key Persons may hold more than one Option or Stock Grant under the Plan and may hold Options and Stock Grants under the Plan and options granted pursuant to other plans or otherwise
6. Option Price.
The Board shall determine the purchase price for the Option Shares; provided, however, that the purchase price to be paid by Optionees for Option Shares shall not be less than one hundred percent of the Fair Market Value of the Option Shares on the Date of Grant.
7. Duration and Exercise of Options.
(a) The option period shall commence on the Date of Grant and shall be up to 10 years in length subject to the limitations in this Section 7 and the Option Agreement.
(b) During the lifetime of the Optionee, the Option shall be exercisable only by the Optionee. Any Option held by an Optionee at the time of his death may be exercised by his estate only within six months of his death or such longer period as the Board may determine.
(c) The Board may determine whether an Option shall be exercisable as provided in Paragraph (a) of this Section 7 or whether the Option shall be exercisable in installments only; if the Board determines the latter, it shall determine the number of installments and the percentage of the Option exercisable at each installment date. All such installments shall be cumulative.
(d) In the case of an Optionee who is an employee of the Company or a Related Company, if, for any reason, other than the Optionee's death, the Optionee ceases to be employed by either the Company or a Related Company, any option held by the Optionee at the time his employment ceases may be exercised within 90 days after the date that his employment ceased, (subject to the limitations of Paragraph (a) above), but only to the extent that the option was exercisable according to its terms on the date the Optionee's employment ceased. After such 90-day period, any unexercised portion of an Option shall expire.
(e) Notwithstanding the provision of Paragraph (d) of this Section 7, in the case of an Optionee who is an employee of the Company or a Related Company, if the Optionee's employment by the Company or a Related Company ceases due to the Company's or Related Company's termination of such Optionee's employment for cause, any unexercised portion of any Option held by the Optionee shall immediately expire.
(f) Each Option shall be exercised in whole or in part by delivering to the office of the Treasurer of the Company written notice of the number of shares with respect to which the Option is to be exercised and by paying in full the purchase price for the Option Shares purchased as set forth in Section 8; provided, that an Option may not be exercised in part unless the purchase price for the Option Shares Purchased is at least $1.000.00
8. Payment for Option Shares.
If the purchase price of the Option Shares Purchased by any Optionee at one time exceeds $2,000, the Board may permit all or part of the Purchase price for the Option Shares to be. paid by delivery to the Company for cancellation shares of the Company's Common Stock previously owned by the Optionee with a Fair Market Value as of the date of the payment equal to the portion of the purchase price for the Option Shares that the Optionee does not pay in cash.
The Board may also permit use of attestation of shares already owned by the Optionee to eliminate the need for physical delivery of stock certificate(s) by the Optionee to the Company under this Section 8. By use of attestation, the Optionee will be issued the number of shares exercised reduced by the number of whole shares necessary to pay the exercise price, or portion thereof.
In the case of all other Option exercises, the purchase price shall be paid in cash or available funds upon exercise of the Option.
9. Change in Stock, Adjustments Etc.
In the event that each of the outstanding shares of Common Stock (other than shares held by dissenting stockholders that are not changed or exchanged) should be changed into, or exchanged for, a different number or kind of shares of stock or other securities of the Company, or, if further changes or exchanges of any stock or other securities into which the Common Stock shall have been changed, or for which it shall have been exchanged, shall be made (whether by reason of merger, consolidation, reorganization, recapitalization, stock dividends, reclassification, split-up, combination of shares or otherwise), then there shall be substituted for each share of Common Stock that is subject to the Plan, the number and kind of shares of stock or other securities into which each outstanding share of Common Stock (other than shares held by dissenting stockholders which are not changed or exchanged) shall be so changed or for which each outstanding share of Common Stock (other than shares held by dissenting stockholders) shall be so changed or for which each such share shall be exchanged. Any securities so substituted shall be subject to similar successive adjustments. In the event of any such changes or exchanges, the Board shall determine whether, in order to prevent dilution or enlargement of rights, an adjustment should be made in the number, kind, or option price of the shares or other securities then subject to an Option or Stock Grant granted pursuant to the Plan and the Board shall make any such adjustment, and such adjustments shall be made and shall be effective and binding for all purposes of the Plan.
10. Relationship to Employment.
Nothing contained in the Plan, or in any Option or Stock Grant granted pursuant to the Plan, shall confer upon any Optionee or Recipient any right with
respect to employment by the Company, or interfere in any way with the right of the Company to terminate the Optionee's or Recipient's employment or services at any time.
11. Nontransferability of Option or Stock Grant.
No Option or Stock Grant granted under the Plan shall be transferable by the Optionee or Recipient, either voluntarily or involuntarily, except by will or the laws of descent and distribution, and any attempt to do so shall be null and void.
12. Rights as a Stockholder.
No person shall have any rights as a stockholder with respect to any share covered by an Option or Stock Grant until that person shall become the holder of record of such shares and, except as provided in Section 9, no adjustments shall be made for dividends or other distributions or other rights as to which there is an earlier record date.
13. Securities Laws Requirements.
No Option Shares or Stock Grants shall be issued unless and until, in the opinion of the Company, any applicable registration requirements of the Securities Act of 1933, as amended, any applicable listing requirements of any securities exchange on which stock of the same class is then listed, and any other requirements of law or of any regulatory bodies having jurisdiction over such issuance and delivery, have been fully complied with. Each Option and each Option and Stock Grant Share certificate may be imprinted with legends reflecting federal and state securities laws restrictions and conditions, and the Company may comply therewith and issue "stop transfer" instructions to its transfer agent and registrar in good faith without liability.
14. Disposition of Shares:
Each Optionee, as a condition of exercise, and each Recipient shall represent, warrant arid agree, in a form of written certificate approved by the Company, as follows: (a) that all Option and Stock Grant Shares are being acquired solely for his own account and not on behalf of any other person or entity; (b) that no Option or Stock Grant Shares will be sold or otherwise distributed in violation of the Securities Act of 1933, as amended, or any other applicable federal or state securities laws; (c) that if he is subject to reporting requirements under Section 16(a) of the Securities Exchange Act of 1934, as amended, he will (i) not sell any shares of Common Stock within six months of the date he acquired any Option or Stock Grant, (ii) furnish the Company with a copy of each Form 3, 4 or 5 filed by him, and (iii) timely file all reports required under the federal securities laws; and (d) that he will report all sales of Option and/or Stock Grant Shares to the Company in writing on a form prescribed by the Company.
15. Effective Date of Plan: Termination Date of Plan.
The Plan shall be deemed effective as of March 4, 1999. The Plan shall terminate at midnight on March 3, 2009 except as to Options previously granted and outstanding under the Plan at that time. No Options or Stock Grants shall be granted after the date on which the Plan terminates. The Plan may be amended, extended, abandoned or terminated at any earlier time by the Board, except with respect to any Options or Stock Grant then outstanding under the Plan.
16. Other Provisions.
The following provisions are also in effect under the Plan:
(a) The use of a masculine gender in the Plan shall also include within its meaning the feminine, and the singular may include the plural, and the plural may include the singular, unless the context clearly indicates to the contrary.
(b) Any expense of administering the Plan shall be borne by the Company.
(c) This Plan shall be construed to be in addition to any and all other compensation plans or programs. The adoption of the Plan by the Board shall not be construed as creating any limitations on the power or authority of the Board to adopt such other additional incentive or other compensation arrangements as the Board may deem necessary or desirable.
(d) The validity, construction, interpretation, administration and effect of the Plan and of its rules and regulations, and the rights of any and all personnel having or claiming to have an interest therein or thereunder shall be governed by and determined exclusively and solely in accordance with the laws of the state of Colorado.
GOLD RESOURCE CORPORATION
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is made and entered into as of (date) (the "Date of Grant"), by and between Gold Resource Corporation, a Colorado corporation (the "Corporation"), and (Name) (the "Optionee").
WITNESSETH:
WHEREAS, on (date), the Board of Directors determined that the Optionee should receive an option to purchase shares of the Corporation's Common Stock under the Corporation's Non-Qualified Stock Option and Stock Grant Plan (the "Plan") in order to provided the Optionee with an opportunity for investment in the Corporation and additional incentive to pursue the success of the Corporation, said option to be for the number of shares, at the price per share and on the terms set forth in this Agreement; and
WHEREAS, Optionee desires to receive an option on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Grant of Option. The Corporation hereby grants to Optionee, as a matter of separate agreement and not in lieu of salary or any other compensation for service, the right and option (the "Option") to purchase all or any part of an aggregate of (number) shares of reserved authorized and unissued $.001 par value Common Stock of the Corporation (the "Option Shares") pursuant to the terms and conditions set forth in this Agreement.
2. Option Price. At any time when shares are to be purchased pursuant to the Option, the purchase price for each Option Share shall be $x.xx (the "Option Price").
3. Option Period. The Option period shall commence as of the Date of Grant and shall terminate (number) years from the Date of Grant, unless terminated earlier as provided in this Agreement. If an Optionee, for any reason, other than the Optionee's death, ceases to be employed by, a consultant for, an employee of an affiliate, or a director of, either of the Corporation or a Related Company, any Option held by the Optionee at the time he ceases to be an employee, consultant, an employee of an affiliate, or director may be exercised within 90 days after the date of such cessation, but only to the extent that the Option was exercisable according to its terms on the date of such cessation. After such 90 day period, any unexercised portion of an Option shall expire. Any Option held by an Optionee at the time of his death may be exercised by his estate, subject to any limitation otherwise applicable to such Option, only within six months of his death or such longer period as the Board of Directors of the Corporation may determine.
Notwithstanding the foregoing, in the case of an Optionee who is an employee of the Corporation, a Related Company or Affiliate Company, if the Optionee's employment by the Corporation or Related Company or Affiliate Company ceases due to the Corporation's or Related Company or Affiliate Company's termination of such Optionee's employment for cause, any unexpired portion of any Option held by the Optionee shall immediately expire.
4. Exercise of Option.
(a) The Option may be exercised by delivering to the Corporation:
(i) a Notice and Agreement of Exercise of Option, substantially in the form attached hereto as Exhibit A, specifying the number of Option Shares with respect to which the Option is exercised, and
(ii) full payment of the Option Price for such shares, either in cash, by delivery of shares as provided in subparagraph (b) below, or a combination thereof.
(b) Notwithstanding the foregoing, an Option may not be exercised in part unless the purchase price of the Option Shares purchased is at least $1,000.00. If the purchase price of the Option Shares purchased by the Optionee at one time exceeds $2,000.00, the Optionee may request that he be permitted to pay all or a portion of the Option Price by delivering to the Option Committee a Request for Payment in Shares, substantially in the form attached hereto as Exhibit B. If the request is approved, payment shall be made by delivery to the Corporation for cancellation shares of the Company's stock that are owned by the Optionee and have a Fair Market Value equal to the portion of the Option Price that the Optionee does not pay by tendering cash or certified funds. The Fair Market Value of the Corporation's stock delivered as payment of the Option Price shall be reasonably determined by the Option Committee; provided, however, that if there is a public market for the Common Stock on that day (or on the preceding business day if such date is a Saturday, Sunday, or a holiday), on either a national or small-cap market, as reported by the National Association of Securities Dealers Automated Quotation System (the "NASDAQ"); or by the Wall Street Journal, provided further, that if no such published bid and asked price is available, the Fair Market Value of such shares shall not be less than the average of the means between the bid and asked prices quoted on that date by any two independent persons or entities making a market for the Common Stock, such persons or entities to be selected by the Option Committee.
(c) Promptly upon receipt of the Notice of Agreement and Exercise and the full payment of the Option Price by the Optionee (including payment or provision for payment of any applicable withholding or similar taxes), the Corporation shall deliver to the Optionee a properly executed certificate or certificates representing the Option Shares being purchased.
5. Securities Laws Requirements. No Option Shares shall be issued unless and until, in the opinion of the Corporation, any applicable registration requirements of the Securities Act of 1933, any applicable listing requirements of any securities exchange on which stock of the same class is listed, and any other requirements of law or any regulatory bodies having jurisdiction over such issuance and delivery have been fully complied with. Pursuant to the terms of the Notice of Agreement of Exercise that shall be delivered to the Corporation upon each exercise of the Option, the Optionee shall acknowledge, represent, warrant and agree as follows:
(a) All Option Shares shall be acquired solely for the account of the Optionee for investment purposes only and with no view to their resale or other distribution of any kind;
(b) No Option Share shall be sold or otherwise distributed in violation of the Securities Act of 1933 or any other applicable federal or state securities laws;
(c) If the Optionee is subject to reporting requirements under Section 16(a) of the Securities Exchange Act of 1934 (the "Exchange Act"), he shall:
(i) be aware that the actual accrual of any right under the Option to purchase Option Shares is an event that requires reporting on Form 4 under Section 16(a) of the Exchange Act.
(ii) be aware that any sale by him or his immediate family of the Corporation's Common Stock within six months before or after the granting of any Option may create liability for him under Section 16(b) of the Exchange Act,
(iii) consult with his counsel regarding the application of Section 16(b) of the Exchange Act prior to any exercise of the Option, and prior to any sale of the Corporation's Common Stock,
(iv) assist the Corporation with the filing of a Form 3, 4 or 5 with the Securities and Exchange Commission, and
(v) timely file all reports required under the federal securities laws, and
(d) The Optionee shall report all sales of Option shares to the Corporation in writing on a form prescribed by the Corporation.
The forgoing restrictions or notices thereof may be placed on the certificates representing the Option Shares purchased pursuant to the Option and the Corporation may refuse to issue the certificates or to transfer the shares on its books unless it is satisfied that no violation of such restrictions will occur.
6. Transferability of Option.The Option shall not be transferable except by will or the laws of descent and distribution, and any attempt to do so shall void the Option.
7. Adjustment By Stock Split, Stock Dividend, Etc. If at any time the Corporation increases or decreases the number of its outstanding shares of Common Stock, or changes in any way the rights and privileges of such shares, by means of the payment of a stock dividend or the making of any other distribution on such shares payable in its Common Stock, or through a stock split or subdivision of shares, or a consolidation or combination of shares, or through a reclassification or recapitalization involving its Common Stock, the numbers, rights, and privileges of the shares of Common Stock included in the Option shall be increased, decreased or changed in like manner as if such shares had been issued and outstanding, fully paid and nonassessable at the time of such occurrence.
8. Merger or Consolidation.
(a) Effect of Transaction. Upon the occurrence of any of the following events, if the notice requirements of Paragraph 8(b) have been given, the Option shall automatically terminate and be of no further force or effect whatsoever:
(i) the merger or consolidation of the Corporation with one or more other corporations, regardless of which entity survives the transaction;
(ii) the dissolution or liquidation of the Corporation;
(iii) the appointment of a receiver for all, or substantially all, of the Corporation's assets or business;
(iv) the appointment of a trustee for the Corporation after a petition has been filed for the Corporation's reorganization under applicable statutes; or
(v) the sale, lease or exchange of all, or substantially all, of the Corporation's assets and business.
(b) Notice of Such Occurrence. At least 15 days' prior written notice of any event described in Paragraph 8 (a), except the transactions described in Subparagraphs 8 (a) (iii) and (iv) as to which no notice shall be required, shall, at the Corporation's option, be given by the Corporation to the Optionee. After receipt of such notice, the Optionee may at any time before the occurrence of the event requiring the giving of notice exercise the unexercised portion of the Option as to all the shares covered thereby. Such notice shall be deemed to have been given when delivered personally to the Optionee or pursuant to the provisions of Paragraph 11 of this Agreement. If no such notice shall be given with respect to a transaction described in Subparagraphs 8(a) (i), (ii) or (v), the provisions of Paragraph 8(a) shall not apply and the Option shall not terminate upon the occurrence of such transaction.
9. Common Stock To Be Received Upon Exercise. Optionee understands that the Corporation is under no obligation to register the Option Shares under the Securities Act of 1933, as amended (the "Act") and that in the absence of any such registration, the Option Shares cannot be sold unless they are sold pursuant to an exemption from registration under the Act. The Corporation is under no obligation to comply, or to assist the Optionee in complying with any exemption from such registration requirement, including supplying the Optionee with any information necessary to permit routine sales of the Stock under Rule 144 of the Securities and Exchange Commission. Optionee also understands that with respect to Rule 144, routine sales of securities made in reliance upon such Rule can only be made in limited amounts in accordance with the terms and conditions of the Rule, and that in cases in which the Rule is inapplicable, compliance with either Regulation A or another disclosure exemption under the Act will be required. Thus, the Option Shares will have to be held indefinitely in the absence of registration under the Act or an exemption from registration.
