UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Austin Gold Corp.
(Name of Issuer)
Common Shares, No Par Value
(Title of Class of Securities)
05223F106
(CUSIP Number)
Joseph Ovsenek
9th Floor, 1021 West Hasting Street
Vancouver, BC V6E 0C3
Canada
(778) 731-1055
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
Copy to:
Jason K. Brenkert
Dorsey & Whitney LLP
1400 Wewatta Street, Suite 400
Denver, Colorado 80202-5549
(303) 629-3445
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
May 3, 2022
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of
§§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ☐
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See
§240.13d-7 for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent
amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or
otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
CUSIP No. 05223F106
|
1
|
NAMES OF REPORTING PERSONS
Joseph Ovsenek
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ☐
(b) ☐
|
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS (SEE INSTRUCTIONS)
PF
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2 ☐
Not Applicable
|
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Canada
|
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH:
|
7
|
SOLE VOTING POWER
As of May 3, 2022: 1,700,000(1)
As of September 28, 2022: 1,433,333(2)
As of October 2, 2023: 1,600,000(3)
As of November 9, 2023: 1,200,000(4)
|
|
8
|
SHARED VOTING POWER
0
|
|
9
|
SOLE DISPOSITIVE POWER
As of May 3, 2022: 1,700,000(1)
As of September 28, 2022: 1,433,333(2)
As of October 2, 2023: 1,600,000(3)
As of November 9, 2023: 1,200,000(4)
|
|
10
|
SHARED DISPOSITIVE POWER
0
|
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
As of May 3, 2022: 1,700,000(1)
As of September 28, 2022: 1,433,333(2)
As of October 2, 2023: 1,600,000(3)
As of November 9, 2023: 1,200,000(4)
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) ☐
NOT APPLICABLE
|
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
As of May 3, 2022: 12.78%(5)
As of September 28, 2022: 10.77%(5)
As of October 2, 2023: 11.88%(6)
As of November 9, 2023: 8.91%(7)
|
|
14
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
IN
|
|
(1)
|
Includes 1,666,667 Common Shares and options to purchase 33,333 Common Shares.
|
|
(2)
|
Includes 1,400,000 Common Shares and options to purchase 33,333 Common Shares.
|
|
(3)
|
Includes 1,400,000 Common Shares and options to purchase 200,000 Common Shares.
|
|
(4)
|
Includes 1,000,000 Common Shares and options to purchase 200,000 Common Shares.
|
|
(5)
|
The percentages used herein are calculated based upon 13,271,750 outstanding Common Shares of the Issuer, plus 33,333 Common Shares in aggregate underlying convertible securities which are beneficially owned by
the Reporting Person and included pursuant to Rule 13d-3(d)(1)(i) of the Act.
|
|
(6)
|
The percentages used herein are calculated based upon 13,271,750 outstanding Common Shares of the Issuer, plus 200,000 Common Shares in aggregate underlying convertible securities which are beneficially owned
by the Reporting Person and included pursuant to Rule 13d-3(d)(1)(i) of the Act.
|
|
(7)
|
The percentages used herein are calculated based upon 13,271,750 outstanding Common Shares of the Issuer, plus 200,000 Common Shares in aggregate underlying convertible securities which are beneficially owned
by the Reporting Person and included pursuant to Rule 13d-3(d)(1)(i) of the Act.
|
| Item 1. |
Security and Issuer
|
|
(a) |
Title of Class of Securities:
|
Common Shares, no par value (the "Common Shares")
Austin Gold Corp. (the "Issuer")
|
(c) |
Address of Issuer's Principal Executive Offices:
|
9th Floor, 1021 West Hasting Street, Vancouver, BC V6E 0C3, Canada
| Item 2. |
Identity and Background
|
|
(a) |
Name of Reporting Person:
|
Joseph Ovsenek (the “Reporting Person”)
|
(b) |
Address of Principal Business Office:
|
9th Floor, 1021 West Hasting Street, Vancouver, BC V6E 0C3, Canada
|
(c) |
Occupation, Employment and Other Information:
|
The Reporting Person is a co-founder, Chairman, and director of Austin Gold Corp.
|
(d) |
Criminal convictions:
|
The Reporting Person has not, in the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
The Reporting Person has not, in the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which he was
or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
The Reporting Person is a citizen of Canada.
| Item 3. |
Source and Amount of Funds or Other Consideration:
|
|
(a)
|
April 2020 – Common Share Purchase
|
Upon the Issuer’s incorporation in April 2020, the Reporting Person and the Issuer entered into a subscription agreement for the Reporting Person to acquire 1,666,667 Common Shares
(after adjusting for a subsequent 3:1 reverse stock split) of the Issuer. The funds for the purchase of the Common Shares were personal funds of the Reporting Person.
