Exhibit 1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, dated as of July 25, 2005 (this
"Agreement"), is made and entered into by and between BNP PARIBAS NORTH
AMERICA, INC. ("Seller"), and NOVAGOLD RESOURCES INC., a corporation organized
under the laws of Nova Scotia ("Purchaser").
WHEREAS, Purchaser has agreed to purchase 2,142,171 shares (the
"Shares") of common stock, $0.10 par value (the "Common Stock"), of U.S. Gold
Corporation, a Colorado corporation (the "Company"), from Seller; and
WHEREAS, concurrently with the execution of this Agreement, Seller and
Purchaser are executing: (i) a letter, dated the date hereof, regarding,
among other things, the non-disclosure of certain information that may be
relevant to the Company and the Shares (the "Sophisticated Purchaser
Letter"), a copy of which is attached as Exhibit A hereto; and (ii) an Escrow
Agreement, dated the date hereof, regarding, among other things, the payment
and delivery of the Purchase Price and the Shares upon Closing (the "Escrow
Agreement"), a copy of which is attached as Exhibit B hereto.
NOW, THEREFORE, in consideration of the premises, warranties, covenants
and agreements contained herein, the parties, intending to be legally bound,
hereby agree as follows:
1. Purchase and Sale. At the Closing, Purchaser shall purchase from
Seller, and Seller shall sell, transfer, assign, convey and deliver to
Purchaser, all right, title and interest in and to the Shares, for the price
set forth on Annex A hereto (the "Purchase Price").
2. Closing.
(a) The parties shall hold the closing of the purchase and sale of
the Shares (the "Closing") at 8:30 a.m. (EST) on Wednesday, July 27, 2005
(the "Closing Date"), at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
(the "Escrow Agent"), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
The execution of this Agreement and the Closing will be simultaneous with the
execution of stock purchase agreements relating to and the closing of the
purchase by Purchaser of shares of Company Common Stock from Resource
Investment Trust ("RIT").
(b) The parties agree that contemporaneously with the execution and
delivery of this Agreement, the parties are entering to the Escrow Agreement,
whereby: (i) Seller is delivering to the Escrow Agent the original stock
certificate representing the Shares (the "Certificate"), together with a duly
executed stock powers in a form attached hereto as Annex B (the "Stock
Power"); and (ii) Purchaser is delivering to the Escrow Agent the Purchase
Price, by wire transfer, each of which is to be held by the Escrow Agent and
released at the Closing in accordance the terms of the Escrow Agreement. The
parties agree that at the Closing, will provide a joint written instruction
letter to the Escrow Agent instructing the Escrow Agent to release the
Purchase Price, the Certificate and the Stock Power in the manner set forth
therein.
(c) In addition to the foregoing: (i) Seller shall deliver to
Purchaser and the Escrow Agent, on the date hereof, a counterpart signature
page to this Agreement, the Sophisticated Purchaser Letter and the Escrow
Agreement; and (ii) Purchaser shall deliver to Seller and the Escrow Agent, a
counterpart signature page to this Agreement, the Sophisticated Purchaser
Letter and the Escrow Agreement.
