EXHIBIT 10.44
FORM OF MASTER AGREEMENT DATED
NOVEMBER 11, 1998
MASTER AGREEMENT
This Master Agreement (this "Agreement") is
made and entered as of this 11th day of November,
1997 (the "Effective Date"), by and between Alta
Gold Co., a Nevada corporation (the "Company"),
and ------------------- ("Holder") (collectively
the Company and Holder are hereinafter referred to
as the "Parties").
R E C I T A L S
Whereas, on April 14, 1997, the Company
issued and sold to Holder a convertible debenture
of the Company (the "Convertible Debenture") in
the original principal amount of ------------
---------------------- (U.S.)), convertible into
shares of the Company's common stock, par value
$.001 per share ("Common Stock");
Whereas, the Parties desire to enter into
this Agreement for the purpose of establishing
their respective rights and obligations in
connection with the issuance by the Company of
three (3) tranches of warrants (the "Warrants") to
purchase Common Stock to Holder, and the amendment
of the maturity date of the Convertible Debenture
from April 14, 1999 to April 14, 2000; and
Whereas, concurrently herewith, the Parties
will enter into a First Amendment to Convertible
Debenture (the "First Amendment") (collectively
the First Amendment and this Agreement are
hereinafter referred to as the "Transaction
Documents"), to memorialize the mutual intent of
the Parties;
Now, Therefore, in consideration of the
foregoing recitals and of the mutual covenants,
conditions, undertakings, representations and
warranties hereinafter set forth, and for other
good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the
Parties do hereby covenant and agree that the
Recitals are true and correct and by this
reference incorporated herein as if fully set
forth, and the Parties further agree as follows:
I. TERMS AND CONDITIONS
A. Issuance of Warrants
1. Terms. Subject to the conditions
set forth in this Agreement, on the Issuance Dates
(defined below), the Company shall issue to Holder
the Warrants at varying exercise prices per share
(the "Exercise Prices"). The Warrants shall be
issued in three tranches (collectively, the
"Tranches," and individually referred to as
"Tranche One," "Tranche Two," and "Tranche Three")
on: (a) November 15, 1997 (the "Tranche One
Issuance Date"); (b) March 31, 1998 (the "Tranche
Two Issuance Date"); and (c) September 30, 1998
(the "Tranche Three Issuance Date") (collectively
the Tranche One Issuance Date, the Tranche Two
Issuance Date and the Tranche Three Issuance Date
are hereinafter referred to as the "Issuance
Dates"). The Warrants shall be issued in
substantially the form attached hereto as Exhibit
A.
2. Calculation of Warrants. The number
of Warrants issued for Tranche One, Tranche Two
and Tranche Three shall be determined on the
Tranche One Issuance Date, the Tranche Two
Issuance Date, and the Tranche Three Issuance
Date, respectively. The number of shares of
Common Stock issuable under the Warrants issued on
the respective Issuance Dates shall be a specified
percentage of the quotient resulting from the
division of the Convertible Debenture principal
outstanding on the respective Issuance Date by the
closing price of the Common Stock on the same
Issuance Date (the "Conversion Quotient," or more
specifically, the "Tranche One Conversion
Quotient," "Tranche Two Conversion Quotient," and
"Tranche Three Conversion Quotient" for each of
the Tranches respectively). The number of shares
of Common Stock issuable under the Warrants to be
issued under each of the Tranches is as follows:
(i) five percent (5%) of the Tranche One
Conversion Quotient (the "Tranche One Warrants");
(ii) ten percent (10%) of the Tranche Two
Conversion Quotient (the "Tranche Two Warrants");
and (iii) fifteen percent (15%) of the Tranche
Three Conversion Quotient (the "Tranche Three
Warrants").
3. Exercise Price. The respective
Exercise Price for each of the Tranches shall be
one hundred twenty percent (120%) of the closing
price of the Common Stock on the Nasdaq National
Market, as reported by The Wall Street Journal, on
the corresponding Issuance Date.
4. Exercise Period. The Warrants may be
exercised any time after the respective Issuance
Date, and (a) for Tranche One, within three (3)
years of the Tranche One Issuance Date; (b) for
Tranche Two, within five (5) years of the Tranche
Two Issuance Date; and (c) for Tranche Three,
within five (5) years of the Tranche Three
Issuance Date.
B. First Amendment to the Convertible
Debenture
1. Terms. The maturity date of the
Convertible Debenture shall be extended for a
period of one (1) year from April 14, 1999 to
April 14, 2000, and, contemporaneous with the
execution of this Agreement, the Parties shall
enter into the First Amendment in substantially
the form attached hereto as Exhibit B.
II. UNDERTAKINGS DURING TERM OF AGREEMENT
A. Good Faith and Cooperation
The Parties severally warrant, represent and
undertake in favor of the other the following:
1. Performance. The Parties will duly
and timely perform all of their respective
obligations under the Transaction Documents; and
2. Good Faith. The Parties will deal at
all times with the other honestly and with the
utmost good faith with respect to the Transaction
Documents.