|
(b)
|
December 2020 – Option Grant
|
On December 2, 2020, the Issuer granted the Reporting Person 33,333 options to purchase Common Shares of the Issuer (the "2020 Options"). The 2020 Options are exercisable at a price
of C$3.00 per share, expire on December 2, 2030 and vested immediately. The 2020 Options were granted pursuant to the Issuer's December 1, 2020 Stock Option Plan to the Reporting Person in consideration of his services as Chairman and a director of
the Issuer.
|
(c)
|
September 2022 – Common Share Sale
|
The Reporting Person sold 266,667 Common Shares pursuant to a Stock Purchase Agreement dated September 26, 2022 by and between Dennis Higgs, Kenneth McNaughton and the Reporting
Person.
|
(d)
|
October 2022 – Option Grant
|
On October 27, 2022, the Issuer granted the Reporting Person 41,667 options to purchase Common Shares of the Issuer (the “2022 Options”). The 2022 Options are exercisable at a price
of US$0.9161 per share, expire on October 27, 2027 and vest as follows: 25% vested immediately, 25% on April 27, 2023, 25% on October 27, 2023, and 25% on April 27, 2024. The 2022 Options were granted pursuant to the Issuer's Stock Option Plan
Amended and Restated as of July 5, 2021 to the Reporting Person in consideration of his services as Chairman and a director of the Issuer.
|
(e)
|
October 2023 - Option Grant
|
On October 2, 2023, the Issuer granted the Reporting Person 125,000 options to purchase Common Shares of the Issuer (the “2023 Options”). The 2023 Options are exercisable at a price
of US$0.7671 per share, expire on October 2, 2028 and vest as follows: 25% vest on April 2, 2024; 25% vest on October 2, 2024; 25% vest on April 2, 2025; and 25% vest on October 2, 2025. The 2023 Options were granted pursuant to the Issuer's 2023
Stock Incentive Plan to the Reporting Person in consideration of his services as Chairman and a director of the Issuer.
|
(f)
|
November 2023 – Common Share Sale
|
The Reporting Person sold 400,000 Common Shares pursuant to stock purchase agreements dated October 18, 2023, with various purchasers, including Dennis Higgs, the Issuer’s President
and a director. The transactions closed November 9, 2023.
| Item 4. |
Purpose of Transaction
|
|
(a)
|
April 2020 – Common Share Purchase
|
The Reporting Person acquired the Common Shares for investment purposes and to exercise control over the Issuer.
|
(b)
|
December 2020 – Option Grant
|
The Reporting Person was granted the 2020 Options under the Issuer's December 1, 2020 Stock Option Plan in consideration of his services as Chairman and a director of the Issuer.
|
(c)
|
September 2022 – Common Share Sale
|
The Reporting Person disposed of the Common Shares to cover personal obligations.
|
(d)
|
October 2022 – Option Grant
|
The Reporting Person was granted the 2022 Options under the Issuer's Stock Option Plan Amended and Restated as of July 5, 2021 in consideration of his services as Chairman and a
director of the Issuer.
|
(e)
|
October 2022 – Option Grant
|
The Reporting Person was granted the 2023 Options under the Issuer's 2023 Stock Incentive Plan in consideration of his services as Chairman and a director of the Issuer.
|
(f)
|
November 2023 – Common Share Sale
|
The Reporting Person disposed of the Common Shares to cover personal obligations.
| Item 5. |
Interest in Securities of the Issuer:
|
|
(a) |
As of the date hereof, the Reporting Person may be deemed to beneficially own 1,200,000 Common Shares, representing approximately 8.91% of the Issuer’s Common Shares (on the basis of 13,271,750 outstanding common shares of the Issuer, plus
200,000 common shares in aggregate underlying convertible securities which are beneficially owned by the Reporting Person and included pursuant to Rule 13d-3(d)(1)(i) of the Act). The total number of Common Shares reported includes (i)
1,000,000 Common Shares and (ii) 200,000 in stock options exercisable for Common Shares.
|
(b) (i) Sole power to vote or to direct the vote: 1,200,000 Common Shares
|
(ii) |
Shared power to vote or to direct the vote: 0 Common Shares
|
|
(iii) |
Sole power to dispose or direct the disposition: 1,200,000 Common Shares
|
|
(iv) |
Shared power to dispose or direct the disposition: 0 Common Shares.
|
| Item 6. |
Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer:
|
Item 3 of this Schedule 13D summarizes certain provisions of the subscription agreement, the stock purchase agreement, and the options and is incorporated herein
by reference. The options held by the Reporting Person were granted pursuant to the Issuer’s December 1, 2020 Stock Option Plan, the Issuer’s Stock Option Plan Amended and Restated as of July 5, 2021, as described in the Issuer’s Form 20-F for the
fiscal year ended December 31, 2022 as filed with the Commission on March 29, 2023, and the Issuer’s 2023 Stock Incentive Plan, effective May 10, 2023, as filed with the Commission on June 30, 2023.