3. Representations and Warranties of Seller. Seller represents and
warrants to Purchaser that:
(a) Seller is an entity duly organized, validly existing and in
good standing under the laws of its state of organization, has the
requisite right, power and authority, and has taken all actions
necessary, to execute and deliver and perform its obligations under
this Agreement and the Escrow Agreement. This Agreement and the Escrow
Agreement have been duly executed and delivered by Seller and (assuming
the due authorization, execution and delivery hereof and thereof by
Purchaser) are valid and binding obligations of Seller, enforceable in
accordance with their respective terms, subject, as to enforcement of
remedies, to applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(b) The execution and delivery of this Agreement and the Escrow
Agreement, the compliance by Seller with all the provisions of, and the
performance by Seller of its obligations under, this Agreement and the
Escrow Agreement, and the consummation of the transactions contemplated
in hereunder and thereunder will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, (i) the constitutive documents of Seller, (ii) any
material instrument, contract or other agreement to which Seller or by
which Seller or any of its material properties or assets or the Shares
may be bound or subject, in each case, the breach or violation of which
or default under which would be reasonably expected to have a material
adverse effect on the ability of Seller to comply with its obligations
hereunder, or (iii) in any material respect, any law, statute or any
order, rule, regulation, order, writ, injunction, determination, award,
judgment or decree of any court or governmental agency or body having
jurisdiction over Seller or the Shares, or any stock exchange authority
or self-regulatory organization (each, a "Governmental Authority"); and
no consent, approval, authorization, order, registration, clearance, or
qualification or notification is required for the sale and delivery of
the Shares by Seller under this Agreement;
(c) Seller (i) is a sophisticated seller with respect to the
sale of the Shares, (ii) has adequate information concerning the
business and financial condition of the Company to make an informed
decision regarding the sale of the Shares, and (iii) has independently
and without reliance upon Purchaser, and based on such information as
Seller has deemed appropriate, made its own analysis and decision to
enter into this Agreement and sell the Shares;
(d) Seller is selling the Shares subject to the provisions of
the Sophisticated Purchaser Letter, which are incorporated herein by
reference;
2
(e) Seller owns all right, title and interest in and to,
beneficially and of record, free and clear of any security interest,
mortgage, claim, lien (statutory or otherwise), pledge, option,
encumbrance, charge, agreement, or other arrangement, restriction or
limitation of any kind or nature whatsoever and, on the Closing Date,
the Shares will be transferred to Purchaser free and clear of any
security interest, mortgage, claim, lien (statutory or otherwise),
pledge, option, encumbrance, charge, agreement or other arrangement,
restriction or limitations of any kind or nature whatsoever, other than
those imposed by applicable securities laws or by Purchaser; and
(f) No broker or finder has acted for Seller in connection with
this Agreement or the transactions contemplated hereby, and no broker
or finder retained by Seller is entitled to any brokerage or finder's
fee with respect to this Agreement or the transactions contemplated
hereby.
4. Representations and Warranties of Purchaser. Purchaser
represents and warrants to the Seller that:
(a) Purchaser is an entity duly organized, validly existing and
in good standing under the laws of its state of organization, has the
requisite right, power and authority, and has taken all actions
necessary, to execute and deliver this Agreement, the Escrow Agreement
and the Sophisticated Purchaser Letter, and perform its obligations
hereunder and thereunder. This Agreement, the Escrow Agreement and the
Sophisticated Purchaser Letter have been duly executed and delivered by
Purchaser and (assuming this Agreement and the Escrow Agreement have
been duly authorized, executed and delivered hereof by the Seller) are
valid and binding obligations of Purchaser, enforceable in accordance
with their resepective terms, subject, as to enforcement of remedies,
to applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles;
(b) The execution and delivery of this Agreement, the Escrow
Agreement and the Sophisticated Purchaser Letter by Purchaser, the
compliance by Purchaser with all the provisions of, and the performance
by Purchaser of its obligations under, this Agreement, the Escrow
Agreement and the Sophisticated Purchaser Letter, and consummation of
the transactions contemplated in this Agreement, the Escrow Agreement
and the Sophisticated Purchaser Letter will not conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, (i) the constitutive documents of
Purchaser, (ii) any material instrument, contract or other agreement to
which Purchaser is a party or by which Purchaser or any of its material
properties or assets may be bound or subject, in each case, the breach
or violation of which or default under which would be reasonably
expected to have a material adverse effect on the ability of Purchaser
to comply with its obligations hereunder, or (iii) any law, statute or
any order, rule, regulation order, writ, injunction, determination,
award, judgment or decree of any Governmental Authority; and no
consent, approval, authorization, order, registration, clearance or
qualification or notification is required for the purchase of the
Shares by Purchaser under this Agreement;
3
(c) Purchaser (i) is a sophisticated investor with respect to
the purchase of the Shares, (ii) can bear the economic risk of its
investment in the Shares and has such knowledge and experience in
financial or business matters that it is capable of evaluating the
merits and risks of the investment of the Shares, (iii) has adequate
information concerning the business and financial condition of the
Company to make an informed decision regarding the purchase of the
Shares, and (iv) has independently and without reliance upon Seller,
and based on such information as Purchaser has deemed appropriate, made
its own analysis and decision to enter into this Agreement and the
Sophisticated Purchaser Letter and purchase the Shares;
(d) Purchaser is acquiring the Shares subject to the provisions
of the Sophisticated Purchaser Letter, which are incorporated herein by
reference;
(e) Purchaser acknowledges that neither Seller nor any of its
members, officers, directors, employees, agents or affiliates has made
any representation or warranty, express or implied, regarding the
Company or the Shares, other than the representations and warranties
set forth herein; and
(f) No broker or finder has acted for Purchaser in connection
with this Agreement or the transactions contemplated hereby, and no
broker or finder retained by Purchaser is entitled to any brokerage or
finder's fee with respect to this Agreement or the transactions
contemplated hereby.
