EXHIBIT 10.1
2010 STOCK INCENTIVE PLAN
(as amended through July 25, 2011)
1.
Purpose
. The purpose of the 2010 Stock Incentive Plan (the “Plan”) of Standard Gold, Inc. (the “Company”) is to increase stockholder value and to advance the interests of the Company by furnishing a variety of economic incentives (“Incentives”) designed to attract, retain and motivate employees, certain key consultants and directors of the Company. Incentives may consist of opportunities to purchase or receive shares of Common Stock, $.001 par value, of the Company (“Common Stock”) or other incentive awards on terms determined under this Plan.
2.
Administration
.
2.1
Administration by Committee
. The Plan shall be administered by the board of directors of the Company (the “Board of Directors”) or by a stock option or compensation committee (the “Committee”) of the Board of Directors. The Committee shall consist of not less than two directors of the Company and shall be appointed from time to time by the Board of Directors. Each member of the Committee shall be (a) a “non-employee director” within the meaning of Rule 16b-3 of the Securities Exchange Act of 1934 (including the regulations promulgated thereunder, the “1934 Act”) (a “Non-Employee Director”), and (b) shall be an “outside director” within the meaning of Section 162(m) under the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations promulgated thereunder. The Committee shall have complete authority to award Incentives under the Plan, to interpret the Plan, and to make any other determination which it believes necessary and advisable for the proper administration of the Plan. The Committee’s decisions and matters relating to the Plan shall be final and conclusive on the Company and its participants. If at any time there is no stock option or compensation committee, the term “Committee”, as used in the Plan, shall refer to the Board of Directors.
2.2
Delegation of Authority
. The Company’s Chief Executive Officer may, on a discretionary basis and without Committee review or approval, grant options to purchase up to 50,000 shares each to new employees of the Company who are not officers of the Company. Such discretionary option grants shall not exceed 150,000 shares in total in any fiscal year. Subject to the foregoing limitations, the Chief Executive Officer shall determine from time to time (a) the new employees to whom grants will be made, (b) the number of shares to be granted, and (c) the terms and provisions of each option (which need not be identical).
3.
Eligible Participants
. Officers of the Company, employees of the Company or its subsidiaries, members of the Board of Directors, and consultants or other independent contractors who provide services to the Company or its subsidiaries shall be eligible to receive Incentives under the Plan when designated by the Committee. Participants may be designated individually or by groups or categories (for example, by pay grade) as the Committee deems appropriate. Participation by officers of the Company or its subsidiaries and any performance objectives relating to such officers must be approved by the Committee. Participation by others and any performance objectives relating to others may be approved by groups or categories (for example, by pay grade) and authority to designate participants who are not officers and to set or modify such targets may be delegated.
4.
Types of Incentives
. Incentives under the Plan may be granted in any one or a combination of the following forms: (a) incentive stock options and non-statutory stock options (Section 6); (b) stock appreciation rights (“SARs”) (Section 7); (c) stock awards (Section 8); and (d) restricted stock (Section 8). Subject to the specific limitations provided in this Plan, payment of Incentives may be in the form of cash, Common Stock or combinations thereof as the Committee shall determine, and with such other restrictions as it may impose.
5.
Shares Subject to the Plan
.
5.1
Number of Shares
. Subject to adjustment as provided in Section 9.6, the number of shares of Common Stock which may be issued under the Plan shall not exceed 14,500,000 shares of Common Stock. Shares of Common Stock that are issued under the Plan or are subject to outstanding Incentives will be applied to reduce the maximum number of shares of Common Stock remaining available for issuance under the Plan. Any shares of Common Stock subject to SARs granted under this Plan shall be counted in full against the 14,500,000
share limit, regardless of the number of shares of Common Stock actually issued upon the exercise of such SARs.
5.2
Cancellation
. If a stock option or SAR granted hereunder expires or is terminated or canceled unexercised as to any shares of Common Stock, such shares may again be issued under the Plan either pursuant to stock options, SARs or otherwise. If shares of Common Stock are issued as restricted stock or pursuant to a stock award and thereafter are forfeited or reacquired by the Company pursuant to rights reserved upon issuance thereof, such forfeited and reacquired shares may again be issued under the Plan, either as restricted stock, pursuant to stock awards or otherwise. The Committee may also determine to cancel, and agree to the cancellation of, Incentives in order to make a participant eligible for the grant of an Incentive at a lower exercise price than the Incentive to be canceled; provided, however, that the substituted Incentive must satisfy or be exempt from the requirements of Code Section 409A, including the rules and regulations thereunder (together, “Code Section 409A”).
5.3
Type of Common Stock
. Common Stock issued under the Plan in connection with Incentives shall be authorized and unissued shares.
5.4
Limitation on Certain Grants
. No person shall receive grants of stock options and SARs under the Plan that exceed, in the aggregate, 1,000,000 shares during any one fiscal year of the Company.
6.
Stock Options
. A stock option is a right to purchase shares of Common Stock from the Company. Each stock option granted by the Committee under this Plan shall be subject to the following terms and conditions:
6.1
Price
. The option price per share shall be determined by the Committee, subject to adjustment under Section 9.6. Notwithstanding the foregoing sentence, except as permitted under Section 9.16, the option price per share shall not be less than the Fair Market Value (as defined in Section 9.14) of the Common Stock on the Grant Date (as defined in Section 9.15) unless the stock option satisfies the provisions of Code Section 409A.
6.2
Number
. The number of shares of Common Stock subject to a stock option shall be determined by the Committee, subject to adjustment as provided in Section 9.6. The number of shares of Common Stock subject to a stock option shall be reduced in the same proportion that the holder thereof exercises an SAR if any SAR is granted in conjunction with or related to the stock option. Notwithstanding the foregoing, the limitation on grants under Section 5.4 shall apply to grants of stock options under the Plan.
6.3
Duration and Time for Exercise
. Subject to earlier termination as provided in Section 9.3, the term of each stock option shall be determined by the Committee but shall not exceed ten years and one day from the Grant Date. Each stock option shall become exercisable at such time or times during its term as shall be determined by the Committee at the time of grant. The Committee may accelerate the exercisability of any stock option. Subject to the first sentence of this paragraph, the Committee may extend the term of any stock option to the extent provided in Section 9.4.
6.4
Manner of Exercise
. A stock option may be exercised, in whole or in part, by giving written notice to the Company, specifying the number of shares of Common Stock to be purchased and accompanied by the full purchase price for such shares. The option price shall be payable (a) in United States dollars upon exercise of the option and may be paid by cash, uncertified or certified check or bank draft; (b) unless otherwise provided in the option agreement, by delivery of shares of Common Stock in payment of all or any part of the option price, which shares shall be valued for this purpose at the Fair Market Value on the date such option is exercised; or (c) unless otherwise provided in the option agreement, by instructing the Company to withhold from the shares of Common Stock issuable upon exercise of the stock option shares of Common Stock in payment of all or any part of the exercise price and/or any related withholding tax obligations consistent with Section 9.8, which shares shall be valued for this purpose at the Fair Market Value or in such other manner as may be authorized from time to time by the Committee. Before the issuance of shares of Common Stock upon the exercise of a stock option, a participant shall have no rights as a stockholder.
6.5
Incentive Stock Options
. Notwithstanding anything in the Plan to the contrary, the following additional provisions shall apply to the grant of stock options which are intended to qualify as Incentive Stock Options (as such term is defined in Code Section 422):
(a) The aggregate Fair Market Value (determined as of the time the option is granted) of the shares of Common Stock with respect to which Incentive Stock Options are exercisable for the first time by any participant during any calendar year (under all of the Company’s plans) shall not exceed $100,000. The determination will be made by taking Incentive Stock Options into account in the order in which they were granted. If such excess only applies to a portion of an Incentive Stock Option, the Committee, in its discretion, will designate which shares will be treated as shares to be acquired upon exercise of an Incentive Stock Option.
(b) Any option agreement for an Incentive Stock Option under the Plan shall contain such other provisions as the Committee shall deem advisable, but shall in all events be consistent with and contain all provisions required in order to qualify the options as Incentive Stock Options.
(c) All Incentive Stock Options must be granted within ten years from the earlier of the date on which this Plan was adopted by Board of Directors or the date this Plan was approved by the stockholders.
(d) Unless sooner exercised, all Incentive Stock Options shall expire no later than ten years after the Grant Date.
(e) The option price for Incentive Stock Options shall be not less than the Fair Market Value of the Common Stock subject to the option on the Grant Date.
(f) If Incentive Stock Options are granted to any participant who, at the time such option is granted, would own (within the meaning of Code Section 422) stock possessing more than 10% of the total combined voting power of all classes of stock of the employer corporation or of its parent or subsidiary corporation, (i) the option price for such Incentive Stock Options shall be not less than 110% of the Fair Market Value of the Common Stock subject to the option on the Grant Date and (ii) such Incentive Stock Options shall expire no later than five years after the Grant Date.
7.
Stock Appreciation Rights
. An SAR is a right to receive, without payment to the Company, a number of shares of Common Stock, the amount of which is determined pursuant to the formula set forth in Section 7.5. An SAR may be granted (a) with respect to any stock option granted under this Plan, either concurrently with the grant of such stock option or at such later time as determined by the Committee (as to all or any portion of the shares of Common Stock subject to the stock option), or (b) alone, without reference to any related stock option. Each SAR granted by the Committee under this Plan shall be subject to the following terms and conditions:
7.1
Price
. The exercise price per share of any SAR granted without reference to a stock option shall be determined by the Committee, subject to adjustment under Section 9.6. Notwithstanding the foregoing sentence, except as permitted under Section 9.16, the exercise price per share shall not be less than the Fair Market Value of the Common Stock on the Grant Date unless the SAR satisfies the provisions of Code Section 409A.
7.2
Number
. Each SAR granted to any participant shall relate to such number of shares of Common Stock as shall be determined by the Committee, subject to adjustment as provided in Section 9.6. In the case of an SAR granted with respect to a stock option, the number of shares of Common Stock to which the SAR relates shall be reduced in the same proportion that the holder of the option exercises the related stock option. Notwithstanding the foregoing, the limitation on grants under Section 5.4 shall apply to grants of SARs under the Plan.
7.3
Duration
. Subject to earlier termination as provided in Section 9.3, the term of each SAR shall be determined by the Committee but shall not exceed ten years and one day from the Grant Date. Unless otherwise provided by the Committee, each SAR shall become exercisable at such time or times, to such extent and upon such conditions as the stock option, if any, to which it relates is exercisable. The Committee may in its discretion accelerate the exercisability of any SAR. Subject to the first sentence of this paragraph, the Committee may extend the term of any SAR to the extent provided in Section 9.4.
7.4
Exercise
. An SAR may be exercised, in whole or in part, by giving written notice to the Company, specifying the number of SARs which the holder wishes to exercise. Upon receipt of such written notice, the Company shall, within 90 days thereafter, deliver to the exercising holder certificates for the shares of Common Stock or cash or both, as determined by the Committee, to which the holder is entitled pursuant to Section 7.5.
7.5
Issuance of Shares Upon Exercise
. The number of shares of Common Stock which shall be issuable upon the exercise of an SAR shall be determined by dividing:
(a) the number of shares of Common Stock as to which the SAR is exercised multiplied by the amount of the appreciation in such shares (for this purpose, the “appreciation” shall be the amount by which the Fair Market Value of the shares of Common Stock subject to the SAR on the exercise date exceeds (1) in the case of an SAR related to a stock option, the purchase price of the shares of Common Stock under the stock option or (2) in the case of an SAR granted alone, without reference to a related stock option, an amount which shall be determined by the Committee at the time of grant, subject to adjustment under Section 9.6); by
(b) the Fair Market Value of a share of Common Stock on the exercise date.
No fractional shares of Common Stock shall be issued upon the exercise of an SAR; instead, the holder of the SAR shall be entitled to receive a cash adjustment equal to the same fraction of the Fair Market Value of a share of Common Stock on the exercise date or to purchase the portion necessary to make a whole share at its Fair Market Value on the date of exercise.
8.
Stock Awards and Restricted Stock
. A stock award consists of the transfer by the Company to a participant of shares of Common Stock, without other payment therefor, as additional compensation for services to the Company. A share of restricted stock consists of shares of Common Stock which are sold or transferred by the Company to a participant at a price, if any, determined by the Committee and subject to restrictions on their sale or other transfer by the participant. The transfer of Common Stock pursuant to stock awards and the transfer and sale of restricted stock shall be subject to the following terms and conditions:
8.1
Number of Shares
. The number of shares to be transferred or sold by the Company to a participant pursuant to a stock award or as restricted stock shall be determined by the Committee.
8.2
Sale Price
. The Committee shall determine the price, if any, at which shares of restricted stock shall be sold to a participant, which may vary from time to time and among participants and which may be below the Fair Market Value of such shares of Common Stock at the date of sale.
8.3
Restrictions
. All shares of restricted stock transferred or sold by the Company hereunder shall be subject to such restrictions as the Committee may determine, including, without limitation any or all of the following:
(a) a prohibition against the sale, transfer, pledge or other encumbrance of the shares of restricted stock, such prohibition to lapse at such time or times as the Committee shall determine (whether in annual or more frequent installments, at the time of the death, disability or retirement of the holder of such shares, or otherwise);
(b) a requirement that the holder of shares of restricted stock forfeit, or (in the case of shares sold to a participant) re-sell back to the Company at his or her cost, all or a part of such shares in the event of termination of his or her employment or consulting engagement during any period in which such shares are subject to restrictions;
(c) such other conditions or restrictions as the Committee may deem advisable.
8.4
Restrictions
. In order to enforce the restrictions imposed by the Committee pursuant to Section 8.3, the participant receiving restricted stock shall enter into an agreement with the Company setting forth the conditions of the grant. Shares of restricted stock shall be registered in the name of the participant and deposited, together with a stock power endorsed in blank, with the Company. Each such certificate shall bear a legend that refers to the Plan and the restrictions imposed under the applicable agreement. The Committee may provide that no certificates representing restricted stock be issued until the restriction period is completed.
8.5
End of Restrictions
. Subject to Section 9.5, at the end of any time period during which the shares of restricted stock are subject to forfeiture and restrictions on transfer, such shares will be delivered free of all restrictions to the participant or to the participant’s legal representative, beneficiary or heir.
8.6
Rights of Holders of Restricted Stock
. Subject to the terms and conditions of the Plan, each participant receiving restricted stock shall have all the rights of a stockholder with respect to shares of stock during any period in which such shares are subject to forfeiture and restrictions on transfer, including without limitation, the right to vote such shares.
9.
General
.
9.1
Effective Date
. The Plan will become effective upon the date of approval by the Company’s Board of Directors (the “Effective Date”).
9.2
Duration
. The Plan shall remain in effect until all Incentives granted under the Plan have either been satisfied by the issuance of shares of Common Stock or the payment of cash or been terminated under the terms of the Plan and all restrictions imposed on shares of Common Stock in connection with their issuance under the Plan have lapsed. No Incentives may be granted under the Plan after the tenth anniversary of the Effective Date of the Plan.
9.3
Non-transferability of Incentives
. No stock option, SAR, restricted stock or stock award may be transferred, pledged or assigned by the holder thereof (except, in the event of the holder’s death, by will or the laws of descent and distribution to the limited extent provided in the Plan or the Incentive, or pursuant to a qualified domestic relations order as defined by the Code or Title I of the Employee Retirement Income Security Act, or the rules thereunder), and the Company shall not be required to recognize any attempted assignment of such rights by any participant. Notwithstanding the preceding sentence, stock options may be transferred by the holder thereof to the holder’s spouse, children, grandchildren or parents (collectively, the “Family Members”), to trusts for the benefit of Family Members, to partnerships or limited liability companies in which Family Members are the only partners or shareholders, or to entities exempt from federal income taxation pursuant to Code Section 501(c)(3). During a participant’s lifetime, a stock option may be exercised only by him or her, by his or her guardian or legal representative or by the transferees permitted by this Section 9.3.
9.4
Effect of Termination or Death
. If a participant ceases to be an employee of or consultant to the Company for any reason, including death or disability, any Incentives may be exercised or shall expire at such times as may be set forth in the agreement, if any, applicable to the Incentive, or otherwise as determined by the Committee; provided, however, the term of an Incentive may not be extended beyond the term originally prescribed when the Incentive was granted, unless the Incentive satisfies (or is amended to satisfy) the requirements of Code Section 409A; and provided further that the term of an Incentive may not be extended beyond the maximum term permitted under this Plan.
9.5
Restrictions under Securities Laws
. Notwithstanding anything in this Plan to the contrary: (a) the Company may, if it shall determine it necessary or desirable for any reason, at the time of award of any Incentive or the issuance of any shares of Common Stock pursuant to any Incentive, require the recipient of the Incentive, as a condition to the receipt thereof or to the receipt of shares of Common Stock issued pursuant thereto, to deliver to the Company a written representation of present intention to acquire the Incentive or the shares of Common Stock issued pursuant thereto for his or her own account for investment and not for distribution; and (b) if at any time the Company further determines, in its sole discretion, that the listing, registration or qualification (or any updating of any such document) of any Incentive or the shares of Common Stock issuable pursuant thereto is necessary on any securities exchange or under any federal or state securities or blue sky law, or that the consent or approval of any governmental regulatory body is necessary or desirable as a condition of, or in connection with the award of any Incentive, the issuance of shares of Common Stock pursuant thereto, or the removal of any restrictions imposed on such shares, such Incentive shall not be awarded or such shares of Common Stock shall not be issued or such restrictions shall not be removed, as the case may be, in whole or in part, unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Company.