Furthermore, the Optionee fully understands that the Option Shares have not been registered under the Act and that they will be issued in reliance upon an exemption which is available only if Optionee acquires such shares for investment and not with a view to distribution. Optionee is familiar with the phrase "acquired for investment and not with a view to distribution" as it relates to the Act and the special meaning given to such term in various release of the Securities and Exchange Commission.
10. Privilege of Ownership. Optionee shall not have any of the rights of a shareholder with respect to the shares covered by the Option except to the extent that one or more certificates for such shares shall be delivered to him upon exercise of the Option.
11. Notices. Any notices required or permitted to be given under this Agreement shall be in writing and they shall be deemed to be given upon receipt
by sender of sender's return receipt for acknowledgement of delivery of said notice by postage prepaid registered mail. Such notice shall be addressed to the party to be notified as shown below:
Corporation: Gold Resource Corporation
222 Milwaukee St., Suite 301
Denver, Colorado 80206
Optionee: At the address listed below his name on the last page of
this Agreement.
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Any party may change its address for purposes of this paragraph by giving the other parties written notice of the new address in the manner set forth above.
12. General Provisions. This instrument: (a) contains the entire agreement among the parties, (b) may not be amended nor may any rights hereunder be waived except by an instrument in writing signed by the parties sought to be charged with such amendment or waiver, (c) shall be constructed in accordance with, and governed by, the laws of the State of Colorado, (d) shall be binding upon and shall inure to the benefit of the parties and their respective personal representatives and assigns, except as above set forth and (e) shall be subject to the provisions of the Plan, which Plan provisions shall govern if they conflict herein and any variations thereof shall be deemed to refer to the masculine, feminine or neuter, singular or plural as the identity of the parties hereto may require.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth below, to be effective as of the date and year first above written.
GOLD RESOURCE CORPORATION
Date: (Date) By:
------------------------------------------
William W. Reid President and Chairman of
the Board
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OPTIONEE:
Date: (Date) By:
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Name: (Name)
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Address:
EXHIBIT A
TO GOLD RESOURCE CORPORATION
STOCK OTPION AGREEMENT
GOLD RESOURCE CORPORATION
NOTICE AND AGREEMENT FO EXERCISE OF OPTION
I hereby exercise my Gold Resource Corporation Stock Option dated as to shares of Gold Resource Corporation $.001 par value Common Stock (the "Option Shares").
Enclosed are the documents and payment specified in Paragraph 4 of my Option Agreement.
I understand that no Option Shares will be issued unless and until, in the opinion of Gold Resource Corporation (the "Corporation"), any applicable registration requirements of the Securities Act of 1933, as amended, any applicable listing requirements of any securities exchange on which stock of the same class is then listed, and any other requirements of law or any regulatory bodies having jurisdiction over such issuance and delivery, shall have been fully complied with. I hereby acknowledge, represent, warrant and agree, to and with the Corporation as follows:
(a) The Option Shares I am purchasing are being acquired for my own account for investment purposes only and with no view to their resale or other distribution of any kind, and no other person (except, if I am married, my spouse) will own any interest therein.
(b) I will not sell or dispose of my Option Shares in violation of the Securities Act of 1933, as amended, or any other applicable federal or state securities laws.
(c) If and so long as I am subject to reporting requirements under Section 16(a) of the Securities Act of 1934, as amended (the "Exchange Act"), I recognize that any sale by me or my immediate family in the Corporations $.001 par value Common Stock within six months before the date of grant of my stock option may create liability for me under section 16(b) of the Exchange Act ("Section 16(b)").
(d) I have consulted with my counsel regarding the application of Section 16(b) to this exercise of my option.
(e) I will consult with my counsel regarding the application of Section 16(b) before I make any sale of the Corporation's $.001 par value Common Stock, including the Option Shares.
(f) I will report all sales of Option Shares to the Corporation in writing on a form prescribed by the Corporation.
(g) I will assist the Corporation in the filing of a Form 4 with the Securities and Exchange Commission and will timely file all reports that I may be required to file under the federal securities laws.
(h) I agree that the Corporation may, without liability for its good faith actions, place legend restrictions upon my Option Shares and issue "stop transfer" instructions requiring compliance with applicable securities laws and the terms of my Option.
The number of Option Shares specified above are to be issued in the following registration.
--------------------------------------- -------------------------------------
(Print Your Name) Signature
(Option-Print Name of Spouse -------------------------------------
if you wish joint registration)
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Address
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EXHIBIT B
TO GOLD RESOURCE CORPORATION
STOCK OTPION AGREEMENT
REQUEST FOR PAYMIENT IN SHARES
I hereby request that the Option Committee approve that I may pay the $________________ Option Price (must be greater than $2,000) for the exercise of my Gold Resource Corporation stock option dated as to __________________________ shares of the $.001 par value Common Stock in the following manner:
1. Amount of payment in cash or certified funds. $ _______________.
2. Amount of payment by delivery to the Corporation for cancellation of shares of the Corporation's Common Stock. $__________________,
I understand that the shares of the Corporation's Common Stock which must be tendered to the Corporation for payment of the Option Price, if this request is approved, must have a Fair Market Value equal to the portion of the Option Price not paid in cash or certified funds. The market price of the Corporation's Common Stock will be determined by the Option Committee pursuant to the terms of the Stock Option Agreement.
I understand that the Option Committee has discretion to approve or deny this request.
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(Print your name) Signature
Request Approved:
--------------------------- -----------------
Member of Option Committee Date
Request Denied:
--------------------------- -----------------
Member of Option Committee Date
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LEASE
THIS LEASE, made this ___day of September, 2005, by and between THE ROLLNICK BUILDING (hereinafter called "Landlord") and Gold Resource Corporation (hereinafter called "Tenant"), WITNESSETH:
That in consideration of the payment of rent and the keeping and performance of the covenants and agreements by Tenant, as hereinafter set forth, Landlord hereby leases and demises unto Tenant and Tenant leases from Landlord the premises known and described as approximately 979 rentable square feet located on the 3rd floor, known as Suite 301 (hereinafter referred to as the "Premises" shown on the plat hereto attached as Exhibit "A" and being a part of that building located at 222 Milwaukee Street. Denver. Colorado. 80206
TO HAVE AND TO HOLD the same, with all appurtenances, unto Tenant from 12 o'clock noon on the 1st day of October, 2005, for, during and until 12 o'clock noon on the 30th day of September, 2008, ("Primary Lease Term"). Tenant shall pay Landlord as minimum monthly rent the sum of see paragraph 34 ("Minimum Monthly Rent"), commencing October 1, 2005, and on the first day of each month thereafter during the term hereof, which sum is subject to possible adjustment as provided in paragraph 5 herein. All rents shall be paid in advance, without notice, setoff, abatement or diminution, in the office of Landlord in Denver, Colorado, or at such place as Landlord from time to time designates in writing,
1. DEPOSIT: It is agreed that Tenant, concurrently with the execution of this lease, has deposited with Landlord, and will keep on deposit at all times during the term of this lease, the sum of $1468,50, the receipt of which is hereby acknowledged, as security for the payment by Tenant of the rent herein agreed to be paid and for the faithful performance of all the terms, conditions and covenants of this lease. lf, at any time during the term of this lease, Tenant shall be in default in the performance of provision of this lease, Landlord shall have the right to use said deposit, or so much thereof as necessary, in payment of any rent in default as aforesaid, reimbursement of any expense and payment of any damages incurred by Landlord reason of Tenant's default. In such event, Tenant shall immediately on demand pay Landlord a sufficient amount in ash to restore said deposit to its original 'amount, If said deposit has not been utilized as aforesaid, said deposit, or as much thereof as has not been utilized, shall be refunded to Tenant, without interest, upon full performance of this lease by Tenant. Landlord shall have the right to commingle said deposit with other funds of Landlord. Landlord may deliver the funds deposited herein by Tenant to the purchaser of Landlord's interest in the Premises if such interest be sold, and thereupon, Landlord shall be discharged from further liability with respect to such deposit. If claims of Landlord exceed said deposit, Tenant shall remain liable to Landlord for the balance of such claims.
2. PAYMENT OF RENT: Tenant covenants and agrees to pay all rents and sums provided to be paid to Landlord hereunder at the times and in the manner herein provided.
3. ACCEPTANCE OF PREMISES BY TENANT: Taking possession of the Premises by Tenant shall be conclusive evidence against Tenant that the Premises were in the condition agreed upon between Landlord and Tenant, and acknowledgment of satisfactory completion of any fix-up or remodeling, as the case may be, which Landlord has agreed in writing to perform, except that if Landlord has failed to complete any punch list items by the time Tenant takes possession of the Premises, Landlord shall make reasonable and timely efforts to complete the same.
4. Except as set forth in Exhibit "B" attached hereto, Tenant accepts the Premises in its present "as is" condition. All alterations and improvements to the Premises shall be subject to Landlord's prior written consent pursuant to the terms and provisions of the lease and, except as set forth in Exhibit "B" hereto, shall be at Tenant's sole cost and expense, including, but not limited to, any cost or expense incurred as a result of the installation of conduit required by Denver Building Code Rulings for Tenant's telephone installation in the return air plenum suspended ceiling in the Premises. All changes and alterations to designation signs for the Premises and in the building directory
located in the lobby of the Building, any changes in locks required, and any changes required in the HVAC Systems as a result of Tenant's use of the Premises shall likewise be at Tenant's sole cost and expense and shall require the prior written approval of Landlord.
5. RENT ADJUSTMENT.
5.01 Rent Adjustment:
{SECTION INTENTIONALLY OMITTED]
5.02 Operating Expenses
A. Definitions: In addition to terms hereinabove defined, the following items shall have the following meanings with respect to the provisions of this lease:
(1) "Base Operating Expenses" shall mean an amount equal to Six and 25/100 Dollars ($6.25) multiplied by the number of square feet of Rentable Area.
(2) "Rentable Area" shall mean 29,576 rentable square feet which is all rentable space available for lease in the building as calculated by Landlord. If there is a significant change in the aggregate Rentable Area as a result of any addition thereto, partial destruction thereof, modification to building design or similar case, which causes a reduction or increase on a permanent basis, Landlord's Accountants, as hereinafter defined, shall make such adjustments in the computations as shall be necessary to provide for any such changes.
(3) "Tenant's Pro Rata Share" shall mean 3.31%. If, thereafter, any changes are made to the Rentable Area of the Premises, Tenant's Pro-Rata Share shall be recomputed by dividing the total rentable square footage of space then being leased by Tenant (including any additional space) by the Rentable Area and the resulting figure shall become Tenant's Pro-Rata Share.
(4) "Lease Year" shall mean) each twelve (12) month period beginning with the date the Primary Lease Term commenced, or any anniversary thereof, and ending on the same date one (1) year later. If the Lease Year is not concurrent with the calendar year or fiscal year, Landlord reserves the right, at any time during the Primary Lease Term, or any extensions thereof, to make all adjustments provided herein on a calendar year or fiscal year basis with all appropriate proration for the Lease Year in which such conversion is made and in which the term ends and all references in this Subparagraph 5.02 to "Lease Year" Shall thereafter be deemed to refer to "calendar year" or to "fiscal year".
(5) "Building Complex," as used herein shall mean the Building of which the Premises are a part, the real property on which the same is located, parking areas, common areas and any other areas located on said real property and designated by Landlord for use by all Tenant's in the Building.
(6) "Landlord's Accountants" shall mean that individual or firm (whether or not licensed accountants), including Building management, employed by Landlord from time to time to keep the books and records for the Building Complex, and/or to prepare the federal and state income tax returns for Landlord with respect to the Building Complex, which individual may be a direct employee or agent of Landlord, all of which books and records shall be certified to by an appropriate representative of Landlord.
(7) "Operating Expenses" shall mean all operating expenses of any kind or nature which are necessary, ordinary, or customarily incurred in connection with the operation, maintenance and repair of the Building Complex as determined by Landlord's Accountants. Operating Expenses shall include, but not be limited to:
(a) all real property taxes and assessments levied against the Building Complex by any governmental or quasi-governmental authority. The foregoing shall include any taxes, assessments, surcharges, or service or other fees of any nature whether or not presently in effect which shall hereafter be levied on the Building Complex as a result of the use, ownership or operation of the Building Complex or any other reason, whether in lieu of, or in addition to, any current real estate taxes and assessments; provided,
however, any taxes which shall be levied on the rentals of the Building Complex shall be determined as if the Building Complex were Landlord's only property, and provided further that in no event shall the term "taxes or assessments," as used herein, include any net federal or state income taxes levied or assessed on Landlord, unless such taxes are a specific substitute for real property taxes. Such term shall, however, include gross taxes on rentals. Expenses incurred by Landlord for tax consultants and in contesting the amount or validity of any such taxes or assessments shall be included in such computations (all of the foregoing are collectively referred to herein as the "Taxes"). "Assessment" shall include so called special assessments, license tax, business license fee, business license tax, levy, charge, penalty or tax imposed by any authority having the direct power to tax, including any city, county, state or federal government, or any school, agricultural, lighting, water, drainage, or other improvement or special district thereof, against the Premises, the Building or Building Complex or any legal or equitable interest of Landlord therein. For the purposes of this lease, any special assessments shall be deemed payable in such number of installments as is permitted by law, whether or not actually so paid. If the Building Complex has not been fully assessed as a completed project, for the purposes of computing the Operating Expenses for any adjustment required therein, the Taxes shall be adjusted by Landlord, as of the date on which the adjustment is to be made, to reflect full completion of the Building including all standard tenant finish work;
(b) costs of supplies, including, but not limited to, the cost of relamping all Building standard lighting as the same may be required from time to time;
(c) costs incurred in connection with obtaining and providing energy for the Building Complex, including, but not limited to, costs of propane, butane, natural gas, steam, electricity, solar energy and fuel oils, coal or any other energy sources;
(d) costs of water and sanitary and storm drainage services;
(e) costs of janitorial and security services;
(f) all costs of repairs, replacements and improvements of the Building Complex including, but not limited to, structure, equipment, fixtures and mechanical systems, as well as the costs of HVAC and other mechanical maintenance and contracts, and tools and equipment used in operating or maintaining the Building Complex;
(g) costs of maintenance and replacement of landscaping;
(h) insurance premiums, including fire and all-risk coverage, together with loss of rent endorsement, the part of any claim required to be paid under the deductible portion of any insurance policies carried by Landlord in connection with the Building Complex, public liability insurance and any other insurance carried by Landlord on the Building Complex or any component parts thereof (all such insurance shall be in such amounts as may be required by any holder of a Mortgage and/or Trust Deed affecting all or any portion of the Building Complex or as Landlord may reasonably determine);
(i) labor costs, including wages and other payments, costs to Landlord of worker's compensation and disability insurance, payroll taxes, welfare fringe benefits, and all legal fees and other costs or expenses incurred in resolving any labor dispute;
(j) professional building management fees including costs of storage and office space required by management in the Building;
(k) legal, accounting, inspection, and other consultation fees (including, without limitation, fees charged by consultants retained by Landlord for services that are designed to produce a reduction in Operating Expenses or to reasonably improve the operation, maintenance or state of repair of the
Building Complex) incurred in the ordinary course of operating the Building Complex or in connection with making the computations required hereunder or in any audit of operations of the Building;
(l) the costs of capital improvements or structural repairs or replacements made in or to the Building Complex in order to conform to changes subsequent to the date of this lease in any applicable laws, ordinances, rules, regulations or orders of any governmental or quasi -governmental authority having jurisdiction over the Building Complex (herein "Required Capital Improvements");
B. If any increase occurs in Operating Expenses during any Lease Year during the Primary Lease Term, or any extension thereof, including the first Lease year, in excess of the Base Operating Expenses, Tenant shall pay to Landlord Tenant's Pro Rata Share of the amount of such increase within thirty (30) days following billing therefor by Landlord. In addition to the foregoing, it is agreed that, during each Lease year beginning with to first month of the second Lease Year and each month thereafter during the Primary Lease Term, or any extension thereof. Tenant shall pay to Landlord, at the same time as the Minimum Monthly Rent is paid, an amount equal to one-twelfth (1/12) of Landlord's estimate (as determined by Landlord's Accountants) of Tenant's Pro Rata Share of any projected increases in the Operating Expenses for the particular Lease Year in excess of the Base Operating Expenses, with a final adjustment to be made between the parties within ninety (90) days after the end of each Lease Year. In computing the increase in the monthly rental payments based upon Tenant's Pro Rata Share of the estimated increase of Operating Expenses for any particular Lease year, Landlord's Accountants shall take into account any prior increases in the monthly rental payments attributable to Tenant's Pro Rata Share of previously estimated increases. If during any Lease Year Landlord's projected increase in Operating Expenses for said year over the Base Operating Expenses is less than the projected increase for the previous Lease Year on which Tenant's monthly rental payments were based for said year, the rental payments to be paid by Tenant for the new Lease Year shall be decreased accordingly; provided, however, in no event will the rental to be paid by Tenant hereunder ever be less than the Minimum Monthly Rent plus all amounts of Additional Rent.