5. Confidentiality. No party will, without the prior written
consent of the other party hereto, directly or indirectly, make any
disclosure with respect to this Agreement or the Escrow Agreement except as
may be required by applicable law (including, without limitation, the filing
of a Schedule 13D with the Securities and Exchange Commission) or any order,
rule or regulation of any Governmental Authority, or to its accountants,
attorneys, administrators, brokers, representatives and/or other service
providers as may be necessary in the ordinary course of its business.
Notwithstanding the foregoing, Purchaser may disclose the purchase of the
Shares from Seller to RIT in connection with its simultaneous purchase of
Common Stock from RIT.
6. Indemnification.
(a) Seller agrees to indemnify, defend and hold harmless Purchaser,
each Affiliate of Purchaser, and their respective then current and former
stockholders, members, managers, partners, principals, employees, directors,
officers, equity holders, advisors, attorneys and agents (each of the
foregoing, a "Purchaser Indemnified Person"), from and against any and all
losses, liabilities, taxes, damages, deficiencies, obligations, fines,
expenses, claims, demands, actions, suits, proceedings, judgments or
settlements, including interest and penalties with respect thereto and
out-of-pocket expenses and reasonable attorneys' and accountants' and
experts' fees and expenses incurred in the investigation or defense of any of
the same or in asserting, preserving or enforcing any of the Indemnified
Party's rights hereunder (collectively, Indemnifiable Losses") incurred or
suffered by a Purchaser Indemnified Person, net of any amounts recovered
under any insurance policy, arising out of or related to any breach by Seller
of any of the representations, warranties or covenants of Seller hereunder.
4
(b) Purchaser agrees to indemnify, defend and hold harmless Seller,
each Affiliate of Seller, and their respective then current and former
stockholders, members, managers, partners, principals, employees, directors,
officers, equity holders, advisors, attorneys and agents(each of the
foregoing, a "Seller Indemnified Person"), from and against any and all
Indemnifiable Losses incurred or suffered by a Seller Indemnified Person, net
of any amounts recovered under any insurance policy, arising out of or
related to any breach by Purchaser of any of the representations, warranties
or covenants of Purchaser hereunder, under the Escrow Agreement or under the
Sophisticated Purchaser Letter.
(c) For purposes of this Section 6, "Affiliate" shall mean, with
respect to Purchaser or Seller, the subsidiaries, executive officers,
directors, and partners of such Purchaser or Seller, as the case may be, and
any other person or entity which directly or indirectly controls, is
controlled by or is under common control with such person or entity.
(d) Indemnifiable Losses shall not include consequential, incidental,
special, indirect, exemplary or punitive damage or damages for lost profits
or loss of business.
(e) Notwithstanding anything contained herein or in the Sophisticated
Purchaser Letter to the contrary: (i) Purchaser and Seller acknowledge and
agree that their sole and exclusive remedy with respect to any and all claims
relating to or arising out of this Agreement and the transactions
contemplated hereby shall be pursuant to the indemnification provisions set
forth in this Section 6; and (ii) the aggregate liability of Seller relating
to or arising out of this Agreement or the transactions contemplated hereby
shall not exceed the Purchase Price.
7. Further Assurances. The parties to this Agreement agree to
execute, acknowledge and deliver such further instruments and to do all such
other acts as may be necessary or appropriate in order to perfect title of
Purchaser and its successors and assigns to the Shares or otherwise to carry
out the purposes and intent of this Agreement.
8. Costs and Expenses. Each party to this Agreement shall be
responsible for such party's own expenses in connection with this Agreement.