9.6
Adjustment
. In the event of any recapitalization, stock dividend, stock split, combination of shares or other change in the Common Stock, the number of shares of Common Stock then subject to the Plan, including shares subject to outstanding Incentives, and the other numbers of shares of Common Stock provided in the Plan, shall be adjusted in proportion to the change in outstanding shares of Common Stock. In the event of any such adjustments, the purchase price of any option, the performance objectives of any Incentive, and the shares of Common Stock issuable pursuant to any Incentive shall be adjusted as and to the extent appropriate, in the discretion of the Committee, to provide participants with the same relative rights before and after such adjustment.
9.7
Incentive Plans and Agreements
. Except in the case of stock awards, the terms of each Incentive shall be stated in a plan or agreement approved by the Committee. The Committee may also determine to enter into agreements with holders of options to reclassify or convert certain outstanding options, within the terms of the Plan, as Incentive Stock Options or as non-statutory stock options and in order to eliminate SARs with respect to all or part of such options and any other previously issued options. The Committee shall communicate the key terms of each award to the participant promptly after the Committee approves the grant of such award.
9.8
Withholding
.
(a) The Company shall have the right to withhold from any payments made under the Plan or to collect as a condition of payment, any taxes required by law to be withheld. At any time when a participant is required to pay to the Company an amount required to be withheld under applicable income tax laws in connection with a distribution of Common Stock or upon exercise of an option or SAR or upon vesting of restricted stock, the participant may satisfy this obligation in whole or in part by electing (the “Election”) to have the Company withhold, from the distribution or from such shares of restricted stock, shares of Common Stock having a value up to the minimum amount of withholding taxes required to be collected on the transaction. The value of the shares to be withheld shall be based on the Fair Market Value of the Common Stock on the date that the amount of tax to be withheld shall be determined (“Tax Date”).
(b) Each Election must be made before the Tax Date. The Committee may disapprove of any Election, may suspend or terminate the right to make Elections, or may provide with respect to any Incentive that the right to make Elections shall not apply to such Incentive. An Election is irrevocable.
9.9
No Continued Employment, Engagement or Right to Corporate Assets
. No participant under the Plan shall have any right, because of his or her participation, to continue in the employ of the Company for any period of time or to any right to continue his or her present or any other rate of compensation. Nothing contained in the Plan shall be construed as giving an employee, a consultant, such persons’ beneficiaries or any other person any equity or interests of any kind in the assets of the Company or creating a trust of any kind or a fiduciary relationship of any kind between the Company and any such person.
9.10
Payments Under Incentives
. Payment of cash or distribution of any shares of Common Stock to which a participant is entitled under any Incentive shall be made as provided in the Incentive. Except as permitted under Section 9.16, payments and distributions may not be deferred under any Incentive unless the deferral complies with the requirements of Code Section 409A.
9.11
Amendment of the Plan
. The Board of Directors may amend or discontinue the Plan at any time. However, no such amendment or discontinuance shall adversely change or impair, without the consent of the recipient, an Incentive previously granted. Further, no such amendment shall, without approval of the stockholders of the Company if the Plan has been approved by the stockholders, (a) increase the maximum number of shares of Common Stock which may be issued to all participants under the Plan, (b) change or expand the types of Incentives that may be granted under the Plan, (c) change the class of persons eligible to receive Incentives under the Plan, or (d) materially increase the benefits accruing to participants under the Plan.
9.12
Amendment of Agreements for Incenti
ves. Except as otherwise provided in this Section 9.12, the terms of an existing Incentive may be amended by agreement between the Committee and the participant. Notwithstanding the foregoing sentence, in the case of a stock option or SAR, except as permitted under Section 9.16, no such amendment shall (a) extend the term of the Incentive, except as provided in Section 9.4; nor (b) reduce the exercise price per share below the Fair Market Value of the Common Stock on the date the Incentive was granted, unless, in either case, the amendment complies with the requirements of Code Section 409A.
9.13
Sale, Merger, Exchange or Liquidation
. Unless otherwise provided in the agreement for an Incentive, in the event of an acquisition of the Company through the sale of substantially all of the Company’s assets or through a merger, exchange, reorganization or liquidation of the Company or a similar event as determined by the Committee (collectively a “transaction”), the Committee shall be authorized, in its sole discretion, to take any and all action it deems equitable under the circumstances, including but not limited to any one or more of the following:
(a) providing that the Plan and all Incentives shall terminate and the holders of (i) all outstanding vested options shall receive, in lieu of any shares of Common Stock they would be entitled to receive under such options, such stock, securities or assets, including cash, as would have been paid to such participants if their options had been exercised and such participant had received Common Stock immediately before such transaction (with appropriate adjustment for the exercise price, if any), (ii) SARs that entitle the participant to receive Common Stock shall receive, in lieu of any shares of Common Stock each participant was entitled to receive as of the date of the transaction pursuant to the terms of such Incentive, if any, such stock, securities or assets, including cash, as would have been paid to such participant if such Common Stock had been issued to and held by the participant immediately before such transaction, and (iii) any Incentive under this Agreement which does not entitle the participant to receive Common Stock shall be equitably treated as determined by the Committee.
(b) providing that participants holding outstanding vested Common Stock based Incentives shall receive, with respect to each share of Common Stock issuable pursuant to such Incentives as of the effective date of any such transaction, at the determination of the Committee, cash, securities or other property, or any combination thereof, in an amount equal to the excess, if any, of the Fair Market Value of such Common Stock on a date within ten days before the effective date of such transaction over the option price or other amount owed by a participant, if any, and that such Incentives shall be cancelled, including the cancellation without consideration of all options that have an exercise price below the per share value of the consideration received by the Company in the transaction.
(c) providing that the Plan (or replacement plan) shall continue with respect to Incentives not cancelled or terminated as of the effective date of such transaction and provide to participants holding such Incentives the right to earn their respective Incentives on a substantially equivalent basis (taking into account the transaction and the number of shares or other equity issued by such successor entity) with respect to the equity of the entity succeeding the Company by reason of such transaction.
(d) providing that all unvested, unearned or restricted Incentives, including but not limited to restricted stock for which restrictions have not lapsed as of the effective date of such transaction, shall be void and deemed terminated, or, in the alternative, for the acceleration or waiver of any vesting, earning or restrictions on any Incentive.
The Board of Directors may restrict the rights of participants or the applicability of this Section 9.13 to the extent necessary to comply with Section 16(b) of the 1934 Act, the Code or any other applicable law or regulation. The grant of an Incentive award pursuant to the Plan shall not limit in any way the right or power of the Company to make adjustments, reclassifications, reorganizations or changes of its capital or business structure or to merge, exchange or consolidate or to dissolve, liquidate, sell or transfer all or any part of its business or assets.
9.14
Definition of Fair Market Value
. For purposes of this Plan, the “Fair Market Value” of a share of Common Stock at a specified date shall, unless otherwise expressly provided in this Plan, be the amount which the Committee determines in good faith to be 100% of the fair market value of such a share as of the date in question. Notwithstanding the foregoing:
(a) If such shares are listed on a U.S. securities exchange, then Fair Market Value shall be determined by reference to the last sale price of a share of Common Stock on such U.S. securities exchange on the applicable date. If such U.S. securities exchange is closed for trading on such date, or if the Common Stock does not trade on such date, then the last sale price used shall be the one on the date the Common Stock last traded on such U.S. securities exchange.
(b) If such shares are publicly traded but are not listed on a U.S. securities exchange, then Fair Market Value shall be determined by reference to the trading price of a share of Common Stock on such date (or, if the applicable market is closed on such date, the last date on which the Common Stock was publicly traded), by a method consistently applied by the Committee.
(c) Notwithstanding subsections (a) and (b) above, if such shares are publicly traded, then Fair Market Value may, at the discretion of the Committee, be equal to the average of the closing sale prices of the Company’s Common Stock for the thirty (30) calendar days prior to the Grant Date of the applicable Incentive. In the event the Committee elects to determine the Fair Market Value of Common Stock pursuant to this section 9.14(c) in connection with the grant of an Inventive to a participant, the Committee must irrevocably make such election and determine the number of shares subject to the Incentive before the beginning of the thirty (30) period.
(d) If such shares are not publicly traded, then the Committee’s determination will be based upon a good faith valuation of the Company’s Common Stock as of such date, which shall be based upon such factors as the Committee deems appropriate. The valuation shall be accomplished in a manner that complies with Code Section 409A and shall be consistently applied to Incentives under the Plan.
9.15
Definition of Grant Date
. For purposes of this Plan, the “Grant Date” of an Incentive shall be the date on which the Committee approved the award or, if later, the date on which (a) the participant is no longer able to negotiate the terms of the award and (b) it is expected that the key terms of the award will be communicated within a relatively short period of time.
9.16
Compliance with Code Section 409A
. The Plan and the agreement for each Incentive shall be interpreted and administered so as to be exempt from the requirements of Code Section 409A or to comply with such requirements. Notwithstanding the foregoing, Incentives may be awarded or amended in a manner that does not comply with Code Section 409A, but only if and to the extent that the Committee specifically provides in written resolutions that the Incentive or amendment is not intended to comply with Code Section 409A.
