UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
____________________________________________________________
 
FORM 8-K
 
CURRENT REPORT
 
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
 
___________________________________________________________________
 
Date of Report (Date of earliest event reported): February 8, 2013
 
Pershing Gold Corporation
(exact name of registrant as specified in its charter)
 
Nevada
 
333-150462
 
26-0657736
(State or other jurisdiction
of incorporation)
 
(Commission File Number)
 
(IRS Employer
Identification No.)

1658 Cole Boulevard
Building 6 – Suite 210
Lakewood, Colorado
 
80401
(Address of principal executive offices)
 
(Zip Code)

Registrant’s telephone number, including area code: (877) 705-9357
 
 
  (Former name or former address, if changed since last report)  
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
 
o
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
 
o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
 
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
 
o
Pre-commencement communications pursuant to Rule 13e-4 (c) under the Exchange Act (17 CFR 240.13e-4(c))
 
 
 
 
 
Item 1.01                      Entry into a Material Definitive Agreement
 
Amendment to Alexander Restricted Stock Agreement
 
On February 8, 2013, Pershing Gold Corporation (the “Company”) and Eric Alexander, the Company’s Vice President of Finance and Controller, entered into the First Amendment to Restricted Stock Agreement (the “Alexander Amendment”) to amend, at the Company’s request, that certain Restricted Stock Agreement, dated as of November 21, 2012, by and between the Company and Mr. Alexander.  Pursuant to the Alexander Amendment, the vesting schedule of the shares of restricted stock was extended as follows: (i) 33.33% on March 14, 2014, (ii) 33.33% on November 30, 2014, and (iii) 33.34% on November 30, 2015.  The original vesting schedule of the shares of restricted stock was as follows: (i) 33.33% on November 30, 2013, (ii) 33.33% on November 30, 2014, and (iii) 33.34% on November 30, 2015.
 
The foregoing is a summary description of the terms and conditions of the Alexander Amendment does not purport to be complete and is qualified in its entirety by reference to the Alexander Amendment, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated by reference herein.  A copy of the form of the Company’s 2012 Equity Incentive Plan Restricted Stock Agreement is filed as Exhibit 10.2 to this Current Report on Form 8-K and incorporated by reference herein.
 
Amendment to Alfers Restricted Stock Agreement
 
On February 8, 2013, the Company and Stephen Alfers, the Company’s Chief Executive Officer and President, entered into the First Amendment to Restricted Stock Agreement (the “Alfers Amendment”) to amend, at the Company’s request, that certain Restricted Stock Agreement, dated as of August 24, 2012, by and between the Company and Mr. Alfers.  Pursuant to the Alfers Amendment, the vesting schedule of the shares of restricted stock was extended as follows: (i) 33.33% on March 14, 2014, (ii) 33.33% on June 18, 2014, and (iii) 33.34% on June 18, 2015.  The original vesting schedule of the shares of restricted stock was as follows: (i) 33.33% on June 18, 2013, (ii) 33.33% on June 18, 2014, and (iii) 33.34% on June 18, 2015.
 
The foregoing is a summary description of the terms and conditions of the Alfers Amendment does not purport to be complete and is qualified in its entirety by reference to the Alfers Amendment, a copy of which is filed as Exhibit 10.3 to this Current Report on Form 8-K and incorporated by reference herein.  A copy of the form of the Company’s 2012 Equity Incentive Plan Restricted Stock Agreement is filed as Exhibit 10.2 to this Current Report on Form 8-K and incorporated by reference herein.
 
Amendment to Alfers Executive Employment Agreement
 
On February 8, 2013, the Company and Mr. Alfers entered into the First Amendment to Executive Employment Agreement (the “Executive Amendment”) to amend, at the Company’s request, that certain Executive Employment Agreement (the “Executive Employment Agreement”), dated as of February 9, 2012, by and between the Company and Mr. Alfers.  Pursuant to the Executive Amendment, the vesting schedule was extended as follows: (i) 3,000,000 shares of restricted stock on February 9, 2014, (ii) 6,000,000 shares of restricted stock on March 14, 2014, and (iii) 3,000,000 shares of restricted stock on February 9, 2015. The 6,000,000 shares of restricted stock vesting on March 14, 2014 originally would have vested on February 9, 2013.
 
