Exhibit 10.1

 

EXECUTION VERSION

 

SUBSCRIPTION AGREEMENT

 

THIS SUBSCRIPTION AGREEMENT (this “ Agreement ”) is made as of October 7, 2011, by and among GOLDEN MINERALS COMPANY, a Delaware corporation (the “ Company ”), and SENTIENT GLOBAL RESOURCES FUND III, L.P. (“ FUND III ”), a Cayman Islands exempted limited partnership, SGRF III PARALLEL I, L.P. (“ SGRF III ”), a Cayman Islands exempted limited partnership, and SENTIENT GLOBAL RESOURCES FUND IV, L.P. (“ FUND IV ”), a Cayman Islands exempted limited partnership (Fund III, SGRF III and Fund IV, collectively, the “ Buyers ”).

 

RECITALS

 

A.                                    Fund III and SGRF III currently hold an aggregate of 2,939,790 shares of the Company’s common stock, par value $0.01 per share (“ Common Stock ”), representing approximately 9.3% of the total outstanding shares of Common Stock.

 

B.                                      The Buyers have advised the Company that they desire to purchase additional shares of Common Stock in order to permit the Buyers to increase their collective ownership interest up to approximately 19.9% of the issued and outstanding common stock of the Company (excluding outstanding restricted common shares held by employees).  The purchase and sale of the Shares (defined below) pursuant to this Agreement will occur on a private placement basis as an offering outside of the United States pursuant to Regulation S under the U.S. Securities Act of 1933 (the “ Securities Act ”), as amended and as a prospectus exempt distribution in Canada.

 

NOW, THEREFORE, in consideration of the recitals and the mutual promises, representations, warranties, and covenants set forth in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

AGREEMENT

 

1.                                       Subscription .  In consideration of and in reliance on the representations, warranties, covenants and agreements of the Company in this Agreement, the Buyers hereby agree to purchase 4,118,150 shares of Common Stock (the “ Shares ”) at a purchase price of US$7.44 per share (the “ Offering Price ”).  The total purchase price for the Shares shall be allocated between and paid by the Buyers in the manner set forth in Exhibit A .

 

2.                                       Acceptance of Subscription .  The Company, in consideration of and in reliance on the representations and warranties, covenants and agreements of the Buyers in this Agreement, hereby accepts the subscription of the Buyers, subject to the terms and conditions of this Agreement, and agrees to issue the Shares to the Buyers.

 

3.                                       Buyer Representations and Warranties.   Buyers, each severally with respect to the Shares purchased by it, hereby represent and warrant to the Company as follows:

 

 

3.1                                Organization; Authorization; Validity of Agreement .  Each Buyer is a limited partnership duly organized, validly existing and in good standing under the laws of the Cayman Islands and has full limited partnership power and authority to execute and deliver this Agreement and the Registration Rights Agreement and to consummate the transactions contemplated hereby and thereby.  The execution, delivery and performance by Buyers of this Agreement and the Registration Rights Agreement and the consummation of the transactions contemplated hereby and thereby have been duly authorized by Buyers, and no other action on the part of Buyers is necessary to authorize the execution and delivery by Buyers of this Agreement or the consummation of the transactions contemplated hereby and thereby.  No vote of, or consent by, the limited partners of Buyers is necessary to authorize the execution and delivery by Buyers of this Agreement and the Registration Rights Agreement or the consummation by it of the purchase and sale of the Shares.

 

3.2                                Execution; Validity of Agreement .  This Agreement has been duly executed and delivered by Buyers, and assuming due and valid authorization, execution and delivery hereof by the Company, is a valid and binding obligation of each Buyer, enforceable against each Buyer in accordance with its terms, except as such enforceability may be limited by the effects of bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, and other laws relating to or affecting creditors’ rights, and the general principles of equity.

 

3.3                                Consents and Approvals; No Violations .  None of the execution, delivery or performance of this Agreement or the Registration Rights Agreement by Buyers and the consummation by Buyers of the purchase and sale of the Shares or compliance by Buyers with any of the provisions hereof or thereof will (1) conflict with or result in any breach of any provision of the certificate of limited partnership and agreement of limited partnership of either Buyer, (2) require any filing with (except for filings with the United States Securities and Exchange Commission (the “ SEC ”), the Ontario Securities Commission, the Toronto Stock Exchange (the “ TSX ”), the NYSE Amex, and other regulatory authorities advising them of the issuance and sale of the Shares), or permit, authorization, consent or approval of, any governmental entity, except for approval of the listing of the Shares by the TSX and the NYSE Amex, (3) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which either Buyer is a party or to which its assets are subject, or (4) violate any order, writ, injunction, decree, statute, rule or regulation applicable to either Buyer.

 

3.4                                Report of Trade .  Each Buyer acknowledges that the Company may be required to file a report of trade with the Ontario Securities Commission containing personal information about the Buyers. This report of trade will include the full name, residential address and telephone number of the Buyers, the number and type of securities purchased, the total purchase price paid for the Shares, the date of the Closing and the exemption relied upon under applicable securities laws to complete such purchase.

 

3.5                                Anti-Money Laundering .  None of the funds being used to purchase the Shares are to the Buyers’ knowledge proceeds obtained or derived directly or indirectly as a result of illegal activities.  The funds being used to purchase the Shares which will be advanced

 

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by the Buyers to the Company hereunder will not represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) (the “PCMLTFA”) and the Buyers acknowledge that the Company may in the future be required by law to disclose the Buyers’ names and other information relating to this Agreement and the Buyers’ subscription hereunder, on a confidential basis, pursuant to the PCMLTFA. To the best knowledge of each Buyer: (i) none of the funds to be provided by or on behalf of the Buyers are being tendered on behalf of a person or entity who has not been identified to the Buyers; and (ii) the Buyers shall promptly notify the Company if any Buyer discovers that any of such representations cease to be true, and to provide the Company with appropriate information in connection therewith.

 

3.6                                Investment Representations .

 

(a)                                         Each Buyer is acquiring the Shares for investment and not with a view toward, or for sale in connection with, any distribution thereof, nor with any present intention of distributing or selling the Shares.

 

(b)                                        Each Buyer is an “accredited investor” as defined in Regulation D under the Securities Act and in National Instrument 45-106 - Prospectus and Registration Exemptions of the Canadian Securities Administrators, has net assets of at least CDN$5,000,000 as shown on its most recently prepared financial statements, and is able to bear the economic risk of holding the Shares for an indefinite period, and has knowledge and experience in financial and business matters such that it is capable of evaluating the risks of the investment in the Shares.

 

(c)                                         Each Buyer’s principal address is as set out in Section 6.2 of this Agreement and is outside the United States and no Buyer is a “U.S. person” as defined in Rule 902 under the Securities Act (a “ Non-U.S. Person ”).  Each Buyer is acquiring the Shares outside of the United States in accordance with Regulation S under the Securities Act.  The purchase of the Shares by each Buyer is for such Buyer’s own account or for the account of one or more affiliates of Buyers who are Non-U.S. Persons located outside the United States.

 

(d)                                        Each Buyer acknowledges that it has reviewed the Public Reports (as defined in Section 4.8) and that it has had the right to ask questions of and receive answers from the Company and its officers and directors, and to obtain such information as Buyers deem necessary to verify the accuracy (a) of the information referred to in the Public Reports and (b) of any other information relevant to making an investment decision with respect to the Shares.

 

(e)                                         Each Buyer acknowledges that (i) the Shares are being offered in a transaction not involving any public offering within the United States within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act, (ii) the Shares are not being qualified pursuant to a prospectus for distribution to the public in Canada under applicable Canadian Securities Laws (as defined in section 4.8 of this Agreement) and are not freely tradeable, and (iii) the certificates representing the Shares will bear the legend set forth below:

 

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933,

 

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AS AMENDED (THE “ U.S. SECURITIES ACT ”) OR ANY STATE SECURITIES LAWS, AND MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE COMPANY, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE U.S. SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT, (D) IN COMPLIANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER, IF AVAILABLE, AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, OR (E) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE U.S. SECURITIES ACT OR ANY APPLICABLE STATE LAWS AND REGULATIONS GOVERNING THE OFFER AND SALE OF SECURITIES, AND, IN THE CASE OF (C), (D) OR (E), THE HOLDER HAS PRIOR TO SUCH TRANSFER FURNISHED TO THE CORPORATION AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE SATISFACTORY TO THE CORPORATION.

 

THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE LISTED ON THE TORONTO STOCK EXCHANGE (“ TSX ”); HOWEVER, SUCH SECURITIES CANNOT BE TRADED THROUGH THE FACILITIES OF TSX SINCE THEY ARE NOT FREELY TRANSFERABLE, AND CONSEQUENTLY ANY CERTIFICATE REPRESENTING SUCH SECURITIES IS NOT “GOOD DELIVERY” IN SETTLEMENT OF TRANSACTIONS ON THE TSX.

 

UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [ insert date that is 4 months and a day after issuance ].

 

The Buyers shall comply with all resale restrictions applicable to the Shares in Canada and the United States under applicable securities laws.

 

(f)                                     Golden Minerals Shares .  As of the date hereof, Fund III and SGRF III are the beneficial owners (as defined in Rule 13d-3 under the Exchange Act) of an aggregate of 2,939,790 shares of Common Stock.

 

(g)                                  Brokers or Finders .  Buyers have not entered into any agreement or arrangement entitling any agent, broker, investment banker, financial advisor or other firm or person to any broker’s or finder’s fee or any other commission or similar fee in connection with any of the transactions contemplated by this Agreement.

 

(h)                                  Non-Reliance of Buyer .  Except for the specific representations and warranties expressly made by the Company in Section 4 of this Agreement, Buyers acknowledge that (a) neither the Company, its affiliates nor any other Person has made any representation or warranty, express or implied, as to the Company, the Company’s business, assets, liabilities, operations, prospects, condition (financial or otherwise), including with

 

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respect to the effectiveness or success of the Company’s exploration activities or future capital raising activities, and (b) no officer, agent, representative or employee of the Company has any authority, express or implied, to make any representations, warranties or agreements not specifically set forth in this Agreement.  Buyers have not received an “offering memorandum” (as defined in Ontario Securities Commission Rule 14-501 — Definitions) or any other similar document describing or purporting to describe the business and affairs of the Company.  Each Buyer specifically disclaims that it is relying upon or has relied upon any representations or warranties that may have been made by any Person except for the specific representations and warranties expressly made by the Company in Section 4.  Any inspection, investigation or review performed by Buyers in connection with this Agreement will not affect or negate the representations and warranties of the Company contained herein.

 

4.                                       Representations and Warranties of the Company .  The Company hereby represents and warrants to Buyers as follows:

 

4.1                                Organization .  The Company is a corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware.  The Company has the requisite corporate power and authority to own, lease and operate its assets and properties and to carry on its business as it is now being conducted.  The Company is qualified to transact business and is in good standing in each jurisdiction in which the properties owned, leased or operated by it or the nature of the business conducted by it makes such qualification necessary, except where the failure to be so qualified and in good standing would not reasonably be expected to have a Material Adverse Effect.

 

4.2                                Authorization; Validity of Agreement .  The Company has full corporate power and authority to execute and deliver this Agreement and the Registration Rights Agreement and to consummate the transactions contemplated hereby and thereby.  The execution, delivery and performance by the Company of this Agreement and the Registration Rights Agreement and the consummation of the transactions contemplated hereby and thereby have been duly authorized by the Company’s Board of Directors, and no other corporate action on the part of the Company is necessary to authorize the execution and delivery by the Company of this Agreement or the consummation of the purchase and sale of the Shares.

 

4.3                                Subsidiaries .  Each direct and indirect Subsidiary of the Company is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation and has the requisite power and authority to own, lease and operate its assets and properties and to carry on its business as it is now being conducted and each Subsidiary of the Company is qualified to transact business, and is in good standing, in each jurisdiction in which the properties owned, leased or operated by it or the nature of the business conducted by it makes such qualification necessary; except, in all cases, where the failure to be so organized, existing, qualified and in good standing would not reasonably be expected to have a Material Adverse Effect.

 

4.4                                Execution; Validity of Agreement .  This Agreement has been duly executed and delivered by the Company and, assuming due and valid authorization, execution and delivery hereof by Buyer, is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited

 

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by the effects of bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, and other laws relating to or affecting creditors’ rights, and the general principles of equity.

 

4.5                                Consents and Approvals; No Violations .  Except for approval of the listing of the Shares by the TSX and the NYSE Amex, none of the execution, delivery or performance of this Agreement or the Registration Rights Agreement by the Company, the consummation by the Company of the issuance and sale of the Shares in accordance herewith or compliance by the Company with any of the provisions hereof will (1) conflict with or result in any breach of any provision of the certificate of incorporation or bylaws of the Company or any of its Subsidiaries, (2) require any filing with (except for filings with the SEC, the Ontario Securities Commission, the TSX, and other regulatory authorities advising them of the issuance and sale of the Shares), or permit, authorization, consent or approval of, any governmental entity or any other Person, (3) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which the Company or any of its Subsidiaries is a party, other than such violation, breach or default as would not reasonably be expected to have a Material Adverse Effect, or (4) violate any order, writ, injunction, decree, statute, rule or regulation applicable to the Company or any of its Subsidiaries, other than such violation as would not reasonably be expected to have a Material Adverse Effect.

 

4.6                                Good Title Conveyed .  At the time of issuance, the Shares will be duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rights.  The Shares, when issued, will be free and clear of all Encumbrances, except for any restrictions on transfer arising under the Securities Act or any applicable state or Canadian securities laws.

 

4.7                                Capitalization .  The authorized capital of the Company consists of (i) 100,000,000 shares of Common Stock, of which 31,566,885 are issued and outstanding as of the date of this Agreement, including 218,000 shares of restricted stock which are subject to forfeiture conditions, and (ii) 10,000,000 shares of preferred stock, par value $0.01 per share, none of which are issued and outstanding.  Except for (a) the Shares, (b) shares of Common Stock to be issued to directors of the Company pursuant to outstanding restricted stock units, (c) shares of Common Stock issuable upon exercise of options issued under the Company’s 2009 Equity Incentive Plan, (d) shares of Common Stock which may be issued in the ordinary course pursuant to the Company’s 2009 Equity Incentive Plan, (e) shares of common stock issuable upon the exercise of options issued under the Company’s Replacement Stock Option Plan adopted in connection with the Company’s business combination with ECU Silver Mining Inc., and (f) shares of Common Stock issuable upon exercise of warrants issued in connection with the Company’s business combination with ECU Silver Mining Inc., the Company has not issued or committed to issue any shares of Common Stock or preferred stock or any rights, warrants, options to acquire any shares of any class of capital stock of the Company.

 

4.8                                Filings .  The Company is a reporting issuer in the Province of Ontario and is not in default in any material respect of any of the requirements of the Securities Act (Ontario) and the rules and regulations adopted thereunder together with applicable policy statements of the Ontario Securities Commission and rules of the TSX (collectively, the “ Canadian Securities Laws ”).  The Company has made all filings with the SEC that it has been required to make under

 

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the Securities Act and the U.S. Securities Exchange Act of 1934, as amended (the “ Exchange Act ”) and all filings that it has been required to make pursuant to the Canadian Securities Laws (collectively, but not including any report prepared pursuant to Canadian National Instrument 43-101- Standards of Disclosure for Mineral Projects, the “ Public Reports ”).  The Company prepared the Public Reports in good faith, and to the Company’s knowledge (after reasonably prudent inquiry), none of the Public Reports, as of their respective dates, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.  The Company is a domestic issuer, as defined in Rule 902 under the Securities Act.  In addition, the Company is a “SEC foreign issuer” for the purposes of National Instrument 71-102 of the Canadian Securities Administrators.

 

4.9                                Financial Statements .  The financial statements included in the Public Reports (including the related notes and schedules) (the “ Financial Statements ”) have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis throughout the periods covered thereby and fairly present in all material respects the financial condition of the Company as of the indicated dates and the results of operations of the Company for the indicated periods, subject, in the case of unaudited consolidated financial statements, to normal year-end adjustments.

 

4.10                         Absence of Changes .  Since, June 30, 2011, except as disclosed in the Public Reports, (i) no event has occurred which has caused or constitutes a Material Adverse Effect, and (ii) neither the Company nor any of its Subsidiaries has entered into any agreement that was material to the Company and was required to be disclosed pursuant to Form 8-K under the Exchange Act that has not been disclosed.

 

4.11                         Litigation . There are no claims, suits, actions or proceedings pending or, to the knowledge of the Company, threatened against, relating to or affecting the Company or any of its Subsidiaries, before any court, governmental department, commission, agency, instrumentality or authority, or any arbitrator that would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.  Neither the Company nor any of its Subsidiaries is subject to any judgment, decree, injunction, rule or order of any court, governmental department, commission, agency, instrumentality or authority, or any arbitrator which prohibits the consummation of the transactions contemplated hereby or would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.

 

4.12                         Brokers or Finders .  The Company has not entered into any agreement or arrangement entitling any agent, broker, investment banker, financial advisor or other firm or Person to any broker’s or finder’s fee or any other commission or similar fee in connection with any of the transactions contemplated by this Agreement.

 

5.                                       Closing Conditions .  The purchase and sale of the Shares is expected to be completed on or about October 7, 2011, upon satisfaction of the closing conditions set forth in this Section 5 (the “ Closing ”, and the date on which the Closing occurs, the “ Closing Date ”)

 

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5.1                                Conditions to Buyers’ Obligation to Close .  The obligations of Buyers to consummate the purchase and sale of the Shares shall be subject to the satisfaction or waiver on or prior to the applicable Closing Date of each of the following conditions:

 

(a)                                         Statutes; Court Orders .  No statute, rule or regulation shall have been enacted or promulgated by any governmental entity which prohibits the consummation of the purchase and sale of the Shares; and there shall be no order or injunction of a court of competent jurisdiction in effect precluding or prohibiting consummation of the purchase and sale of the Shares.

 

(b)                                        Government Action .  There shall not be threatened or pending any suit, action or proceeding by any governmental entity seeking to restrain or prohibit the consummation of the purchase and sale of the Shares, or seeking to impose material limitations on the ability of Buyers effectively to exercise full rights of ownership of the Shares, including the right to vote the Shares.

 

(c)                                         Representations and Warranties .  The representations and warranties of the Company set forth in this Agreement shall be true and correct as of the Closing Date, as though made on and as of such date, except where the failure to do so would not have a Material Adverse Effect, provided that if any fact or condition occurs after the date of this Agreement and such fact or condition causes any representation or warranty in this Agreement to be untrue, misleading or inaccurate in any material respect, the Company will deliver to Buyers a certificate describing the exceptions to the applicable representation (a “ Representation Update Certificate ”), and such Representation Update Certificate will be deemed to modify automatically the applicable representation or warranty; provided , however , that if such Representation Update Certificate reflects an occurrence which could reasonably be expected to have a Material Adverse Effect, Buyers shall be entitled to reject the Representation Update Certificate and the condition set forth in this Section 5.1(c) shall not be met.

 

(d)                                        Covenants .  The Company shall have complied in all material respects with all covenants, agreements and obligations of the Company contained in this Agreement.

 

(e)                                         Consents and Approvals .  The Company shall have received conditional approval from the TSX and approval from the NYSE Amex with respect to the listing of the Shares.

 

(f)                                           Deliveries at Closing .  Buyers shall have received from the Company each of the deliveries set forth below:

 

(i)                                      At the Closing, certificates representing the Shares, duly and validly issued in favor of Buyers and otherwise sufficient to vest in Buyers good title to the Shares;

 

(ii)                                   At the Closing, a certificate issued by the secretary or an assistant secretary of the Company, dated the Closing Date, in form and substance reasonably satisfactory to Buyers, certifying on behalf of the Company (i) the resolutions of the board of directors of the Company authorizing the execution, delivery and

 

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performance of this Agreement and the issuance of the Shares, (ii) the incumbency and signature of the authorized signatory of the Company executing this Agreement, (iii) the amended and restated certificate of incorporation, as amended, and bylaws of the Company, as in effect on the Closing Date, and (iv) that the condition to closing set forth in Section 5.1(c) has been met.

 

(iii)                                At the Closing, the Registration Rights Agreement, duly executed by the Company;

 

(iv)                               At the Closing, an opinion of U.S. counsel to the Company addressed to the Buyers, providing that the issuance, sale and delivery to the Buyers of the Shares have been duly authorized by all necessary corporate action and upon issuance against payment therefor and delivery to the Buyers, such Shares will be validly issued, fully paid and non-assessable; and

 

(v)                                  At the Closing, an opinion of Canadian counsel to the Company addressed to the Buyers, providing that the issuance of the Shares is exempt from the prospectus requirements under Ontario securities laws, that such shares are subject to restrictions on transfer under Ontario securities law and that such shares are conditionally approved for listing on the TSX.

 

5.2                                Conditions to the Company’s Obligation to Close .  The obligations of the Company to consummate the purchase and sale of the Shares shall be subject to the satisfaction on or prior to the applicable Closing Date of each of the following conditions:

 

(a)                                         Statutes; Court Orders .  No statute, rule or regulation shall have been enacted or promulgated by any governmental entity which prohibits the consummation of the purchase and sale of the Shares; and there shall be no order or injunction of a court of competent jurisdiction in effect precluding or prohibiting consummation of the purchase and sale of the Shares.

 

(b)                                        Government Action .  There shall not be threatened or pending any suit, action or proceeding by any governmental entity seeking to restrain or prohibit the consummation of the purchase and sale of the Shares.

 

(c)                                         Representations and Warranties .  The representations and warranties of Buyers set forth in this Agreement shall be true and correct in all material respects as though made on and as of the Closing Date, except when the failure to do so would not have a material adverse effect on the ability of Buyers to perform its obligations under this Agreement or the availability of an exemption from registration pursuant to Regulation S under the Securities Act.

 

(d)                                        Covenants .  Buyers shall have complied in all material respects with all covenants, agreements and obligations of Buyers contained in this Agreement.

 

(e)                                         Consents and Approvals .  The Company shall have received conditional approval from the TSX and approval from the NYSE Amex with respect to the listing of the Shares.

 

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(f)               Deliveries at Closing .  The Company shall have received from Buyers the following:

 

(i)             By wire transfer of immediately available funds, the amount of the purchase price for the Shares to an account designated by the Company prior to the applicable Closing;

 

(ii)            At the Closing, the Registration Rights Agreement, duly executed by the Buyers.

 

6.              Miscellaneous .

 

6.1           Successors and Assigns.  Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto without the prior written consent of the other parties.  Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective permitted successors and assigns.  Nothing in this Agreement is intended to confer upon any party other than the parties hereto or their respective permitted successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

 

6.2           Notices.   Unless otherwise provided herein, any notice, request, waiver, instruction, consent or document or other communication required or permitted to be given by this Agreement shall be effective only if it is in writing and (i) delivered by hand or sent by certified mail, return receipt requested, (ii) if sent by a nationally-recognized overnight delivery service with delivery confirmed, or (iii) if sent by facsimile (or other similar electronic means), with receipt confirmed as follows:

 

Company:		Golden Minerals Company 350 Indiana Street, Suite 800 Golden, Colorado 80401 Attn: President Fax: (303) 839-5907
with a copy to:		Davis Graham & Stubbs LLP 1550 17 th  Street, Suite 500 Denver, Colorado 80202 Attn: Deborah J. Friedman Fax: (303) 892-7400

 

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Buyers:		Sentient Global Resources Fund III, LP SGRF III Parallel I, LP Sentient Global Resources Fund IV, LP Landmark Square, 1 st  Floor, 64 Earth Close, West Bay Beach South PO Box 10795 George Town, Grand Cayman KY1-1007 CAYMAN ISLANDS Attention: Sue Bjuro — Office Manager Fax (345) 946-0921
with a copy to:		Quinn & Brooks, LLP c/o Gregory A. Smith 9800 Mt. Pyramid Ct., Suite 400 Englewood, Colorado 80112 Fax: (720) 294-8374

 

The parties shall promptly notify each other of any change in their respective addresses or facsimile numbers or of the individual or entity or office to receive notices, requests or other communications under this Section 6.2.  All notices shall be deemed to have been given (i) if personally delivered or sent by certified mail, as of the date when so delivered, (ii) if sent by nationally-recognized overnight delivery service, two days after mailing, or (iii) if sent by facsimile (or other similar electronic means) as of the date sent, if during normal business hours of the recipient, and otherwise on the next business day.

 

6.3           Amendments and Waivers.  This Agreement may not be amended or supplemented, unless set forth in a writing signed by each party hereto. Except as otherwise permitted in this Agreement, the terms or conditions of this Agreement may not be waived unless set forth in a writing signed by the party entitled to the benefits thereof.  No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of such provision at any time in the future or a waiver of any other provision hereof.  The rights and remedies of the parties hereto are cumulative and not alternative. Except as otherwise provided in this Agreement, neither the failure nor any delay by any party hereto in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege.

 

6.4           Severability.  Any term or provision of this Agreement that is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.  If the final judgment of a court of competent jurisdiction or other authority declares that any term or provision hereof is invalid, void or unenforceable, the parties agree that the court making such determination shall have the power to reduce the scope, duration, area or applicability of the term or provision, to delete specific words or phrases, or to replace any invalid, void or unenforceable term or provision with a term or

 

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provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision.

 

6.5           Governing Law .  This Agreement shall be governed by and construed in accordance with the internal laws (as opposed to the conflicts of law provisions) of the State of Colorado.

 

6.6           Submission to Jurisdiction .  The parties hereby submit to the non-exclusive jurisdiction of any court of the State of Colorado or the United States District Court for the District of Colorado for the purpose of any suit, action, or other proceeding arising out of this Agreement, and waive any and all objections to jurisdiction that they may have under the laws of the State of Colorado or the United States and any claim or objection that any such court is an inconvenient forum.

 

6.7           Entire Agreement.  This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof.

 

6.8           Counterparts.  This Agreement may be executed in two or more counterparts (including by facsimile or similar means of electronic communication), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

6.9           Announcements.  Publicity and other general releases of information to the public through the media concerning the transaction contemplated by this Agreement shall be jointly planned and coordinated between the Company and Buyers.  No party shall act unilaterally in this regard without the prior approval of the other party provided, however, that such approval shall not be unreasonably withheld.  Nothing in this Section 6.9 shall prevent either party from furnishing information to any governmental entity or from furnishing information to comply with applicable laws or rules of any applicable stock exchange.

 

6.10         Definitions .  The following terms shall have the meanings set forth below:

 

(a)              “ Encumbrances ” means any and all liens, charges, security interests, options, claims, mortgages, pledges, proxies, voting trusts or agreements, obligations, understandings or arrangements, defects or imperfections of title or other restrictions on title or transfer of any nature whatsoever.

 

(b)              “ Material Adverse Effect ” means a material adverse effect on the business, assets, liabilities, financial condition or results of operations of the Company and its subsidiaries taken as a whole, or a material adverse effect on the ability of the Company to perform its obligations under this Agreement; provided however , that none of the following individually or in the aggregate, will be deemed to have a Material Adverse Effect: (x) fluctuations in the market price of the Common Stock; or (y) fluctuations in the prices of precious or base metals, or (z) any change or effect arising out of general economic conditions or conditions generally affecting the mining industries.

 

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(c)              “ Person ” means a natural person, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, governmental entity or other entity or organization.

 

(d)              “ Registration Rights Agreement ” means the Registration Rights Agreement in the form attached hereto Exhibit B .

 

(e)              “ Subsidiary ” means any corporation or other entity with respect to which a specified Person (or a Subsidiary thereof) owns a majority of the common stock or other appropriate equity interest, or has the power to vote or direct the voting of sufficient securities to elect a majority of the directors, managers or members (as appropriate) of its board of directors or other governing body.

 

6.11         Expenses .  All reasonable, documented out-of-pocket costs and expenses incurred by the parties in connection with the negotiation, preparation, execution and delivery of this Agreement and the Registration Rights Agreement, including fees, expenses and disbursements of legal counsel, shall be paid by the Company; provided that the fees, expenses and disbursements of legal counsel to the Buyers shall not exceed $15,000.

 

*  *  *  *  *

 

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IN WITNESS WHEREOF , the parties have executed this SUBSCRIPTION AGREEMENT as of the date first written above.

 

GOLDEN MINERALS COMPANY
By:		/s/ Robert P. Vogels
Name:		Robert P. Vogels
Title:		Sr. Vice President and Chief Financial Officer
SENTIENT GLOBAL RESOURCES FUND III, LP
	By:	Sentient GP III, L.P., General Partner
		By:	Sentient Executive GP III, Limited, General Partner
By:		/s/ Gregory Link
Name:		Gregory Link
Title:		Director
SGRF III PARALLEL I, L.P.
	By:	Sentient GP III, L.P., General Partner
		By:	Sentient Executive GP III, Limited, General Partner
By:		/s/ Gregory Link
Name:		Gregory Link
Title:		Director
SENTIENT GLOBAL RESOURCES FUND IV, LP
	By:	Sentient GP IV, L.P., General Partner
		By:	Sentient Executive GP IV, Limited, General Partner
By:		/s/ Gregory Link
Name:		Gregory Link
Title:		Director

 

 

Exhibit A

ALLOCATION OF SHARES

 

Purchaser		Pro Rata Share		Shares		Shares Purchase Price
Sentient Global Resources Fund III, L.P. Landmark Square, 1 st  Floor, 64 Earth Close, West Bay Beach South PO Box 10795 George Town, Grand Cayman KY1-1007 CAYMAN ISLANDS Tel. No.: (345) 946-0933 Fax No.: (345) 946-0921		22.0821	%	909,375		$	6,765,750
SGRF III Parallel I, L.P. Landmark Square, 1 st  Floor, 64 Earth Close, West Bay Beach South PO Box 10795 George Town, Grand Cayman KY1-1007 CAYMAN ISLANDS Tel. No.: (345) 946-0933 Fax No.: (345) 946-0921		2.2006	%	90,625		$	674,250
Sentient Global Resources Fund IV, L.P. Landmark Square, 1 st  Floor, 64 Earth Close, West Bay Beach South PO Box 10795 George Town, Grand Cayman KY1-1007 CAYMAN ISLANDS Tel. No.: (345) 946-0933 Fax No.: (345) 946-0921		75.7173	%	3,118,150		$	23,199,036
Total:		100.00	%	4,118,150		$	30,639,036

 

Exhibit 10.2

 

EXECUTION VERSION

 

REGISTRATION RIGHTS AGREEMENT

 

THIS REGISTRATION RIGHTS AGREEMENT (this “ Agreement ”) is made and entered into as of October 7, 2011 by and among GOLDEN MINERALS COMPANY, a Delaware corporation (the “ Company ”), and SENTIENT GLOBAL RESOURCES FUND III, L.P., a Cayman Islands exempted limited partnership, SGRF III PARALLEL I, L.P., a Cayman Islands exempted limited partnership, and SENTIENT GLOBAL RESOURCES FUND IV, L.P., a Cayman Islands exempted limited partnership (collectively, the “ Buyers ”).

 

RECITALS

 

A.                                    I n connection with the Subscription Agreement by and between the Company and Buyers dated October 7 , 2011 (the “ Subscription Agreement ”), the Company has agreed, upon the terms and subject to the conditions of the Subscription Agreement, to issue and sell to Buyers and Buyers have agreed to purchase, shares of the Company’s authorized but unissued Common Stock (the “ Shares ”).

 

B.                                      To induce Buyers to execute and deliver the Subscription Agreement, the Company has agreed to provide certain registration rights under the U.S. Securities Act of 1933, as amended, and the rules and regulations thereunder, and applicable state securities laws.

 

NOW, THEREFORE, in consideration of the recitals and the mutual promises, representations, warranties, and covenants set forth in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

AGREEMENT

 

SECTION 1.                           Definitions.

 

In addition to the terms that are defined elsewhere in this Agreement, the following terms shall have the following meanings:

 

“ Affiliate ” with respect to any specified person, has the meaning specified in Rule 144.

 

“ Common Stock ” means the Company’s common stock, par value $0.01 per share.

 

“ Deferral Notice ” has the meaning specified in Section 3(d) hereof.

 

“ Deferral Period ” has the meaning specified in Section 3(d) hereof.

 

“ Effectiveness Deadline Date ” has the meaning specified in Section 2(a) hereof.

 

“ Effectiveness Period ” means the period commencing on the date the Registration Statement becomes effective and ending on the date that all Registrable Securities have ceased to be Registrable Securities.

 

 

“ Exchange Act ” means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.

 

“ Filing Deadline Date ” has the meaning specified in Section 2(a) hereof.

 

“ Holder ” means Buyers, any transferee or assignee thereof to whom Buyers assign their rights under this Agreement and who agrees to become bound by the provisions of this Agreement in accordance with Section 8(a) and any transferee or assignee thereof to whom a transferee or assignee assigns its rights under this Agreement and who agrees to become bound by the provisions of this Agreement in accordance with Section 8(a).