EXHIBIT 10.2
FORBEARANCE AGREEMENT
This Forbearance Agreement dated as of September 1, 2011 (the “
Agreement
”), is made by and between
STANDARD GOLD, INC
., a Colorado corporation (the “
Borrower
”) and
NJB MINING, INC
., an Arizona corporation (the “
Lender
”).
RECITALS
A. Borrower and Lender are parties to a certain Loan Agreement dated August 21, 2009 (as amended or assigned from time to time, the “
Loan Agreement
”) pursuant to which the Lender made a $2,500,000 loan (the “
Loan
”) secured by a Deed of Trust and Security Agreement with Assignment of Rents and Fixture Filing, (as modified, the “
Deed of Trust
”) on Borrower’s real and personal property rights located in Esmeralda County, Nevada, as legally described on
Exhibit A
(the “
Property
”). The Loan Agreement, the note evidencing the loan, the Deed of Trust and all other related and ancillary documents are hereinafter referred to as the “
Loan Documents
;”
B. The Loan has matured and Borrower has failed to pay the balance due and owing under the Loan (the “
Default
”);
C. The Borrower is unable to cure the Default under the Loan Documents and the Lender has the immediate right to exercise it rights and remedies under the Loan Documents, including without limitation, foreclosing on the Property;
D. The Borrower has requested that the Lender temporarily forbear from exercising its rights and remedies under the Loan Documents, subject to the terms and conditions contained herein; and
E. As a condition of the aforementioned forbearance, the Borrower has agreed to the terms of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants and agreements herein contained, the Borrower and the Lender hereby agree as follows:
1.
Acknowledgement of Recitals.
The Borrower acknowledges that the recitals are true and correct statements of fact.
2.
Acknowledgment of Events of Default/Stock Consideration.
The Borrower acknowledges the Default and that as of the date hereof the principal amount outstanding on the Loan is $2,000,000, plus interest accrued thereon (the “
Monetary Obligations
”). In addition, in consideration of the agreements contained herein, Borrower agrees to (i) transfer and deliver to Lender, as of the date hereof, 200,000 shares of common stock of Borrower, in the form attached hereto as
Exhibit C
; (ii) make an interest payment equal to $26,042.40 on or before September 1, 2011; (iii) make an interest payment equal to $26,910.48 on or before October 1, 2011; and (iv) remit to Lender all remaining principal, interest, fees and other expenses due Lender under the Loan on or before October 10, 2011.
3.
Conditional Forbearance.
(a)
Forbearance Period.
Subject to the terms and conditions of this Agreement, the Lender hereby agrees to temporarily forbear from initiating legal proceedings, including foreclosure of the Deed of Trust, to enforce collection remedies against the Borrower or its interests in the Property under the Loan Documents in any legal proceeding until October 10, 2011 (the “
Forbearance Period
”). For the avoidance of doubt, the Lender shall at all times have the right to seek to enforce its rights under this Agreement and any instruments or agreements delivered in connection with this Agreement, including the Escrowed Documents delivered pursuant to Section 4. The purpose of the Forbearance Period is to grant Borrower the opportunity to repay in full all Monetary Obligations now or hereafter owing to Lender through a sale of the Property, from refinancing the Deed of Trust, or from other funds available to the Borrower. Borrower expressly stipulates and agrees that the execution of this Agreement does not constitute a cure of the defaults by Borrower under the Loan Documents and that after giving effect to this Agreement Borrower remains in payment default of its obligations under the Loan Documents. Notwithstanding the foregoing, so long as no default occurs or is occurring under this Agreement, Lender agrees to forbear from exercising its remedies under this Agreement or the Loan Documents as set forth herein.
(b)
Forbearance Extension.
The parties hereto agree that Borrower may extend the Forbearance Period for two (2) additional thirty (30) day periods, on the following terms and conditions: (A) For the first extension period ending on November 9, 2011, by notice given to Lender prior to October 10, 2011, which notice shall include (i) the legal transfer of 500,000 shares of common stock of Borrower to Lender, and an interest payment equal to $114,586.56; and (B) For the second extension period ending on December 9, 2011, by notice given to Lender prior November 9, 2011, which notice shall include (i) the legal transfer of 1,000,000 shares of common stock of Borrower to Lender, and an interest payment equal to thirty-one (31) days worth of interest under the Loan, and the Forbearance Period, as defined herein, shall be deemed extended to such dates, as applicable.
(c)
Forbearance Termination Date.
The Forbearance Period will terminate immediately, at Lender’s option, and without notice to or action by any party upon the earlier of: (i) expiration of the Forbearance Period, or (ii) a material breach by Borrower of this Agreement (the “
Forbearance Termination Date
”). Borrower acknowledges that the Lender has no obligation to extend the Forbearance Period or to waive any existing default referred to herein. Lender’s forbearance as contained in this Agreement is limited and shall not be construed to be a forbearance with respect to (1) excluding the Default, any other Event of Default under the Loan Documents (whether now existing or hereafter occurring) which will materially prejudice Lender’s rights or remedies under the Loan Documents, or (2) any other event or condition (whether now existing or hereafter occurring) which is a default hereunder, or materially prejudice any right or remedy that Lender may now have or have in the future, under or in connection with any of the Loan Documents, except as contemplated hereby or as otherwise limited by the Loan Documents.
(d)
Non-Cancellation of Obligations/Anti-Merger/Non-Waiver of Rights and Liens.
Borrower hereby expressly agrees and acknowledges that by entering into this Agreement and by Lender (or Lender’s designee) taking subsequent possession and/or title to the Property as provided in this Agreement, Lender has not agreed to cancel or cause the cancellation of the Monetary Obligations, or to cause the cancellation, termination or waiver of any of the Loan Documents, but has only agreed to grant a temporary forbearance as provided in Section 3(a) above.
4.
Conditions Precedent
. The following are conditions precedent to Lender’s obligations under this Agreement:
(a) Receipt and approval by Lender of: (i) the executed original of this Agreement; (ii) confirmation from the Escrow Agent (defined below) of their receipt of an executed original of a Deed in Lieu of Foreclosure (the “
Deed in Lieu
”) in the form attached hereto as
Exhibit B
; (iii) confirmation from the Escrow Agent of their receipt of an executed original of a Water Rights Deed in the form attached hereto as
Exhibit D
(the “
Water Rights Deed
”); (iv) confirmation from the Escrow Agent of their receipt of an executed original of a Bill of Sale in the form attached hereto as
Exhibit E
(the “
Bill of Sale
”, together with the Deed in Lieu and Water Rights Deed, the “
Escrowed Documents
”); and (v) confirmation from the Escrow Agent of their receipt of Reports of Conveyance for the Water Rights associated with the Property, which may be recorded with the Nevada State Engineer’s Office, and (vi) any other documents and agreements which are required pursuant to this Agreement, in form and content acceptable to Lender;
(b) Delivery to Lender of such resolutions or certificates as Lender may require, in form and content acceptable to Lender, authorizing the execution of this Agreement and executed by the appropriate persons and/or entities on behalf of Borrower;
(c) The representations and warranties contained herein are true and correct; and
(d) Receipt by Lender of evidence that the Borrower has paid current the real property taxes that are currently due and owing.
5.
Escrow.
The Borrower hereby agrees to execute and deliver the Escrowed Documents, and related documents executed by the Borrower contemporaneously with the execution of this Agreement and to deliver them to Fidelity National Title Insurance Company, as Escrow Agent
(the “
Escrow Agent
”) pursuant to this Agreement and the Acknowledgment and Agreement of Escrow Agent, which document is to be released and delivered to Lender as and when permitted by Section 6 below.
(a) The Borrower hereby acknowledges and agrees that, at the Lender’s option upon written notice to the Borrower following occurrence of the Forbearance Termination Date, the conveyance of the Property by way of the Escrowed Documents is expressly intended to be an immediate and absolute conveyance of Borrower’s right, title and interest, respectively, in the Property into escrow, which shall immediately vest in Lender on the date it shall receive the Escrowed Documents as and when permitted by Section 6 hereof, and such conveyance has not been granted nor is intended for security purposes in any respect. The Lender shall promptly notify the Borrower of the delivery date of the Escrowed Documents.
(b) Borrower further acknowledges and agrees that the foregoing escrow is a true escrow under applicable law for all purposes and is not intended for security purposes or as a disguised collateral arrangement in any manner whatsoever.
(c) Borrower hereby agrees, at its own expense, to execute, deliver, file and record, from time to time, any and all further or other instruments, agreements or other papers, and to perform such acts as Lender may require, to effect the purposes of this Agreement and to secure to Lender the benefit of all rights and remedies conferred upon Lender by the terms of the Loan Documents, as amended by this Agreement.
6.
Release of Escrowed Documents /Turnover.