The Reporting Person has entered into stock purchase agreements dated October 18, 2023, with various purchasers, including Dennis Higgs, the Issuer’s President and a director, to
sell a total of 400,000 shares of common stock upon satisfaction of the closing conditions set forth therein. The transactions closed on November 9, 2023.
| Item 7. |
Material to Be Filed as Exhibits:
|
|
Exhibit 10.1 |
Stock Option Plan dated December 1, 2020 (incorporated by reference to Exhibit 10.1 to the Form S-1 registration statement as filed with the
Commission on June11, 2021, File No. 333-260404) |
|
Exhibit 10.2 |
Stock Option Plan Amended and Restated as of July 5, 2021 (incorporated by reference to Exhibit 10.1 to the Form S-1 registration
statement as filed with the Commission on October 21, 2021, File No. 333-260404) |
|
Exhibit 10.3 |
2023 Stock Incentive Plan, effective May 10, 2023 (incorporated by reference to Exhibit 4.3 to the Form S-8 registration statement
filed with the Commission on June 30, 2023, File No. 333-273046) |
|
Exhibit 10.4 |
Stock Purchase Agreement dated September 26, 2022 by and between the Reporting Person and Kenneth McNaughton and Dennis Higgs.
|
|
Exhibit 10.5 |
Stock Purchase Agreement dated October 18, 2023 by and between the Reporting Person and Dennis Higgs
|
|
Exhibit 10.6 |
Stock Purchase Agreement dated October 18, 2023 by and between the Reporting Person and Brooklyn Higgs
|
|
Exhibit 10.7 |
Stock Purchase Agreement dated October 18, 2023 by and between the Reporting Person and Douglas Higgs
|
|
Exhibit 10.8 |
Stock Purchase Agreement dated October 18, 2023 by and between the Reporting Person and Robert Hatch
|
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Date: November 18, 2023
/s/ Joseph Ovsenek
Joseph Ovsenek
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE
AGREEMENT (this “Agreement”) is made as of this 26th day of September, 2022, by and between Joseph Ovsenek, a resident of
British Columbia, Canada and Kenneth McNaughton, a resident of British Columbia, Canada, (each a “Seller” and together the “Sellers”) and Dennis Higgs, a resident of British Columbia, Canada (“Higgs”
or the “Purchaser”).
RECITALS
WHEREAS,
Sellers each own 266,667 common shares of Austin Gold Corp., a British Columbia corporation (the “Company”); and
WHEREAS,
Sellers desire to sell all of such common shares to Purchaser, and Purchaser desires to purchase from Sellers all of such common shares for the consideration and on the terms set forth in this Agreement.
AGREEMENT
NOW, THEREFORE,
in consideration of the foregoing and the promises and covenants contained herein, the sufficiency of which is hereby acknowledged, all parties hereto agree as follows:
A. PURCHASE OF SHARES
1. The Shares. Subject to the satisfaction of the terms and
conditions set forth in this Agreement, Sellers each agree to sell 266,667 common shares of the Company to Purchaser, and Purchasers agrees to buy from each Seller 266,667 common shares of the Company for cash consideration in the aggregate amount
of US$4,000.00 (the “Purchase Price”) to each Seller, representing a price of US$0.015 per common share.
2. Payment of Purchase Price. The payment of the Purchase Price by
Purchaser to each Seller shall be made at the Closing (as defined herein) by wire transfer to an account designated in writing by each such Seller at least one business day before the Closing Date or by delivery of other immediately available
funds, including certified checks or bank drafts in the name as designated in writing by each such Seller at least one business day before the Closing Date.
3. The Closing. Following the satisfaction or waiver of all
conditions to the obligations of the parties to consummate the transactions contemplated hereby, the closing of the transactions contemplated by this Agreement (the “Closing”) shall take place at the offices of Dorsey & Whitney LLP in Denver, Colorado commencing at 10:30 a.m. local time on September __, 2022 or such other location and date as Purchaser and
Sellers may mutually determine (the “Closing Date”).
4. Transfer of Shares. Concurrently with the delivery of the Purchase
Price at the Closing, Sellers shall each deliver to Purchaser the stock certificate(s) representing the 266,667 common shares from each Seller endorsed in blank or accompanied by duly executed assignment documents, free and clear from any
restrictions on transfer, except for (i) restrictions on transfer set forth in that certain Lock-Up Agreement by and between each Seller and Roth Capital Partners, LLC (“Roth”) dated May 3, 2022 (the “Lock-Up Agreements”), which the Purchaser is also bound by (“Purchaser Lock-Up Agreement”) and Purchaser hereby agrees that the common shares acquired hereunder will be subject to the Purchaser Lock-Up Agreement to the same
extent as if such shares had been held by the Purchaser on the date of the Purchaser Lock-Up Agreement.
B. REPRESENTATIONS AND WARRANTIES OF PURCHASERS
The Purchaser hereby represents, warrants and covenants that:
1. Authorization. Purchaser has full power and authority to enter
into this Agreement, and such agreement constitutes a valid and legally binding obligation, enforceable in accordance with its terms except (i) as limited by applicable bankruptcy and other laws of general application affecting enforcement of
creditors’ rights generally and (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.