9. Governing Law; Jurisdiction. This Agreement shall be governed by
and construed under the laws of the State of New York without giving effect
to the conflicts of laws principles thereof. Any action or proceeding
seeking to enforce any provision of, or based on any right arising out of,
this Agreement must be brought against either of the parties in the courts of
the State of New York, Borough of Manhattan, or, if it has or can acquire
jurisdiction, in the U.S. District Court for the Southern District of New
York, and each of the parties consents to the exclusive jurisdiction of those
courts (and of the appropriate appellate courts) in any such action or
proceeding and waives any objection to venue laid therein. Process in any
such action or proceeding may be served by sending or delivering a copy of
the process to the party to be served at the address and in the manner
provided for the giving of notices in Section 14. Nothing in this Section 9,
however, affects the right of any party to serve legal process in any other
manner permitted by law.
5
10. Counterparts, Entire Agreement. This Agreement may be executed
by either party hereto by facsimile or electronic transmission in any number
of counterparts, each of which shall be deemed to be an original, but all
such respective counterparts shall together constitute one and the same
instrument. This Agreement represents (together with the Escrow Agreement
and the Sophisticated Purchaser Letter) the complete understanding of the
parties hereto with respect to the subject matter hereof and thereof and
supersedes any and all prior or contemporaneous agreements, whether written
or oral, with respect to such subject matter.
11. Survival. All representations, warranties, covenants and
agreements contained in or made pursuant to this Agreement shall survive the
consummation of the transactions contemplated hereunder, except that the
representations and warranties made pursuant to this Agreement shall
terminate on the date that is one (1) year following the Closing.
Notwithstanding the preceding sentence, any representation or warranty in
respect of which indemnity may be sought under Section 6 hereof shall survive
the time at which it would otherwise terminate pursuant to the preceding
sentence if notice of the inaccuracy or breach thereof shall have been given
to the party against whom such indemnity may be sought prior to the
expiration of such one (1) year period.
12. Severability. If any one or more of the provisions contained in
this Agreement, shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, then to the maximum extent permitted by law,
such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement. Furthermore, in lieu of any such invalid or
unenforceable term or provision, the parties hereto intend that there shall
be added as a part of this Agreement a provision as similar in terms to such
invalid or unenforceable term or provision as may be possible and be valid
and enforceable.
13. Waivers and Amendments. This Agreement may be amended, and the
terms hereof may be waived, only by written instrument signed by Purchaser
and Seller. No delay on the part of either party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall any
waiver on the part of either party of any such right, power or privilege, nor
any single or partial exercise of any such right, power or privilege,
preclude any further exercise thereof or the exercise of any other such
right, power or privilege.
14. Notices. Every notice or other communication required or
contemplated by this Agreement must be in writing and sent by one of the
following methods: (1) personal delivery, in which case delivery is deemed to
occur the day of delivery; (2) certified or registered mail, postage prepaid,
return receipt requested, in which case delivery is deemed to occur the day
it is officially recorded by the U.S. Postal Service as delivered to the
intended recipient; or (3) next-day delivery to a U.S. address by recognized
overnight delivery service such as Federal Express, in which case delivery is
deemed to occur upon receipt. In each case, a notice or other communication
sent to a party must be directed to the address for that party set forth
below, or to another address designated by that party by written notice:
6
If to Purchaser, to:
NovaGold Resources Inc.
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇ - ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attn: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, President and CEO
with a copy to:
▇▇▇▇▇▇ & Whitney LLP
U.S. Bank Centre
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
If to Seller, to:
BNP Paribas North America, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
15. WAIVER OF JURY TRIAL. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY
WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN
ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING WITHOUT LIMITATION, ANY
COUNTERACTION OR COUNTERCLAIM, WHETHER IN CONTRACT, STATUTE, TORT (INCLUDING,
WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE.
16. Certain Interpretive Matters. Unless the context otherwise
requires, (i) "or" is disjunctive but not necessarily exclusive, (ii) words in
the singular include the plural and vice versa, (iii) the use in this Agreement
of a pronoun in reference to a party hereto or other Person includes the
masculine, feminine or neuter, as the context may require and (iv) the word
"including" shall mean "including without limitation." No provision of this
Agreement will be interpreted in favor of, or against, any of the parties hereto
by reason of the extent to which any such party or its counsel participated in
the drafting thereof or by reason of the extent to which any such provision is
inconsistent with any prior draft hereof and no rule of strict construction will
be applied against any party hereto.
7
(signatures on following page)
8
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date and year first above written.
BNP PARIBAS NORTH AMERICA, INC.
By:______________________________
Name:
Title:
NOVAGOLD RESOURCES INC.
By:_______________________________________
Name:
Title:
