AMENDMENT TO SUBSCRIPTION AGREEMENT

 

This Amendment to Subscription Agreement (this “Amendment”) is dated as of November 7, 2012, between Valor Gold Corp., a Delaware corporation (the “Company”), and each of the subscribers identified on the signature pages to the Subscription Agreement by and between the Company and each Subscriber thereto, dated on or prior to the date hereof (the “Subscription Agreement”) (each, including its successors and assigns, a “Purchaser” and collectively, the “Purchasers” and together with the Company, the “Parties”)).

 

WHEREAS, the Parties have entered into the Subscription Agreements on or prior to the date hereof; and

 

WHEREAS, the Parties desire to amend the Subscription Agreements, the Escrow Agreements the “Escrow Agreements”) and the Warrants (the “Warrants”) (the Escrow Agreements, Warrants, and Subscription Agreements, collectively, the “Amended Agreements” and individually an “Amended Agreement”); and

 

NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereby agree as follows:

 

 

1.1           Definitions. Terms not otherwise defined herein shall have the meanings ascribed to such terms in the Subscription Agreements or if not defined therein, in the respective Amended Agreements.

 

 

2.1           Amended Agreement.  The following terms and conditions shall be applicable to the Amended Agreements as of the date of execution thereof, as amendments thereto, with full force and effect as and from the original time of execution thereof.  The terms and conditions herein shall supersede any inconsistent terms of such Amended Agreements:

 

A.

Section 1.5 of the Escrow Agreement is deleted in its entirety and replaced with the following:

 

1.5.

Valor may reject or cancel any subscription in the Offering in whole or in part within 2 business days of receipt of such subscription documents or fully collected funds. If payment for any such rejected or canceled subscription has been delivered to the Escrow Agent, Valor will inform the Escrow Agent and the subscriber of the rejection or cancellation, and the Escrow Agent upon receiving such notice shall within one business day return any funds to said Subscriber, but in no event prior to those funds becoming collected and available for withdrawal.  Valor shall accept subscriptions within 1 business day of receipt of completed subscription documents and notify such subscriber thereof.  Upon the Escrow Agent’s receipt of the subscribers fully collected funds Valor shall cause a Closing on such accepted subscription such subscription shall be deemed irrevocable and all collected funds transmitted to Valor as provided herein.

 

 

B.

Section 1.2 of the Subscription Agreement is amended by inserting the following:

 

On and following the date of this Amendment, the Company shall accept or reject subscriptions within 1 business day of receipt of completed subscription documents and notify such subscriber thereof.  Upon the Escrow Agent’s receipt of the subscribers fully collected funds the Company shall cause a Closing on such accepted subscription and such subscription shall be deemed irrevocable and all collected funds transmitted to the Company as provided in the Escrow Agreement.  There shall be no minimum subscription amount for Units required to effectuate a Closing and the Offering is being made on an “any or all” basis. Notwithstanding anything herein to the contrary, after the consummation of the Initial Closing, (i) the Company shall only be permitted to consummate one or more additional Closings hereunder during the eleven Business Day period commencing on, and including, the initial Closing Date (the “Offering Period”), and (ii) the “Final Closing Date” shall mean the last Closing Date occurring in the Offering Period, with such last Closing being the “Final Closing”, in each case, for all purposes hereunder and under the other Transaction Documents.

 

C.

Section 1.20 of the Subscription Agreement is deleted in its entirety.

 

D.

Article II “REPRESENTATIONS BY AND COVENANTS OF THE COMPANY” is hereby amended by deleting the preamble thereto which is replaced in its entirety with the following:

 

The Company hereby represents and warrants to the Subscriber as of the date hereof and as of the Closing Date for each such Subscriber, that:

 

E.

The Subscription Agreement is amended by inserting the following:

 

ARTICLE VII – ADDITIONAL AGREEMENTS OF THE PARTIES

 

7.1           Closing.  On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery of this Agreement by the parties hereto, the Company agrees to sell, and the Subscribers, severally and not jointly, agree to purchase, the Shares and Warrants.  Each Subscriber shall deliver to the Escrow Agent, via wire transfer or a certified check, immediately available funds equal to such Subscribers Subscription Amount as set forth on the signature page hereto executed by such Subscriber, and the Company shall deliver to each Subscriber its respective Shares and a Warrant, and the Company and each Subscriber shall deliver the other items set forth in Section 7.2 deliverable at the Closing.  Upon satisfaction of the covenants and conditions set forth in Sections 7.2 and 7.3, the Closing shall occur at the offices of Sichenzia Ross Friedman & Ference, LLP (“Company Counsel”) or such other location as the parties shall mutually agree.