2. Residence and Legal Capacity. Purchaser is a resident of the
jurisdiction indicated on the signature page hereof, is of the age of majority for the jurisdiction in which such Purchaser resides and has sufficient legal capacity to execute this Agreement.
3. Access to Information. Purchaser has had access during the course
of this transaction and prior to the execution of this Agreement to all information necessary to enable Purchaser to evaluate the merits and risks of a prospective investment in the Company.
4. No-Conflict. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will (A) violate any statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to
which Purchaser is subject or (B) result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract,
lease, license, instrument, or other arrangement to which Purchaser is a party or by which he is bound, which breach, default, acceleration, right or requirement would prevent the Purchaser from consummating the transactions contemplated by this
Agreement.
5. Brokers’ Fees. Purchaser has no liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which any other Purchaser or Sellers could become liable or obligated.
6. Investment Intent. Purchaser is not acquiring the common shares
with a view to or for sale in connection with any distribution thereof within the meaning of the U.S. Securities Act of 1933, as amended (the “U.S.
Securities Act”). Purchaser is aware that the common shares are being sold to him in a transaction that is exempt from the registration requirements of the U.S. Securities Act and pursuant to similar exemptions from any applicable
securities laws or regulations of any state of the United States. Purchaser has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of investments such as the Shares and is able to
bear the economic risk of loss of its entire investment.
7. U.S. Resale Restrictions. Purchaser understands and acknowledges
that the Shares have not been registered under the U.S. Securities Act or any applicable securities laws of any state of the United States or regulations and may not be offered, sold, pledged or transferred, directly or indirectly in the United
States or to, or for the account or benefit of a U.S. Person, unless so registered or pursuant to an available exemption from such registration requirements and as a director and officer to the Company, Purchaser is considered an “affiliate” of the
Company and is subject to control shares provisions under Rule 144 of the U.S. Securities Act. Unless registered, such control share provisions restrict the ability of the Purchaser to sale of his shares in the open market in the United States
subject to certain hold period, manner of sale, volume of sale and notice of sale restrictions.
C. REPRESENTATIONS AND WARRANTIES OF SELLER
Each Seller, severally and not jointly, hereby represents, warrants and covenants that:
1. Authorization. Such Seller has full power and authority to enter
into this Agreement, and such agreement constitutes a valid and legally binding obligation, enforceable in accordance with its terms against such Seller except (i) as limited by applicable bankruptcy and other laws of general application affecting
enforcement of creditors’ rights generally and (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.
2. Residence and Legal Capacity. Such Seller is a resident of the
jurisdiction indicated on the signature page hereof, is of the age of majority for the jurisdiction in which they reside and have sufficient legal capacity to execute this Agreement.
3. Ownership of the Shares. Seller is the sole registered and
beneficial owner of the common shares being sold pursuant to this Agreement and has full power and authority to convey such common shares free and clear of all liens, encumbrances, restrictions and claims of every kind and, upon delivery of and
payment for such common shares as herein provided, Purchaser shall acquire good and valid title thereto, free and clear of all liens, encumbrances, restrictions and claims of every kind, except for the restrictions set forth in the applicable
Lock-Up Agreements and as may be imposed pursuant to applicable securities laws. There is no outstanding subscription, warrant, call, commitment, option or other agreement or right of any kind to purchase or otherwise to receive or acquire from
Purchasers any interest in such Shares. Seller is not a party to any voting trust, proxy, or other agreement or understanding with respect to the voting of any capital stock of the Company.
4. Access to Information. Seller has had the opportunity to ask
questions and receive answers concerning the terms and conditions of the transaction contemplated by this Agreement and have had access to such information concerning the Company as the Seller has considered necessary or appropriate in connection
with their investment decision to sell the common shares, including access to the Company’s public filings available on the Internet at www.sedar.com and www.sec.gov, and that any answers to questions and any reasonable requests for information
have been complied with to the Sellers’ complete satisfaction. Sellers have had the opportunity to seek independent legal and tax advice relative to this transaction and Sellers have such knowledge and experience in financial and business matters,
either alone or in consultation with their advisors, as to be capable of evaluating the merits and risks of the sale of the Shares.
5. No-Conflict. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will (A) violate any statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to
which either Seller is subject or (B) result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract,
lease, license, instrument, or other arrangement to which either Seller is a party or by which he or she is bound, which breach, default, acceleration, right or requirement would prevent the Sellers from consummating the transactions contemplated
by this Agreement.
6. No Consents. Except for the consent of Roth pursuant to the
Seller’s Lock-Up Agreement, no consent of any third-party is necessary for the Seller to sell the common shares or consummate any of the transactions contemplated by this Agreement. Any consent of the Seller’s spouse required pursuant to any
applicable communal property laws of the Seller’s jurisdiction of residence has been obtained and will be delivered at Closing.