B. Authority and Due Execution
The Parties hereto severally warrant,
represent and undertake in favor of the other the
following:
1. Enforceability. Each Transaction
Document to which it is a party constitutes a
valid and legally binding obligation to the Party
enforceable in accordance with their respective
rights subject to: (a) any statute of
limitations; (b) any laws of bankruptcy,
insolvency, liquidation, reorganization or other
laws affecting creditor's rights generally; and
(c) any defenses of set-off or counterclaim.
2. Authorizations. Each Party has
obtained or effected all material authorizations,
approvals, consents, licenses, permits,
exemptions, filings, registrations, or
notifications which must be obtained before the
entry into, or performance of its obligations
under, each Transaction Document to which it is a
party and all such permissions are in full force
and effect and any conditions upon which the
permissions were given have been, and will
continue to be, complied with.
III. NOTICES
All notices, requests, and other
communications required or permitted to be given
or delivered hereunder shall be in writing, and
shall be either: (a) personally delivered; (b)
sent by certified or registered mail; or (c) sent
by a nationally recognized overnight mail courier,
postage prepaid and addressed, to:
The Company: Alta Gold Co.
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive
Officer
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Holder: To the address set forth on the
signature page hereto.
Any such notice, request, or other communication
may be sent by facsimile, but shall in such case
be subsequently confirmed by a writing personally
delivered or sent by registered or certified mail
or by recognized overnight mail courier as
provided above. All notices, requests, and other
communications shall be deemed to have been given
either at the time of the receipt thereof by the
person entitled to receive such notice at the
address of such person for purposes of this
Article III, or, if mailed or with a recognized
overnight mail courier upon deposit with the
United States post office or such overnight mail
courier, if postage is prepaid and the mailing is
properly addressed, as the case may be.
IV. ADDITIONAL PROVISIONS
A. Amendment
No amendment or other modification of this
Agreement shall be deemed effective unless and
until such amendment or modification is in an
express writing and signed by the Parties.
B. Attorneys' Fees
Each Party is responsible for its own legal
fees and costs with respect to the preparation,
delivery and execution of this Agreement. In the
event that any action is filed in relation to this
Agreement, the unsuccessful Party to such action
shall pay to the successful Party, in addition to
all other sums that either Party may be called
upon to pay, the successful Party's reasonable
attorneys' fees and costs incurred in connection
with such action.
C. Binding Effect
This Agreement shall be binding upon and
shall inure to the benefit of the Parties and
their respective successors, predecessors,
parents, affiliates, subsidiaries, divisions,
officers, directors, stockholders, employees,
advisors, consultants, insurers, attorneys, heirs,
executors, administrators and any persons claiming
rights by, through or under them.
D. Counterparts
This Agreement may be executed in two or more
counterparts and shall be deemed to have become
effective when and only when all Parties hereto
have executed this Agreement, although it shall
not be necessary that any single counterpart be
signed by or on behalf of each of the Parties
hereto, and all such counterparts shall be deemed
to constitute but one and the same instrument.
This Agreement, once executed by a Party, may be
delivered to the other Party hereto by facsimile
transmission of a copy of this Agreement bearing
the signature of the Party so delivering this
Agreement.
E. Forum Selection and Choice of Law
This Agreement shall be governed by and
construed and enforced in accordance with the
internal laws of the State of Nevada without
regard to the body of law controlling conflicts of
law. The Parties hereby submit to the exclusive
jurisdiction of the courts located in Las Vegas,
Nevada, with respect to any dispute arising under
this Agreement, any other agreements entered into
in connection herewith and the transactions
contemplated hereby or thereby.
F. Headings
The subject headings of the Articles,
Sections and Subsections of this Agreement are
included only for purposes of convenience of
reference, and shall not affect the construction
or interpretation of any of the provisions hereof.
G. Neutral Interpretation
The provisions contained herein shall not be
construed in favor of or against any Party because
that Party or its counsel drafted this Agreement,
but shall be construed as if all Parties prepared
this Agreement, and any rules of construction to
the contrary are hereby specifically waived. The
terms of this Agreement were negotiated at arm's
length by the Parties and their respective
attorneys.
H. Nonwaiver
No provision of this Agreement or the right
to receive reasonable performance of any act
called for by the terms hereof shall be deemed
waived by a waiver of the breach thereof as to any
particular transaction or occurrence. Any
purported waiver shall not be valid unless it is
in writing and signed by the Party to be charged
thereby, and then, only to the extent set forth in
such writing.
I. Partial Invalidity
If any term, condition, covenant, or
provision of this Agreement, or any application
thereof, shall be held by a court of competent
jurisdiction to be invalid, void or unenforceable,
all provisions, covenants, and conditions of this
Agreement and applications thereof not held
invalid, void or unenforceable shall continue in
full force and effect, unless the essence of the
Agreement is thereby destroyed, and shall in no
way be affected, impaired or invalidated thereby,
unless the essence of the Agreement is thereby
destroyed.
J. Waiver of Restrictions on Releases
Imposed by Law
All rights under any law of any state or
territory of the United States or any foreign
country limiting or exempting any type of claim
from being completely, totally, and fully released
by this Agreement are expressly waived.
In Witness Whereof, the Parties have executed
this Agreement as of the Effective Date.
Alta Gold Co.,
a Nevada corporation
----------------------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Chief Executive Officer and
Chairman of the Board
Holder
By: ----------------------------
Its: ----------------------------
EXHIBIT A
WARRANT
THIS WARRANT AND THE SHARES ISSUABLE UPON THE
EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY APPLICABLE STATE SECURITIES LAW. THIS WARRANT
OR SUCH SHARES MAY NOT BE SOLD, DISTRIBUTED,
PLEDGED, OFFERED FOR SALE, ASSIGNED, TRANSFERRED,
OR OTHERWISE DISPOSED OF UNLESS: (A) THERE IS AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT
AND APPLICABLE STATE SECURITIES LAW COVERING ANY
SUCH TRANSACTION INVOLVING SAID SECURITIES; (B)
THE COMPANY (DEFINED BELOW) RECEIVES AN OPINION OF
LEGAL COUNSEL FOR THE HOLDER OF THIS WARRANT
STATING THAT SUCH TRANSACTION IS EXEMPT FROM
REGISTRATION AND SUCH OPINION IS IN FORM AND
SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY
AND FROM COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY; OR (C) PURSUANT TO RULE 144 UNDER SUCH
ACT.
WARRANT TO PURCHASE
SHARES OF COMMON STOCK
ALTA GOLD CO.
This is to certify that, for value received,
----------------------------, or its registered
transferees or assigns (the "Holder"), is
entitled, during a specified period of time as set
forth in Section 3 herein (the "Exercise Period"),
to purchase from Alta Gold Co., a Nevada
corporation (the "Company"), ---------- fully paid
and nonassessable shares of the Company's common
stock, par value $0.001 per share (the "Common
Stock"), at an exercise price per share as set
forth in Section 1 herein (the "Exercise Price")
(such number of shares and the Exercise Price
being subject to adjustment as provided herein).
The term "Warrant," as used herein, refers to this
Warrant to Purchase Shares of Common Stock, the
term "Warrant Shares," as used herein, refers to
the shares of Common Stock purchasable hereunder,
and the term "Parties," as used herein, refers
collectively to the Holder and the Company.
TERMS AND CONDITIONS
This Warrant is subject to the following
terms, provisions, and conditions:
1. Exercise Price. The Exercise Price
shall be $------------- per share.
2. Manner of Exercise; Issuance of
Certificates; Payment for Shares. Subject to the
provisions hereof, this Warrant may be exercised
by the Holder, in whole or in part, by the
surrender of this Warrant, together with an
exercise agreement in the form attached hereto
(the "Exercise Agreement"), duly completed and
executed by the Holder, to the Company during
normal business hours on any business day at the
Company's principal executive offices (or such
other location as the Company may designate by
notice to the Holder); and upon (a) the payment to
the Company in cash, by certified or official bank
check or by wire transfer for the account of the
Company in the amount of the Exercise Price
multiplied by the number of Warrant Shares for
which the Warrant is being exercised; or (b) after
May 31, 1998, if the resale of the Warrant Shares
by the Holder is not then registered pursuant to
an effective registration statement under the
Securities Act of 1933, as amended (the
"Securities Act") pursuant to the terms of Section
12 of this Agreement, delivery to the Company of a
written notice of an election to effect a Cashless
Exercise (as defined below) pursuant to the terms
of Section 11 of this Agreement.
The Warrant Shares so purchased shall be
deemed to be issued to the Holder as the record
owner of such Warrant Shares, as of the close of
business on the date on which this Warrant shall
have been surrendered, the completed Exercise
Agreement shall have been delivered, and payment
shall have been made for such Warrant Shares as
set forth above. Certificates for the Warrant
Shares so purchased, representing the aggregate
number of shares specified in the Exercise
Agreement, shall be delivered to the Holder within
a reasonable time, not exceeding three (3)
business days, after this Warrant shall have been
so exercised. The certificates so delivered shall
be in such denominations as may be reasonably
requested by the Holder and shall be registered in
the name of the Holder or such other name as shall
be designated by the Holder. If this Warrant
shall have been exercised only in part, then,
unless this Warrant has expired, the Company
shall, at its expense, at the time of delivery of
such certificates, deliver to the Holder a new
warrant representing the number of Warrant Shares
with respect to which this Warrant shall not then
have been exercised.