As soon as practicable following the end of each Lease Year during the Primary Lease Term, or any extension thereof, including the first Lease Year, Landlord shall submit to Tenant a statement prepared by Landlord's Accountants setting forth the exact amount of Tenant's Pro Rata Share of the increase, if any, of the Operating Expenses for the Lease Year just completed over the Base Operating Expenses. Beginning with said statement for the second Lease Year, it shall also set forth the difference, if any, between Tenant's actual Pro Rata Share of the increase in Operating Expenses for such Lease Year just completed and the estimated amount of Tenant's Pro Rata Share of such increase on the basis of which Tenant's monthly rent was computed for such particular Lease Year. Each such statement shall also set forth the projected increase, if any, in Operating Expenses for the new Lease Year over the Base Operating Expenses and the corresponding increase or decrease in Tenant's monthly rent for such new Lease Year above or below the rental paid by Tenant for the immediately preceding Lease Year, computed in accordance with the foregoing provisions. To the extent that Tenant's Pro Rata Share of the increase in Operating Expenses for the period covered by such statement is different from the estimated amount upon which Tenant paid rent during the Lease Year just completed, Tenant shall pay to Landlord the difference in cash within thirty (30) days following receipt by Tenant of such statement from Landlord, or receive a credit on the next month's rental owing hereunder as the case may be. Until Tenant receives such statement, Tenant's monthly rent for the new lease Year shall continue to be paid at the rate being paid for the particular Lease Year just completed, but Tenant shall commence payment to Landlord of the monthly installments of rent on the basis of said statement beginning on the first day of the month following the month in which Tenant receives such statement. Moreover, Tenant shall pay to Landlord, or deduct from the rent, as the case may be, on the date required for the first payment of rent as adjusted, the difference, if any, between the monthly installments of rent so adjusted for the new Lease Year and the monthly installments of rent actually paid during the new Lease Year. In addition to the above, if, during any particular Lease year, there is a change in the information on which Landlord's Accountants based the estimate upon which Tenant
is then making its estimated rental payments so that such estimate furnished to Tenant is no longer accurate, Landlord shall be permitted to revise such estimate by notifying Tenant, and there shall be such adjustments made in the monthly rental on the first day of the month following the serving of such statement on Tenant as shall be necessary by either increasing or decreasing, as the case may be, the amount of monthly rent then being paid by Tenant for the balance of the Lease Year (but in no event shall any such decrease result in a reduction of the rent below the Minimum Monthly Rent and all amounts of Additional Rent), as well as an appropriate adjustment in cash based upon the amount theretofore paid by Tenant during such particular Lease year pursuant to the prior estimate.
Landlord's and Tenant's responsibilities with respect to the Operating Expense adjustment described herein shall survive the expiration or early termination this Lease.
If the Rentable Area is not fully 'occupied during any particular Lease year, Landlord's Accountants shall adjust those Operating Expenses which are affected by the occupancy rates for the particular Lease Year, or portion thereof, as the case may be, to reflect an occupancy of not less than ninety-five percent (95%) of all such Rentable Area.
C. If Tenant disputes the amount of an adjustment submitted by Landlord's Accountants, or the proposed estimated increase or decrease on the basis of which Tenant's rent is to be adjusted as provided in Subparagraph 2 above, Tenant shall give Landlord written notice of such dispute within thirty (30) days after Landlord's Accountants advise Tenant of such adjustment or proposed increase or decrease. Tenant's failure to give such notice shall waive its right to dispute the amounts so determined. If Tenant timely objects, Tenant shall have the right to engage its own certified public accountants ("Tenant's Accountants") for the purpose of verifying the accuracy of the statement complained of, or the reasonableness of the estimated increase or decrease. If Tenant's Accountants determine that an error has been made, Landlord's Accountants and Tenant's Accountants shall endeavor to agree upon the matter, failing which the parties shall settle the dispute by judicial action or in such other manner as they agree. All costs incurred by Tenant in obtaining its own accountants shall be paid by Tenant unless Tenant's Accountants disclose an error, acknowledged by Landlord's Accountants (or found to have occurred in a judicial action) of more than ten percent (10%) in the computation of the total amount of Operating Expenses as set forth in the statement submitted by Landlord's Accountants with respect to the matter complained of, in which event Landlord shall pay the reasonable costs incurred by Tenant in obtaining such audit. Tenant shall continue to pay Landlord the amount of the adjusted monthly installments of rent determined by Landlord's Accountants until the adjustment has been determined to be incorrect as aforesaid. Landlord's or Landlord's Accountants' delay in submitting any statement contemplated herein for any Lease Year shall not affect the provisions of this Paragraph 5, nor constitute a waiver of Landlord's rights as set forth herein for said Lease Year or any subsequent Lease Years during the Primary Lease Term and any extensions thereof.
6. SERVICES. Landlord, without charge except as provided herein, and in accordance with standards from time to time prevailing for similar office buildings in Denver, Colorado, agrees to furnish during Ordinary Business Hours, as hereinafter defined, such heated or cooled air to the Premises, as may in the judgment of Landlord be reasonably required for comfortable use and occupancy, provided that Tenant complies with the recommendations of Landlord's engineer regarding occupancy and use of the Premises; to provide, during such Ordinary Business Hours, the use of passenger elevator for access and egress to and from the Premises; and to provide janitorial services for the Premises (including such window washings as may in the judgment of Landlord by reasonably required). Unless and until the practice in first-class office buildings changes, such janitorial services will be provided only on Monday through Friday, except for legal holidays; and during Ordinary Business Hours to cause electric current to be supplied for light to the Premises and public halls. It is understood that Tenant shall use such electric current only for building standard lighting, computers, typewriters, adding machines, calculators and small reproduction machines, and to the extent that electric current is used for any other purpose, Tenant's rent may be increased from time to time by Landlord in such amounts as
Landlord reasonably determines to cover the costs of such increased use. Such increases shall also be paid monthly. Prior to installation or use by Tenant of any equipment other than as set forth above, Tenant shall notify Landlord of such intended installation or use and Landlord may, at its option, require Tenant at Tenant's sole cost and expense to install a check meter to assist in determining the fair amount by which Tenant's rent should be increased. If Tenant desires electric current, heating or cooled air to the Premises during periods other than during Ordinary Business Hours, Landlord will use reasonable efforts to supply the same, but at the expense of Tenant, as determined from time to time by Landlord. Not less than 48 hours prior notice shall be given by Tenant to Landlord of Tenant's desire for such services. If Tenant requires janitorial services other than those required to be provided to other Tenant's of the Building generally, Tenant shall separately contract for such services with the same company furnishing janitorial services to Landlord.
"Ordinary Business Hours" as used herein shall mean and refer to 7:00 a.m. to 6:00 p.m. Monday through Friday and 7:00 a.m. to 12:00 p.m. on Saturday, legal holidays excepted.
7. INTERRUPTION OR DISCONTINUANCE OF LANDLORD'S SERVICES. Tenant agrees that Landlord shall not be liable for failure to supply any such heating, air conditioning, elevator, electrical, janitorial, lighting or other services during any period when Landlord uses reasonable diligence to supply such services, or during any period Landlord is required to reduce or curtail such services pursuant to any applicable laws, rules or regulations, now or hereafter in force or effect, it being understood that Landlord may discontinue, reduce or curtail such services, or any of them (either temporarily or permanently), at such times as it may be necessary by reason of accident, unavailability of employees, repairs, alterations, improvements, strikes, lockouts, riots, acts of God, application of applicable laws, statutes, rules and regulations, or due to any other happening beyond the control of Landlord. In the event of any such interruption, reduction or discontinuance of Landlord's services (either temporary or permanent), Landlord shall not be liable for damages to person or property as a result thereof, nor shall the occurrence of any such event in any way be construed as an eviction of Tenant, or cause or permit an abatement, reduction or setoff of rent, or operate to release Tenant from any of Tenant's obligations hereunder. Tenant further agrees that if any installment of rent shall remain unpaid for more than fifteen (15) days after it shall become due, Landlord may, without notice to Tenant, discontinue furnishing heat, air conditioning, electricity, janitorial or lighting services, or any of them, until all arrears of rent shall have been paid in full.
8. QUIET ENJOYMENT. Landlord agrees to warrant and defend Tenant in the quiet enjoyment and possession of the Premises during the term of this lease so long as Tenant complies with the provisions hereof.
9. CHARACTER OF OCCUPANCY. Tenant covenants and agrees to occupy the Premises as general offices and for no other purpose, and to use them in a careful, safe and proper manner; to pay on demand for any damage to the Premises caused by misuse or abuse of the Premises by Tenant, its agents or employees, or by any other person entering upon the Premises under express or implied invitation of Tenant; not to use or permit the Premises to be used for any purposes prohibited by the laws, codes, rules and regulations of the United States, the State of Colorado, or of the City and County of Denver. Tenant shall not commit waste, or suffer or permit waste to be committed, or permit any nuisance on or in the Premises.
10. ALTERATIONS AND REENTRY BY LANDLORD. Tenant covenants and agrees to permit
Landlord at any time to enter the Premises for any of the following purposes:
(a) to examine and inspect the same, or, if Landlord so elects, (b) to perform
any obligations of Tenant hereunder which Tenant shall fail to perform, (c) to
perform such cleaning, maintenance, janitorial services, repairs, additions or
alterations as Landlord may deem necessary or proper for the safety, improvement
or preservation of the Premises, or of other portions of the Building, or as may
be required by governmental authorities through any code, rule, regulation,
ordinance and/or law, (d) to post "for sale" signs at any time during the
Primary Lease Term or any extension thereof or "for rent" signs during the last
three months of the Primary Lease Term or any extension thereof and (e) to s low
the Premises to prospective brokers, agents, buyers or Tenant's. Any such
reentry shall not constitute an eviction, nor entitle Tenant to abatement of rent. Furthermore, Landlord shall at all times have the right at its election to make such alterations or changes in other portions of the Building as it may from time to time deem necessary and desirable as long as such alterations and changes do not unreasonably interfere with Tenant's use and occupancy of the Premises.
11. ALTERATIONS BY TENANT. Tenant covenants and agrees not to make any alterations in or additions to the Premises without first obtaining the written consent of Landlord All alterations and additions to the Premises, including, by way of illustration and not by limitation, all partitions, paneling, carpeting, drapes or other window coverings and light fixtures (but not including movable office furniture not attached to the Building) shall be deemed a part of the real estate and the property of Landlord and shall remain upon and be surrendered with the Premises as a part thereof without molestation, disturbance or injury at the end of said term, whether by lapse of time or otherwise, unless Landlord by notice given to Tenant no later than fifteen (15) days prior to the end of the term shall elect to have Tenant remove all or any of such alterations or additions, and in such event, Tenant shall promptly remove at its expense such alterations and additions and restore the Premises to its condition prior to the making of the same, reasonable wear and tear excepted.
12. REPAIRS. Tenant shall keep the Premises in as good order, condition and repair and in an orderly state, as when they were entered upon, loss by fire or other casualty (unless caused by the negligence of Tenant, its agents, employees or invitees) or ordinary wear excepted. All such repair and maintenance work, and any alterations or additions by Tenant permitted by Landlord under Paragraph 10 above shall be done at Tenant's expense by Landlord's employees or, with Landlord's consent, by persons requested by Tenant and authorized in writing by Landlord. If Landlord authorizes persons requested by Tenant to perform such work, prior to the commencement of any such work Tenant shall on request deliver to Landlord certificates issued by insurance companies qualified to do business in the State of Colorado, evidencing that worker's compensation, public liability insurance and property damage insurance, all in the amounts, with companies and on forms satisfactory to Landlord, are in force and effect and maintained by all contractors and subcontractors engaged by Tenant to perform such work. All such policies shall name Landlord and building management as an additional insured. Each such certificate shall provide that the same may not be cancelled or modified without thirty (30) days' prior written notice to Landlord.
13. MECHANIC'S LIENS. Tenant shall pay or cause to be paid all costs for work done or caused to be done by Tenant on the Premises of a character which will or may result in liens on Landlord's interest therein, and Tenant will keep the Premises free and clear of all mechanic's liens and other liens on account of work done for Tenant or persons claiming under it. Tenant hereby agrees to indemnify, defend and save Landlord harmless of and from all liability, loss, damage, costs or expenses, including attorneys' fees, on account of any claims of any nature whatsoever including claims on liens of laborers, material men or others for work performed for, or materials or supplies furnished to Tenant or persons claiming under Tenant. Should any liens be filed or recorded against the Premises or any action affecting the title thereto be commenced, Tenant shall cause such liens to be removed of record within five (5) days after notice from Landlord. If Tenant desires to contest any claim of lien, it shall furnish Landlord adequate security of at least one hundred fifty percent (150%) of the amount of the claim 1, plus estimated costs and interest, and if a final judgment establishing the validity or existence of any lien for any amendment is entered, Tenant shall pay and satisfy the same at once. If Tenant shall be in default in paying any charge for which a Mechanic's lien or suit to foreclose the lien has been recorded or filed, and shall not have given Landlord security as aforesaid, Landlord may (but without being required to do so) pay such lien or claim and any costs thereon, and the amount so paid, together with reasonable attorneys' fees incurred in connection therewith, shall be immediately due from Tenant to Landlord.
14. SUBLETTING AND ASSIGNMENT.
A. Tenant shall not, directly or indirectly, sell, assign, encumber, pledge or hypothecate all or any portion of its interest in the Premises, nor permit all or any portion of the Premises to be occupied by anyone other than Tenant, nor sublet all or any portion of the Premises without the written consent of Landlord first being obtained. Notwithstanding the consent of Landlord, any such subletting or assignment shall not relieve Tenant from its primary obligations hereunder to Landlord. If this lease be assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect the rent from the assignee, subtenant or occupant, and apply the net amount collected to the rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed an acceptance of the assignee, subtenant or occupant as the Tenant hereof, or a release of Tenant from further performance by Tenant of covenants on the part of Tenant herein contained.
B. If Tenant desires to enter into an assignment or sublease it shall first give written notice of its intention to Landlord, which notice shall include the name of the proposed assignee or subtenant ("Subtenant"); the nature of Subtenant's business to be carried on in the Premises; the terms of the proposed assignment or sublease and Subtenant's most recent financial statement. Notwithstanding anything contained hereinabove in this Paragraph 14 to the contrary, at anytime within thirty (30) days after Landlord's receipt of Tenant's notice herein, Landlord may elect any of the following options in its absolute and sole discretion: (i) consent to such subletting or assignment or (ii) refuse to grant such consent or (iii) refuse to-grant such consent and terminate this lease as to the portion of the Premises with respect to which such consent was requested, provided, however, if Landlord refuses to grant such consent and elects to terminate the lease as to such portion of the Premises, Tenant shall have the right to withdraw its request for such consent and remain in possession of the Premises under the terms and conditions hereof. If the lease is terminated as set forth herein, such termination shall be effective as of the date set forth in a written notice from Landlord to Tenant, which date shall not be less than thirty (30) days nor more than sixty (60) days following such notice. Landlord's consent to any requested subletting or assignment shall not relieve Tenant from obtaining Landlord's express consent to any further assignment or sublease nor waive Landlord's right to refuse to consent to any other such request, or to terminate this lease if such request is made, all as provided above.