7. Brokers’ Fees. Seller has no liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which any Purchaser could become liable or obligated.
8. Private Resale. Seller: (A) acquired the common shares for their
own account for investment purposes and not with a view to any distribution of such common shares, (B) have not engaged in any form of general solicitation or general advertising in connection with the sale of the common shares, and (C) Purchaser
was the only offeree with respect to the sale of such common shares.
9. Release of Future Gains. Seller acknowledges that by selling the common shares he is foregoing any potential future gains and/or dividends or distributions resulting from the ownership of the common shares
and Seller hereby releases Purchaser from any and all claims, rights or actions of Seller against Purchaser in relation to any such future gains and/or dividends or distributions. Seller acknowledges that the market value of the common
shares is currently and could, in the future and depending on the success of the Company’s business, become worth substantially more than the price at which the Purchaser is purchasing the common shares from the Seller. Seller acknowledges that
the market value of the common shares could, in the future and depending on the success of the Company’s business, become worth substantially more than the price at which the Purchaser is purchasing the common shares from the Seller. Seller
understands that the Company has from time to time explored, and will continue to explore, exit strategies, including, without limitation, selling the Company, merger, consolidation and similar transactions. Seller understands that any future sale
of common shares of the Company in relation to such a transaction could be at a premium or a discount to the per common share Purchase Price, and such sale could occur at any time or not at all.
10. No Representations Regarding Price. Sellers acknowledges that Purchaser has not made any representations to them regarding the potential future price of the common shares and that the Seller has independently
determined, either alone or in consultation with their advisors, that the Purchase Price is sufficient compensation for the value of the common shares and is fair and equitable to the Seller. Seller further understands that the Purchase
Price was determined through an arm’s length negotiation between Seller and Purchaser and that Seller did not rely on Purchaser or any other person to determine the value of the common shares, and that the actual fair market value of the common
shares could be higher or lower than the Purchase Price.
11. Use of Proceeds. Seller represents that they will not use the
proceeds of the sale of the common shares for any unlawful purpose.
12. Release of Claims. Seller on his own behalf and on behalf of his
respective heirs, family members, executors, agents, and assigns, hereby and forever releases the Purchaser and his heirs, family members, executors, agents, and assigns (“Releases”) from, and agrees not to sue concerning, or in any manner to institute, prosecute, or pursue, any claim, complaint, charge, duty, obligation, or cause of action relating to any matters of
any kind, whether presently known or unknown, suspected or unsuspected, that Seller may possess against any of the Releases arising from this or related to this Agreement or relating to the Purchase Price.
D. Tax Consequences. Seller has reviewed
with their own tax advisors the federal, state, local and foreign tax consequences of this Agreement and the transactions contemplated hereunder. Seller is relying solely on their own such advisors and not on any statements or representations of
the Company or its agents or the Purchaser or their agents. Seller understands, acknowledges and agrees that they shall be responsible for their own
tax liability that may arise as a result of this Agreement or the transactions contemplated hereunder; provided however, that if the Canada Revenue Agency determines that the sale of the common shares under this Agreement is a taxable transaction
at a per common share price higher than per common share Purchase Price under this Agreement, such that Seller has tax owing as a result of the sale of common shares under this Agreement, then Purchaser agrees to promptly pay such tax owing as a
result of the specific sale under this Agreement. The Purchaser makes no representations or warranties with respect to the tax consequences of the payments and any other consideration provided to Seller or made on their behalf under the
terms of this Agreement.INDEMNITY
Seller, severally and not jointly, shall indemnify, defend and hold Purchaser harmless against any and all
liabilities, loss, cost or damage, together with all reasonable costs and expenses related thereto (including reasonable legal and accounting fees and expenses), arising from, relating to, or connected with any untrue, inaccurate or breached
statement, representation, warranty or covenant of such Seller set forth in this Agreement.
Purchaser shall indemnify, defend and hold each Seller harmless against any and all liabilities, loss, cost or
damage, together with all reasonable costs and expenses related thereto (including reasonable legal and accounting fees and expenses), arising from, relating to, or connected with any untrue, inaccurate or breached statement, representation, warranty
or covenant of Purchaser set forth in this Agreement,
E. BEST EFFORTS TO CLOSE
Each of the parties will use his or her reasonable best efforts to take all action and to do all things necessary,
proper, or advisable in order to consummate and make effective the transactions contemplated by this Agreement.
F. CONDITIONS TO OBLIGATIONS TO CLOSE
1. Conditions to Obligation of Purchaser. The obligation of Purchaser to consummate the transactions to be performed by each of them in connection with the Closing is subject
to satisfaction of the following conditions:
(a) Purchaser shall have agreed that the common shares purchased hereunder will be governed by the Purchaser’s Lock-UP Agreement to the satisfaction of Roth;
(b) the representations and warranties set forth in Article C above shall be true and correct in all material respects at and as of the Closing Date;
(c) Seller shall have performed and complied with all of his covenants hereunder in all material respects through the Closing;
(d) no action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction
or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this
Agreement to be rescinded following consummation, or (C) affect adversely the rights of Purchaser to own the common shares;
(e) all actions to be taken by Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents
required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Purchaser; and
Purchaser may waive any condition specified in this section if each Purchaser executes a writing so stating at or
prior to the Closing.
2. Conditions to Obligation of the Seller. The obligation of each Seller to consummate the transactions to be performed by them in connection with the Closing is subject to
satisfaction of the following conditions:
(a) Seller shall have received the consent of Roth under such Seller’s Lock-Up Agreement for the transaction contemplated by this Agreement;
(b) the representations and warranties set forth Article B above shall be true and correct in all material respects at and as of the Closing Date;
(c) Purchaser shall have performed and complied with all of his covenants hereunder in all material respects through the Closing;
(c) no action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction
or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement or (B) cause any of the transactions contemplated by
this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect); and
(d) all actions to be taken by Purchasers in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents
required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Seller.
The Seller may waive any condition specified in this section if they execute a writing so stating at or prior to
the Closing.
G. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All of the representations and warranties of the parties contained in this Agreement shall survive the Closing
hereunder (even if the damaged party knew or had reason to know of any misrepresentation or breach of warranty or covenant at the time of Closing) and continue in full force and effect forever thereafter (subject to any applicable statutes of
limitations).
H. MISCELLANEOUS PROVISIONS
1. Successors and Assigns. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party, other than the
parties hereto or their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
2. Governing Law; Attorneys’ Fees. This Agreement shall be governed
by and construed in accordance with the laws of the Province of British Columbia, without regards to conflict of law principles thereof. To the extent any dispute arises between the Parties hereto regarding any of the subject matter hereof, the
prevailing party in any action or arbitration proceeding, including any action for emergency or equitable relief brought in connection therewith will be entitled to reasonable attorneys’ fees and court costs from the losing party.
3. Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
4. Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the party to be notified, (ii) when sent by confirmed telex or email if sent during normal business hours of the recipient, if not, then on the next business day;
(iii) five days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification
of receipt, to the addresses of the Sellers and Purchaser set forth of the signature page hereto.
5. Amendments and Waivers. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of Sellers and Purchaser.
6. Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms.
7. Entire Agreement. This Agreement and the documents referred to
herein constitute the entire agreement among the parties and no party shall be liable or bound to any other party in any manner by any warranties, representations or covenants except as specifically set forth herein or therein.
8. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
9. Expenses. Each of the parties will bear his or her own costs and
expenses (including legal fees and expenses) incurred in connection with this Agreement and the transactions contemplated hereby.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties
have executed this Agreement as of the date first above written.
|
SELLERS
Joseph Ovsenek
(Signature)
Address: 2821 Kitchener Street
Vancouver, BC
V5K 3E4
Email: jovsenek@p2gold.com
Kenneth McNaughton
(Signature)
Address: 3492 West 6th Ave
Vancouver, BC
V6R 1T3
Email: kmcnaughton@p2gold.com
PURCHASER:
Dennis Higgs
(Signature)
Address: 4520 West 5th Ave
Vancouver, BC
V6R 1S7
Email: dennis@senategroup.com
|
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this
“Agreement”) is made as of this 18th
day of October, 2023, by and between Joseph Ovsenek, a resident of British Columbia, Canada (the “Seller”) and Dennis Higgs, a resident of British
Columbia, Canada (“Higgs” or the “Purchaser”).
RECITALS
WHEREAS,
Seller owns 250,000 common shares of Austin Gold Corp., a British Columbia corporation (the “Company”); and
WHEREAS,
Seller desires to sell all of such common shares to Purchaser, and Purchaser desires to purchase from Seller all of such common shares for the consideration and on the terms set forth in this Agreement.
AGREEMENT
NOW, THEREFORE,
in consideration of the foregoing and the promises and covenants contained herein, the sufficiency of which is hereby acknowledged, all parties hereto agree as follows:
A. PURCHASE OF SHARES
1. The Shares. Subject to the
satisfaction of the terms and conditions set forth in this Agreement, Seller agrees to sell 250,000 common shares of the Company to Purchaser, and Purchaser agrees to buy from Seller 250,000 common shares of the Company for cash consideration in
the aggregate amount of C$250,000.00 (the “Purchase Price”) to the Seller, representing a price of C$1.00 per common share.
2. Payment of Purchase Price. The
payment of the Purchase Price by Purchaser to Seller shall be made at the Closing (as defined herein) by wire transfer to an account designated in writing by each such Seller at least one business day before the Closing Date or by delivery of other
immediately available funds, including certified checks or bank drafts in the name as designated in writing by Seller at least one business day before the Closing Date, or by delivery against payment (“DAP”) if transacted within brokerage accounts.