 

“ Initial Resale Registration Statement ” has the meaning specified in Section 2(a) hereof.

 

“ Material Event ” has the meaning specified in Section 3(d) hereof.

 

“ Notice and Questionnaire ” means a written notice delivered to the Company containing substantially the information called for by the Selling Securityholder Notice and Questionnaire attached as Annex A to this Agreement.

 

“ Notice Holder ” means on any date, any Holder that has delivered a Notice and Questionnaire to the Company on or prior to such date.

 

“ Prospectus ” means the prospectus included in any Registration Statement (including, without limitation, a prospectus that discloses information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 415 promulgated under the Securities Act), as amended or supplemented by any amendment or prospectus supplement, including post-effective amendments, and all materials incorporated by reference or explicitly deemed to be incorporated by reference in such Prospectus.

 

“ Registrable Securities ” means the Shares issued to Buyers under the Subscription Agreement and any security issued with respect thereto upon any stock dividend, split, merger or similar event until, in the case of any such security, the earlier of (i) the sale of such security pursuant to Rule 144 under the Securities Act or pursuant to an effective registration statement registering such security for resale, or (ii) the first date on which the Registrable Securities may be sold pursuant to Rule 144 without being subject to the volume restrictions set forth in Rule 144(e).

 

“ Registration Statement ” means any registration statement of the Company that covers any of the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus, amendments and supplements to such registration statement, including post-effective amendments, all exhibits, and all materials incorporated by reference or explicitly deemed to be incorporated by reference in such registration statement.

 

“ Resale Registration Statement ” means the Initial Resale Registration Statement and any Subsequent Resale Registration Statements.

 

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“ Rule 144 ” means Rule 144 under the Securities Act, as such Rule may be amended from time to time, or any similar or successor rule or regulation hereafter adopted by the SEC having substantially the same effect as such Rule.

 

“ SEC ” means the United States Securities and Exchange Commission and any successor agency.

 

“ Securities Act ” means the United States Securities Act of 1933, as amended, and the rules and regulations promulgated by the SEC thereunder.

 

“ Shares ” has the meaning set forth in the Recitals.

 

“ Subscription Agreement ” has the meaning set forth in the Recitals.

 

“ Subsequent Resale Registration Statement ” has the meaning specified in Section 2(b) hereof.

 

SECTION 2.                           Resale Registration.

 

(a)                                   The Company shall prepare and file or cause to be prepared and filed with the SEC no later than March 31, 2012 (the “ Filing Deadline Date ”) a Registration Statement (the “ Initial Resale Registration Statement ”) registering the resale from time to time by Buyers of all of the Registrable Securities. The Initial Resale Registration Statement shall be on Form S-3 or another appropriate form permitting registration of such Registrable Securities for resale by Buyers in accordance with the methods of distribution set forth in the Initial Resale Registration Statement. The Company shall use its commercially reasonable efforts to promptly respond to comments from the SEC regarding the Initial Resale Registration Statement, to cause the Initial Resale Registration Statement to be declared effective under the Securities Act no later than June 30, 2012 (the “ Effectiveness Deadline Date ”), and to keep the Initial Resale Registration Statement (or any Subsequent Resale Registration Statement) continuously effective under the Securities Act until the expiration of the Effectiveness Period.

 

(b)                                  If the Initial Resale Registration Statement or any Subsequent Resale Registration Statement ceases to be effective for any reason at any time during the Effectiveness Period, the Company shall use its commercially reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event shall within thirty (30) days of such cessation of effectiveness amend the Resale Registration Statement in a manner reasonably expected by the Company to obtain the withdrawal of the order suspending the effectiveness thereof, or file an additional Resale Registration Statement covering all of the securities that as of the date of such filing are Registrable Securities (a “ Subsequent Resale Registration Statement ”). If a Subsequent Resale Registration Statement is filed, the Company shall use commercially reasonable efforts to cause the Subsequent Resale Registration Statement to become effective as promptly as is reasonably practicable after such filing or, if filed during a Deferral Period, after the expiration of such Deferral Period, and to keep such Registration

 

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Statement (or Subsequent Resale Registration Statement) continuously effective until the end of the Effectiveness Period.

 

(c)                                   The Company shall supplement and amend the Initial or any Subsequent Resale Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Resale Registration Statement, if required by the Securities Act.

 

(d)                                  Each Holder of Registrable Securities agrees that if such Holder wishes to sell Registrable Securities pursuant to a Resale Registration Statement and related Prospectus, it will do so only in accordance with this Section 2(d), Section 3(d) and Section 4. Each Holder of Registrable Securities wishing to sell Registrable Securities pursuant to any Resale Registration Statement and related Prospectus agrees to deliver a Notice and Questionnaire to the Company promptly upon becoming a Holder and notify the Company of any change in such information at least five (5) business days prior to the filing of the Initial Resale Registration Statement or Subsequent Resale Registration Statement, as applicable. From and after the date the Initial Resale Registration Statement is declared effective, the Company shall, as promptly as is reasonably practicable after the date a fully completed and legible Notice and Questionnaire is received by the Company, (i) if required by applicable law, file with the SEC a post-effective amendment to the Resale Registration Statement or prepare and, if required by applicable law, file a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or file any other document required by the SEC so that the Holder delivering such Notice and Questionnaire is named as a selling security holder in the Resale Registration Statement and the related Prospectus in such a manner as to permit such Holder to deliver such Prospectus to purchasers of the Registrable Securities in accordance with applicable law (other than laws not generally applicable to all Holders of Registrable Securities wishing to sell Registrable Securities pursuant to the Resale Registration Statement and related Prospectus) and using the manner of sale specified in the Notice and Questionnaire, and, if the Company shall file a post-effective amendment to the Resale Registration Statement, use commercially reasonable efforts to cause such post-effective amendment to be declared effective under the Securities Act as promptly as is reasonably practicable; (ii) provide such Holder copies of any documents filed pursuant to Section 2(d)(i); and (iii) notify such Holder as promptly as is reasonably practicable after the effectiveness under the Securities Act of any post-effective amendment filed pursuant to Section 2(d)(i); provided, that if such Notice and Questionnaire is delivered during a Deferral Period, the Company shall so inform the Holder delivering such Notice and Questionnaire and shall take the actions set forth in clauses (i), (ii) and (iii) above upon expiration of the Deferral Period in accordance with Section 3(d), provided, further, that if under applicable law the Company has more than one option as to the type or manner of making any such filing, the Company will make the required filing or filings in the manner or of a type that is reasonably expected to result in the earliest availability of the Prospectus for effecting resales of Registrable Securities. Notwithstanding anything contained herein to the contrary,

 

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the Company shall be under no obligation to name any Holder that is not a Notice Holder as a selling security holder in any Registration Statement or related Prospectus; provided, however, that any Holder that becomes a Notice Holder pursuant to the provisions of this Section 2(d) of this Agreement (whether or not such Holder was a Notice Holder at the time the Registration Statement was initially declared effective) shall be named as a selling security holder in the Registration Statement or related Prospectus subject to and in accordance with the requirements of this Section 2(d).

 

(e)                                   If a Registration Statement covering all the Registrable Securities required to be covered thereby and required to be filed by the Company pursuant to this Agreement is (A) not filed with the SEC on or before the Filing Deadline Date (a “ Filing Failure ”) or (B) not declared effective by the SEC on or before the Effectiveness Deadline Date (an “ Effectiveness Failure ”), then, as liquidated damages to Buyers by reason of any such delay in or reduction of its ability to sell the Shares (which remedy shall be the exclusive remedy for any Filing Failure or Effectiveness Failure (each, a “ Failure ”)), the Company shall pay to Buyers an amount equal to 1.0% of the aggregate purchase price paid by Buyers for the Shares for every thirty (30) days following the Filing Deadline Date that the Registration Statement is not filed (in the case of a Filing Failure) and for every thirty (30) days following the Effectiveness Deadline Date that the Registration Statement is not effective (in the case of an Effectiveness Failure), as the case may be, on a per diem basis (the “ Liquidated Damages ”); provided , however , that the maximum Liquidated Damages payable to Buyers under this Section 2(e) shall not exceed 3.0% of the aggregate purchase price of the Shares.  Liquidated Damages, if any, shall be paid by the Company within ten (10) days following the end of each thirty (30) day period (or shorter period, if applicable) for which Liquidated Damages are payable.  The Company shall pay interest on Liquidated Damages not paid when due at a rate of interest equal to fifteen percent (15.0%) per annum.  In the event a Registration Statement is filed but is withdrawn by the Company prior to being declared effective by the SEC, then such Registration Statement will be deemed to have not been filed for the purpose of this Section 2(e).

 

SECTION 3.                           Registration Procedures.

 

In connection with the registration obligations of the Company under Section 2 hereof, the Company shall:

 

(a)                                   Prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement continuously effective for the applicable period specified in Section 2(a); cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and use commercially reasonable efforts to comply with the provisions of the Securities Act applicable to it with respect to the disposition of all securities covered by such Registration

 

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Statement during the Effectiveness Period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement as so amended or such Prospectus as so supplemented.

 

(b)                                  Submit to the SEC, within two (2) Business Days after the Company learns that no review of a particular Registration Statement will be made by the staff of the SEC or that the staff has no further comments on a particular Registration Statement, as the case may be, a request for acceleration of effectiveness of such Registration Statement to a time and date not later than 48 hours after the submission of such request.

 

(c)                                   Use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction in which they have been qualified for sale, in either case at the earliest possible moment or, if any such order or suspension is made effective during any Deferral Period, at the earliest possible moment after the expiration of such Deferral Period.

 

(d)                                  Upon (A) the issuance by the SEC of a stop order suspending the effectiveness of the Resale Registration Statement or the initiation of proceedings with respect to the Resale Registration Statement under Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the existence of any fact (a “ Material Event ”) as a result of which any Registration Statement shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or any Prospectus shall contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (including, in any such case, as a result of the non-availability of financial statements), or (C) the occurrence or existence of any development, event, fact, situation or circumstance relating to the Company that, in the discretion of the Company, makes it appropriate to suspend the availability of the Resale Registration Statement and the related Prospectus, (i) in the case of clause (B) above, subject to the next sentence, as promptly as is reasonably practicable prepare and file a post-effective amendment to such Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference or file any other required document that would be incorporated by reference into such Registration Statement and Prospectus so that such Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and such Prospectus does not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, and, in the case of a post-effective amendment to a Registration Statement, subject to the next sentence, use commercially reasonable efforts to cause it to be

 

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declared effective as promptly as is reasonably practicable, and (ii) give notice (via facsimile, telephone or electronic mail followed by a written notice by internationally recognized overnight courier) to the Notice Holders that the availability of the Resale Registration Statement is suspended (a “ Deferral Notice ”) and, upon receipt of any Deferral Notice, each Notice Holder agrees not to sell any Registrable Securities pursuant to the Registration Statement until such Notice Holder’s receipt of copies of the supplemented or amended Prospectus provided for in clause (i) above, or until it is advised in writing by the Company that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The Company will use commercially reasonable efforts to ensure that the use of the Prospectus may be resumed (x) in the case of clause (A) above, as promptly as is reasonably practicable, (y) in the case of clause (B) above, as soon as, in the sole reasonable judgment of the Company, public disclosure of such Material Event would not be prejudicial to or contrary to the interests of the Company or, if necessary to avoid unreasonable burden or expense, as soon as reasonably practicable thereafter and (z) in the case of clause (C) above, as soon as, in the reasonable discretion of the Company, such suspension is no longer appropriate. The period during which the availability of the Registration Statement and any Prospectus is suspended (the “ Deferral Period ”) is not to exceed (i) 20 consecutive days at any one time; (ii) 30 days in the aggregate in any three-month period; or (iii) 60 days in the aggregate during any 12-month period, or as otherwise required by applicable regulatory authority; provided that, the number of days the Company is required to keep the Registration Statement effective shall be extended by the number of days equal to the aggregate Deferral Period(s). The first day of any Deferral Period must be at least two (2) trading days after the last day of any prior Deferral Period.

 

(e)                                   During the Effectiveness Period (except during such periods that a Deferral Notice is outstanding and has not been revoked), deliver to each Notice Holder in connection with any sale of Registrable Securities pursuant to a Registration Statement, without charge, as many copies of the Prospectus or Prospectuses relating to such Registrable Securities and any amendment or supplement thereto as such Notice Holder may reasonably request; and the Company hereby consents (except during such periods that a Deferral Notice is outstanding and has not been revoked) to the use of such Prospectus or each amendment or supplement thereto by each Notice Holder in connection with any offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto in the manner set forth therein.

 

(f)                                     Subject to Section 3(d), prior to any public offering of the Registrable Securities pursuant to the Resale Registration Statement, use commercially reasonable efforts to register or qualify or cooperate with the Notice Holders in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any Notice Holder reasonably requests in writing (which request may be included in the

 

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Notice and Questionnaire), it being agreed that no such registration or qualification will be made unless so requested; prior to any public offering of the Registrable Securities pursuant to the Resale Registration Statement, use commercially reasonable efforts to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period in connection with such Notice Holder’s offer and sale of Registrable Securities pursuant to such registration or qualification (or exemption therefrom) and do any and all other acts or things necessary to enable the disposition in such jurisdictions of such Registrable Securities in the manner set forth in the relevant Registration Statement and the related Prospectus; provided, that the Company will not be required to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it is not otherwise qualified or (ii) take any action that would subject it to general service of process in suits or to taxation in any such jurisdiction where it is not then so subject.

 

SECTION 4.                         Holder’s Obligations.

 

Each Holder agrees, by acquisition of the Registrable Securities, that no Holder of Registrable Securities shall be entitled to sell any of such Registrable Securities pursuant to a Registration Statement or to receive a Prospectus relating thereto, unless such Holder has furnished the Company with a properly completed Notice and Questionnaire as required pursuant to this Section 4 (including the information required to be included in such Notice and Questionnaire) and the information set forth in the next sentence. Each Holder agrees to deliver a Notice and Questionnaire to the Company promptly upon becoming a Holder and notify the Company of any change in such information at least five (5) business days prior to the filing of the Initial Resale Registration Statement or Subsequent Resale Registration Statement, as applicable.  Each Notice Holder agrees promptly to furnish to the Company in writing all information required to be disclosed in order to make the information previously furnished to the Company by such Notice Holder not misleading, any other information regarding such Notice Holder and the distribution of such Registrable Securities as may be required to be disclosed in the Registration Statement under applicable law or pursuant to SEC comments and any information otherwise required by the Company to comply with applicable law or regulations. Each Holder further agrees, following termination of the Effectiveness Period, to notify the Company, within ten (10) Business Days of a request, of the amount of Registrable Securities sold pursuant to the Registration Statement and, in the absence of a response, the Company may assume that all of the Holder’s Registrable Securities were so sold.

 

SECTION 5.                         Registration Expenses.

 

The Company shall bear all fees and expenses incurred in connection with the performance by the Company of its obligations under Sections 2 and 3 of this Agreement whether or not any of the Registration Statements are declared effective. Such fees and expenses shall include, without limitation, (i) all registration and filing fees (including, without limitation, fees and expenses (x) with respect to filings required to be made with the Toronto Stock Exchange and the NYSE Amex (or such U.S. national securities exchange on which the Common Stock is then listed) and (y) of compliance with U.S. federal and state securities or “Blue Sky” laws to the extent such filings or compliance are required pursuant to this Agreement (including, without limitation,

 

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reasonable fees and disbursements of the counsel specified in the next sentence in connection with Blue Sky qualifications of the Registrable Securities under the laws of such jurisdictions as the Notice Holders of a majority of the Registrable Securities being sold pursuant to a Registration Statement may designate)), (ii) printing expenses, (iii) duplication expenses relating to copies of any Registration Statement or Prospectus delivered to any Holders hereunder, and (iv) fees and disbursements of counsel for the Company in connection with the Resale Registration Statement, provided, however, that the Company shall not be responsible for any brokers’ fees, commissions or discounts in connection with the sale of Registrable Securities or the fees and expenses of legal counsel for the Holders.

 

SECTION 6.                         Information Requirements.

 

The Company covenants that, if at any time before the end of the Effectiveness Period the Company is not subject to the reporting requirements of the Exchange Act, it will cooperate with any Holder of Registrable Securities and take such further reasonable action as any Holder of Registrable Securities may reasonably request in writing (including, without limitation, making such reasonable representations as any such Holder may reasonably request), all to the extent required from time to time to enable such Holder to sell Registrable Securities without registration under the Securities Act within the limitations of Rule 144 under the Securities Act and customarily taken in connection with sales pursuant to such exemptions. Upon the written request of any Holder of Registrable Securities, the Company shall deliver to such Holder a written statement as to whether it has complied with the filing requirements of Rule 144.