To further induce Lender to enter into this Agreement,
Lender and Borrower agree as follows:
(a)
Full Satisfaction of Monetary Obligations.
If, on or before the Forbearance Period Termination, the Borrower pays to Lender in immediately available funds generated from funds obtained by Borrower all Monetary Obligations then due and owing to Lender, Lender will deliver to Borrower executed satisfactions and releases terminating the Loan Documents, and in addition, Lender will direct the Escrow Agent to release and deliver to Borrower the Escrowed Documents.
(b)
Termination of Forbearance Period/Failure to Pay the Monetary Obligations.
If the Monetary Obligations have not been paid in full on or before the Forbearance Period Termination, Lender will have the right to (A) instruct the Escrow Agent in writing, which instructions Escrow Agent may rely on without any further instruction from Borrower or any other party hereto, with a simultaneous copy sent to the Borrower, to release the Escrowed Documents as set forth below and thereby take title to the Property; or (B) direct the Escrow Agent in writing, with a simultaneous copy sent to the Borrower, to continue to hold the Escrowed Documents until further direction from the Lender. In the event of (A), Escrow Agent shall date the Escrowed Documents, and as soon as reasonably possible file the same with the Esmeralda County, Nevada Recorder and such other offices as may be applicable, thereby transferring title to the Property to Lender or Lender’s designee. In such event, Borrower shall immediately turn over possession and control of the Property to Lender, which transfer shall and is intended to be absolutely free of any right of redemption or other right or interest of Borrower, in and to the Property, all improvements thereon, appurtenances and fixtures related and attached thereto, and all of Borrower’s right, title and interest in and to all leases, contracts, licenses and permits related to the ownership, maintenance, occupancy, and operation of the Property, and Lender specifically agrees that by acceptance of such Escrowed Documents, Lender has waived any other right or remedy available to it hereunder or under the Loan Documents. Lender and Borrower acknowledge and agree that in the event of (A) above, the conveyance of the Property to Lender according to the terms of this Agreement shall be an absolute conveyance of all of Borrower’s right, title, and interest in and to the Property in fact as well as form and was not and is not now intended as a mortgage, trust conveyance, deed of trust, or security instrument of any kind, and the consideration for such conveyance is exactly as recited herein and Borrower has no further interest (including rights of redemption) or claims in and to the Property or to the rents, proceeds, and profits that may be derived thereof, of any kind whatsoever.
(c) Notwithstanding Lender’s acquisition of the Property, the indebtedness evidenced by the Loan shall not be canceled, shall survive the closing and delivery of any deeds, releases, and all of the Loan Documents shall remain in full force and effect after the transaction contemplated by this Agreement has been consummated; provided that, notwithstanding anything to the contrary contained in this Agreement or in the Loan Documents, Borrower’s liability shall remain limited to the extent set forth in Section 29 of that certain Assignment and Assumption of Loan Documents and Loan Modification Agreement, executed on or about March 15, 2011, by and among Shea Mining & Milling, LLC, as assignor, the Borrower, as Assignee, and Lender). The parties further agree that the interests of Lender in the Property after Lender’s acquisition of the Property shall not merge with the interest of Lender in the Property under the Loan Documents. It is the express intention of each of the parties hereto (and all of the conveyances provided for in this Agreement shall so recite) that such interests of Lender in the Property shall not merge, but be and remain at all times separate and distinct, notwithstanding any union of said interest in Lender at any time by purchase, termination, or otherwise and that the lien of the Deed of Trust on the Property shall be and remain at all times valid and continuous liens on the Property until and unless released of record by Lender. The transfer of the Property to Lender shall be subject to the Loan Documents encumbering the Property; provided that neither such transfer nor anything contained in this Agreement or any of the documents to be executed pursuant hereto shall constitute or be deemed or construed to constitute an assumption by Lender of any of the Loan Documents.
Upon the occurrence of the above, unless other instructions are given to the Escrow Agent, the Escrowed Documents with be delivered to the following addresses, as applicable:
If to the Lender:
NJB Mining, Inc.
10751 North Frank Lloyd Wright Blvd., Suite 101
Scottsdale, AZ 85259
Attn: Mr. Norman Bellemare
If to the Borrower:
Standard Gold, Inc.
900 IDS Center, 80 South Eighth Street
Minneapolis, MN 55402
Attn: Alfred Rapetti, Chief Executive Officer
With a copy to:
Maslon Edelman Borman & Brand, LLP
3300 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402-4140
Attn: Mr. Bill Mower
7.
Covenants, Representations and Warranties
. Borrower hereby represents and warrants to Lender (which representations and warranties shall survive the execution and delivery of this Agreement) that:
(a) Except for the Default, Borrower is in compliance with all of the terms, covenants and conditions of the Loan Documents;
(b) Borrower has no set-offs, counterclaims, defenses or other causes of action against Lender arising out of the Loan, the Loan Documents, any other indebtedness of Borrower to Lender, or otherwise, and to the extent any such set-offs, counterclaims, defenses or other causes of action may exist, whether known or unknown, said items are hereby waived by the Borrower;
(c) The execution, delivery and performance of this Agreement by Borrower (A) is within Borrower’s power, (B) has been duly authorized by all necessary action on the part of Borrower and (C) are the legal, binding, valid and enforceable obligation of Borrower; and, to the best of Borrower’s knowledge, (2) do not (A) violate any provision of Borrower’s charter or organizational documents, (B) violate or cause a default (with or without the giving of notice of laps of time or both) under any law, agreement, indenture, note, or other instrument binding upon or affecting Borrower or any of its respective properties or assets, (C) give cause for the acceleration of any of the obligations of Borrower, or (D) result in the creation or imposition of any lien (other than the liens created by the Loan Documents) on any of Borrower’s properties or assets;
(d) To the best of Borrower’s knowledge, there is no claim, action, suit or proceeding pending, threatened or, to the knowledge of Borrower, anticipated before any court, commission, administrative agency, whether state or federal, or arbitration that will, or may, materially adversely affect the financial condition, operations, properties, or business of Borrower, or the ability of Borrower to perform its respective obligations under this Agreement;
(e) Borrower acknowledges that Lender is entering into this Agreement and agreeing to the matters contained herein in reliance on the truth and accuracy of the above representations and warranties and the Borrower’s compliance with their covenants and the terms and conditions contained herein;
(f) The Deed of Trust constitutes a valid and subsisting first priority lien on and security interest in all of the real and personal property and fixtures described in the Deed of Trust, as evidenced by that certain Commitment for Title Insurance issued by Cow County Title Co, as agent for Stewart Title Guaranty Company, dated March 7, 2011, as File No. 40762;
(g) As of the date hereof, to Borrower’s knowledge, there are no mechanics or materialmens’ lien or any other lien or encumbrance on the Property;
(h) Borrower agrees it has taken, and will take, no actions which will subject the Property to any future liens or encumbrances at any time during the Forbearance Period, which will materially prejudice Lender’s rights and remedies available to it under the Deed of Trust or hereunder;
(i) Borrower has not made any general assignment for the benefit of its creditors. No proceeding seeking (i) relief for Borrower under any bankruptcy or insolvency law, (ii) the rearrangement or readjustment of debt of Borrower, (iii) the appointment of a receiver, custodian, liquidator or trustee to take possession of substantially all of the assets of Borrower, or (iv) the liquidation of Borrower has been commenced or, to the actual knowledge of the Borrower, is threatened; and
(j) There are no judgments, orders, suits, actions, garnishments, attachments or proceedings by or before any court, commission, board or other governmental body pending, or to the knowledge of Borrower threatened, which involve or affect, or will involve or affect, the Property or the validity or enforceability of this Agreement, the Loan Documents or involve any risk of any lien, judgment or liability being imposed upon Borrower or the Property, or which could materially adversely affect the financial condition of Borrower or the ability of Borrower to observe or perform fully their respective agreements and obligations under this Agreement or under the Loan Documents.
8.
Reaffirmation
. Except as expressly amended hereby, the terms of the Loan Documents shall remain in full force and effect in all respects, as amended by this Agreement. Except in connection with the terms of this Agreement, Borrower hereby waives any claim, cause of action, defense, counterclaim, setoff or recoupment of any kind or nature that it may have or assert against Lender arising from or in connection with the Loan Documents, the transactions contemplated thereby or hereby that exist on the date hereof or arise from facts or actions occurring prior hereto or on the date hereof. Nothing contained in this Agreement shall be construed to constitute a novation with respect to any of the obligations described in the Loan Documents. Borrower hereby further acknowledges and agrees that Lender has not waived the Default. In the event of a conflict between the terms and provisions of this Agreement and the terms and provisions of the Loan Documents, the terms and provisions of this Agreement shall control. However, the fact that one or more provisions of the Loan Documents were not restated or referred to in this Agreement shall not be deemed to constitute a conflict. A default under this Agreement (after any applicable curative period permitted under the Loan Documents) shall also constitute a default under each and every one of the Loan Documents, but the limitations contained in Section 6(c) herein shall be deemed to apply to any such default.