3. The Closing. Following the
satisfaction or waiver of all conditions to the obligations of the parties to consummate the transactions contemplated hereby, the closing of the transactions contemplated by this Agreement (the “Closing”) shall take place at the offices of Dorsey & Whitney LLP in Denver, Colorado commencing at 10:30 a.m. local time on October 25, 2023 or such other location and
date as Purchaser and Sellers may mutually determine (the “Closing Date”).
4. Transfer of Shares. Concurrently with the delivery of the Purchase
Price at the Closing, Seller shall deliver to Purchaser the stock certificate(s) representing the 250,000 common shares from the Seller endorsed in blank or accompanied by duly executed assignment documents, free and clear from any restrictions on
transfer.
B. REPRESENTATIONS AND WARRANTIES OF PURCHASERS
The Purchaser hereby represents, warrants and covenants that:
1. Authorization.
Purchaser has full power and authority to enter into this Agreement, and such agreement constitutes a valid and legally binding obligation, enforceable in accordance with its terms except (i) as limited by applicable bankruptcy and other laws of
general application affecting enforcement of creditors’ rights generally and (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.
2. Residence
and Legal Capacity. Purchaser is a resident of the jurisdiction indicated on the signature page hereof, is of the age of majority for the jurisdiction in which such Purchaser resides and has sufficient legal capacity to execute this
Agreement.
3. Access
to Information. Purchaser has had access during the course of this transaction and prior to the execution of this Agreement to all information necessary to enable Purchaser to evaluate the merits and risks of a prospective investment
in the Company.
4. No-Conflict. Neither the execution
and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will (A) violate any statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which Purchaser is subject or (B) result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other arrangement to which Purchaser is a party or by which he is bound, which breach, default, acceleration, right or requirement would prevent the Purchaser from consummating the
transactions contemplated by this Agreement.
5. Brokers’ Fees. Purchaser has no
liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which any other Purchaser or Sellers could become liable or obligated.
6. Investment Intent. Purchaser is
not acquiring the common shares with a view to or for sale in connection with any distribution thereof within the meaning of the U.S. Securities Act of 1933, as amended (the “U.S. Securities Act”). Purchaser is aware that the common shares are being sold to him in a transaction that is exempt from the registration requirements of the U.S. Securities Act and pursuant to similar
exemptions from any applicable securities laws or regulations of any state of the United States. Purchaser has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of investments
such as the Shares and is able to bear the economic risk of loss of its entire investment.
7. U.S. Resale Restrictions.
Purchaser understands and acknowledges that the Shares have not been registered under the U.S. Securities Act or any applicable securities laws of any state of the United States or regulations and may not be offered, sold, pledged or transferred,
directly or indirectly in the United States or to, or for the account or benefit of a U.S. Person, unless so registered or pursuant to an available exemption from such registration requirements and as a director and officer to the Company,
Purchaser is considered an “affiliate” of the Company and is subject to control shares provisions under Rule 144 of the U.S. Securities Act. Unless registered, such control share provisions restrict the ability of the Purchaser to sell his shares
in the open market in the United States subject to certain hold period, manner of sale, volume of sale and notice of sale restrictions.
C. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents, warrants and covenants that:
1. Authorization. Such Seller has
full power and authority to enter into this Agreement, and such agreement constitutes a valid and legally binding obligation, enforceable in accordance with its terms against such Seller except (i) as limited by applicable bankruptcy and other laws
of general application affecting enforcement of creditors’ rights generally and (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.
2. Residence and Legal Capacity. Such
Seller is a resident of the jurisdiction indicated on the signature page hereof, is of the age of majority for the jurisdiction in which they reside and have sufficient legal capacity to execute this Agreement.
3. Ownership of the Shares. Seller is
the sole registered and beneficial owner of the common shares being sold pursuant to this Agreement and has full power and authority to convey such common shares free and clear of all liens, encumbrances, restrictions and claims of every kind and,
upon delivery of and payment for such common shares as herein provided, Purchaser shall acquire good and valid title thereto, free and clear of all liens, encumbrances, restrictions and claims of every kind, except for the restrictions as may be
imposed pursuant to applicable securities laws. There is no outstanding subscription, warrant, call, commitment, option or other agreement or right of any kind to purchase or otherwise to receive or acquire from Purchasers any interest in such
Shares. Seller is not a party to any voting trust, proxy, or other agreement or understanding with respect to the voting of any capital stock of the Company.
4. Access to Information. Seller has
had the opportunity to ask questions and receive answers concerning the terms and conditions of the transaction contemplated by this Agreement and have had access to such information concerning the Company as the Seller has considered necessary or
appropriate in connection with their investment decision to sell the common shares, including access to the Company’s public filings available on the Internet at www.sedar.com and www.sec.gov, and that any answers to questions and any reasonable
requests for information have been complied with to the Sellers’ complete satisfaction. Sellers have had the opportunity to seek independent legal and tax advice relative to this transaction and Sellers have such knowledge and experience in
financial and business matters, either alone or in consultation with their advisors, as to be capable of evaluating the merits and risks of the sale of the Shares.