Upon and following any assignment or subletting, Tenant shall pay to Landlord (in addition to all other amounts payable by Tenant under this Lease) fifty percent (50%) of all cash and other consideration payable by the assignee or sublessee in excess of the rent and other amounts otherwise payable by Tenant from time to time under this Lease after deducting all of Tenant's reasonable expenses in connection with such assignment or subletting exclusive of attorney's and other consultant's fees. The additional amount payable by Tenant under this section shall be paid within ten (10) days following its receipt from the assignee or sublessee as additional rent. If any part of such consideration received by Tenant is to be paid other than in cash, the amount due Landlord shall be the cash equivalent for its share of non-cash consideration based upon its fair market value. At Landlord's option, Landlord may agree to accept the assignee or sublessee as a direct Tenant upon the same term and conditions provided herein and in the assignment or sublease document entered into by Tenant and release Tenant from further obligation hereunder. In the event Tenant is released from further obligation hereunder, Landlord shill be entitled to all amounts to be pad by the assignee or sublessee, less Tenant's reasonable expenses in connection with such assignment or sublease exclusive of attorney's and other consultant's fees. Tenant agrees to reimburse Landlord for all reasonable expenses incurred in connection with any assignment or subletting, including but not limited to attorney's fees, plus an administrative processing fee of seven hundred fifty dollars ($750.00).
15. INJURY TO PERSON OR PROPERTY. Tenant shall neither hold, nor attempt to hold Landlord liable for any injury or damage, either proximate or remote, occurring through or caused by fire, water, steam, or any repairs, alterations, injury or accident, or any other cause, to the Premises, to any furniture, fixtures, Tenant improvements, or other personal property of Tenant kept or stored in the
Premises, to adjacent premises, or to other parts of the Building not herein demised, whether by reason of the negligence or default of the owners or occupants thereof, or any other person, or otherwise. All property of Tenant kept or stored in the Building Complex shall be at the sole risk of Tenant. If Tenant shall obtain risk insurance on any of its property, such insurance shall permit Tenant to waive any rights of subrogation, and Tenant hereby waives such rights.
16. INDEMNITY TO LANDLORD. Tenant hereby agrees to indemnify, defend, and save Landlord harmless of and from all liability, loss, damages, costs or expenses, including attorneys' fees, on account of injuries to the person or property of Landlord or of any other tenant in the Building, or to any other person rightfully in said Building for any purpose whatsoever, except where the injuries are caused by the negligence or misconduct of Landlord, its agents, servants or employees.
In addition to the above, Tenant shall at all times keep in force a comprehensive general combined liability insurance policy providing protection of at least One Million Dollars ($1,000,000.00) per incident/Two Million Dollars ($2,000,000.00) per year, or such greater amount as may be reasonably required by Landlord from time to time, against claims and liability for personal injury, bodily injury, death and property damage arising from the use, ownership, maintenance, disuse or condition of the Premises, any improvements located on or appurtenant to the Premises, improvements or adjoining areas or ways.. The Landlord shall be named as additional insured and protected under the terms and conditions of said policy as the Landlord of the Premises. The said policy shall be written by an insurance company licensed to do business in the State of Colorado and approved by the Landlord, which approval shall not be unreasonably withheld, with such policy to be non-assessable. All such policies shall name Landlord as an additional insured. Each such policy shall provide that the same may not be cancelled or modified without at least thirty (30) days' prior written notice to Landlord. Tenant shall, at the request of Landlord, deliver from time to time certificates evidencing that such insurance is in force and effect. The limits of said insurance shall not, however, limit the liability of Tenant hereunder.
17. SURRENDER AND NOTICE. Upon the expiration or other termination of the term of this lease, Tenant shall promptly quit and surrender to Landlord the Premises broom clean, in good order and condition, ordinary wear and tear and loss by fire or other casualty (unless caused by the Tenant, its agents, servants, employees or invitees) excepted, and Tenant shall remove all of its movable furniture and other effects and such alterations, additions and improvements as Landlord shall require Tenant to remove pursuant to Paragraph 9. If Tenant fails to vacate the Premises on a timely basis as required, Tenant shall be responsible to Landlord for all costs incurred by Landlord as a result of such failure, including but not limited to, any amounts required to be paid to third parties who were to have occupied the Premises.
18. FIRE, RESTORATION OF PREMISES. If the Premises, or said Building, shall be so damaged by fire or other casualty as to render the Premises wholly untenantable, and if such damage shall be so great that a competent architect, in good standing, selected by Landlord shall certify in writing to Landlord and Tenant that the Premises, with the exercise of reasonable diligence, cannot be made fit for occupancy within one hundred fifty (150) working days from the happening thereof, then this lease shall cease and terminate from the date of the occurrence of such damage; and Tenant thereupon shall surrender to Landlord the Premises and all interest therein hereunder, and Landlord may reenter and take possession of the Premises and remove Tenant therefrom. Tenant shall pay rent, duly apportioned, up to the time of such termination of this lease.
If, however, the damage shall be such that said architect shall certify that the Premises can be made tenantable within said one hundred fifty (150) day period from the happening of such damage or other casualty, then, except as hereinafter provided, Landlord shall repair the damage so done with all reasonable speed.
If the Premises, without the fault of Tenant, shall be slightly damaged by fire or other casualty, but not so as to render the same untenantable, Landlord, after receiving notice in writing of the occurrence of the injury, shall cause the same to be repaired with reasonable promptness.
If the fire or other casualty causing injury to the Premises or other parts of the Building shall have been caused by the negligence or misconduct of Tenant, its agents, servants or employees, or by any other person entering upon the Premises under express or implied invitation of Tenant, such injury shall be repaired by Landlord at the expense of Tenant.
In case the Building throughout shall be so injured or damaged, whether by fire
or otherwise (though the Premises may not be affected, or if affected, can be
repaired within said one hundred fifty (150) days) that Landlord within sixty
(60) days after the happening of such injury shall decide not to reconstruct or
rebuild the Building, then, notwithstanding anything contained herein to the
contrary, upon notice in writing to that effect given by Landlord to Tenant
within said sixty (60) days, Tenant shall pay the rent properly apportioned up
to such date, this lease shall terminate from the date of delivery of said
written notice and both parties hereto shall be freed and discharged of all
further obligations hereunder.
19. CONDEMNATION. If any portion of the Premises or any portion of the Building which shall render the Premises untenantable shall be taken by right of eminent domain or by condemnation or shall be conveyed in lieu of any such taking, then this lease, at the option of either Landlord or Tenant exercised by either party giving notice to other of such termination within thirty (30) days after such taking or conveyance, shall forthwith cease and terminate, and the rent shall be duly apportioned as of the date of such taking or conveyance. Tenant thereupon shall surrender to Landlord the Premises and all interest therein under this lease, and Landlord may reenter and take possession of the Premises or remove Tenant therefrom. If such taking or conveyance occurs, Landlord shall receive the entire award or consideration for the lands and improvements so taken.
20. DEFAULT BY TENANT. The occurrence of any of the following shall constitute an "event of default" by Tenant:
A. Failure to pay rent or any other amounts payable hereunder when due, and such default shall continue for five (5) days after receipt of written notice from Landlord; provided, however, Tenant shall not be entitled to more than two (2) notices of a delinquency in a monetary default during any Lease Year. If thereafter any rent or other amounts owing hereunder are not paid when due, a default shall be considered to have occurred even though no notice thereof is given;
B. Tenant shall vacate or abandon the Premises;
C. If this lease or the estate of Tenant hereunder shall be transferred to or shall pass to or devolve upon any other person or party except in the manner herein provided;
D. This lease or the Premises or any part thereof shall be taken upon execution or by other process of law directed against Tenant, or shall be taken upon or subject to any attachment at the instance of any creditor or claimant against Tenant, and said attachment shall not be discharged or disposed of within fifteen (15) days after the levy thereof;
E. Tenant shall file a petition in bankruptcy or insolvency or for reorganization or arrangement under the bankruptcy laws of the United States or under any insolvency act of any state, or shall voluntarily take advantage of any such law or act by answer or otherwise, or shall be dissolved or shall make an assignment for the benefit of creditors;
F. Involuntary proceedings under any such bankruptcy law or insolvency act or for the dissolution of Tenant shall be instituted against Tenant, or a receiver or trustee shall be appointed of all or substantially all of the property of Tenant, and such proceeding shall not be dismissed or such receivership or trusteeship vacated within sixty (60) days after such institution or appointment;
Tenant shall fail to take possession of the Premises on the term commencement date;
Tenant shall fail to perform any of the other agreements, terms, covenants or
conditions hereof on Tenant's part to be performed, and such nonperformance
shall continue for a period of thirty (30) days after notice thereof by Landlord
to Tenant, or if such performance cannot be reasonably had within such thirty
(30) day period, Tenant shall not in good faith have commenced such performance
within such thirty (30) day period and shall not diligently proceed therewith to
completion.
Upon the occurrence of an "event of default", Landlord shall have the right at its election, then or at any time thereafter either:
(1) To give Tenant written notice of intention to terminate this lease on the date of such given notice or on any later date specified therein, and on the date specified in such notice, Tenant's right to possession of the Premises shall cease and this lease shall thereupon be terminated, except as to Tenant's liability; or
(2) Without demand or notice, to reenter and take possession of the Premises or any part thereof, and repossess same as of Landlord's former estate and expel Tenant and those claiming through or under Tenant, and remove the effects of both or either, using such force for such purposes as may be necessary, without being liable for prosecution thereof, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of rent or preceding breach of covenants or conditions. Should Landlord elect to reenter as provided in this Subparagraph (2), or should Landlord take possession pursuant to legal proceedings or pursuant to any notice provided for by law, Landlord may, from time to time, without terminating this lease, relet the Premises or any part thereof, either alone or in conjunction with other portions of the Building of which the Premises are a part, in Landlord's or Tenant's name, but for the account of Tenant. Any reletting under this Section shall be for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the term of this lease) and on such conditions and upon such other terms (which may include concessions of free rent and alteration and repair of the Premises) as Landlord, in its uncontrolled discretion, may determine, and Landlord may collect and receive the rents therefor. Landlord shall in no way be responsible or liable for any failure to relet the Premises, or any part thereof, or for any failure to collect any rent due upon such reletting. No such reentry or taking possession of the Premises by Landlord shall be construed as an election on Landlord's part to terminate this lease unless a written notice of such intention be given to Tenant. No notice from Landlord hereunder or under a forcible entry and detainer statute or similar law shall constitute an election by Landlord to terminate this lease unless such notice specifically so states. Landlord reserves the right following any such reentry and/or reletting to exercise its right to terminate this lease by giving Tenant such written notice, in which event the lease will terminate as specified in said notice.
If Landlord does not elect to terminate this lease as permitted in Subparagraph
(1) of this article, but on the contrary, elects to take possession as provided
in Subparagraph (2) hereof, Tenant shall pay to Landlord (i) the rent and other
sums as herein provided, which would be payable hereunder if such repossession
had not occurred, less (ii) the net proceeds, if any, of any reletting of the
Premises after deducting all Landlord's expenses in connection with such
reletting, including, but without limitation, all repossession costs, brokerage
commissions, legal expenses, attorneys' fees, expenses of employees, alteration
and repair costs and expenses of preparation for such reletting. If, in
connection with any reletting, the new lease term extends beyond the existing term or the premises covered thereby include other premises not part of the Premises, a fair apportionment of the rent received from such reletting and the expenses incurred in connection therewith as provided aforesaid will be made in determining the net proceeds received from such reletting. In addition, in determining the net proceeds from such reletting, any rent concessions will be apportioned over the term of the new Lease. Tenant shall pay such amounts to Landlord monthly on the days on which the rent would have been payable hereunder if possession had not been retaken and Landlord shall be entitled to receive the same from Tenant on each such day.
If this lease is terminated pursuant to the provisions of this Paragraph 20, Tenant shall remain liable to Landlord for damages in an amount equal to the rent and other sums which would have been owing by Tenant hereunder for the balance of the term had this lease not been terminated, less the net proceeds, if any, of any reletting of the Premises by Landlord subsequent to such termination, after deducting all Landlord's expenses in connection with such reletting, including, but without limitation, the expenses enumerated above. Landlord shall be entitled to collect such damages from Tenant monthly on the days on which the rent and other amounts would have been payable hereunder if this lease had not been terminated, and Landlord shall be entitled to receive the same from Tenant on each such day. Alternatively, at the option of Landlord if this lease is terminated, Landlord shall be entitled to recover forthwith against Tenant as damages for loss of the bargain and not as a penalty, an amount equal to the worth at the time of such termination of the excess, if any, of the amount of rent reserved in this lease for the balance of the term hereof in excess of the then reasonable rental value of the Premises for the same period. It is agreed that the "reasonable rental value" shall be the amount of rental which Landlord can obtain as rent or the remaining balance of the term.
Suit or suits for the recovery of the rent and other amounts and damages set forth hereinabove may be brought by Landlord from time to time, at Landlord's election, and nothing herein shall be deemed to require Landlord to await the date whereon this lease of the term hereof would have expired by limitation had there been no such default by Tenant, or no such termination, as the case may be. Each right and remedy provided in this lease shall be cumulative and shall be in addition to every other right or remedy provided for in this lease or now or hereafter existing at law or in equity or by statute or otherwise, including but not limited to, suits for injunctive relief and specific performance. The exercise or beginning of the exercise by Landlord of any one or more of the rights or remedies provided for in this lease or now or hereafter existing at law or in equity or otherwise shall not preclude the simultaneous or later exercise by Landlord of any or all other rights or remedies provided for in this lease or now or hereafter existing at law or in equity or otherwise. All costs incurred by Landlord in connection with collecting any rent and other amounts and damages owing by Tenant pursuant to the provisions of this lease or to enforce any provision of this lease, including reasonable attorneys' fees from the date any such matter is turned over to an attorney, whether or not one or more actions are commenced by Landlord, shall also be recoverable by Landlord from Tenant. In the event Landlord incurs any attorney's fees in connection with the recovery of or any dispute about rental under this Lease, then Tenant shall pay Landlord's reasonable attorney's fees and costs in connection therewith. If an action shall be brought under this Lease, or for or on account of any breach of or to enforce or interpret any of the terms, covenants or conditions of this Lease, or for the recovery of possession of the demised premises, the prevailing party shall be entitled to recover from the other party the prevailing party's reasonable attorney's fees and costs, the amount of which shall be fixed by the court and shall be made a part of any judgment rendered. This lease shall be construed and governed under the laws of the State of Colorado.
No failure by Landlord to insist upon the strict performance of any agreement, term, covenant or condition hereof or to exercise any right or remedy consequent upon a breach thereof, and no acceptance of full or partial rent during the continuance of any such breach, shall constitute a waiver of any such breach or of such agreement, term, covenant or condition. No payment by Tenant, nor receipt from Landlord of a lesser amount than the amount due hereunder, shall be deemed to be other than on an account of the earliest stipulated amount due, nor shall any endorsement or statement on any check or any letter accompanying any
check, or payment as rent, be deemed an accord and satisfaction, and Landlord shall accept such check for payment without prejudice to Landlord's right to recover the balance of such amount due or pursue any other remedy available to the Landlord. No agreement, term, covenant or condition hereof to be performed or complied with by Tenant, and no breach thereof, shall be waived, altered or modified except by written instrument executed by Landlord. No waiver of any breach shall affect or alter this lease, but each and every agreement, term, covenant and condition hereof shall continue in full force and effect with respect to any other then existing or subsequent breach thereof. Notwithstanding any termination of this lease, the same shall continue in force and effect as to any provisions which require observance or performance by Landlord or Tenant subsequent to such termination.
Nothing in this article shall limit or prejudice the right of Landlord to prove and obtain as liquidated damages in any bankruptcy, insolvency, receivership, reorganization or dissolution proceeding, an amount equal to the maximum allowed by any statute or rule of law governing such a proceeding and in effect at the time when such damages are to be proved, whether or not such amount be grater, equal to or less than the amounts recoverable, either as damages or rent, referred to in any of the preceding provisions of this article.
Notwithstanding anything contained hereinabove in this article to the contrary, any such proceeding or action involving bankruptcy, insolvency, reorganization, arrangement, assignment for the benefit of creditors or appointment of a receiver or trustee set forth above, shall be considered to be an event of default only when such proceeding, action or remedy shall be taken or brought by or against the then holder of the leasehold estate under this lease.