 

 

7.2           Deliveries.

 

On or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Subscriber the following:

 

(i)           this Agreement duly executed by the Company;

 

(ii)           a legal opinion of Company Counsel, in form and substance customary for a transaction of this nature, together with a certificate of an officer of the Company attesting to the accuracy of the representations and warranties of the Company, with an incumbency certificate signed by the Secretary, dated as of the Closing Date;

 

(iii)           a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver, a certificate evidencing a number of Shares equal to such Subscriber’s Subscription Amount divided by the Per Share Purchase Price, registered in the name of such Subscriber;

 

(iv)           a Warrant registered in the name of such Subscriber to purchase up to a number of shares of Common Stock as such Subscriber shall be entitled to in accordance with the terms of the Offering (such Warrant certificate may be delivered within three Trading Days of the Closing Date); and

 

(v)           the Registration Rights Agreement duly executed by the Company.

 

On or prior to the Closing Date, each Subscriber shall deliver or cause to be delivered to the Company or the Escrow Agent, as applicable, the following:

 

(vi)           this Agreement duly executed by such Subscriber, and the Subscription Agreement;

 

(vii)           to Escrow Agent, such Purchaser’s Subscription Amount by wire transfer to the account specified in the Escrow Agreement; and

 

(viii)           the Registration Rights Agreement duly executed by such Purchaser.

 

7.3           Closing Conditions.

 

The respective obligations of the Subscribers hereunder in connection with the Closing are subject to the following conditions being met:

 

(i)           the accuracy in all material respects when made and on the Closing Date of the representations and warranties of the Company contained herein and in the Subscription Agreement (unless as of a specific date therein);

 

 

(ii)           all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;

 

(iii)           the delivery by the Company of the items set forth in this Agreement;

 

(iv)           from the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Closing.

 

7.4           Equal Treatment of Subscribers.  No consideration (including any modification of any Transaction Document) shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of this Agreement unless the same consideration is also offered to all of the parties to this Agreement.  For clarification purposes, this provision constitutes a separate right granted to each Subscriber by the Company and negotiated separately by each Subscriber, and is intended for the Company to treat the Subscribers as a class and shall not in any way be construed as the Subscribers acting in concert or as a group with respect to the purchase, disposition or voting of the Shares or otherwise.

 

7.5           Securities Laws Disclosure; Publicity.  The Company shall (a) by 9:30 a.m. (New York City time) on the trading day immediately following the date hereof, issue a press release disclosing the material terms of the transactions contemplated hereby, and (b) file a Current Report on Form 8-K, including the Transaction Documents as exhibits thereto, with the Securities and Exchange Commission (the “Commission”) within the time required by the Securities and Exchange Act of 1934, as amended.  From and after the issuance of such press release, the Company represents to the Subscribers that it shall have publicly disclosed all material, non-public information delivered to any of the Subscribers by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees or agents in connection with the transactions contemplated by the Transaction Documents.  The Company and each Subscriber shall consult with each other in issuing any other press releases with respect to the transactions contemplated hereby, and neither the Company nor any Subscriber shall issue any such press release nor otherwise make any such public statement without the prior consent of the Company, with respect to any press release of any Subscriber, or without the prior consent of each Subscriber, with respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication.  Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Subscriber, or include the name of any Subscriber in any filing with the Commission or any regulatory agency or Trading Market, without the prior written consent of such Subscriber, except: (a) as required by federal securities law in connection with (i) any registration statement contemplated by the Registration Rights Agreement and (ii) the filing of final Transaction Documents with the Commission and (b) to the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Subscribers with prior notice of such disclosure permitted under this clause (b).