9.
Exercise of Remedies.
If any of the conditions or obligations described herein shall not have been performed or shall fail to occur, then, and in any of such events, upon the failure or nonperformance of such condition, as applicable, the entire outstanding balance on the Notes, plus accrued interest, shall be due and payable and Lender may at any time thereafter pursue any and all remedies authorized or permitted within the Loan Documents or otherwise at law or in equity, as limited by Section 6(c) herein.
10.
Bankruptcy
.
(a) In entering into this Agreement, Borrower and Lender hereby stipulate, acknowledge and agree that Lender gave up valuable rights and agreed to forbear from exercising legal remedies available to it in exchange for the promises, representations, acknowledgments and warranties of Borrower as contained herein and that Lender would not have entered into this Agreement but for such promises, representations, acknowledgments, agreements, and warranties, all of which have been accepted by Lender in good faith, the breach of which by Borrower in any way, at any time, now or in the future, would admittedly and confessedly constitute cause for dismissal of any bankruptcy petition pursuant to 11 U.S.C. § 1112(b).
(b) As additional consideration for Lender agreeing to the hereinabove described limited forbearance from immediately enforcing its rights and remedies under this Agreement, the Loan Documents, including but not limited to the institution of foreclosure proceedings, Borrower agrees that in the event a bankruptcy petition under any Chapter of the Bankruptcy Code (11 U.S.C. §101,
et
seq.
) is filed by or against Borrower at any time after the execution of this Agreement, Lender shall be entitled to the immediate entry of an order from the appropriate bankruptcy court granting Lender complete relief from the automatic stay imposed by §362 of the Bankruptcy Code (11 U.S.C. §362) to exercise its foreclosure and other rights, including, but not limited to, obtaining a foreclosure judgment and foreclosure sale, upon the filing with the appropriate court of a motion for relief from the automatic stay with a copy of this Agreement attached thereto. Borrower specifically agree (i) that upon Lender’s filing of a motion for relief from the automatic stay, (A) Lender shall be entitled to relief from the stay without the necessity of an evidentiary hearing and without the necessity or requirement of Lender to establish or prove the value of any property, the lack of adequate protection of its interest in the property, or the lack of equity in the property, (B) Borrower may not directly or indirectly oppose or otherwise defend against Lender’s efforts to gain such relief from the automatic stay; and (C) Borrower agrees to consent to any such requested relief from the automatic stay; (ii) that the lifting of the automatic stay as contemplated herein by the appropriate bankruptcy court shall be deemed to be “for cause” pursuant to §362(d)(1) of the Bankruptcy Code (11 U.S.C. §362(d)(1)); (iii) Borrower may not seek a supplemental stay or other relief, whether injunctive or otherwise, pursuant to §105 of the Bankruptcy Code (11 U.S.C. §105) or any other provision of the Bankruptcy Code to stay, interdict, condition, reduce or inhibit the ability of Lender to enforce any rights it has by virtue of this Agreement, or the Loan Documents or any other rights Lender has, whether now or hereafter acquired, against Borrower, or against any property which is the subject of this Agreement, (iv) Borrower may not challenge or attempt to challenge, or have any standing to challenge or attempt to challenge, for its own benefit, any transfer of any or all of the properties which is the subject of this Agreement as a fraudulent conveyance under any federal, state or other law;
(v) Borrower may not oppose the appointment of a trustee, examiner or receiver, and to the extent permitted by law, Borrower shall stipulate that any “custodian” (as defined in the Bankruptcy Code) which is in custody, control or possession of any Property, is excused from complying with §543 of the Bankruptcy Code (11.U.S.C. §543); and (vi) Borrower agrees that §546(b) of the Bankruptcy Code (11 U.S.C. §546(b)) may be utilized to perfect any assignment of rents in favor of Lender in any of the Loan Documents. This provision is not intended to preclude Borrower from filing for protection under any Chapter of the Bankruptcy Code. The remedies prescribed in this paragraph are not exclusive and shall not limit Lender’s rights under the Loan Documents, this Agreement or under any law
.
11.
Merger.
All prior oral and written communications by or between the Borrower and Lender are hereby merged into this Agreement and shall not be enforceable unless expressly set forth in this Agreement.
12.
Release of Claims
.
(a) BORROWER, ON BEHALF OF THEMSELVES AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (THE “
BORROWER RELEASE PARTIES
”), HEREBY FULLY, FINALLY AND COMPLETELY RELEASE AND FOREVER DISCHARGES LENDER, AND ITS RESPECTIVE SUCCESSORS, ASSIGNS, AFFILIATES, SUBSIDIARIES, PARENTS, OFFICERS, SHAREHOLDERS, DIRECTORS, EMPLOYEES, LOAN SERVICERS, ATTORNEYS, AGENTS AND PROPERTIES, PAST, PRESENT AND FUTURE, AND THEIR RESPECTIVE HEIRS, SUCCESSORS AND ASSIGNS (COLLECTIVELY AND INDIVIDUALLY, THE “
LENDER RELEASE PARTIES
”), OF AND FROM ANY AND ALL CLAIMS, CONTROVERSIES, DISPUTES, LIABILITIES, OBLIGATIONS, DEMANDS, DAMAGES, DEBTS, LIENS, ACTIONS AND CAUSES OF ACTION OF ANY AND EVERY NATURE WHATSOEVER, KNOWN OR UNKNOWN, WHETHER AT LAW, BY STATUTE OR IN EQUITY, IN CONTRACT OR IN TORT, UNDER STATE OR FEDERAL JURISDICTION, AND WHETHER OR NOT THE ECONOMIC EFFECTS OF SUCH ALLEGED MATTERS ARISE OR ARE DISCOVERED IN THE FUTURE, WHICH THE BORROWER RELEASE PARTIES HAVE AS OF THE EFFECTIVE DATE OR MAY CLAIM TO HAVE AGAINST THE LENDER RELEASE PARTIES ARISING OUT OF OR WITH RESPECT TO ANY AND ALL TRANSACTIONS RELATING TO THE LOAN OR THE LOAN DOCUMENTS OCCURRING ON OR BEFORE THE EFFECTIVE DATE, INCLUDING ANY LOSS, COST OR DAMAGE OF ANY KIND OR CHARACTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH OR IN ANY WAY RESULTING FROM THE ACTS, ACTIONS OR OMISSIONS OF THE LENDER RELEASE PARTIES OCCURRING ON OR BEFORE THE EFFECTIVE DATE. THE FOREGOING RELEASE IS INTENDED TO BE, AND IS, A FULL, COMPLETE AND GENERAL RELEASE IN FAVOR OF THE LENDER RELEASE PARTIES WITH RESPECT TO ALL CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION AND OTHER MATTERS DESCRIBED THEREIN, INCLUDING SPECIFICALLY, WITHOUT LIMITATION, ANY CLAIMS, DEMANDS OR CAUSES OF ACTION BASED UPON ALLEGATIONS OF BREACH OF FIDUCIARY DUTY, BREACH OF ANY ALLEGED DUTY OF FAIR DEALING IN GOOD FAITH, ECONOMIC COERCION, USURY, OR ANY OTHER THEORY, CAUSE OF ACTION, OCCURRENCE, MATTER OR THING WHICH MIGHT RESULT IN LIABILITY UPON THE LENDER RELEASE PARTIES ARISING OR OCCURRING ON OR BEFORE THE EFFECTIVE DATE. THE BORROWER RELEASE PARTIES UNDERSTAND AND AGREE THAT THE FOREGOING GENERAL RELEASE IS IN CONSIDERATION FOR THE AGREEMENTS OF LENDER CONTAINED HEREIN AND THAT THEY WILL RECEIVE NO FURTHER CONSIDERATION FOR SUCH RELEASE.
(b) THE BORROWER RELEASE PARTIES WARRANT AND REPRESENT TO LENDER THAT THE BORROWER RELEASED PARTIES HAVE NOT SOLD, ASSIGNED, TRANSFERRED, CONVEYED OR OTHERWISE DISPOSED OF ANY CLAIMS WHICH ARE THE SUBJECT OF THIS SECTION. THE INCLUSION OF THIS PROVISION SHALL NOT BE DEEMED TO BE AN ADMISSION BY LENDER THAT ANY SUCH CLAIMS EXIST.
13.
Counterparts
. This Agreement may be executed by facsimile or email and in any number of counterparts, each of which when so executed and delivered shall be deemed an original and all of which counterparts, taken together, shall constitute one and the same instrument.
14.
Severability.
The invalidity of any provision in this Agreement shall not affect the validity of any other provision.
15.
Construction
. This Agreement shall be construed in accordance with and governed by the laws of the State of Nevada.
16.
Successors and Assigns; Assignment
. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Neither Borrower nor any Guarantor shall have the right to assign any of its rights or obligations under or delegate any of its duties under the Loan Documents.
17.