If the Tenant shall fail to pay any monthly installment of the rent or any other charge pursuant to the terms of this Lease within ten (10) business days after such installment or other charge is due, a late charge equal to one-thirtieth (1/30th) of the rental or payment then due shall be assessed and shall accrue for each day beyond said ten (10) days until such rental or payment, including the late charge, is paid in full. Further, in the event any rents or other amounts owing hereunder are not paid within said ten (10) day period, Landlord and Tenant agree that Landlord will incur additional administrative expenses, the amount of which will be difficult if not impossible to determine. Accordingly, Tenant shall pay to Landlord an additional one-time late charge for any such late payment in the amount of five percent (5%) of such payment. Any amounts paid by Landlord to cure any defaults of Tenant hereunder, which Landlord shall have the right, but not the obligation to do, shall, if not repaid by Tenant within five (5) days after demand by Landlord, thereafter bear interest at the rate of twelve percent (12%) per annum, or the highest rate permitted by applicable law, whichever is lower, until paid.
21. SUBORDINATION AND ATTORNMENT. This lease, at Landlord's option, shall be subordinate to any mortgage, deed of trust (now or hereafter placed upon the Building Complex), ground lease or declaration of covenants (now or hereafter placed upon the Building Complex) regarding maintenance and use of any areas contained in any portion of the Building Complex, and to any and all advances made under any mortgage or deed of trust and to all renewals, modifications, consolidations, replacements and extensions hereof. Tenant agrees that with respect to any of the foregoing documents, no documentation, other than this lease, shall be required to evidence such subordination. If any holder of a mortgage or deed of trust shall elect to have this lease superior to the lien of its mortgage or deed of trust and shall give written notice thereof to Tenant, this lease shall be deemed prior to such mortgage or deed of trust whether this lease is dated prior or subsequent to the date of said mortgage, deed of trust or the date of recording thereof. Tenant agrees to execute such documents which may be required to effectuate such subordination or to make this lease junior to the lien of any mortgage or deed of trust, as the case may be, and failing to do so within ten (10) days after written demand, Tenant does hereby make, constitute and irrevocably appoint Landlord as Tenant's attorney-in-fact and in Tenant's name, place and stead, to do so. Tenant hereby attorns to all successor owners of the Building, whether or not such ownership is acquired as a result of sale, through foreclosure of a deed of trust or mortgage, or otherwise.
22. REMOVAL OF TENANT'S PROPERTY. All movable furniture and personal effects of Tenant not removed from the Premises upon the vacation or abandonment thereof or upon the termination of this lease for any cause whatsoever shall conclusively be deemed to have been abandoned and may be appropriated, sold, stored, destroyed or otherwise disposed of by Landlord without notice to Tenant or any other person and without obligation to account therefor; and Tenant shall pay Landlord all expenses incurred in connection with the disposition of such property.
Tenant hereby conveys to Landlord all of its property situated on the Premises as security for the payment of all rents and other amounts due or to become due hereunder, and Tenant shall execute such documents as Landlord may reasonably require to evidence Landlord's security interest therein. For this purpose, this lease shall be considered to be a security agreement. Such security interest shall be prior and superior to any other security interest except a purchase money security interest. Tenant's proper* shall not be removed from the Premises without the prior written consent of Landlord, except to the extent such property, is replaced with an item of equal or greater value (and Landlord's security interest shall extend over such replacements).
23. HOLDING OVER: TENANCY MONTH TO MONTH. If after the expiration of this lease Tenant shall remain in possession of the Premises and continue to pay rent, without any express written agreement as to such holding, then such holding over shall be deemed and taken to be a holding upon a tenancy from month-to-month, subject to all the terms and conditions hereof on the part of Tenant to be observed and performed and at a monthly rent equivalent to two hundred percent (200%) of the monthly installments paid by Tenant immediately prior to such expiration, payable in advance on the same day of each calendar month. Such month-to-month tenancy may be terminated by either party upon ten (10) days' written notice prior to the end of any such monthly period.
24. PAYMENTS AFTER TERMINATION. No payments of money by Tenant to Landlord after the termination of this lease, in any manner, or after giving of any notice (other than a demand for payment of money) by Landlord to Tenant, shall reinstate, continue or extend the term of this lease or affect any notice given to Tenant prior to the payment of such money, it being agreed that after the service of notice or the commencement of a suit or other final judgment granting Landlord possession of said premises, Landlord may receive and collect any sums of rent due, or any other sums of money due under the terms of this lease, or otherwise exercise its rights and remedies hereunder. The payment of such sums of money, whether as rent or otherwise, shall not waive said notice, or in any manner affect any pending suit or judgment theretofore obtained.
25. PREMISES NOT READY FOR OCCUPANCY. If Landlord is to remodel the Premises, and if the Premises are not ready for occupancy on the date upon which the term hereby demised is to begin, the rent under this lease shall not commence until the Premises are ready for occupancy, whereupon this lease, and all of the covenants, conditions and agreement herein contained shall be in full force and effect; and the expiration of the term hereof shall be postponed for an equivalent period of time, and the postponement of rent herein provided to be paid by Tenant for such period prior to the delivery of the Premises to Tenant ready for occupancy shall be in full settlement for all claims which Tenant might otherwise have by reason of said Premises not being ready for occupancy on the date of the beginning of the term as set forth herein. Provided, however, if Tenant takes possession of all or any part of the Premises prior to the date the Premises are ready for occupancy, all terms and provisions of this lease shall apply except for the payment of rent. "Ready for occupancy" as used herein shall mean the date that Landlord shall have substantially completed any remodeling work to be performed by Landlord to the extent agreed to in the work letter. The certificate of the architect (or other representative of Landlord) in charge of supervising the completion or remodeling of the Premises shall control conclusively the date upon which the Premises are ready for occupancy, and the obligation to pay rent begins as aforesaid. In addition to the above, if Landlord is delayed in delivering the Premises to Tenant due to the failure of a prior occupant to vacate the same, then, the rent and term shall also be postponed as hereinabove set forth, and such postponement shall be in full settlement of all claims which Tenant may otherwise have by reason of the delay of delivery.
If, as a result of the postponement of the commencement of the term, the term would begin other than on the first day of the month, the commencement thereof shall be further postponed until the first day of the following month, but Tenant shall pay proportionate rent at the same monthly rate set forth herein (also in advance) for such partial month and all other terms and conditions of this lease shall be in force and effect during such partial month. As soon as the term commences, Landlord and Tenant shall execute an addendum to this lease, which may be requested by either party, setting forth the exact date of commencement and expiration of the term hereof.
26. TENANT ESTOPPEL STATEMENT. Tenant further agrees at any time and from time to time, upon not less than ten (10) days' prior written request by Landlord, to execute, acknowledge and deliver to Landlord a statement in writing certifying that this lease is unmodified and in full force and effect (or in full force and effect as modified, and stating the modifications), that there have been no defaults thereunder by Landlord or Tenant (or if there have been defaults, setting forth the nature thereof), the amount of the Minimum Monthly Rent, the amount of any Tenant security deposit and the date to which the rent and other charges have been paid in advance, if any. It is intended that any such statement delivered pursuant to this paragraph may be relied upon by any prospective purchaser of all or any portion of Landlord's interest herein, or a holder of any mortgage or deed of trust encumbering the Building Complex. Tenant's failure to deliver such statement within such time shall be conclusive upon Tenant (i) that this lease is in full force and effect, without modification except as may be represented by Landlord, (ii) that there are no uncured defaults in Landlord's performance, and (iii) that not more than one (1) month's rent has been paid in advance. Further, upon request, Tenant will supply Landlord a corporate resolution certifying that the party signing this statement on behalf of Tenant is properly authorized to do so.
27. MISCELLANEOUS.
A. The term "Landlord" as used in this lease, so far as covenants or obligations on the part of Landlord are concerned, shall be limited to mean and include only the owner or owners of the Building in which the Premises are situated at the time in question, and in the event of any transfer or transfers of the title thereto, Landlord herein named (and in the case of any subsequent transfers or conveyances, the then grantor) shall be automatically released from and after the date of such transfer or conveyance of all liability as respects the performance of any covenants or obligations on the part of Landlord contained in this lease thereafter to be performed; provided that any funds in the hands of Landlord or the then grantor at the time of such transfer, in which Tenant has an interest, shall be turned over to the grantee, and any amount then due and payable to Tenant by Landlord or the then grantor under any provisions of this lease shall be paid to Tenant.
B. This lease shall be construed as though the covenants herein between Landlord and Tenant are independent and not dependent, and Tenant shall not be entitled to any setoff of the rent or other amounts owing hereunder against Landlord if Landlord fails to perform its obligations set forth herein; provided, however, the foregoing shall in no way impair the right of Tenant to commence a separate action against Landlord for any violation by Landlord of the provisions hereof so long as notice is first given to Landlord and any holder of a mortgage or deed of trust covering the Building Complex or any portion thereof and an opportunity granted to Landlord and such holder to correct such violation as provided in Subparagraph F of this paragraph.
C. If any clause or provision of this lease is illegal, invalid or unenforceable under present or future laws effective during the term of this lease, it is the intention of the parties hereto that the remainder of this lease shall not be affected thereby, and it is also the intention of the parties to this lease that in lieu of each clause or provision of this lease that is illegal, invalid or unenforceable, there be added as a part of this lease a clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible and be legal, valid and enforceable.
D. The caption of each paragraph is added as a matter of convenience only and shall be considered of no effect in the construction of any provision or provisions of this lease.
E. Except as herein specifically set forth, all terms, conditions and covenants to be observed and performed by the parties hereto shall be applicable to and binding upon their respective heirs, administrators, executors, successors and assigns. The terms, conditions and covenants hereof shall also be considered to be covenants running with the land.
F. If any alleged default on the part of Landlord hereunder occurs, Tenant shall give written notice to Landlord in the manner herein set forth and shall afford Landlord a reasonable opportunity to cure any such default. In addition, Tenant shall send notice of such default by certified or registered mail, postage prepaid, to the holder of any mortgages or deeds of trust covering the Building Complex or any portion thereof of whose address Tenant has been notified in writing, and shall afford such holder a reasonable opportunity to cure any alleged default on Landlord's behalf. In no event will Landlord be responsible for any damages incurred by Tenant, including but not limited to, lost profits or interruption of business as a result of any alleged default by Landlord hereunder.
G. Tenant and the party executing this lease on behalf of Tenant represent to Landlord that such party is authorized to do so by requisite action of the board of directors or partners, as the case may be, and agree upon request to deliver to Landlord a resolution or similar document to that effect.
H. If there is more than one entity or person which or who are the Tenant under this lease, the obligations imposed upon Tenant under this lease shall be joint and several.
I. No act or thing done by Landlord or Landlord's agents during the term hereof, including, but not limited to, any agreement to accept surrender of the Premises or to amend or modify this lease, shall be deemed to be binding on Landlord unless such act or thing shall be by an officer of Landlord or a party designated in writing by Landlord as so authorized to act. The delivery of keys to Landlord, or Landlord's agents, employees or officers shall not operate as a termination of this lease or a surrender of the Premises. No payment by Tenant, or receipt by Landlord, of a lesser amount than the monthly rent herein stipulated, shall be deemed to be other than on account of the earliest stipulated rent, nor shall any endorsement or statement on any check or any letter accompanying any check, or payment as rent, be deemed an accord and satisfaction. Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such rent or pursue any other remedy available to Landlord.
J. Landlord shall have the right at any time to change the name of the Building, to construct other buildings or improvements in any area designated by Landlord for use by Tenant's or to change the location, character or make alterations of, or additions to any of said areas.
K. Notwithstanding anything to the contrary contained herein, Landlord's liability under this lease shall be limited to its interest in the Building.
L. Tenant acknowledges and agrees that it has not relied upon any statements, representations, agreements or warranties by Landlord, its agents or employees, except such as are expressed herein. No amendment or modification of this Lease, or any approvals or permissions of the Landlord required under this Lease, shall be valid or binding unless reduced to writing and executed by the parties hereto in the same manner as the execution of this Lease.
28. AUTHORITIES FOR ACTION AND NOTICE
A. Except as herein otherwise provided, Landlord may act in any matter provided for herein by its Building Manager or any other person who shall from time to time be designated in writing.
B. All notices or demands required or permitted to be given to Landlord hereunder shall be in writing and shall be deemed duly served when deposited in the United States mail, postage prepaid, certified or registered, return receipt requested, addressed to Landlord and Landlord's agent at the addresses provided on page 12 of this Lease or at the most recent address of which Landlord has
notified Tenant in writing. All notices or demands required to be given to Tenant hereunder shall be in writing and shall be deemed duly served when delivered personally to any officer or manager of Tenant whose office is in the Building, or when deposited in the United States mail, postage prepaid, certified or registered, return receipt requested, addressed to Tenant at its office in the Building. Either party shall have the right to designate in writing, served as above-provided, a different address to which notice is to be mailed. The foregoing shall not prohibit notice being given as provided in Rule 4 of Colorado Rules of Civil Procedure, as the same may be amended from time to time.
29. RULES AND REGULATIONS. It is further agreed that the following rules and regulations shall be and are hereby made a part of this lease and Tenant agrees that its employees and agents, or any others permitted by Tenant to occupy or enter the Premises, will at all times abide by said rules and regulations, to wit:
A. The sidewalks, entries, passages, corridors, stairways and elevator of the Building shall not be obstructed by Tenant, or its agents or employees, or used for any purpose other than ingress and egress to and from the premises.
B. (1) Furniture, equipment or supplies will be moved in or out of the Building
only during such hours and in such manner as may be prescribed by Landlord. The
Landlord shall have the right to approve or disapprove the movers or moving
company employed by Tenant. In the event Tenant's movers damage the elevator or
any part of the Building, tenant shall forthwith pay to Landlord the amount
required to repair said damage.
(2) No safe or article, the weight of which may, in the opinion of Landlord,
constitute a hazard or damage to the Building or its equipment, shall be moved
into the Premises.
(3) Safes and other equipment, the weight of which is not excessive, shall be
moved into, from or about the Building only during such hours and in such manner
as shall be prescribed by Landlord, and Landlord shall have the right to
designate the location of such articles in the Premises.
C. During the entire term of this lease, Tenant shall at its expense, install and maintain a chair pad to protect the carpeting under all caster chairs.
D. No sign, advertisement or notice shall be inscribed, painted or affixed on any part of the inside or outside of the Building unless of such color, size and style and in such place upon or in the Building, as shall be first designated by Landlord, but there shall be no obligation or duty on Landlord to allow any sign, advertisement or notice to be inscribed, painted or affixed on any part of the inside or outside of the Building. A Directory in a conspicuous place, with names of Tenant's, not to exceed one name per five hundred (500) square feet of space contained in the Premises, will be provided by Landlord; any necessary revision in this will be made by Landlord at Tenant's expense, within a reasonable time after notice from Tenant of the change making the revision necessary. No furniture shall be placed in front of the Building or in any lobby or corridor, without the prior written consent of Landlord. Landlord shall have the right to remove all nonpermitted signs and furniture, without notice to Tenant, and at the expense of Tenant.
E. Tenant shall not do or permit anything to be done in said Premises, or bring or keep anything therein which would in any way increase the rate of fire insurance on the Building or on property kept therein, or constitute a nuisance or waste, or obstruct or interfere with the rights of other Tenant's, or in any way injure or annoy them, or conflict with the laws relating to fire, or with any regulations of the fire department, or with any insurance policy upon the Building or any part thereof, or conflict with any of the rules or ordinances of the Department of Health of the City and County where the Building is located.
F. Tenant shall not employ any person or persons other than the janitor of Landlord for the purpose of cleaning or taking care of the Premises, without the prior written consent of Landlord. Landlord shall be in no way responsible to Tenant for any loss of property from the Premises, however occurring, or for any damage done to Tenant's furniture or equipment by the janitor or any of his staff, or by any other person or persons whomsoever. The janitor of the Building may at all times keep a pass key, and he and other agents of Landlord shall at all times be allowed admittance to said Premises.
G. Water closets and other water fixtures shall not be used for any purpose other than that for which the same are intended, and any damage resulting to the same from misuse on the part of Tenant, its agents or employees, shall be paid by Tenant. No person shall waste water by tying back or wedging the faucets or in any other manner.
H. No animals shall be allowed in the offices, halls, corridors and elevators in the Building. No person shall disturb the occupants of this or adjoining buildings or premises by the use of any radio, sound equipment or musical instrument or by the making of loud or improper noises.