 

 

7.6           Non-Public Information.  Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company covenants and agrees that neither it, nor any other Person acting on its behalf, will provide any Subscriber or its agents or counsel with any information that the Company believes constitutes material non-public information, unless prior thereto such Subscriber shall have entered into a written agreement with the Company regarding the confidentiality and use of such information.  The Company understands and confirms that each Subscriber shall be relying on the foregoing covenant in effecting transactions in securities of the Company.

 

7.7           Entire Agreement.  The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.

 

7.8           Amendments; Waivers.  No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by the Company and the Purchasers holding at least 67% in interest of the Shares then outstanding held by a Subscriber or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought.  No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right.

 

7.9  Execution.  This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that the parties need not sign the same counterpart.  In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.

 

 

7.10           Severability.  If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.

 

7.11           Independent Nature of Subscriber’s Obligations and Rights.  The obligations of each Subscriber under any Transaction Document are several and not joint with the obligations of any other Subscriber, and no Subscriber shall be responsible in any way for the performance or non-performance of the obligations of any other Purchaser under any Transaction Document.  Nothing contained herein or in any other Transaction Document, and no action taken by any Subscriber pursuant hereof or thereto, shall be deemed to constitute the Subscribers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents.  Each Subscriber shall be entitled to independently protect and enforce its rights, including, without limitation, the rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Subscriber to be joined as an additional party in any proceeding for such purpose.  Each Subscriber has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents.  For reasons of administrative convenience only, each Subscriber and its respective counsel have chosen to communicate with the Company through one or more intermediaries. The Company has elected to provide all Subscribers with the same terms and Transaction Documents for the convenience of the Company and not because it was required or requested to do so by any of the Purchasers.

 

7.12  Fees.  Notwithstanding anything herein or in any Transaction Document to the contrary, the Company shall reimburse ___________________________________________ or its designee(s) for all costs and expenses incurred by it or its affiliates in connection with the transactions contemplated by the Transaction Documents (including, without limitation, all legal fees and disbursements in connection therewith, structuring, documentation and implementation of the transactions contemplated by the Transaction Documents and due diligence and regulatory filings in connection therewith), which amount shall be withheld by __________ from its Purchase Price at the initial Closing, but which amount shall not exceed $8,000.

 

 

F.

The Subscription Agreement is amended by inserting the following:

 

(i)           Each reference to Section 4(2) of the Securities Act shall be changed to Section 4(a)(2).

 

G.

The Warrants are amended by inserting the following:

 

 

 

H.

Section 7 of the Warrant is deleted in its entirety and replaced with the following:

 

 

 

I.

Section 14 of the Warrant is deleted in its entirety and replaced with the following:

 

14.           Amendment.  This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and the Holder.

 

J.

The Escrow Agreement is amended by adding the following with effect on and following the date of this Amendment:

 

Notwithstanding anything herein to the contrary, release of Escrow Funds from the Escrow Account shall require the written approval (which shall be deemed to be satisfied if received by Escrow Agent by email, fax, or letter) of Palladium Capital Advisors, LLC. Placement Agent for the Offering.

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.

 

VALOR GOLD CORP.	Address for Notice:
By:__________________________________________      Name:      Title: With a copy to (which shall not constitute notice):	Fax:
AGREED AND ACCEPTED: ESCROW AGENT: SICHENZIA ROSS FRIEDMAN & FERENCE, LLP     ________________________________________

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SIGNATURE PAGE FOR SUBSCRIBER FOLLOWS]

 

 

[SUBSCRIBER SIGNATURE PAGES TO SUBSCRIPTION AGREEMENT AMENDMENT]

IN WITNESS WHEREOF, the undersigned have caused this Subscription Agreement Amendment to be duly executed by their respective authorized signatories as of the date first indicated above.

 

 

Name of Purchaser/Subscriber: ________________________________________________________

 

Signature of Authorized Signatory of Purchaser/Subscriber: __________________________________

 

Name of Authorized Signatory: ____________________________________________________

 

Title of Authorized Signatory: _____________________________________________________

 

Email Address of Authorized Signatory: ______________________________________________

 

Facsimile Number of Authorized Signatory: _____________________________________________

 

Address for Notice to Purchaser/Subscriber:

Address for Delivery of Securities to Purchaser/Subscriber (if not same as address for notice):

[SIGNATURE PAGES CONTINUE]