 

SECTION 7.                          Indemnification and Contribution.

 

(a)                                   The Company agrees to indemnify and hold harmless each Holder of Registrable Securities covered by the Resale Registration Statement, the directors, officers, employees, Affiliates and agents of each such Holder and each person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Resale Registration Statement or in any amendment thereof, in each case at the time such became effective under the Securities Act, or in any preliminary Prospectus or the Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any preliminary Prospectus or the Prospectus, in the light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement

 

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or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of the party claiming indemnification specifically for inclusion therein. This indemnity shall be in addition to any liability that the Company may otherwise have.

 

(b)                                  Each Holder of securities covered by the Resale Registration Statement severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Resale Registration Statement and each person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each such Holder, but only with reference to information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement shall be acknowledged by each Notice Holder that is not the Buyers in such Notice Holder’s Notice and Questionnaire and shall be in addition to any liability that any such Notice Holder may otherwise have.

 

(c)                                   Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless such failure results in the forfeiture by the indemnifying party of substantial rights and defenses or otherwise materially prejudices the indemnifying party; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel (including local counsel) of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel, other than local counsel if not appointed by the indemnifying party, retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel (including one local counsel) to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed

 

10

 

counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding.

 

(d)                                  If the indemnification to which an indemnified party is entitled under this Section 7 is for any reason unavailable to or insufficient although applicable in accordance with its terms to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.

 

The relative fault of the Company on the one hand and the Holders of the Registrable Securities on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or by the Holder of the Registrable Securities and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

 

The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7(d). The aggregate amount of losses, liabilities, claims, damages, and expenses incurred by an indemnified party and referred to above in this Section 7(d) shall be deemed to include any out-of-pocket legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.

 

Notwithstanding the provisions of this Section 7, no Holder of any Registrable Securities shall be required to indemnify or contribute any amount in excess of

 

11

 

the amount by which the proceeds received from the sale of the Registrable Securities by such Holder of Registrable Securities exceeds the amount of any damages that such Holder of Registrable Securities has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.

 

No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.

 

For purposes of this Section 7(d), each person, if any, who controls Buyers or any Holder of Registrable Securities within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as Buyers or such Holder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.

 

(e)                                   The provisions of this Section 7 shall remain in full force and effect, regardless of any investigation made by or on behalf of any Holder or the Company or any of the indemnified persons referred to in this Section 7, and shall survive the sale by a Holder of Registrable Securities covered by the Resale Registration Statement.

 

SECTION 8.                           Miscellaneous

 

(a)                                   Successors and Assigns .  Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto without the prior written consent of the other parties.  Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective permitted successors and assigns.  If any permitted transferee of any Holder shall acquire Registrable Securities, such Registrable Securities shall be subject to all of the terms of this Agreement and by taking and holding such Registrable Securities such person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement.  Nothing in this Agreement is intended to confer upon any party other than the parties hereto or their respective permitted successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

 

(b)                                  Notices . Unless otherwise provided herein, any notice, request, waiver, instruction, consent or document or other communication required or permitted to be given by this Agreement shall be effective only if it is in writing and (i) delivered by hand or sent by certified mail, return receipt requested, (ii) if sent by a nationally-recognized overnight delivery service with delivery confirmed, or (iii) if sent by facsimile (or other similar electronic means), with receipt confirmed as follows:

 

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Company:	Golden Minerals Company
	350 Indiana Street, Suite 800
	Golden, Colorado 80401
	Attn: President
	Fax:  (303) 839-5907
with a copy to:	Davis Graham & Stubbs LLP
	1550 17 th  Street, Suite 500
	Denver, Colorado 80202
	Attn: Deborah J. Friedman
	Fax:  (303) 892-7400
Buyers:	Sentient Global Resources Fund III, LP
	SGRF III Parallel I, LP
	Sentient Global Resources Fund IV, LP
	Landmark Square, 1 st  Floor, 64 Earth Close, West Bay Beach South
	PO Box 10795
	George Town, Grand Cayman KY1-1007
	CAYMAN ISLANDS
	Attention: Sue Bjuro — Office Manager
with a copy to:	Quinn & Brooks, LLP
	c/o Gregory A. Smith
	9800 Mt. Pyramid Ct., Suite 400
	Englewood, Colorado 80112

 

The parties shall promptly notify each other of any change in their respective addresses or facsimile numbers or of the individual or entity or office to receive notices, requests or other communications under this Section 8(b).  All notices shall be deemed to have been given (i) if personally delivered or sent by certified mail, as of the date when so delivered, (ii) if sent by nationally-recognized overnight delivery service, two days after mailing, or (iii) if sent by facsimile (or other similar electronic means) as of the date sent, if during normal business hours of the recipient, and otherwise on the next business day.

 

(c)                                   Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, without the written consent of the Company and the Holders of a majority of the then outstanding Registrable Securities. Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of Holders of Registrable Securities whose securities are being sold pursuant to a Registration Statement and that does not directly or indirectly affect the rights of other Holders of Registrable Securities may be given by Holders of at least a majority of the Registrable Securities being sold by such Holders pursuant to such Registration Statement; provided, that the

 

13

 

provisions of this sentence may not be amended, modified, or supplemented except in accordance with the provisions of the immediately preceding sentence. Each Holder of Registrable Securities outstanding at the time of any such amendment, modification, supplement, waiver or consent or thereafter shall be bound by any such amendment, modification, supplement, waiver or consent effected pursuant to this Section 8(c), whether or not any notice, writing or marking indicating such amendment, modification, supplement, waiver or consent appears on the Registrable Securities or is delivered to such Holder.

 

(d)                                  Severability .  Any term or provision of this Agreement that is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.  If the final judgment of a court of competent jurisdiction or other authority declares that any term or provision hereof is invalid, void or unenforceable, the parties agree that the court making such determination shall have the power to reduce the scope, duration, area or applicability of the term or provision, to delete specific words or phrases, or to replace any invalid, void or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision.

 

(e)                                   Governing Law .  This Agreement shall be governed by and construed in accordance with the internal laws (as opposed to the conflicts of law provisions) of the State of Colorado.

 

(f)                                     Submission to Jurisdiction .  The parties hereby submit to the non-exclusive jurisdiction of any court of the State of Colorado or the United States District Court for the District of Colorado for the purpose of any suit, action, or other proceeding arising out of this Agreement, and waive any and all objections to jurisdiction that they may have under the laws of the State of Colorado or the United States and any claim or objection that any such court is an inconvenient forum.

 

(g)                                  Entire Agreement .  This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof.

 

(h)                                  Counterparts .  This Agreement may be executed in two or more counterparts (including by facsimile or similar means of electronic communication), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

(i)                                      Specific Performance .   Buyers and the Company each agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed by them in accordance with the terms hereof and that each party shall be entitled to specific performance of the terms hereof, in addition to

 

14

 

any other remedy at law or equity.  Each party hereto expressly waives any requirement that any other party hereto obtain any bond or provide any indemnity in connection with any action seeking injunctive relief or specific enforcement of the provisions of the Agreement.

 

(j)                                      Expenses .  All reasonable, documented out-of-pocket costs and expenses incurred by the parties in connection with the negotiation, preparation, execution and delivery of this Agreement, including the fees, expenses and disbursements of legal counsel and accountants, shall be paid by the Company.  Except as otherwise set forth in this Agreement, costs and expenses incurred by the parties in connection with the performance of its obligations under this Agreement shall be paid by the party incurring such expenses.  The prevailing party in any litigation or other proceeding to collect Liquidated Damages pursuant to this Agreement shall be entitled to collect from the non-prevailing party all reasonable costs and fees associated with such litigation or proceeding, including reasonable attorneys’ fees.

 

(k)                                   Approval of Holders. Whenever the consent or approval of Holders of a specified percentage of Registrable Securities is required hereunder, Registrable Securities held by the Company or its Affiliates (other than Buyers or subsequent Holders of Registrable Securities if such subsequent Holders are deemed to be such Affiliates solely by reason of their holdings of such Registrable Securities) shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage.

 

(l)                                      Termination . This Agreement and the obligations of the parties hereunder shall terminate upon the earlier to occur of (i) the expiration of the Effectiveness Period or (ii) such time as there shall be no Registrable Securities.

 

* * * * *

 

15

 

IN WITNESS WHEREOF, the parties have executed this REGISTRATION RIGHTS AGREEMENT as of the date first written above.

 

 

GOLDEN MINERALS COMPANY
/s/ Robert P. Vogels
Name:	Robert P. Vogels
Title:	Sr. Vice President and Chief Financial Officer
SENTIENT GLOBAL RESOURCES FUND III, LP
By:	Sentient GP III, L.P., General Partner
	By:    Sentient Executive GP III, Limited, General Partner
By:	/s/ Gregory Link
Name:	Gregory Link
Title:	Director
SGRF III PARALLEL I, L.P.
By:	Sentient GP III, L.P., General Partner
	By:    Sentient Executive GP III, Limited, General Partner
By:	/s/ Gregory Link
Name:	Gregory Link
Title:	Director
SENTIENT GLOBAL RESOURCES FUND IV, LP
By:	Sentient GP IV, L.P., General Partner
	By:    Sentient Executive GP IV, Limited, General Partner
By:	/s/ Gregory Link
Name:	Gregory Link
Title:	Director

 

 

ANNEX A

 

FORM OF SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE.

 

The undersigned beneficial owner (the “Selling Securityholder”) of Registrable Securities hereby gives notice to the Company of its intention to sell or otherwise dispose of Registrable Securities beneficially owned by it and listed below in Item 3 (unless otherwise specified under such Item 3) pursuant to the Resale Registration Statement. The undersigned, by signing and returning this Notice and Questionnaire, understands that it will be bound by the terms and conditions of this Notice and Questionnaire and the Registration Rights Agreement.

 

Pursuant to the Registration Rights Agreement, the undersigned has agreed to indemnify and hold harmless the Company’s directors and officers and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), from and against certain losses arising in connection with statements concerning the undersigned made in the Company’s Resale Registration Statement or the related prospectus in reliance upon the information provided in this Notice and Questionnaire.

 

If the Selling Securityholder transfers all or any portion of the Registrable Securities listed in Item 3 below after the date on which such information is provided to the Company, the Selling Securityholder agrees to notify the transferee(s) at the time of the transfer of its rights and obligations under the registration Rights Agreement and that the transferee must complete this Notice and Questionnaire in order to avail itself of the rights under the Registration Rights Agreement.

 

[CONTINUED NEXT PAGE]

 

 

QUESTIONNAIRE

 

Please respond to every item, even if your response is “none.” If you need more space for any response, please attach additional sheets of paper. Please be sure to indicate your name and the number of the item being responded to on each such additional sheet of paper, and to sign each such additional sheet of paper before attaching it to this Questionnaire. Please note that you may be asked to answer additional questions depending on your responses to the following questions.

 

COMPLETED QUESTIONNAIRES SHOULD BE RETURNED TO
GOLDEN MINERALS COMPANY AS FOLLOWS:

 

ONE (1) COPY BY FACSIMILE TO FAX: (303) 839-5907

 

WITH THE ORIGINAL COPY TO FOLLOW TO:

 

GOLDEN MINERALS COMPANY

 

 

ATTENTION: CHIEF FINANCIAL OFFICER

 

The undersigned hereby provides the following information to the Company and represents and warrants that such information is accurate and complete:

 

1.                                        Your Identity and Background as the Beneficial Owner of The Registrable Securities.

 

(a)                                   Your full legal name:

 

(b)                                  Your business address (including street address) (or residence if no business address), telephone number and facsimile number:

 

Address:

 

Telephone No.:

 

Fax No.:

 

(c)                                   Are you a broker-dealer registered pursuant to Section 15 of the Exchange Act?

 

o    Yes.

 

o    No.

 

 

(d)                                  If your response to Item 1(c) above is no, are you an “affiliate” of a broker-dealer registered pursuant to Section 15 of the Exchange Act?

 

o    Yes.

 

o    No.

 

For the purposes of this Item 1(d), an “affiliate” of a registered broker-dealer shall include any company that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such broker-dealer, and does not include any individuals employed by such broker-dealer or its affiliates.

 

(e)                                   Full legal name of person or entity in whose name you hold the Registrable Securities—(i.e. name of your broker, if applicable, through which your Registered Securities are held):

 

Record Stockholder:

 

Name of broker:

 

Contact person:

 

Telephone No.:

 

2.                                        Your Relationship with Golden Minerals Company

 

(a)                                   Have you or any of your affiliates, officers, directors or principal equity holders (owners of 5% or more of the equity securities of the undersigned) held any position or office or have you had any other material relationship with Golden Minerals Company (or its predecessors or affiliates) within the past three years?

 

o    Yes.

 

o    No.

 

(b)                                  If your response to Item 2(a) above is yes, please state the nature and duration of your relationship with Golden Minerals Company:

 

3.                                        Your Interest in the Registrable Securities.

 

(a)                                   State the number of such Registrable Securities beneficially owned by you.

 

(b)                                  Other than as set forth in your response to Item 3(a) above, do you beneficially own any other securities of Golden Minerals Company?

 

o    Yes.

 

 

o    No.

 

(c)                                   If your answer to Item 3(b) above is yes, state the type, the aggregate amount and CUSIP No. (if applicable) of such other securities of Golden Minerals Company beneficially owned by you:

 

Type:

 

Aggregate amount:

 

CUSIP No.:

 

(d)                                  Did you acquire the securities listed in Item 3(a) above in the ordinary course of business?

 

o    Yes.

 

o    No.

 

(e)                                   At the time of your purchase of the securities listed in Item 3(a) above, did you have any agreements or understandings, directly or indirectly, with any person to distribute the securities?

 

o    Yes.

 

o    No.

 

(f)                                     If your response to Item 3(e) above is yes, please describe such agreements or understandings:

 

4.                                        Nature of Your Beneficial Ownership.

 

(a)                                   If the name of the beneficial owner of the Registrable Securities set forth in your response to Item 1(a) above is that of a limited partnership or corporation, state the names of the general partners of such limited partnership or the officers and directors of such corporation:

 

(b)                                  With respect to each general partner listed in Item 4(a) above who is not a natural person, and is not publicly held, name each shareholder (or holder of partnership interests, if applicable) of such general partner. If any of these named shareholders are not natural persons or publicly held entities, please provide the same information. This process should be repeated until you reach natural persons or a publicly held entity.

 

 

(c)                                   Name your controlling shareholder(s) or other person or entity who has the ability to exercise control over you (the “Controlling Entity”). If the Controlling Entity is not a natural person and is not a publicly held entity, name each shareholder of such Controlling Entity. If any of these named shareholders are not natural persons or publicly held entities, please provide the same information. This process should be repeated until you reach natural persons or a publicly held entity.

 

(A)(i)                  Full legal name of Controlling Entity(ies) or natural person(s) with who have sole or shared voting or dispositive power over the Registrable Securities:

 

Business address (including street address) (or residence if no business address), telephone number and facsimile number of such person(s):

 

Address:

 

Telephone:

 

Fax:

 

Name of Shareholder:

 

(B)(i)                    Full legal name of Controlling Entity(ies):

 

Business address (including street address) (or residence if no business address), telephone number and facsimile number of such person(s):

 

Address:

 

Telephone:

 

Fax:

 

Name of Shareholders:

 

If you need more space for this response, please attach additional sheets of paper. Please be sure to indicate your name and the number of the item being responded to on each such additional sheet of paper, and to sign each such additional sheet of

 

 

paper before attaching it to this Questionnaire. Please note that you may be asked to answer additional questions depending on your responses to the following questions.

 

5.                                        Plan of Distribution.

 

The undersigned (including its donees or pledgees) intends to distribute the Registrable Securities listed above in Item 3 pursuant to the Resale Registration Statement only as follows (if at all): Such Registrable Securities may be sold from time to time directly by the undersigned or, alternatively, through underwriters, broker-dealers or agents. If the Registrable Securities are sold through underwriters, broker-dealers or agents, the Selling Securityholder will be responsible for underwriting discounts or commissions or agents’ commissions. Such Registrable Securities may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of sale, at varying prices determined at the time of sale or at negotiated prices. Such sales may be effected in transactions (which may involve block transactions) (i) on any national securities exchange or quotation service on which the Registrable Securities may be listed or quoted at the time of sale, (ii) in the over-the-counter market, or (iii) in transactions otherwise than on such exchanges or services or in the over-the-counter market.

 

DATED this      day of                   ,                .
	Signature of Holder
	(Print name)