I. Bicycles or other vehicles shall not be permitted in the offices, halls, corridors, and elevators in the Building, nor shall any obstruction of sidewalks or entrances of the Building by such be permitted.
J. Tenant shall not allow anything to be placed on the outside of the Building, nor shall anything be thrown by Tenant, its agents or employees, out of the windows or doors, or down the corridors, elevator shafts, or ventilating ducts of shafts of the Building. Tenant, except in case of fire or other emergency, shall not open any outside window.
K. No additional lock or locks shall be placed by Tenant on any door in the Building unless written consent of Landlord shall first have been obtained. A reasonable number of keys to the Premises and to the toilet rooms if locked by Landlord will be furnished by Landlord, and neither Tenant, its agents or employees shall have any duplicate keys made. At the termination of this tenancy, Tenant shall promptly return to Landlord all keys to offices, toilet rooms or vaults.
L. No window shades, blinds, screens, draperies or other window coverings will be attached or detached by Tenant without Landlord's prior written consent, tenant agrees to abide by Landlord's rules with respect to maintaining uniform curtains, draperies and/or linings at all windows and hallways.
M. No awnings shall be placed over the windows except with the prior written consent of Landlord.
N. If any Tenant desires telegraphic, telephonic or other electric connections, Landlord or its agents will direct the electricians as to where and how the wires may be introduced, and without such directions, no boring or cutting for wires will be permitted. Any such installation and connection shall be made at Tenant's expense.
O. Tenant shall not install or operate any steam or gas engine or boiler, or carry on any mechanical business in the Premises; the use of gas or flammable liquids for heating, lighting or any other purpose is expressly prohibited. Explosives or other articles deemed extra hazardous shall not be brought into the Building Complex.
P. Any painting or decorating as may be agreed to be done by and at the expense of Landlord shall be done during regular weekday working hours; should Tenant desire such work on Saturdays, Sundays, holidays or outside of regular working hours, Tenant shall pay for the extra costs thereof.
Q. Except as permitted by Landlord, Tenant shall not mark upon, paint signs upon, cut, drill into, drive nails or screws into, or in any way deface the walls, ceilings, partitions or floors of the Premises or of the building, and any defacement, damage or injury caused by Tenant, its agents or employees, shall be paid for by Tenant.
R. Tenant shall not place this Lease or any memoranda thereof of record with the Clerk and Recorder of the City and County of Denver or in any other public record.
S. Tenant agrees that Landlord may amend, modify, delete or add new and additional rules and regulations to the use and care of the Premises and the Building of which the Premises are a part. Tenant agrees to comply with all such rules and regulations upon notice to Tenant from Landlord thereof. In the event of any breach of any rules and regulations herein set forth or any amendments, modifications or additions thereto, Landlord shall have all remedies in this lease provided for in the event of default by Tenant.
30. BROKERS. Tenant warrants that it has had no dealings with any real estate broker or agents in connection with the negotiation of this Lease excepting only Tedford Katz Commercial Real Estate and it knows of no other real estate broker or agent who is entitled to a commission in connection with this Lease and shall defend, indemnify and hold Landlord harmless from any liability or claim, including attorney's fees in connection with brokerage fee claims arising through Tenant from any other broker.
31. Time is of the essence hereof, and unless waived by Landlord (which it shall have the right, but not the obligation to do), this lease is contingent upon execution and delivery by Tenant to Landlord no later than 5:00 P.M. September 15, 2005.
32. If for any reason Landlord delivers the Premises after the commencement date, rental for the interim period between the commencement date and actual date of delivery shall be prorated based upon the actual number of days in such period. The Lease shall not be void or voidable in the event of a late delivery of the Premises by Landlord, nor shall Landlord be liable to Tenant for any loss or damage therefrom. Tenant's inability or failure to take possession of the Premises on the commencement date, or such later date that Landlord delivers the Premises, shall not delay the commencement of the term of this Lease or Tenant's obligation to pay rent hereunder. No earlier or later delivery or taking possession of the Premises shall change the termination date of this Lease.
33. Landlord agrees to provide Tenant use of two (2) reserved parking spaces during the term of this Lease at a rate of $35.00 per month per space. The location of the parking spaces shall at all times be determined by the Landlord and said parking lot shall be owned and controlled by the landlord. Landlord shall not be responsible or liable for any damage that may occur to Tenant's property in the use of said parking facility.
34. Tenant shall pay Landlord as minimum monthly rent as follows:
October 1, 2005 through September 30, 2006 $1427.71 per month October 1, 2006 through September 30, 2007 $1468.50 per month October 1, 2007 through September 30, 2008 $1488.90 per month
Tenant agrees to prepay rent and parking charges for the period October 1, 2005 through September 30, 2006 in the sum of $17972.52 upon execution of this Lease.
IN WITNESS WHEREOF, the parties hereto have caused this lease to be executed the day and year first above-written.
Tenant: GOLD RESOURCE CORPORATION Landlord: THE ROLLNICK BUILDING /s/ David C. Reid /s/ Norman J. Gray ---------------------------------- ---------------------------------- David C. Reid, Vice President |
GUARANTY
FOR VALUE RECEIVED, and in consideration of the giving of the within lease, the undersigned guarantees to the Landlord, its successors and assigns, the full performance and observance of all the convenants, conditions and agreements therein provided to be performed and observed by the Tenant, without requiring any notice of a nonpayment, nonperformance or nonobservance, or proof of notice or demand whereby to charge the undersigned therefor, nor shall failure of the Landlord to enforce its right against the Tenant or concessions made by the Landlord to the Tenant affect the liability hereunder.
Dated Denver, Colorado, September ___, 2005.
/s/ William W. Reid
---------------------------------
William W. Reid
|
Address of Landlord's agent:
Tedford Katz Commercial Real Estate
777 S. Wadsworth Blvd., Bldg. 4-180
Lakewood, CO 80226
Exhibit A
"PREMISES"
222 MILWAUKEE STREET
SUITE 301
DENVER, COLORADO 80206
979 SQUARE FEET
[DRAWING OF OFFICE SPACE OMITTED]
Exhibit B
1. Landlord agrees to provide the following tenant improvement work to the Premises at Landlord's sole cost and expense:
A. Re-paint entire Premises (one color paint);
B. Remove existing carpet and base and install new building standard carpet and base;
2. Other than those items listed above, Tenant accepts the Premised in its as-is condition with no obligation by Landlord to perform any tenant improvement work.
AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into effective as of July 28, 2003, regardless of the dates upon which it actually is executed by the parties hereto, by and between GOLD RESOURCE CORPORATION, a Colorado corporation ("Gold Resource"), and CANYON RESOURCES CORPORATION, a Delaware corporation ("Canyon").
RECITALS
A. Gold Resource owns the controlling shareholder interest in Don David Gold, S.A. de C.V., a mining corporation incorporated under the laws of the Mexican Republic ("Don David");
B. Don David has entered into an Exploration and Exploitation Agreement, dated October 14, 2002 (the "Exploitation Agreement") with Mr. Jose Perez Reynoso ("Concessionaire"), with respect to certain mining concessions (the "Concessions") that are owned by Concessionaire and that exist over the following lots (collectively, the "Lots"), situated in the Municipality of San Pedro Totolapan, State of Oaxaca, within the jurisdiction of the Mining Agency of Oaxaca, Oaxaca;
Name of the Lot Title No HS. Type of Concession --------------- -------- --- ------------------ LA TEHUANA 210029 925 Exploration EL AGUILA 206772 899.6 Exploitation EL AIRE 158272 72 Exploration EL CHACAL 629627 375 Exploration |
C. Gold Resource and Canyon wish to enter into this Agreement to provide a means whereby, upon providing certain funding, Canyon shall have the right to acquire an interest in a Sociedad de Responsabilidad Limitada (the "New SRL"), a limited liability corporation that would be organized under the laws of the Mexican Republic and jointly owned or controlled by Gold Resource and Canyon and to which Gold Resource would cause Don David to transfer its rights to the Concessions and the Exploitation Agreement, all as provided in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises made and benefits to be enjoyed by the parties hereto, Gold Resource and Canyon hereby agree as follows:
1. Canyon Loans to Gold Resource. As a precondition to acquiring an ownership interest in New SRL, Canyon shall loan Gold Resource a total of $500,000 to be provided in two installments, the first of which ("Installment 1") shall be optional in the amount of $200,000, and the second of which ("Installment 2") shall be optional in the amount of $300,000, and both of which shall be conditions precedent to Canyon's acquisition of an ownership interest in New SRL. The Installments shall be funded by Canyon by means of wire transfers to an account specified in writing by Gold Resource or by other means agreed upon by the parties.
A. Installment 1: The $200,000 for Installment 1 shall be advanced by Canyon to Gold Resource in the following three sub-installments, the second two of which are optional. If Canyon fails to fund those two installments in their entirety, then Canyon shall not be entitled to any repayments of cash or to any stock of Gold Resource, and the Installment 1 loans shall be forgiven: (i) Upon execution of this Agreement -- $50,000; (ii) On or before August 8, 2003 -- $50,000; and (iii) On or before September 8, 2003 -- $100,000.
B. Installment 2: Within 45 days after Canyon's receipt of all assays from the drilling performed during the exploration work that is funded by the Installment 1 loan, Canyon shall notify Gold Resource in writing whether Canyon elects to provide the Installment 2 loan. If Canyon does not so elect, it shall cancel the Installment 1 loan, in consideration for which Gold Resource shall issue to Canyon four hundred thousand (400,000) shares of the common stock of Gold Resource, and this Agreement shall terminate, except as to the provisions of paragraph 4 below with respect to those shares. If Canyon elects to provide the Installment 2 loan, the $300,000 shall be advanced as follows:
(i) Upon Canyon's notice of election -- $100,000;
(ii) On or before 30 days after Canyon's notice of Election- $100,000; and
(iii) On or before 60 days after Canyon's notice of Election- $100,000.
C. Use of Loan Proceeds: The Installment 1 loan proceeds shall be used to fund an exploration program as described more specifically on Exhibit A hereto. The Installment 2 loan proceeds shall be used to fund a program mutually approved in writing by Gold Resource and Canyon, which shall include continued drilling on the Lots and engineering pre-feasibility work.
2. Canyon Election to Fund Additional $3,000,000. Within 90 days after completion of the drilling and engineering pre-feasibility work that is funded by the Installment to loan pursuant to paragraph 1.B. above, Canyon shall notify Gold Resource in writing whether Canyon elects to fund the next $3,000,000 in exploration and development costs with respect to the Lots and to incorporate New SRL, as provided in paragraph 3 below. If Canyon so elects, it still o enclose with its notice of election an initial payment of $100,000, which shall be retained by New SRL as a working capital deposit, which shall be in addition to funds to be provided by Canyon to meet quarterly cash calls for New SRL's programs and budgets, until Canyon has met its $3,000,000 funding condition. At that time, the $100,000 deposit, plus accrued interest thereon, shall be returned to Canyon; provided, however, that New SRL shall be entitled to draw upon the deposit to meet any funding shortfalls by Canyon while it is meeting its $3,000,000 funding condition. If Canyon does not so elect, it shall cancel both the Installment 1 and Installment 2 loans, in consideration for which Gold Resource shall issue to Canyon six hundred thousand (600,000) shares of the common stock of Gold Resource, and this Agreement shall terminate, except as to the provisions of paragraph 4 below with respect to those shares.
3. Incorporation and Operation of New SRL. Promptly after Canyon's election to fund the next $3,000,000 as provided in paragraph 2 above, it and Gold Resource shall cooperate and, working with their respective Mexican counsel, shall incorporate New SRL, which shall be owned 50% each by Gold Resource and Canyon, or their respective Mexican subsidiaries. Promptly after incorporation of New SRL, Gold Resource shall cause Don David to transfer to New SRL all of Don David's right, title and interest in and to the Lots, the Concessions, the Exploitation Agreement and any other rights to property owned or controlled by Gold Resource or Don David within three (3) kilometers of the Lots. Gold Resource represents, warrants and covenants that, when Don David makes those transfers, those property interests and rights shall be free and clear of any liens or encumbrances (except for existing royalties, governmental obligations and ejito surface rights obligations), and shall be in good standing and in full force and effect, with all rentals and similar payments due thereunder current and paid in full. Canyon shall cancel the Installment 1 and Installment 2 loans in consideration for the following: (i) the 50% interest in New SRL; (ii) Don David's transfer of the above properties
and rights to New SRL; and (iii) the written agreement, to be incorporated into New SRL, providing that the sum of $170,000 shall be paid to Canyon or its designee out of the first net after-tax cash flow from any mining operations or sale of assets of New SRL.
Gold Resource and Canyon agree that the organizational and governance documents of New SRL shall be prepared so as to accomplish the following:
(a) The corporation shall be governed by a Board of Directors comprised of four members, two each appointed by Gold Resource and Canyon.
(b) The Board of Directors shall meet at least quarterly in Denver, Colorado or other location mutually agreed upon by the parties.
(c) All expenditures shall be made only in accordance with programs and budgets that have been approved by unanimous vote of the Board of Directors. If the Board of Directors cannot agree upon a program and budget within thirty (30) days after it has been submitted by either party, then a third-party technical expert, who shall reside or be based in Denver, Colorado, shall be selected promptly by mutual agreement of Canyon and Gold Resource and shall cast the tie-breaking vote.
(d) Regarding the establishment of the programs and budgets by the Board of Directors, Canyon and Gold Resource agree that the overriding purpose of New SRL is to put the Lots into commercial production as soon as reasonably practicable, with the objective of maximizing the parties' return on their collective investments in the Lots, Concessions and Exploitation Agreement. It is also understood and agreed to that in the determination of any and all of the programs and budgets, such programs and budgets are to be in no way influenced, impacted or delayed by either party's inability or unwillingness to fund such budgets.
(e) Canyon or its Mexican subsidiary shall be allocated all allowable tax deductions and credits attributable to expenditures of its initial $3,000,000.
(f) If Canyon fails to fund any part of its $3,000,000 contribution in accordance with an approved program and budget, and if such failure is not cured within thirty (30) days after receipt of written notice from Gold Resource, Canyon shall transfer or cause
to be transferred to Gold Resource all shares of stock in New SRL that is owned by Canyon or its Mexican subsidiary, free and clear of any liens or encumbrances on those shares.
(g) After Canyon has provided its $3,000,000 contribution, all subsequent expenditures shall be funded on a 50/50 basis by Gold Resource and Canyon or their respective Mexican subsidiaries.
(h) If one party is unable or unwilling to fund its 50% share of expenditures that are due after Canyon has provided its initial $3,000,000 in funding, the other party shall have the right to fund the non-funding party's requirements. The funds so advanced on behalf of the other party shall be treated as a loan whose principal amount shall be 125% of the funds so advanced (the "Funding Loan") and shall be repaid, plus interest at 10% per year accruing from the date of expenditures, to the funding party, from 100% of cash flow that otherwise would be due to the non-funding party from mine operations or sale of assets of New SRL.
(i) If a party is unable or unwilling to fund its 50% of required funds, and those funds are provided by the other (funding) party, as provided in paragraph 3(g) above, then during any period during which a Funding Loan or accrued interest thereon is outstanding, the funding party shall be deemed to have a controlling vote on decisions to be made by the Board of Directors of New SRL and that party also shall have operatorship of New SRL and its properties.
(j) If either Gold Resource or Canyon wishes to sell its ownership
interest in New SRL (or their respective Mexican subsidiaries
that own any interests in New SRL), it shall so notify the other
party in writing, and in that notice shall set forth a price,
expressed in United States dollars, for which it offers to sell
that interest. The other party shall have fourteen (14) days
after receipt of the notice to provide the notifying party in
writing of its election to accept the offer. If accepted, the
parties shall be obligated to close the transaction within ten
(10) days after that acceptance. If the other party does not
accept that offer, the party wishing to sell its interest may do
so to any party for that price or a higher price; but if it fails
to complete such a sale within six (6) months after expiration of
that 30-day period, the other party's first offer right shall be
reactivated.
4. Restrictions and Rights With Respect to Gold Resource Shares Owned by Canyon. The Gold Resource shares received by Canyon pursuant to paragraph 1.B or paragraph 2 shall be subject to the following restrictions and rights:
(a) Those shares have not been registered for public sale, and Canyon shall be subject to applicable restrictions under the United States securities laws.
(b) If Gold Resource wishes to issue additional shares, Canyon shall have a right of first offer, in accordance with the procedures set forth in paragraph 3(j) above, with respect to some or all of the those shares.
(c) If Gold Resource issues shares in an initial public offering, then at that time, it shall cause all of the Golden Resource shares owned by Canyon or its subsidiaries to be registered for public sale.
5. Relationship with Mexican Subsidiaries. Gold Resource and Canyon understand and agree that certain of the obligations set forth in this Agreement may of necessity have to be performed by their respective Mexican subsidiaries. By execution of this Agreement, Gold Resource and Canyon agree and covenant to each other that they shall have contractual responsibilities to perform those obligations, and they further agree to cause their respective Mexican subsidiaries to perform obligations undertaken by them in this Agreement, with the result that a breach of an obligation by their respective Mexican subsidiaries shall be deemed to be a breach by Gold Resource or Canyon, as applicable.
6. Press Release: Gold Resource and Canyon each agree not to issue press releases or public statements regarding this Agreement, the operations contemplated hereby, or the results of those operations, without first exercising reasonable efforts to provide the other party with a copy of the proposed release or statement for its comments and suggestions reasonably in advance of the proposed release or statement.
7. General Provisions.
(a) Notices: All notices that are required or permitted under this Agreement shall be in writing, and shall be addressed respectively as follows:
If to Gold Resource: Gold Resource Corporation
2201 Kipling Street, Suite 100
Lakewood, Colorado 80215-1548
Facsimile: (303) 238-1724
Canyon Resources Corporation
If to Canyon: 14142 Denver West Parkway, Suite 250
Golden, CO 80401
Facsimile: (303) 279-3772
All notices shall be given: (i) by personal delivery to the other
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party, (ii) by electronic communication, capable of producing a printed transmission, (iii) by registered or certified mail, return receipt requested; or (iv) by overnight or other express courier service. All notices shall be deemed to be effective on the date of receipt at the address above if received during normal business hours, and, if not received during normal business hours, on the next business day following receipt. Either party may change its address by notice to the other participant pursuant to the procedures above.
(b) Headings: The subject headings of the paragraphs of this Agreement are included for purposes of convenience only, and shall not affect the construction or interpretation of any of its provisions.
(c) Governing Law; Jurisdiction and Venue: Except for matters of title related to the Lots, the Concessions or the Exploitation Agreement or the formation or governance of New SRL, which shall be governed by the law of the Mexican Republic, this Agreement shall be governed by and interpreted in accordance with the laws of the State of Colorado, without any conflict of laws or choice of laws principles that would permit or require the application of the laws of any other jurisdiction. In the event that any judicial action is brought to enforce or interpret any provision of this Agreement, jurisdiction and venue shall be in state or federal court in Denver, Colorado.
(d) Modification: No modification of this Agreement shall be valid unless made in writing and duly executed by both Gold Resource and Canyon.
(e) Force Majeure: The obligations of a party hereto shall be suspended to the extent and for the period that its performance is prevented by any cause, whether foreseeable or other unforeseeable, beyond its reasonable control (but not the inability to fund). The affected party promptly shall give notice to the other party of the suspension of performance, stating
therein the nature of the suspension, the reasons therefor and the expected duration thereof. The affected party shall resume performance as soon as reasonably possible.
(f) Further Assurances: Each of the parties hereto shall take, from time-to-time and without additional consideration, such further actions and execute such additional instruments as may be reasonably necessary or convenient to implement or carryout the intents and purposes of this Agreement.
(g) Entire Agreement; Successors and Assigns: This Agreement contains the entire understanding of the parties hereto and supersedes all prior agreements and understandings between them relating to the subject matter hereof. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.
(h) Counterparts: This Agreement may be executed in any number of counterparts, and it shall not be necessary that the signatures of both Gold Resource and Canyon be contained on any counterpart. Each counterpart shall be deemed an original, but all counterparts together shall constitute one-and-the-same instrument.
IN WITNESS WHEREOF, Gold Resource and Canyon have executed this Agreement as of the date first written above.
GOLD RESOURCE CORPORATION,
a Colorado corporation
By: /s/ William R. Reid ------------------------------ Name: William R. Reid Title: President |
CANYON RESOURCES CORPORATION,
a Delaware corporation
By: /s/ Richard H. De Voto ------------------------------ Name: Richard H. De Voto Title: President |
EXHIBIT A
Estimated Budget and Drill Program for Installment 1
COST IVA
(USD) (USD)
--------------------------------------------------------------------------------
Jose Perez Reynoso (Salary 4 months) 20,000
--------------------------------------------------------------------------------
Assistant (geologist 2 months) 3,400 510
--------------------------------------------------------------------------------
Laborer 1,000
--------------------------------------------------------------------------------
Accountant (4 months) 2,000 300
--------------------------------------------------------------------------------
Gold Resource Corporation 15,000
--------------------------------------------------------------------------------
Mike Drucker (10 days @ $400/day) 4,000
--------------------------------------------------------------------------------
Aeromap ( topo maps, photos) 11,900 1,785
--------------------------------------------------------------------------------
Roads (includes IVA) 25,000
--------------------------------------------------------------------------------
Drill Contractor (1,730 meters x $39/m)* 67,500 10,125
--------------------------------------------------------------------------------
Driller Mob/Demob 8,000 1,200
--------------------------------------------------------------------------------
Assays (700 samples @ $15/sample) 10,500 1,580
--------------------------------------------------------------------------------
Accommodations (Project) 2,000 300
--------------------------------------------------------------------------------
(Oaxaca) 1,000 150
--------------------------------------------------------------------------------
Food 1,000
--------------------------------------------------------------------------------
Vehicle 1,000 150
--------------------------------------------------------------------------------
Gasoline 1,000
--------------------------------------------------------------------------------
Sample Bags 500 75
--------------------------------------------------------------------------------
Plane tickets (Pepe, Mike) 2,000
--------------------------------------------------------------------------------
Sample shipping 900 135
--------------------------------------------------------------------------------
Bags, paint, cement, etc. 500 75
--------------------------------------------------------------------------------
Extras 5,415
--------------------------------------------------------------------------------
TOTAL 183,615 16,385
--------------------------------------------------------------------------------
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* Target number, actual could be more or less depending on final costs.
Gold Resource Corporation (Company)
Heemskirk Consolidated Limited (Heemskirk)
Share Subscription Agreement
Details
Parties
Company Name Gold Resource Corporation
Address 2201 Kipling Street, LAKEWOOD,
COLORADO 80215--1545 USA
Heemskirk Name Heemskirk Consolidated Limited
ACN 106 720 138
Address Level 5
303 Collins Street,
Melbourne, Victoria 3000
Business Day place Colorado, USA and Melbourne, Australia
Governing law Colorado, USA
Date of Agreement See Signing Page
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Introduction
Recitals:
A. Heemskirk has subscribed for and been issued with 600,000 shares in the Company.
B. Heemskirk wishes to subscribe for additional shares in the Company subject to the terms of this Agreement.
C. The Company has agreed to issue shares to Heemskirk in accordance with the terms of this Agreement and in consideration of payment of the subscription monies under this Agreement.
It is agreed as follows:
1.1. In this Agreement, unless otherwise indicated by the context:
(a) words importing the singular include the plural and vice versa;
(b) headings are for convenience only and do not affect interpretation of this Agreement;
(c) a reference to a clause or schedule is a reference to a clause or schedule of this Agreement;
(d) where any word or phrase is given a definite meaning in this Agreement, any part of speech or other grammatical form of that word or phrase has a corresponding meaning;
(e) an expression importing a natural person includes a body corporate, partnership, joint venture, association or other legal entity;
(f) a reference to a statute, statutory provision or regulation includes all amendments, consolidations or replacements thereof;
(g) a reference to a party to a document includes that party's successors and permitted assigns;
(h) a covenant or agreement on the part of two or more persons binds them severally; and
(i) a reference to a body, whether statutory or not;
(i) which ceases to exist; or
(ii) whose powers or functions are transferred to another body;
is a reference to the body which replaces it or which substantially succeeds to its powers or functions.
The following definitions apply to this Agreement unless the context requires otherwise:
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Colorado, USA or Melbourne, Australia;
GRC Project means any gold, silver or copper exploration or development project in Mexico in which the Company has an interest in;
Securities means shares in, or options to acquire shares in, or debentures of, or convertible notes in the Company;
Shares means shares in the Company;
Subscription Payment means US$700,000; and
Subscription Shares means 1,400,000 common stock Shares.
3.1. Subject to clauses 4, 5 and 6 of this Agreement, Heemskirk agrees to make the Subscription Payment to the Company.
3.2. In consideration of the Subscription Payment the Company shall issue the Subscription Shares to Heemskirk upon receipt of the Subscription Payment.
4.1. The Company shall not issue any further Securities in addition to the Subscription Shares to any person except in accordance with this clause 4 unless it has obtained the prior written consent of Heemskirk.
4.2. If the Company wishes to issue further Securities in addition to the Subscription Shares, the Company shall immediately notify Heemskirk in writing of the price, terms and conditions at which it wishes to issue the Securities (the Equity Package) which notification itself shall be an irrevocable offer (the Equity Offer) by the Company to issue the Equity Package to Heemskirk at the price and upon those terms and conditions.
4.3. If Heemskirk wishes to acquire:
(a) the Equity Package so offered (and not a part); or
(b) such part of the Equity Package as it shall nominate being not less than 25% of the Equity Package;
it shall notify the Company of its intention to do so within 14 days of the receipt of the Equity Offer (the Acceptance Period) and such notification shall, upon being received by the Company within the Acceptance Period, constitute acceptance of the whole or part (as the case may be) of the Equity Offer and the acquisition contemplated therein shall be completed in the manner set out in the Equity Offer and shall occur within 30 days of the end of the Acceptance Period. If Heemskirk does not so notify the Company in writing within the Acceptance Period, Heemskirk shall be deemed to have declined to accept the Equity Offer of the Equity Package.
4.4. If there is any portion of the Equity Package in respect of which the
Equity Offer has not been accepted (or is deemed not to have been
accepted), the Company shall be free for a period of 4 months from the date
of the Equity Offer to issue the remaining portion of the Equity Package to
a third party at the price, and on terms and conditions no more favorable
than those contained in the notice given by the Company pursuant to clause
4.2. Upon the expiration of 4 months from the date of the Equity Offer the
Company shall not be permitted to issue any remaining portion of the Equity
Package or any further Securities unless it first issues a new Equity Offer
and again follows the procedure set out in clauses 4.2 to 4.4 inclusive.
4.5. The provisions of this clause 4 shall have no force and effect on:
(a) an issue of Securities by the Company to Canyon Resources Corporation in accordance with clause 4(b) of an agreement between the Company and Canyon Resources Corporation dated 28 July 2003; or
(b) an issue of Securities by the Company pursuant to an initial public offering; or
(c) any issue of Securities that occurs following the third anniversary of the date of this Agreement.
5.1 If the Company intends to obtain debt financing, the Company agrees that it shall not obtain such debt financing from any third party without first following the procedure set out in clauses 5.2 to 5.7.
5.2 The Company must:
(a) notify Heemskirk in writing of the terms and conditions of the proposed debt financing, including, but not limited to:
(i) the amount of debt finance;
(ii) the repayment terms;
(iii) the interest rate;
(iv) the identity of any debt financier;
(v) the security (if any) that any debt financier requires the Company to provide; and
(vi) such other terms and conditions relating to the offer of debt financing that Heemskirk may reasonably request,
(the Debt Notice); and
(b) provide Heemskirk with a certificate signed by 2 directors of the Company which certifies that the offer of debt financing is bona fide and that the contents of the notice provided in accordance with clause 5.2(a) are true and correct.
5.3 If Heemskirk elects to provide:
(a) all of the debt finance specified in the Debt Notice (Debt Election Notice); or
(b) such part of the debt finance as it shall nominate being not less than 25% of the debt finance specified in the Debt Notice (Percentage Debt Election Notice),
it shall notify the Company in writing of its intention to do so (by forwarding either a Debt Election Notice or a Percentage Debt Election Notice) within 14 days after receipt of the Debt Notice (the Debt Acceptance Period).
5.4 In the event Heemskirk provides the Company with a Debt Election Notice:
(a) Heemskirk and the Company shall use their best endeavors, within 30 days of the date of the Debt Election Notice, to enter into formal documentation in relation to such provision of debt finance by Heemskirk to the Company consistent with the Debt Notice and such other terms and conditions as are industry standard for a transaction of such nature; and
(b) conditional upon Heemskirk and the Company entering into the formal documentation referred to in clause 5.4(a), Heemskirk shall provide such debt finance in accordance with the terms of the formal documentation.
5.5 In the event Heemskirk provides the Company with a Percentage Debt Election Notice, Heemskirk and the Company shall use their best endeavors to facilitate the proposed debt financing referred to in the Debt Notice by Heemskirk providing the percentage of the debt financing nominated by Heemskirk in the Percentage Debt Election Notice with the balance of the debt finance to be provided by a third party or third parties on terms that are consistent with the Debt Notice.
5.6 If Heemskirk:
(a) provides the Company with a Percentage Debt Election Notice to the Company; and
(b) the Company and Heemskirk sign a notice in writing that they have complied with their obligations pursuant to clause 5.5 without successfully involving a third party in the proposed debt financing identified in the Debt Notice; and
(c) a third party intends to proceed to provide the whole of the debt finance identified in the Debt Notice,
the Company and Heemskirk agree that Heemskirk shall have a period of 14 days from the date of the notice referred to in clause 5.6(b) (Second Debt Acceptance Period) in which to elect to provide the whole of the debt finance prescribed in the Debt Notice. If Heemskirk so elects to acquire the whole of the debt finance prescribed in the Debt Notice, Heemskirk shall be deemed to have served a Debt Election Notice on the Company and the provisions of clause 5.4 shall apply.
5.7 If Heemskirk:
(a) declines to provide a Debt Election Notice to the Company in accordance with clause 5.3; or
(b)
(i) provides the Company with a Percentage Debt Election Notice; and
(ii) Heemskirk and the Company are unable to facilitate the provision of the debt finance specified by the Company in the Debt Notice pursuant to clause 5.5; and
(iii) Heemskirk declines to provide a Debt Election Notice to the Company in accordance with clause 5.6,
then the Company shall be free for a period of 4 months from the expiry of:
(c) the Debt Acceptance Period in the circumstance referred to in clause 5.7(a); or
(d) the Second Debt Acceptance Period in the circumstance referred to in clause 5.7(b),
to obtain the debt finance specified in the Debt Notice to a third party on terms and conditions no more favorable than those contained in the Debt Notice given by the Company pursuant to clause 5.2. Upon the expiration of 4 months from the expiry of the Debt Acceptance Period or Second Debt Acceptance Period (as the case may be) the Company shall not be permitted to obtain debt finance from a third party unless it first issues a new Debt Notice and again follows the procedures set out in clauses 5.2 to 5.7 inclusive.
5.8 The provisions of this clause 5 shall have no force and effect following the third anniversary of the date of this Agreement.
6.1. If the Company receives an offer to sell, transfer, dispose of or otherwise deal with some or all of its royalty rights or interest in any GRC Project (GRC Property) to a third party and the Company intends to accept such an offer (proposed sale), the Company agrees that it shall not proceed with such a proposed sale to any third party without first following the procedure set out in clauses 6.2 to 6.7.
6.2. The Company must:
(a) notify Heemskirk in writing of the terms and conditions of the proposed sale of the GRC Property, including, but not limited to:
(i) the percentage of the GRC Property offered for sale;
(ii) the payment terms or earn-in obligations;
(iii) the identity of any bona tide third party purchaser;
(iv) the terms of any actual or proposed joint venture operating agreement; and
(v) such other terms and conditions relating to the offer that Heemskirk may reasonably request,
(the Sale Notice); and
(b) provide Heemskirk with a certificate signed by 2 directors of the Company which certifies that the third party offer to acquire the GRC Property is bona fide and that the contents of the Sale Notice provided in accordance with clause 6.2(a) are true and correct.
6.3. If Heemskirk wishes to acquire:
(a) all of the GRC Property offered for sale in the Sale Notice (Purchase Election Notice); or
(b) such part of the GRC Property as it shall nominate being not less than 25% of the GRC Property offered for sale in the Sale Notice (Percentage Purchase Election Notice),
it shall notify the Company in writing of its intention to do so within 14 days after receipt of the Sale Notice (the Sale Acceptance Period).
6.4. In the event Heemskirk provides the Company with a Purchase Election Notice:
(a) Heemskirk and the Company shall use their best endeavors, within 30 days of the date of the Purchase Election Notice, to enter into formal documentation in relation to such sale and purchase of the GRC Property consistent with the Purchase Election Notice and such other terms and conditions as are industry standard for a transaction of such nature; and
(b) conditional upon Heemskirk and the Company entering into the formal documentation referred to in clause 6.4(a), Heemskirk and the Company shall complete the sale and purchase of the GRC Property in accordance with the terms of the formal documentation.
6.5. In the event Heemskirk provides the Company with a Percentage Purchase Election Notice, Heemskirk and the Company shall use their best endeavors to facilitate the proposed purchase of the percentage of the GRC Property nominated by Heemskirk in the Percentage Purchase Election Notice with the balance of the proposed sale to be acquired by a third party or third parties on terms that are consistent with the Sale Notice.
6.6. If Heemskirk:
(a) provides the Company with a Percentage Purchase Election Notice to the Company; and
(b) the Company and Heemskirk sign a notice in writing that they have complied with their obligations pursuant to clause 6.5 without successfully involving a third party in the proposed sale of the GRC Property identified in the Sale Notice; and
(c) a third party intends to proceed with the acquisition of the whole of the GRC Property identified in the Sale Notice,
the Company and Heemskirk agree that Heemskirk shall have a period of 14 days from the date of the notice referred to in clause 6.6(b) (Second Sale Acceptance Period) in which to elect to acquire the whole of the GRC Property offered for sale in the Sale Notice. If Heemskirk so elects to acquire the whole of the GRC Property offered for sale in the Sale Notice, Heemskirk shall be deemed to have served a Purchase Election Notice on the Company and the provisions of clause 6.4 shall apply.
6.7. If Heemskirk:
(a) declines to provide a Purchase Election Notice to the Company in accordance with clause 6.3; or
(b)
(i) provides the Company with a Percentage Purchase Election Notice; and
(ii) Heemskirk and the Company are unable to facilitate the sale and purchase of the GRC Property pursuant to clause 6.5; and
(iii) Heemskirk declines to provide a Purchase Election Notice to the Company in accordance with clause 6.6,
then the Company shall be free for a period of 4 months from the expiry of:
(c) the Sale Acceptance Period in the circumstance referred to in clause 6.7(a); or
(d) the Second Sale Acceptance Period in the circumstance referred to in clause 6.7(b),
to sell the GRC Property identified in the Sale Notice to a third party on terms and conditions no more favorable than those contained in the Sale Notice given by the Company pursuant to clause 6.2. Upon the expiration of 4 months from the expiry of the Sale Acceptance Period or the Second Sale Acceptance Period (as the case may be) the Company shall not be permitted to sell, transfer, dispose of or deal with some or all of its royalty rights or interest in the GRC Property to a third party unless it first issues a new Sale Notice and again follows the procedures set out in clauses 6.2 to 6.7 inclusive.
6.8. The provisions of this clause 6 shall have no force and effect following the third anniversary of the date of this Agreement.
By entering into this Agreement Heemskirk acknowledges that:
(a) it is a sophisticated investor and has made its own assessment of the business, assets, liabilities and prospects of the Company; and
(b) it has received independent legal advice or has had the opportunity to receive independent legal advice.
The Company and Heemskirk each represent and warrant to each other that each of the following statements is true and correct as at the date of this Agreement:
(a) (power) It has the power to enter into and perform its obligations under this Agreement, to carry out the transactions contemplated by this Agreement and to carry on its business as now conducted or contemplated;
(b) (corporate authorizations) It has taken all necessary corporate action to authorize the entry into and performance of this Agreement and to carry out the transaction contemplated by this Agreement;
(c) (documents binding) This Agreement is a valid and binding obligation enforceable in accordance with its terms, subject to any necessary stamping and registration;
(d) (transactions permitted) The execution and performance by it of this Agreement and each transaction contemplated under this Agreement did not and will not violate in any respect a provision of:
(i) a law or a judgment, ruling, order or decree of a government or governmental authority or agency binding on it; or
(ii) its constitution or other constituent documents.
The rights and obligations of each party under this Agreement are personal. They cannot be assigned, charged or otherwise dealt with, and no party shall attempt or purport to do so, without the prior written consent of the other party.
Each party shall take all steps, execute all documents and do everything reasonably required by any other party to give effect to any of the transactions contemplated by this Agreement.
This Agreement may be amended only by another agreement executed by all parties to this Agreement.
All representations and warranties in this Agreement will survive the execution and delivery of this Agreement and the completion of transactions contemplated by it.
This Agreement may be executed in any number of counterparts. All counterparts will be taken to constitute one instrument.
Signing Page
Executed as an Agreement on August 2, 2005
EXECUTED for and on behalf of
GOLD RESOURCE CORPORATION by those
persons who are authorized to sign
on behalf of the Company:
/s/ William W. Reid /s/ David C. Reid ------------------------------- ------------------------------- Signature of Director Signature of Director/Secretary William W. Reid David C. Reid ------------------------------- ------------------------------- Name of Director Name of Director/Secretary |
EXECUTED for and on behalf of
HEEMSKIRK CONSOLIDATED LIMITED
(CAN 106 720 138) by those persons
who are authorized to sign on behalf of the Company:
/s/ Kevin P. Robinson /s/ Peter J. Bird ------------------------------- ------------------------------- Signature of Director Signature of Director/Secretary Kevin P. Robinson Peter J. Bird ------------------------------- ------------------------------- Name of Director Name of Director/Secretary |
Share Subscription Agreement
Contents
Details 1
Introduction 2
1. Interpretation 2
2. Definitions 3
3. Subscription and Issue of Shares 3
4. Pre-emptive Rights in Relation to the Issue of
Additional Securities 3
5. Debt Financing 5
6. Acquisition of Participating Interest or Royalty
in GRC Project 7
7. Acknowledgement 10
8. Mutual Representations and Warranties 10
9. Assignment 10
10. Further Assurances 11
11. Amendment 11
12. Survival of Representations and Warranties 11
13. Governing Law 11
14. Counterparts 11
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Signing Page 12
SUBSCRIPTION AGREEMENT AND
STOCK PURCHASE OPTION AGREEMENT
Gold Resource Corporation
2201 Kipling Street, Suite 100
Lakewood, Colorado 80215-1545
Gentlemen:
Gold Resource Corporation (the "Company") is a Colorado corporation. The authorized capital stock of the Company is 60,000,000 common shares par value $0.001 per share (the Shares) and 5,000,000 shares of preferred stock par value $0.001 per share. No preferred stock has been issued by the Company to date. When issued, Shares are fully paid and non-assessable. Each outstanding share, regardless of class, is entitled to one vote at annual or special meetings of shareholders
Heemskirk Consolidated Limited ("Heemskirk") hereby tenders this subscription for the purchase of Six Hundred Thousand (600,000) Shares of the common stock ($0.001 par value) of Gold Resource Corporation (the "Company") at US$0.50/share for the sum of US$300,000, upon the terms and conditions as set forth below (the "Initial Private Placement"). A wire transfer payable to "Gold Resource Corporation" in the amount of US$300,000 for the Initial Private Placement is delivered herewith. Wire instructions are provided in Exhibit A attached hereto.
Heemskirk also has the option under this agreement with terms and conditions as provided herein (the "Option") and subject to approval of the Board of Directors of Heemskirk, to purchase an additional One Million Four Hundred Thousand (1,400,000) Shares at US$.50/share for US$700,000 (the "Option Private Placement").
Heemskirk acknowledges prior receipt of the audited financial statements as of December 31, 2004 of the Company.
By execution below, Heemskirk acknowledges that the Company is relying upon the accuracy and completeness of the representations contained herein in complying with their obligations under applicable securities laws.
1. Heemskirk acknowledges and represents as follows:
(a) That Heemskirk is in a financial position to hold the Shares for an indefinite period of time and is able to bear the economic risk and withstand a complete loss of Heemskirk's investment in the Shares;
(b) That Heemskirk, either alone or with the assistance of Heemskirk's own professional advisor, has such requisite knowledge and experience in financial and business matters and that Heemskirk is capable of
reading and interpreting financial statements and evaluating the merits and risk of an investment in the Shares and Heemskirk has the net worth to undertake such risks;
(c) Heemskirk understands that the Shares are a speculative investment that involves a risk of loss by Heemskirk;
(d) Heemskirk believes that an investment in the Shares is suitable for Heemskirk based upon Heemskirk's investment objectives and financial needs, and Heemskirk has no need for liquidity of investment with respect to the Shares;
(e) That Heemskirk has been given access to full and complete information regarding the Company and has utilized such access to Heemskirk's satisfaction for the purpose of obtaining such information regarding the Company as Heemskirk has reasonably requested; and, particularly, Heemskirk has been given reasonable opportunity to ask questions of, and receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Shares and to obtain any additional information, to the extent reasonably available;
(f) That Heemskirk recognizes that the Company has a limited operating history and that the Shares as an investment involve a high degree of risk, including but not limited to the risk of economic losses from operations of the Company;
(g) That Heemskirk recognizes that (i) the purchase of the Shares is a
long-term investment; (ii) the purchaser of the Shares must bear the
economic risk of investment for an indefinite period of time because
the Shares have not been registered under the Securities Act of 1933
or under the securities laws of any state and, therefore, the Shares
cannot be resold unless the Shares are subsequently registered under
said laws or exemptions from such registrations are available; (iii)
there is presently no public market for the Shares and Heemskirk may
be unable to liquidate Heemskirk's investment in the event of an
emergency, or pledge the Shares as collateral for a loan; (iv) the
transferability of the Shares will be restricted and requires
conformity with the restrictions contained in paragraph 2 below; and
(vi) Rule 144 is not currently available for resale of the Shares and
will likely not be available in the future; and (v) legends will be
placed on the certificate(s) representing the Shares referring to the
applicable restrictions on transferability; and
(h) That Heemskirk certifies, under penalties of perjury, that Heemskirk is not subject to the backup withholding provisions of Section 3406(a)(i)(C) of the Internal Revenue Code.
2. Heemskirk acknowledges that the Shares have not been registered under the Securities Act of 1933 or applicable state securities laws and that the Shares are being offered and sold pursuant to exemption from such laws and that the Company's reliance upon such exemptions is predicated in part on Heemskirk's
representations as contained herein. Heemskirk further understands that the Shares may not be sold or transferred in the absence of any effective registration statement or qualification under the Act and any applicable state securities laws, or the opinion of counsel, acceptable to the Company, that such registration is not required. Heemskirk represents and warrants that the Shares are being purchased for the account of Heemskirk and for investment purposes only, and without the intention of reselling or redistributing the same, that Heemskirk has made no agreement with others regarding any of the Shares, and that Heemskirk's financial condition is such that it is not likely that it will be necessary to dispose of any of such securities in the foreseeable future. Heemskirk is aware that, in the view of the Securities and Exchange Commission, a purchase of Shares with an intent to resell by reason of any foreseeable specific contingency or anticipated change in market value, or any change in the condition of the Company, or in connection with a contemplated liquidation or settlement of any loan obtained for the acquisition of such securities and for which such securities were pledged, would represent an intent inconsistent with the representations set forth above. Heemskirk further represents and agrees that if contrary to the foregoing intentions, Heemskirk should later desire to dispose of or transfer any of such securities in any manner, Heemskirk shall not do so without first obtaining (i) the opinion of counsel satisfactory to the Company that such proposed disposition or transfer may be lawfully made without the registration of such securities pursuant to the Securities Act of 1933, as then amended, and applicable state securities laws, or (ii) such registration (it being understood that the Company has no obligation to register any securities.)
3. The Option.
(a) Heemskirk shall have the Option until September 13, 2005 to purchase 1,400,000 Shares at US$0.50/share by written notice and wire transfer to the Company of Seven Hundred Thousand dollars (US$700,000), subject to approval by the Board of Directors of Heemskirk.
(b) Prior to the expiration date of the Option, it is anticipated that the Company and Heemskirk will enter into an agreement that would provide Heemskirk certain rights to provide or participate in additional funding to the Company (the "Heemskirk Financing Option").
(c) Should Heemskirk determine not to exercise its Option and to not purchase the Option Private Placement in its entirety, then Heemskirk shall have no rights other that those rights generally available to any and all shareholders of the Company.
4. Heemskirk represents and warrants that Heemskirk is a bona fide resident of, is domiciled in and received the offer and made the decision to invest in the Shares in the State or Country of Australia and the Shares are being purchased by Heemskirk in Heemskirk's name solely for Heemskirk's own beneficial interest and not as nominee for, or on behalf of, or for the beneficial interest of or with the intention to transfer to, any other person, trust or organization. This Subscription Agreement and Heemskirk's investment in the Shares shall be governed by and enforced in accordance
with the laws of the State of Colorado and courts located in the State of Colorado shall have exclusive jurisdiction with respect to all matters arising hereunder.
5. Heemskirk is informed of the significance to the Company of the forgoing representations, agreements and consents, and they are made with the intention that the Company will rely on them.
6. Heemskirk makes the following additional representations:
(a) Heemskirk was not organized for the specific purpose of acquiring the Shares, and
(b) This Subscription Agreement has been duly authorized by all necessary action on the part of Heemskirk, has been duly executed by an authorized officer or representative of Heemskirk, and is a legal, valid and binding obligation of Heemskirk enforceable in accordance with its terms.
7. Heemskirk further represents and warrants that Heemskirk was not assisted or advised by Heemskirk's own professional advisor in connection with Heemskirk's investment in the Shares.
8. Manner in Which Title is To Be Held:
(c) Trust
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(d) Other
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9. Miscellaneous:
Upon Acceptance of this Subscription Agreement and Stock Purchase Option
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Agreement by the Company this agreement shall be irrevocable.
SIGNATURES
Dated: July ___, 2005
Heemskirk Consolidated Limited Level 5, 303 Collins Street West Melbourne, Victoria, Australia 8007
Signature: /s/Kevin Robinson Tel: 61 3 9614 0666
Fax: 61 3 9614 4466
E-mail: krobinson@heemskirk.com
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Typed Name:
Its: Kevin Robinson
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Tax Identification Number
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* If Shares are being subscribed for by an entity, the Certificate of Signatory must also be completed.
CERTIFICATE OF SIGNATORY
To be completed if Shares are being subscribed for by an entity.
I Kevin Robinson, am the Managing Director of Heemskirk Consolidated Limited (the "Entity").
I certify that I am empowered and duly authorized by Heemskirk to execute and carry out the terms of the Subscription Agreement and Stock Purchase Option Agreement to purchase and hold the Shares, and certify further that the Subscription Agreement and Stock Purchase Option Agreement has been duly and validly executed on behalf of the Entity and constitutes a legal and binding obligation of the Entity.
IN WITNESS WHEREOF, I have hereto set my hand this 15th day of July, 2005.
/s/ Kevin Robinson
------------------------------------
(Signature)
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ACCEPTED
This Subscription Agreement and Stock Purchase Option Agreement is accepted as of July 15, 2005.
GOLD RESOURCE CORPORATION
By: /s/ William W. Reid
-------------------------------------
William W. Reid, President
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Exhibit A
Gold Resource Corporation
Wire Transfer Instructions
Routing/ABA #: 102000966
Bank Name: Guaranty Bank & Trust Company
Bank Address: 1331 17th Street
Denver, CO 80202
Customer: Gold Resource Corporation
Customer Address: 2201 Kipling Street, Suite 100
Lakewood, CO 80215-1545
Customer Telephone No.: 303-238-1438
Customer Account Info: Money Market account # 1372885
Misc.: Guaranty Bank Hours 8:00 a.m. to 5:00 p.m. MST
Phone #: 303-296-9600
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CONSENT OF CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the use in this Registration Statement on Form SB-2 of our report dated March 22, 2005, relating to the financial statements of Gold Resource Corporation as of December 31, 2004 and for the two years then ended, and the reference to our firm as experts in the prospectus which is a part of the registration statement.
/s/ Stark Winter Schenkein & Co., LLP ------------------------------------------------ Certified Public Accountants October 27, 2005 Denver, Colorado |