Notwithstanding anything in this Warrant
to the contrary, in no event shall the Holder be
entitled to exercise a number of Warrants (or
portions thereof) in excess of the number of
Warrants (or portions thereof) upon exercise of
which the sum of (a) the number of shares of
Common Stock beneficially owned by the Holder and
its affiliates (other than shares of Common Stock
which may be deemed beneficially owned through the
ownership of the unexercised Warrants and
unconverted portions of the Debentures (as defined
in the Securities Purchase Agreement dated April
14, 1997 (the "Securities Purchase Agreement"), by
and among the Company, the Holder and certain
other investors named therein)) and (b) the number
of shares of Common Stock issuable upon exercise
of the Warrants (or portions thereof) with respect
to which the determination described herein is
being made, would result in beneficial ownership
by the Holder and its affiliates of more than 4.9%
of the outstanding shares of Common Stock. For
purposes of the immediately preceding sentence,
beneficial ownership shall be determined in
accordance with Section 13(d) of the Securities
Exchange Act of 1934, as amended, and Regulation
13D-G thereunder, except as otherwise provided in
clause (a) of this paragraph.
3. Exercise Period. This Warrant may be
exercised any time after the Issuance Date and
before 2:00 p.m., Las Vegas time, on
------------------- (the "Exercise Period").
4. Certain Agreements of the Company.
The Company hereby covenants and agrees as
follows:
(a) Shares to be Fully Paid. All
Warrant Shares shall, upon issuance in
accordance with the terms of this Warrant, be
validly issued,fully paid, and non-
assessable.
(b) Reservation of Shares. During
the Exercise Period, the Company shall at all
times have authorized, and reserved for the
purpose of issuance upon exercise of this
Warrant,a sufficient number of shares of
Common Stock to provide for the exercise of
this Warrant.
(c) Listing. Subject to (i) the
registration for resale of the Warrant Shares
pursuant to Section 12 of this Agreement and
(ii)receipt by the Company of the Exercise
Agreement,the Company shall secure the
listing of the Warrant Shares upon each
national securities exchange or automated
quotation system, if any,upon which shares
of Common Stock are then listed and shall
maintain, so long as any other shares of
Common Stock shall be so listed, such
listing of the Warrant Shares; and the
Company shall so list on each national
securities exchange or automated quotation
system, as the case may be, and shall
maintain such listing of, any other shares
of capital stock of the Company issuable
upon the exercise of this Warrant if and so
long as any shares of the same class shall
be listed on such national securities
exchange or automated quotation system.
(d) Certain Actions Prohibited.
The Company will not, by amendment of its
charter or through any reorganization,
consolidation, merger, dissolution, or any
other voluntary action, avoid or seek to
avoid the observance or performance of any of
the terms to be observed or performed by it
hereunder, but will at all times in good
faith assist in the carrying out of all
the provisions of this Warrant and in the
taking of all such action as may reasonably
be requested by the Holder in order to
protect the exercise privilege of the Holder
against any impairment, consistent with the
terms and purpose of this Warrant. Without
limiting the generality of the foregoing, the
Company will not increase the par value of
any shares of Common Stock above the Exercise
Price and will take all such actions as may
be necessary or appropriate in order that the
Company may validly and legally issue fully
paid and non-assessable shares of Common
Stock upon the exercise of this Warrant.
(e) Successors and Assigns. This
Warrant shall be binding upon any entity
succeeding to the Company by merger,
consolidation, or acquisition of all or
substantially all the Company's assets.
5. Adjustment Provisions. During
the Exercise Period, the Exercise Price and
the number of Warrant Shares shall be subject
to adjustment from time to time as provided
in this Section 5. In the event that any
adjustment of the Exercise Price as required
herein results in a fraction of a cent, such
Exercise Price shall be rounded up to the
nearest cent.
(a) Subdivision or
Combination of Common Stock. If the Company
at any time subdivides (by any stock split,
stock dividend, recapitalization,
reorganization, reclassification or
otherwise) the Common Stock into a greater
number of shares, then, after the date of
record for effecting such subdivision, the
Exercise Price in effect immediately prior to
such subdivision will be proportionately
reduced. If the Company at any time combines
(by reverse stock split, recapitalization,
reorganization,reclassification or otherwise)
into a smaller number of shares, then, after
the date of record for effecting such
combination, the Exercise Price in effect
immediately prior to such combination will be
proportionately increased.
(b) Adjustment in Number of Shares.
Upon each adjustment of the Exercise Price
pursuant to the provisions of this Section 5,
the number of shares of Common Stock issuable
upon exercise of this Warrant shall be
adjusted by multiplying a number equal to the
Exercise Price by the number of shares of
Common Stock issuable upon exercise of this
Warrant immediately prior to such adjustments
and dividing the product so obtained by the
adjusted Exercise Price.
(c) Consolidation, Merger or Sale.
In case of any consolidation of the Company
with, or merger of the Company into any other
corporation, or in case of any sale or
conveyance of all or substantially all of the
assets of the Company other than in
connection with a plan of complete
liquidation of the Company, then as a
condition of such consolidation, merger or
sale or conveyance, adequate provision will
be made whereby the Holder will have the
right to acquire and receive upon exercise of
this Warrant in lieu of the shares of Common
Stock immediately theretofore acquirable upon
the exercise of this Warrant, such shares of
stock, securities or assets as may be issued
or payable with respect to or in exchange for
the number of shares of Common Stock
immediately theretofore acquirable and
receivable upon exercise of this Warrant had
such consolidation, merger or sale or
conveyance not taken place. In any such
case, the Company will make appropriate
provision to insure that the provisions of
this Section 5 hereof will thereafter be
applicable as nearly as may be in relation to
any shares of stock or securities thereafter
deliverable upon the exercise of this
Warrant. The Company will not effect any
consolidation, merger or sale or conveyance
unless prior to the consummation thereof, the
successor corporation (if other than the
Company) assumes by written instrument the
obligations under this Section 5 and the
obligations to deliver to the Holder such
shares of stock, securities or assets as, in
accordance with the foregoing provisions, the
Holder may be entitled to acquire.
(d) Distribution of Assets. In case
the Company shall declare or make any
distribution of its assets (including cash)
to holders of Common Stock as a partial
liquidating dividend, by way of return of
capital or otherwise, then, after the date of
record for determining stockholders entitled
to such distribution, but prior to the date
of distribution, the Holder shall be entitled
upon exercise of this Warrant for the
purchase of any or all of the shares of
Common Stock subject hereto, to receive the
amount of such assets which would have been
payable to the Holder had such Holder been
the holder of such shares of Common Stock on
the record date for the determination of
stockholders entitled to such distribution.
(e) Notice of Adjustment. Upon the
occurrence of any event which requires any
adjustment of the Exercise Price, then, and
in each such case, the Company shall give
notice thereof to the Holder, which notice
shall state the Exercise Price resulting from
such adjustment and the increase or decrease
in the number of Warrant Shares purchasable
at such price upon exercise, setting forth in
reasonable detail the method of calculation
and the facts upon which such calculation is
based. Such calculation shall be certified
by the chief financial officer of the
Company.
(f) Minimum Adjustment of Exercise
Price. No adjustment of the Exercise Price
shall be made in an amount of less than one
percent (1%) of the Exercise Price in effect
at the time such adjustment is otherwise
required to be made, but any such lesser
adjustment shall be carried forward and shall
be made at the time and together with the
next subsequent adjustment which, together
with any adjustments so carried forward,
shall amount to not less than one percent
(1%) of such Exercise Price.
(g) No Fractional Shares. No
fractional shares of Common Stock are to be
issued upon the exercise of this Warrant, but
the Company shall pay a cash adjustment in
respect of any fractional shares which would
otherwise be issuable in an amount equal to
the same fraction of the Market Price of a
share of Common Stock on the date of such
exercise. The term "Market Price" as of any
date means (i) the last reported sale price
for the Common Stock on the Nasdaq National
Market ("Nasdaq") on that date as reported by
The Wall Street Journal (the "WSJ") or (ii)
if Nasdaq is not the principal trading market
for the Common Stock, the last reported sale
price on the principal trading market for the
Common Stock on that date as reported by the
WSJ, or (iii) if the market value cannot be
calculated as of such date on any of the
foregoing bases, the fair market value as
reasonably determined in good faith by the
board of directors of the Company.
(h) Other Notices. In case at any
time:
(i) the Company shall declare
any dividend upon the Common Stock
payable in shares of stock of any class
or make any other distribution
(including dividends or distributions
payable in cash out of retained
earnings) to the holders of Common
Stock;
(ii) the Company shall offer
for subscription pro rata to the
holders of Common Stock any additional
shares of stock of any class or other
rights;
(iii) there shall be any
capital reorganization of the Company,
or reclassification of the Common
Stock, or consolidation or merger of
the Company with or into, or sale of
all or substantially all its assets to,
another corporation or entity; or
(iv) there shall be a voluntary
or involuntary dissolution, liquidation
or winding up of the Company; then, in
each such case, the Company shall give
to the Holder (a) notice of the date on
which the books of the Company shall
close or a record shall be taken for
determining the holders of Common Stock
entitled to receive any such dividend,
distribution, or subscription rights or
for determining the holders of Common
Stock entitled to vote in respect of
any such reorganization,
reclassification, consolidation,
merger, sale, dissolution, liquidation
or winding-up and, (b) in the case of
any such reorganization,
reclassification, consolidation,
merger, sale, dissolution, liquidation
or winding-up, notice of the date (or,
if not then known, a reasonable
approximation thereof by the Company)
when the same shall take place. Such
notice shall also specify the
approximate date on which the holders
of Common Stock shall be entitled to
receive such dividend, distribution, or
subscription rights or to exchange
their Common Stock for stock or other
securities or property deliverable upon
such reorganization, reclassification,
consolidation, merger, sale,
dissolution, liquidation, or winding-
up, as the case may be. Such notice
shall be given at least ten (10) days
prior to the record date or the date on
which the Company's books are closed in
respect thereto. Failure to give any
such notice or any defect therein shall
not affect the validity of the
proceedings referred to in classes (i),
(ii), (iii) and (iv) above.
6. Payment of Expenses. The Company and
the Holder shall each be responsible for their own
costs and expenses payable in connection with (a)
the negotiation, preparation, execution and
delivery of this Agreement and the other
agreements to be executed in connection herewith;
and (b) the issuance of certificates for Warrant
Shares upon the exercise of this Warrant. The
Company shall pay any issuance tax in connection
with the issuance of certificates for Warrant
Shares; provided, however, that the Holder shall
be responsible for any income or other taxes in
connection with such issuance.
7. No Rights or Liabilities as a
Stockholder. This Warrant shall not entitle the
Holder to any voting rights or other rights as a
stockholder of the Company. No provision of this
Warrant, in the absence of affirmative action by
the Holder to purchase Warrant Shares, and no mere
enumeration herein of the rights or privileges of
the Holder, shall give rise to any liability of
such Holder for the Exercise Price or as a
stockholder of the Company, whether such liability
is asserted by the Company or by creditors of the
Company.
8. Transfer, Exchange, and Replacement of
Warrant.
(a) Restriction on Transfer. This
Warrant and the rights granted to the Holder
are transferable, in whole or in part, upon
surrender of this Warrant, together with a
properly executed assignment in the form
attached hereto, at the principle executive
offices of the Company (or such other office
agency of the Company as it may designate by
notice to the Holder), provided, however,
that any transfer or assignment shall be
subject to the conditions set forth in
Section 8(e). Until presentation for
registration of transfer on the books of the
Company, the Company may treat the registered
Holder as the owner and Holder for all
purposes, and the Company shall not be
affected by any notice to the contrary.
(b) Exchange of Warrants;
Replacement of Warrants. This Warrant is
exchangeable upon the surrender hereof by the
Holder to the Company at its office for new
warrants of like tenor and date representing
in the aggregate the right to purchase the
number of shares of Common Stock purchasable
hereunder, each of such new Warrants to
represent the right to purchase such number
of shares of Common Stock (not to exceed the
aggregate total number purchasable hereunder)
as shall be reasonably designated by the
Holder at the time of such surrender. Upon
receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft,
destruction, or mutilation of this Warrant,
and, in case of loss, theft or destruction,
of indemnity, or security reasonably
satisfactory to it, and upon, surrender and
cancellation of this Warrant, if mutilated,
the Company will make and deliver a new
warrant of like tenor, in lieu of this
Warrant.
(c) Cancellation; Payment of
Expenses. Upon the surrender of this Warrant
in connection with any transfer, exchange, or
replacement as provided in this Section 8,
this Warrant shall be promptly canceled by
the Company. The Company and the Holder
shall each be responsible for their own costs
and expenses payable in connection with the
preparation, execution, and delivery of new
warrants pursuant to this Section 8. The
Holder shall be responsible for any tax which
may be payable in connection with any
transfer of a certificate for Warrant Shares.
(d) Registrar. The Company shall
maintain, at its principal executive offices
(or such other location as the Company may
designate by notice to the Holder), a
registrar for this Warrant, in which the
Company shall record the name and address of
the person in whose name this Warrant has
been issued, as well as the name and address
of each transferee and each prior owner of
this Warrant.
(e) Exercise or Transfer Without
Registration. No interest in this Warrant and
the Warrant Shares may be sold, distributed,
assigned, offered, pledged or otherwise
transferred, unless (a) there is an effective
registration statement under the Securities
Act and applicable state securities laws
covering any such transaction covering such
securities, or (b) the Company receives an
opinion of legal counsel for the Holder
stating that such transaction is exempt from
registration and such opinion is in form and
substance reasonably satisfactory to the
Company and from counsel reasonably
satisfactory to the Company. A legend
setting forth or referring to the above
restrictions shall be placed on any warrant
and certificates for Warrant Shares subject
to these restrictions and a stop transfer
order shall be placed on the books of the
Company and with any transfer agents against
this Warrant and the Warrant Shares until
they may be legally sold or otherwise
transferred without restriction. The first
Holder of this Warrant, by taking and holding
the same represents to the Company that such
Holder is acquiring this Warrant for
investment and not with a view to the
distribution thereof.
9. Amendments. No amendment or
modification of this Warrant shall be deemed
effective unless and until such amendment or
modification is an express writing executed by
both of the Parties.
10. Governing Law. This Warrant shall be
governed by and construed and enforced in
accordance with the internal laws of the State of
Nevada without regard to the body of law
controlling conflicts of law. The parties hereto
hereby submit to the exclusive jurisdiction of the
courts located in Las Vegas, Nevada, with respect
to any dispute arising under this Warrant and the
transactions contemplated hereby.
11. Cashless Exercise. Notwithstanding
anything to the contrary contained in this
Warrant, if the resale of the Warrant Shares by
the Holder is not registered on or before May 31,
1998 pursuant to an effective registration
statement under the Securities Act, this Warrant
may be exercised after May 31, 1998 by
presentation and surrender of this Warrant to the
Company at its principal executive offices with a
written notice of the Holder's intention to effect
a cashless exercise, including a calculation of
the number of shares of Common Stock to be issued
upon such exercise in accordance with the terms
hereof (a "Cashless Exercise'). In the event of a
Cashless Exercise, in lieu of paying the Exercise
Price in cash, the holder shall surrender this
Warrant for that number of shares of Common Stock
determined by multiplying the number of Warrant
Shares to which it would otherwise be entitled by
a fraction, the numerator of which shall be the
difference between the then current Market Price
per share of Common Stock and the Exercise Price,
and the denominator of which shall be the then
current Market Price per share of Common Stock.
12. Registration Rights.
(a) Mandatory Registration. The
Company shall prepare, and on or prior to
April 30, 1998, file with United States
Securities and Exchange Commission (the
"SEC"), a registration statement on Form S-3
(or, if Form S-3 is not then available, on
such form of registration statement as is
then available to effect a registration of
the Registrable Securities (as defined
below)) covering the resale of the
Registrable Securities underlying this
Warrant, which registration statement, to the
extent allowable under the Securities Act and
the rules promulgated thereunder (including
Rule 416), shall state that such registration
statement also covers such indeterminate
numbers of additional shares of Common Stock
as may become issuable upon conversion of the
Warrants (i) to prevent dilution resulting
from stock splits, stock dividends or similar
transactions or (ii) by reason of changes in
the Exercise Price in accordance with the
terms of this Warrant. The Company shall use
its best efforts to obtain effectiveness of
the registration statement as soon as
practicable. For purposes of this Agreement,
the term "Registrable Securities" means the
Warrant Shares issued or issuable and any
shares of capital stock issued or issuable as
a dividend on or in exchange for or otherwise
with respect to any of the foregoing.
(b) Obligations of the Holder. It shall
be a condition precedent to the obligations
of the Company to complete the registration
pursuant to this Warrant with respect to the
Registrable Securities of the Holder that
such Holder shall furnish to the Company such
information regarding itself, the Registrable
Securities held by it and the intended method
of disposition of the Registrable Securities
held by it as shall be reasonably required to
effect the registration of such Registrable
Securities and shall execute such documents
and otherwise cooperate with the Company as
reasonably requested by the Company in
connection with the preparation and filing of
the registration statement. At least three
(3) business days prior to the first
anticipated filing date of the Registration
Statement, the Company shall notify the
Holder of the information the Company
requires from each such Holder.
(c) Expense of the Registration. All
reasonable expenses, other than underwriting
discounts and commissions, incurred by the
Company in connection with registrations,
filings or qualifications pursuant to this
Section 12, including without limitation, all
registration, listing and qualification fees,
printers and accounting fees, and the fees
and disbursements of counsel for the Company,
shall be borne by the Company.
(d) Indemnification. The Holder shall be
entitled to the same indemnification rights
and obligations as provided to Investors (as
that term is defined in the Registration
Agreement (defined herein)) in Section 6 of
that certain Registration Rights Agreement
(the "Registration Agreement") dated April
14, 1997, by and among the Company, the
initial Holder and certain other investors
parties thereto.
In Witness Whereof, the Company has caused
this Warrant to be signed by its duly authorized
officer.
ALTA GOLD CO.,
a Nevada corporation
By: ------------------------
Name: -----------------
Title: -----------------
Date: ------------------------
EXERCISE AGREEMENT
To: Alta Gold Co. (the "Company")
The undersigned, pursuant to the provisions
set forth in the attached Warrant to Purchase
Shares of Common Stock (the "Warrant"), hereby
irrevocably elects and agrees to purchase
----------------- shares (the "Exercised Shares")
of the Company's common stock ("Common Stock")
covered by the Warrant, and makes payment herewith
in full therefor at the price per share provided
by the Warrant in cash or by certified or official
bank check in the amount of, or by surrender of
securities issued by the Company (including a
portion of the Warrant) having a market value (in
the case of a portion of this Warrant, determined
in accordance with Section 11 of the Warrant)
equal to, $-------------. If said number of
shares of Common Stock shall not be all the shares
purchasable under the Warrant, a new warrant is to
be issued in the name of said undersigned covering
the balance of the shares purchasable thereunder
less any fraction of a share paid in cash. Please
issue a certificate or certificates for the
Exercised Shares in the name of and pay any cash
for any fractional share to:
Name: ---------------------------
Signature: -----------------------
Dated: ---------------------------
Address: -------------------------
-------------------------
-------------------------
-------------------------
Note: The above signature should correspond
exactly with the name on the face of the Warrant.