Time of the Essence
. Time is of the essence of this Agreement and each of the provisions hereof.
18.
Written Modifications
. The provisions of this Agreement may not be waived, changed or discharged orally, but only by an agreement in writing signed by Borrower, Guarantor and Lender, and any oral waiver, change or discharge of any term or provision of this Agreement shall be without authority and of no force or effect. The invalidity or unenforceability of any term or provision of this Agreement shall not affect the validity or enforceability of any other term or provision hereof.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to by duly executed as of the date first written above.
BORROWER:
|
|
STANDARD GOLD, INC
.,
|
a Colorado corporation
|
|
By:
|
/s/ Alfred A. Rapetti
|
Name: Alfred A. Rapetti
|
Its: CEO - President
|
|
LENDER:
|
|
NJB MINING, INC
.,
|
an Arizona corporation
|
|
By:
|
/s/ Pierrette Bellemare
|
Name: Pierrette Bellemare
|
Its: Secretary/Treasurer
|
ACKNOWLEDGED AND AGREED TO BY:
|
|
SHEA MINING & MILLING, LLC
|
a Nevada limited liability company
|
|
By:
|
|
Name:
|
|
Its:
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|
ACKNOWLEDGMENT AND AGREEMENT OF ESCROW AGENT
FIDELITY NATIONAL TITLE INSURANCE COMPANY
(“
Escrow Agent
”) hereby agrees to act as the escrow agent under the terms of the above Forbearance Agreement and does hereby acknowledge receipt and delivery of the following originally executed document (the
“
Escrowed Documents
”
) and does hereby agree to hold the same in accordance with the terms of this Agreement:
|
(a)
|
Deed in Lieu of Foreclosure executed by
STANDARD GOLD, INC
., a Colorado corporation, as Grantor, with the Grantee information in blank;
|
|
(b)
|
Water Rights Deed executed by
STANDARD GOLD, INC
., a Colorado corporation, as Grantor, with the Grantee information in blank;
|
|
(c)
|
Bill of Sale executed by
STANDARD GOLD, INC
., a Colorado corporation, as Seller, with the Buyer information in blank;
|
|
(d)
|
Report of Conveyance for Water Right Permit NO. 30086 (with appropriate abstract of title attached), executed by
STANDARD GOLD, INC
., a Colorado corporation, in favor of NJB Mining, Inc., an Arizona corporation (“
Lender
”); and
|
|
(e)
|
Report of Conveyance for Water Right Permit No. 30804 (with appropriate abstract of title attached), executed by
STANDARD GOLD, INC
., a Colorado corporation, in favor of Lender.
|
Escrow Agent agrees to comply with the instructions of the Lender as set forth in Section 6 of the Forbearance Agreement, captioned “Release of Escrowed Documents /Turnover.”
In order to induce Escrow Agent to hold the Escrowed Documents as required by this Agreement, all of the parties hereto agree that:
a. Escrow Agent is acting as a depository only and Escrow Agent will not be liable for loss or damage resulting from:
(i) any good faith act or forbearance of Escrow Agent;
(ii) any default, error, action or omission of any party, other than Escrow Agent;
(iii) the expiration of any time limit or other delay that is not caused by the failure of Escrow Agent to proceed in its ordinary course of business, and in no event where such time limit is not disclosed in this Agreement or another writing delivered to the Escrow Agent;
(iv) the lack of authenticity of any writing delivered to Escrow Agent or of any signature thereto, or the lack of authority of the signatory to sign such writing, unless Escrow Agent was or reasonably should have been aware of the same;
(v) Escrow Agent’s compliance with all attachments, writs, orders, judgments, or other legal process issued out of any court;
(vi) Escrow Agent’s assertion or failure to assert any cause of action or defense in any judicial or administrative proceeding;
(vii) any loss or damage that arises after the Escrowed Documents has been disbursed in accordance with the terms of this Agreement.
b. If notice of a dispute by or between the other parties hereto is given to Escrow Agent, Escrow Agent may, in its sole discretion, perform in accordance with its obligations hereunder or prepare to and shortly thereafter (within 30 days and in the event the dispute remains unresolved between the parties) file an interpleader action to resolve the conflict in a court of competent jurisdiction. Notwithstanding the foregoing, however, Escrow Agent agrees to comply with the instructions of the Lender as set forth in Section 6 of the Forbearance Agreement, captioned “Release of Escrowed Documents /Turnover.” Escrow Agent will be indemnified, saved and held harmless by the other parties hereto for all of its expenses, costs and reasonable attorneys’ fees incurred in connection with said interpleader action. Escrow Agent may consult legal counsel with respect to any questions arising under this Agreement and will not be liable for any action taken in good faith upon the advice of such counsel.
c. If Escrow Agent is made a party to any judicial, nonjudicial or administrative action, hearing or process based on acts of any of the other parties hereto and not on the malfeasance and/or negligence of Escrow Agent in performing its duties hereunder and the party/parties whose alleged acts are a basis for such proceedings will indemnify, save and hold Escrow Agent harmless from the expenses, reasonable attorneys’ fees and costs and fees so incurred.
d. The Escrow Agent is entitled to a fee of $______ to be paid upon delivery of the Escrowed Documents hereunder.
e. If Escrow Agent is unable or unwilling to continue to perform its duties under this Agreement, it agrees to provide at least thirty (30) days’ written notice and agrees to transfer the Escrowed Documents to a successor escrow agent upon the successor escrow agent’s written assumption of the Escrow Agent’s duties under this Agreement, and upon delivery of the Escrowed Documents to such successor, it shall have no further duties or obligations hereunder.
No amendment or modification of this Agreement will be effective unless it is reduced to writing and signed by the Lender, the Borrower and the Escrow Agent. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, legal representatives, successors, successors-in-title and assigns, provided that the Borrower may not assign any of his rights or obligations under this Agreement.
FIDELITY NATIONAL TITLE INSURANCE COMPANY
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By:
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Its:
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EXHIBIT A
LEGAL DESCRIPTION
All that certain real property situate in the County of Esmeralda, State of Nevada, more particularly described as follows:
Township 3 North, Range 40 East, M.D.B.&M.
Section 2: SW ¼ of NW ¼; W ½ of SW ¼
Section 3: S ½ of NE ¼; SE ¼; SE ¼ of NW ¼; E ½ of SW ¼
Section 10: NE ¼; SE ¼; E ½ of NW ¼; E ½ of SW ¼
Section 11: W ½ of W ½; SE ¼ of NW ¼
Section 14: NW ¼ of NW ¼
Excepting therefrom that portion of the W ½ of the W ½ of said Section 11, heretofore deeded to Southern California Edison Company, by a deed recorded November 7, 1967 in Book 3-X of Deeds, page 164 as File No. 35538 Esmeralda County, Nevada records and described as follows:
Beginning at a found lava rock 9 inches by 14 inches by 15 inches high set for the Southwest corner of said Section 11, said Southwest corner of Section 11, bears North 85°43'34" East along the South line of Section 10, Township 3 North, Range 40 East, M.D.B. & M., from a lava rock mound set for the Southwest corner of said Section 10, thence North 11°16'34" East 2512.91 feet to the true point of beginning of this description; Thence North 83°30'00" East 300.00 feet; Thence North 06°30'00" West 197.50 feet to a point hereinafter referred to as Point "A"; Thence continuing North 06°30'00" West 252.50 feet; Thence South 83°30'00" West 300 feet; Thence South 06°30'00" East 450 feet to the true point of beginning.
ASSESSOR’S PARCEL NUMBER FOR 2009-2010: 06-111-08
EXHIBIT B
DEED IN LIEU OF FORECLOSURE
APN: 06-111-08
(The undersigned affirms that no social
Security number is contained herein)
Recording requested by and when
recorded, return to and mail tax bills to:
NJB Mining, Inc.
10751 North Frank Lloyd Wright Blvd., Suite 101
Scottsdale, AZ 85259
Attn: Mr. Norman Bellemare
Deed in Lieu of Foreclosure
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are hereby acknowledged,
STANDARD GOLD, INC
., a Colorado corporation (“
Borrower/Grantor
”) does hereby grant, bargain, sell and convey to
NJB MINING, INC
., an Arizona corporation (“
Lender/Grantee
”), all of Grantor's right, title and interest in and to that real property situate in the County of Esmeralda, State of Nevada, which is more particularly described on Exhibit A, attached hereto and incorporated herein by reference (“
Real Property
”).
Together with all tenements, hereditaments and appurtenances thereto belonging or appertaining. Lender/Grantee acknowledge and agree that Lender/Grantee is taking title to the Real Property subject to any and all liens, encumbrances, and exceptions recorded against title or otherwise burdening the property; provided, however that Borrower/Grantor represents that it holds and has not transferred fee simple title to the property to any other party.
BORROWER/GRANTOR DECLARES THAT THIS CONVEYANCE IS AN ABSOLUTE CONVEYANCE, FREELY AND FAIRLY MADE, AND BORROWER/GRANTOR FURTHER DECLARES THAT THERE ARE NO AGREEMENTS, ORAL OR WRITTEN, OTHER THAN THIS DEED BETWEEN BORROWER/GRANTOR AND LENDER/GRANTEE WITH RESPECT TO SAID REAL PROPERTY, OTHER THAN THE FORBEARANCE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (THE “
AGREEMENT
”) OR DOCUMENTS DELIVERED PURSUANT THERETO. BORROWER/GRANTOR AND LENDER/GRANTEE HEREBY ACKNOWLEDGE AND AGREE THAT IT IS THE INTENT OF BORROWER/GRANTOR, AND LENDER/GRANTEE THAT THE INTEREST OF LENDER/GRANTEE UNDER ITS DEED OF TRUST WHICH CURRENTLY ENCUMBERS THE PROPERTY HEREBY CONVEYED (INCLUDING ITS INTEREST UNDER THE OTHER LOAN DOCUMENTS ENTERED INTO IN CONNECTION WITH SUCH DEED OF TRUST) SHALL NOT MERGE WITH THE INTEREST OF LENDER/GRANTEE IN THE PROPERTY CONVEYED HEREBY, BUT THAT THE THREE INTERESTS SHALL REMAIN SEPARATE AND DISTINCT AND SAID DEED OF TRUST AND LOAN DOCUMENTS SHALL REMAIN IN FULL FORCE AND EFFECT AND SAID DEED OF TRUST SHALL REMAIN A VALID AND BINDING LIEN UPON THE SUBJECT PROPERTY.
This Deed is being delivered by Borrower/Grantor to Lender/Grantee in satisfaction of Borrower/Grantor’s mortgaged debt to Lender/Grantee and as a substitute for foreclosure, the principal amount of which debt is approximately $__________________ as of the date hereof.
Nothing in this Deed shall limit any obligations of Borrower/Grantor that survive pursuant to the terms of the Agreement.
The deed of trust referenced above was recorded as Document Number 0174988 in the Official Records of Esmeralda County, Nevada.
[SIGNATURE PAGE FOLLOWS]
Executed this 1 day of September, 2011.
STANDARD GOLD, INC
.,
|
a Colorado corporation
|
|
By:
|
/s/ Alfred A. Rapetti
|
Name: Alfred A. Rapetti
|
Its: CEO - President
|
This instrument was acknowledged before me on ____________, 2011, by ____________________________________, as __________________________ of Standard Gold, Inc., a Colorado corporation.
My commission expires: _______________
EXHIBIT A
TO DEED
All that certain real property situate in the County of Esmeralda, State of Nevada, more particularly described as follows:
Township 3 North, Range 40 East, M.D.B.&M.
Section 2: SW ¼ of NW ¼; W ½ of SW ¼
Section 3: S ½ of NE ¼; SE ¼; SE ¼ of NW ¼; E ½ of SW ¼
Section 10: NE ¼; SE ¼; E ½ of NW ¼; E ½ of SW ¼
Section 11: W ½ of W ½; SE ¼ of NW ¼
Section 14: NW ¼ of NW ¼
Excepting therefrom that portion of the W ½ of the W ½ of said Section 11, heretofore deeded to Southern California Edison Company, by a deed recorded November 7, 1967 in Book 3-X of Deeds, page 164 as File No. 35538 Esmeralda County, Nevada records and described as follows:
Beginning at a found lava rock 9 inches by 14 inches by 15 inches high set for the Southwest corner of said Section 11, said Southwest corner of Section 11, bears North 85°43'34" East along the South line of Section 10, Township 3 North, Range 40 East, M.D.B. & M., from a lava rock mound set for the Southwest corner of said Section 10, thence North 11°16'34" East 2512.91 feet to the true point of beginning of this description; Thence North 83°30'00" East 300.00 feet; Thence North 06°30'00" West 197.50 feet to a point hereinafter referred to as Point "A"; Thence continuing North 06°30'00" West 252.50 feet; Thence South 83°30'00" West 300 feet; Thence South 06°30'00" East 450 feet to the true point of beginning.
ASSESSOR’S PARCEL NUMBER FOR 2009-2010: 06-111-08
EXHIBIT C
STOCK CERTIFICATE
EXHIBIT D
Water Rights Deed
APN:
N/A Water Rights Deed
(The undersigned affirms that no social
Security number is contained herein)
Recording requested by and when
recorded, return to and mail tax bills to:
NJB Mining, Inc.
10751 North Frank Lloyd Wright Blvd., Suite 101
Scottsdale, AZ 85259
Attn: Mr. Norman Bellemare
|
|
WATER RIGHTS DEED
This WATER RIGHTS DEED ("Deed") is made and entered into this ______ day of September 2011, by and between
STANDARD GOLD, INC.,
a Colorado corporation ("Grantor") in favor of
NJB MINING, INC
., an Arizona corporation ("Grantee").
FOR GOOD AND VALUABLE CONSIDERATION, Grantor hereby quitclaims, grants, conveys, assigns, and sells to Grantee, Grantee's successors and assigns, to have and to hold forever, all of Grantor's right, title, and interest in and to the following described water rights, to wit:
Certificated Permits 30804 and 30086
on file with the Nevada State Engineer,
IN WITNESS WHEREOF, Grantor and Grantee have executed this Water Rights Deed effective the date first above written.
GRANTOR:
|
|
STANDARD GOLD, INC.,
|
a Colorado corporation
|
|
By:
|
/s/ Alfred A. Rapetti
|
Name:
Alfred A. Rapetti
|
Title:
CEO - President
|
This instrument was acknowledged before me on ____________, 2011, by ____________________________________, as __________________________ of Standard Gold, Inc., a Colorado corporation.
My commission expires: _______________
EXHIBIT E
Bill of Sale
APN: ___________________
(The undersigned affirms that no social
Security number is contained herein)
Recording requested by and when
recorded, return to and mail tax bills to:
NJB Mining, Inc.
10751 North Frank Lloyd Wright Blvd., Suite 101
Scottsdale, AZ 85259
Attn: Mr. Norman Bellemare
|
|
BILL OF SALE
FOR AND IN CONSIDERATION of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, STANDARD GOLD, INC., a Colorado corporation (“Seller”), hereby conveys, grants, bargains, sells, transfers, assigns and quit claims unto NJB MINING, INC., an Arizona corporation, (“Buyer”) all of its right, title and interest in and to the following described personal property as further described below:
All of that certain Personal Property as further described and set forth on Exhibit “A” attached hereto and made a part hereof and located on Sections 10 and 11 of Township 3 North, Range 40 East, M.D.P.M.
It is understood and agreed that the Buyer has inspected the personal property and equipment as described herein, for which Seller makes no representations or warranties, either express or implied, and Buyer accepts the personal Property in an as in condition, “AS IS, WHERE IS, WITH ALL FAULTS, AND WITHOUT REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, OF ANY KIND OR CHARACTER, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, DESIGN, CONSTRUCTION, CONDITION OR OTHERWISE, WHETHER EXPRESSED OR IMPLIED BY LAW OR FACT.”
IN WITNESS WHEREOF, Seller has executed this Bill of Sale effective as of the 1 day of September, 2011.
STANDARD GOLD, INC
.,
|
a Colorado corporation
|
|
By:
|
/s/ Alfred A. Rapetti
|
Name: Alfred A. Rapetti
|
Its:
CEO - President
|
This instrument was acknowledged before me on _____________________, 2011, by ____________________________________, as __________________________ of Standard Gold, Inc., a Colorado corporation.
My commission expires: _______________
EXHIBIT A to Bill of Sale
Personal Property
(A)
|
two office trailers and all equipment located on the real property described above (the "Property");
|
(B)
|
the laboratory trailer and the concrete laboratory building and all
equipment located on the Property;
|
(C)
|
two Galigher 6" by 4" rubber lined tailing pumps;
|
(D)
|
the vertical sump pump originally contributed to a joint venture by Tonopah West;
|
(E)
|
transformer station originally contributed to a joint venture by Tonopah West, including all electrical transformers and all other electrical equipment located in the electrical shop metal building referred to in (G) below;
|
(F)
|
the concrete refining building on the Property and all equipment and fixtures located therein;
|
(G)
|
the electrical shop metal building located on the Property;
|
(H)
|
three thickener tanks and old mill buildings located on the Property;
|
(I)
|
electrical distribution system to the old mill buildings, concrete refining building, electrical shop metal building, office trailer, and sewage facilities, water tank, and septic tanks;
|
(J)
|
and the following items, which may overlap with items (A) through (I) described above:
|
|
(i)
|
the Miller Mill, which is currently improved with several steel frame and wood frame structures; and
|
|
(ii)
|
structures and processing equipment including:
|
- 1750 HP Ball Mill with a spare gear
- Eight (8) large leach tanks
- Thickening tanks
- Carbon stripping equipment and screens
- Boiler room equipment
- SO2 tanks
- Miscellaneous processing equipment
- Mill Sub-Station