The foregoing is a summary description of the terms and conditions of the Executive Amendment does not purport to be complete and is qualified in its entirety by reference to the Executive Amendment, a copy of which is filed as Exhibit 10.4 to this Current Report on Form 8-K and incorporated by reference herein. The Executive Employment Agreement has been filed as Exhibit 10.1 to the Current Report on Form 8-K filed with the Securities and Exchange Commission on February 13, 2012 and incorporated by reference herein.
 
 
 
 
 
Item 9.01.                      Financial Statements and Exhibits.
 
(d)           The following are filed as exhibits to this report on Form 8-K.
 
Exhibit No.
 
 
Description
 
10.1
 
 
First Amendment to Restricted Stock Agreement, dated February 8, 2013, between the Company and Eric Alexander.
 
10.2
 
 
Form of the 2012 Equity Incentive Plan Restricted Stock Agreement
 
10.3
 
 
First Amendment to Restricted Stock Agreement, dated February 8, 2013, between the Company and Stephen Alfers.
 
10.4
 
 
First Amendment to Executive Employment Agreement, dated February 8, 2013, between the Company and Stephen Alfers.
 
 
 
 
 

 
SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
 
Date: February 14, 2013
 
PERSHING GOLD CORPORATION
 
   
By:  
/s/ Eric Alexander
 
Eric Alexander
 
Vice President of Finance and Controller
 
 
 
 
 
EXHIBIT INDEX

Exhibit No.
 
 
Description
 
10.1
 
 
First Amendment to Restricted Stock Agreement, dated February 8, 2013, between the Company and Eric Alexander.
 
10.2
 
 
Form of the 2012 Equity Incentive Plan Restricted Stock Agreement
 
10.3
 
 
First Amendment to Restricted Stock Agreement, dated February 8, 2013, between the Company and Stephen Alfers.
 
10.4
 
 
First Amendment to Executive Employment Agreement, dated February 8, 2013, between the Company and Stephen Alfers.
 

 
 
PERSHING GOLD CORPORATION
2012 Equity Incentive Plan

FIRST AMENDMENT TO
RESTRICTED STOCK AGREEMENT
(Non-Assignable)

This First Amendment, dated as of February 8, 2013 (this “ Amendment ”), to the Restricted Stock Agreement, dated as of November 21, 2012 (the “ Agreement ”), is entered into by and between Eric Alexander (“ Holder ”) and Pershing Gold Corporation, a Nevada corporation (the “ Corporation ”).
 
A.           Pursuant to the Agreement, on November 21, 2012, Holder was granted Two Hundred Thousand (200,000) shares (the “ Shares ”) of the Restricted Stock, par value $0.0001 per Share, of the Corporation pursuant to and subject to the terms of the Corporation’s 2012 Equity Incentive Plan (“ Plan ”).
 
B.           The Corporation has requested, for the benefit of the Corporation, and Holder has agreed, to amend the Agreement as set forth herein.
 
NOW, THEREFORE, in consideration for the payment to Holder of One Hundred Dollars ($100.00) and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
 
1.            Amendment to Restricted Stock Agreement .  The Agreement is hereby amended by deleting Section 1 thereof and replacing it with the following:
 
1.            Vesting Schedule .  The Shares shall be subject to the following vesting provisions.  All vesting is subject to claw-backs (as set forth in Section 2 herein) in the event of any breach of Corporate policy, restatements and/or adjustments, and the terms of the Plan including Section 6(f) (Termination of Employment).  Notwithstanding anything herein to the contrary, all vested shares may be exercised and disposed of not sooner than six months following the date hereof.

Percentage of Shares to Vest
Date of Vesting
33.33%
March 14, 2014
33.33%
November 30, 2014
33.34%
November 30, 2015

 
2.            No Other Changes .  Except for the amendment contained in Section 1 hereof, the Agreement is hereby ratified and confirmed and shall continue in full force and effect without any further amendments or changes.
 
3.            Counterparts .  This Amendment may be executed in counterparts each of which taken together shall constitute one and the same instrument.
 
4.            Governing Law .  This Amendment shall be governed by, and construed and enforced in accordance with, the internal laws of the State of Nevada without reference to principles of conflicts of laws.

 
[SIGNATURE PAGE FOLLOWS]
 
 
 
 
 
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed as of the date first above written.
 


HOLDER:


/s/ Eric Alexander
Eric Alexander



PERSHING GOLD CORPORATION


By: /s/ Stephen D. Alfers
Name: Stephen D. Alfers
Title: Chief Executive Officer, President
           and Chairman




 
 
PERSHING GOLD CORPORATION
2012 Equity Incentive Plan
 
RESTRICTED STOCK AGREEMENT
(Non-Assignable)
 
[NUMBER] Shares of Restricted Stock of
PERSHING GOLD CORPORATION
 
THIS CERTIFIES that on June 18, 2012, [NAME] (“Holder”) was granted [NUMBER] shares of fully paid and non-assessable shares (“Shares”) of the Restricted Stock (par value $0.0001 per share) of Pershing Gold Corporation (“Corporation”), a Nevada corporation, pursuant to the terms of the Corporation’s 2012 Equity Incentive Plan (“Plan”), the terms and conditions of which are hereby incorporated as though set forth at length, and the receipt of a copy of which the Holder hereby acknowledges by his execution of this agreement.  A determination of the Committee (as defined in the Plan) under the Plan as to any questions which may arise with respect to the interpretation of the provisions of this award and of the Plan shall be final. The Committee may authorize and establish such rules, regulations and revisions thereof not inconsistent with the provisions of the Plan, as it may deem advisable.
 
TERMS AND CONDITIONS.  It is understood and agreed that the award evidenced by this agreement is subject to the following terms and conditions:
 
1.            Vesting Schedule .  The Shares shall be subject to the following vesting provisions.  All vesting is subject to claw-backs (as set forth in Section 2 herein) in the event of any breach of Corporate policy, restatements and/or adjustments.  Notwithstanding anything herein to the contrary, all vested shares may be exercised and disposed of not sooner than six months following the date hereof.

Percentage of Shares to Vest
Date of Vesting
   
   
   
   

 
2. Claw-Back Terms .  In consideration for the Corporation’s issuing the Shares to the Holder, without regard to the vesting schedule set forth in Section 1 herein, the Shares shall be subject to automatic forfeiture to the Corporation if at any time there is (i) any breach of any agreement by Holder relating to confidentiality, non-competition, non-raid of employees, or non-solicitation of vendors or customers; or (ii) any material breach of Corporation’s policy or procedures which causes harm to the Corporation, as determined by the Committee (collectively, the “Fiduciary Clawbacks”).  In the event of a Fiduciary Clawback, the Holder shall forfeit the Shares, to the Corporation within ninety (90) days of the occurrence of a breach pursuant to (i) or (ii) herein
 
 
1
 
 
3. Regulatory Compliance and Listing .  The issuance or delivery of any stock certificates representing Shares may be postponed by the Corporation for such period as may be required to comply with any applicable requirements under the federal securities laws, any applicable listing requirements of any national securities exchange, any rules, regulations or other requirements under any other law, or any rules or regulations applicable to the issuance or delivery of such Shares, and the Corporation shall not be obligated to deliver any such Shares to the Holder if delivery thereof would constitute a violation of any provision of any law or of any regulation of any governmental authority or any national securities exchange.
 
4.            Investment Representations and Related Matters .  The Holder hereby represents that the Shares awarded pursuant to this agreement are being acquired for investment purposes and not for resale or with a view towards distribution thereof.  The Holder acknowledges and agrees that any sale or distribution of Shares may be made only pursuant to either (a) a registration statement on an appropriate form under the Securities Act of 1933, as amended (“Securities Act”), which registration statement has become effective and is current with regard to the Shares being sold, or (b) a specific exemption from the registration requirements of the Securities Act that is confirmed in a favorable written opinion of counsel, in form and substance satisfactory to counsel for the Corporation, prior to any such sale or distribution.  The Holder hereby consents to such action as the Corporation deems necessary or appropriate from time-to-time to prevent a violation of, or to perfect an exemption from, the registration requirements of the Securities Act or to implement the provisions of this agreement, including but not limited to placing restrictive legends on certificates evidencing Shares and delivering stop transfer instructions to the Corporation’s stock transfer agent.
 
5.            No Right To Continued Employment; Forfeiture .  This agreement does not confer upon the Holder any right to continued employment by the Corporation or any of its subsidiaries or affiliated companies, nor shall it interfere in any way with the right to the Holder’s employer to terminate employment at any time for any reason or no reason.
 