ASSIGNMENT
For Value Received, the undersigned hereby
sells, assigns, and transfers all the rights of
the undersigned under the attached Warrant to
Purchase Shares of Common Stock (the "Warrant"),
with respect to the number of shares of common
stock of Alta Gold Co. (the "Company") covered
thereby set forth hereinbelow, to:
Name of Assignee Address No. of Shares
---------------- ------- -------------
and hereby irrevocably constitutes and appoints
------------------------ as agent and
attorney-in-fact to transfer the Warrant on the
books of the Company, with full power of
substitution in the premises, subject to Section 8
of the Warrant.
Dated: -------------------------
Signature: ---------------------
Name: --------------------------
Title: -------------------------
Address: -----------------------
-----------------------
-----------------------
Note: The above signature should correspond
exactly with the name on the face of the Warrant.
EXHIBIT B
FIRST AMENDMENT TO CONVERTIBLE DEBENTURE
This First Amendment to Convertible Debenture
(this "First Amendment") is made and entered as of
this 11th day of November, 1997 (the "Effective
Date"), by and between Alta Gold Co., a Nevada
corporation (the "Company"), and ----------------,
("Holder") (collectively the "Parties").
R E C I T A L S
Whereas, on April 14, 1997, the Company
issued and sold to Holder a convertible debenture
of the Company (the "Convertible Debenture") in
the original principal amount of Four Million
Dollars ($4,000,000.00 (U.S.)), convertible into
shares of the Company's common stock, par value
$.001 per share.
Whereas, the Parties desire to enter into
this First Amendment for the purposes of
extending the maturity date of the Convertible
Debenture from April 14, 1999 to April 14, 2000;
and
Whereas, concurrently herewith, the Parties
will enter into a Master Agreement, to memorialize
the mutual intent of the Parties;
Now, Therefore, in consideration of the
foregoing recitals and of the mutual covenants,
conditions, undertakings, representations and
warranties hereinafter set forth, and for other
good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the
Parties do hereby covenant and agree that the
Recitals are true and correct and by this
reference incorporated herein as if fully set
forth, and the Parties further agree as follows:
1. Amendment. The first sentence of the
first paragraph of the Convertible Debenture which
currently reads as follows:
FOR VALUE RECEIVED, ALTA GOLD CO., a Nevada
corporation (hereinafter called the
"Borrower") hereby promises to pay to the
order of -------------------- or registered
assigns (the "Holder") the sum of
------------------------------, on April 14,
1999, and to pay interest on the unpaid
principal balance hereof at the rate of four
percent (4%) per annum from April 14, 1997
(the "Issue Date") until the same becomes due
and payable, whether at maturity or upon
acceleration or by prepayment or otherwise.
is hereby amended and replaced in its entirety
with the following:
FOR VALUE RECEIVED, ALTA GOLD CO., a Nevada
corporation (hereinafter called the
"Borrower") hereby promises to pay to the
order of -------------------- or registered
assigns (the "Holder") the sum of
-----------------, on April 14, 2000, and to
pay interest on the unpaid principal balance
hereof at the rate of four percent (4%) per
annum from April 14, 1997 (the "Issue Date")
until the same becomes due and payable,
whether at maturity or upon acceleration or
by prepayment or otherwise.
2. Interpretation. In the event that
there is a conflict between any of the provisions
of this First Amendment and any of the provisions
of the Convertible Debenture, the provisions of
this First Amendment shall control.
3. Remaining Terms and Conditions.
Except as expressly amended or modified by this
First Amendment, all of the terms and conditions
of the Convertible Debenture shall remain
unchanged and in full force and effect.
4. Counterparts. This Amendment may be
executed in two or more counterparts and shall be
deemed to have become effective when and only when
both Parties have executed this Amendment,
although it shall not be necessary that any single
counterpart be signed by or on behalf of each of
the Parties, and all such counterparts shall be
deemed to constitute but one and the same
instrument. This Amendment, once executed by a
Party, may be delivered to the other Party hereto
by facsimile transmission of a copy of this
Amendment bearing the signature of the Party so
delivering this Amendment.
In Witness Whereof, the Parties have executed
this First Amendment as of the Effective Date.
ALTA GOLD CO.,
a Nevada corporation
----------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Chief Executive Officer and
Chairman of the Board
HOLDER
By: -----------------------
Its: -----------------------