6.            Construction .  The Plan and this agreement will be construed by and administered under the supervision of the Committee, and all determinations will be final and binding on the Holder.
 
7.            Dilution .  Nothing in the Plan or this agreement will restrict or limit in any way the right of the Board of Directors of the Corporation to issue or sell stock of the Corporation (or securities convertible into stock of the Corporation) on such terms and conditions as it deems to be in the best interests of the Corporation, including, without limitation, stock and securities issued or sold in connection with mergers and acquisitions, stock issued or sold in connection with any stock option or similar plan, and stock issued or contributed to any stock bonus or employee stock ownership plan.
 
8.            Bound by Plan .  The Holder hereby agrees to be bound by all of the terms and provisions of the Plan, a copy of which is available to him upon request.
 
 
2
 
 
9.            Notices .  Any notice hereunder to the Corporation shall be addressed to it c/o Pershing Gold Corporation, Attention: Chief Executive Officer, and any notice hereunder to the Holder shall be addressed to the Holder at the last known home address shown in the records of the Corporation, subject to the right of any party hereto to designate another address at any time hereafter in writing.
 
10.            Counterparts .  This agreement may be executed in counterparts each of which taken together shall constitute one and the same instrument.
 
11.            Governing Law .  This agreement shall be governed by, and construed and enforced in accordance with, the internal laws of the State of Nevada without reference to principles of conflicts of laws.

 
[SIGNATURE PAGE FOLLOWS]
 

 

 
 
3
 
 
IN WITNESS WHEREOF, the Corporation caused this agreement to be executed by a duly authorized officer.
 
Dated: _____________, 2012
 
PERSHING GOLD CORPORATION
 
By:  ______________________________
Name:
Title:
 

   
ACCEPTED AND ACKNOWLEDGED:
 
   
   
By:
   
 
 
 
Dated:
Print Name:
 
 
__________________, 2012
 

 
 
 

 

 
 
4
 
 
Stock Power
 
FOR VALUE RECEIVED, ____________________ hereby sells, assigns and transfers unto ________________________________, _______________ (_____) shares of the Common Stock of PERSHING GOLD CORPORATION, a Nevada corporation, standing in the undersigned’s name on the books of said corporation represented by Certificate No. ______ and constitutes and appoints the secretary of said corporation as the undersigned’s agent and attorney-in-fact to transfer the said stock on the books of the said corporation with full power of substitution in the premises.
 
   
Dated:                                                           
___________________________________
   


5
 
 
 
PERSHING GOLD CORPORATION
2012 Equity Incentive Plan

FIRST AMENDMENT TO
RESTRICTED STOCK AGREEMENT
(Non-Assignable)

This First Amendment, dated as of February 8, 2013 (this “ Amendment ”), to the Restricted Stock Agreement, dated as of August 24, 2012 (the “ Agreement ”), is entered into by and between Stephen Alfers (“ Holder ”) and Pershing Gold Corporation, a Nevada corporation (the “ Corporation ”).
 
A.           Pursuant to the Agreement, on June 18, 2012, Holder was granted Five Million (5,000,000) shares (the “ Shares ”) of the Restricted Stock, par value $0.0001 per Share, of the Corporation pursuant to and subject to the terms of the Corporation’s 2012 Equity Incentive Plan (“ Plan ”).
 
B.           The Corporation has requested, for the benefit of the Corporation, and Holder has agreed, to amend the Agreement as set forth herein.
 
NOW, THEREFORE, in consideration for the payment to Holder of One Hundred Dollars ($100.00) and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
 
1.            Amendment to Restricted Stock Agreement .  The Agreement is hereby amended by deleting Section 1 thereof and replacing it with the following:
 
1.            Vesting Schedule .  The Shares shall be subject to the following vesting provisions.  All vesting is subject to claw-backs (as set forth in Section 2 herein) in the event of any breach of Corporate policy, restatements and/or adjustments, and the terms of the Plan including Section 6(f) (Termination of Employment).  Notwithstanding anything herein to the contrary, all vested shares may be exercised and disposed of not sooner than six months following the date hereof.

Percentage of Shares to Vest
Date of Vesting
33.33%
March 14, 2014
33.33%
June 18, 2014
33.34%
June 18, 2015

 
2.            No Other Changes .  Except for the amendment contained in Section 1 hereof, the Agreement is hereby ratified and confirmed and shall continue in full force and effect without any further amendments or changes.
 
3.            Counterparts .  This Amendment may be executed in counterparts each of which taken together shall constitute one and the same instrument.
 
4.            Governing Law .  This Amendment shall be governed by, and construed and enforced in accordance with, the internal laws of the State of Nevada without reference to principles of conflicts of laws.

 
[SIGNATURE PAGE FOLLOWS]
 
 
 
 
 
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed as of the date first above written.
 


HOLDER:


/s/ Stephen Alfers
Stephen Alfers



PERSHING GOLD CORPORATION


By: /s/ Eric Alexander
Name: Eric Alexander
Title: Vice President of Finance and Controller




 
 
PERSHING GOLD CORPORATION

FIRST AMENDMENT TO
EXECUTIVE EMPLOYMENT AGREEMENT

This First Amendment, dated as of February 8, 2013 (this “ Amendment ”), to the Executive Employment Agreement, dated as of February 9, 2012 (the “ Agreement ”), is entered into by and between Stephen Alfers (“ Executive ”) and Pershing Gold Corporation (formerly Sagebrush Gold Ltd.), a Nevada corporation (the “ Corporation ”).
 
A.           Pursuant to the Agreement, Executive was granted Twelve Million (12,000,000) shares (the “ Shares ”) of the Restricted Stock, par value $0.0001 per Share, of the Corporation pursuant to and subject to the terms of the Corporation’s 2012 Equity Incentive Plan (the “ Plan ”).
 
B.           The Corporation has requested, for the benefit of the Corporation, and Executive has agreed, to amend the Agreement as set forth herein.
 
NOW, THEREFORE, in consideration for the payment to Executive of One Hundred Dollars ($100.00) and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
 
1.            Amendments to Executive Employment Agreement .  The Agreement is hereby amended as follows:
 
A.           Section 6(a) is deleted in its entirety and replaced with the following:
 
(a)  Initial Equity Grant  -  Executive shall be issued on the Effective Date an initial equity grant of 12,000,000 restricted shares of the Company’s common stock which shall vest in accordance with the schedule set forth on Exhibit A attached hereto.  The Company will undertake to register 3,000,000 shares of common stock (the “ Registrable Equity Grant ”) underlying the Initial Equity Grant with the Securities and Exchange Commission (the “ SEC ”)  on a Registration Statement on Form S-1 (or, in the alternative, if the Company is so eligible, register the equity incentive plan pursuant to which such Initial Equity Grant was issued with the SEC on a Registration Statement on Form S-8  (such registration statement on Form S-1 or S-8, the “ Registration Statement ”)).  Executive agrees that he shall be solely responsible for any and all elections to be made under Internal Revenue Code (the “ Code ”) Section 83(b) and the payment of all taxes associated therewith shall be the sole responsibility of Executive.  Executive shall provide Company with a copy of any election made under Section 83(b) of the Code.

B.           Exhibit A to the Agreement is deleted in its entirety and replaced with Exhibit A attached hereto.
 
2.            No Other Changes .  Except for the amendments contained in Section 1 hereof, the Agreement is hereby ratified and confirmed and shall continue in full force and effect without any further amendments or changes.
 
3.            Counterparts .  This Amendment may be executed in counterparts each of which taken together shall constitute one and the same instrument.
 
4.            Governing Law .  This Amendment shall be governed by, and construed and enforced in accordance with, the internal laws of the State of Nevada without reference to principles of conflicts of laws.

 
[SIGNATURE PAGE FOLLOWS]
 
 
 
 
 
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed as of the date first above written.
 


EXECUTIVE:


/s/ Stephen Alfers
Stephen Alfers



PERSHING GOLD CORPORATION


By: /s/ Eric Alexander
Name: Eric Alexander
Title: Vice President of Finance and Controller

 
 
 
 

 
Exhibit A

Vesting of Restricted Stock Grant

 
i.
3,000,000 shares of restricted common stock shall vest two (2) years from the Effective Date of this Agreement
 
ii.
6,000,000 shares of restricted common stock (including the Registrable Equity Grant) shall vest on March 14, 2014; and
 
iii.
3,000,000 shares of restricted common stock shall vest three (3) years from the Effective Date of this Agreement.