5. No-Conflict. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will (A) violate any statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to
which Seller is subject or (B) result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease,
license, instrument, or other arrangement to which Seller is a party or by which he or she is bound, which breach, default, acceleration, right or requirement would prevent the Sellers from consummating the transactions contemplated by this
Agreement.
6. No Consents. No consent of any third-party is necessary for the
Seller to sell the common shares or consummate any of the transactions contemplated by this Agreement. Any consent of the Seller’s spouse required pursuant to any applicable communal property laws of the Seller’s jurisdiction of residence has been
obtained and will be delivered at Closing.
7. Brokers’ Fees. Seller has no
liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which any Purchaser could become liable or obligated.
8. Private Resale. Seller: (A) acquired the common shares for their
own account for investment purposes and not with a view to any distribution of such common shares, (B) have not engaged in any form of general solicitation or general advertising in connection with the sale of the common shares, and (C) Purchaser
was the only offeree with respect to the sale of such common shares.
9. Release of Future Gains. Seller acknowledges that by selling the common shares he is foregoing any potential future gains and/or dividends or distributions resulting from the ownership of the common shares
and Seller hereby releases Purchaser from any and all claims, rights or actions of Seller against Purchaser in relation to any such future gains and/or dividends or distributions. Seller acknowledges that the market value of the common
shares is currently and could, in the future and depending on the success of the Company’s business, become worth substantially more than the price at which the Purchaser is purchasing the common shares from the Seller. Seller acknowledges that the
market value of the common shares could, in the future and depending on the success of the Company’s business, become worth substantially more than the price at which the Purchaser is purchasing the common shares from the Seller. Seller understands
that the Company has from time to time explored, and will continue to explore, exit strategies, including, without limitation, selling the Company, merger, consolidation and similar transactions. Seller understands that any future sale of common
shares of the Company in relation to such a transaction could be at a premium or a discount to the per common share Purchase Price, and such sale could occur at any time or not at all.
10. No Representations Regarding Price. Sellers acknowledges that Purchaser has not made any representations to them regarding the potential future price of the common shares and that the Seller has independently
determined, either alone or in consultation with their advisors, that the Purchase Price is sufficient compensation for the value of the common shares and is fair and equitable to the Seller. Seller further understands that the Purchase
Price was determined through an arm’s length negotiation between Seller and Purchaser and that Seller did not rely on Purchaser or any other person to determine the value of the common shares, and that the actual fair market value of the common
shares could be higher or lower than the Purchase Price.
11. Use of Proceeds. Seller represents that they will not use the
proceeds of the sale of the common shares for any unlawful purpose.
12. Release of Claims. Seller on his own behalf and on behalf of his
respective heirs, family members, executors, agents, and assigns, hereby and forever releases the Purchaser and his heirs, family members, executors, agents, and assigns (“Releasees”) from, and agrees not to sue concerning, or in any manner to institute, prosecute, or pursue, any claim, complaint, charge, duty, obligation, or cause of action relating to any matters of
any kind, whether presently known or unknown, suspected or unsuspected, that Seller may possess against any of the Releasees arising from this or related to this Agreement or relating to the Purchase Price.
13. Tax Consequences. Seller has reviewed with their own tax advisors
the federal, state, local and foreign tax consequences of this Agreement and the transactions contemplated hereunder. Seller is relying solely on their own such advisors and not on any statements or representations of the Company or its agents or
the Purchaser or their agents. Seller understands, acknowledges and agrees that they shall be responsible for their own tax liability that may arise
as a result of this Agreement or the transactions contemplated hereunder. The Purchaser makes no representations or warranties with respect to the tax consequences of the payments and any other consideration provided to Seller or made on
their behalf under the terms of this Agreement.
D. INDEMNITY
Seller shall indemnify, defend and hold Purchaser harmless against any and all liabilities, loss, cost or damage, together with all
reasonable costs and expenses related thereto (including reasonable legal and accounting fees and expenses), arising from, relating to, or connected with any untrue, inaccurate or breached statement, representation, warranty or covenant of such
Seller set forth in this Agreement.
Purchaser shall indemnify, defend and hold Seller harmless against any and all liabilities, loss, cost or damage, together with all
reasonable costs and expenses related thereto (including reasonable legal and accounting fees and expenses), arising from, relating to, or connected with any untrue, inaccurate or breached statement, representation, warranty or covenant of Purchaser
set forth in this Agreement.
E. BEST EFFORTS TO CLOSE
Each of the parties will use his or her reasonable best efforts to take all action and to do all things necessary,
proper, or advisable in order to consummate and make effective the transactions contemplated by this Agreement.
F. CONDITIONS TO OBLIGATIONS TO CLOSE
1. Conditions to Obligation of Purchaser. The obligation of
Purchaser to consummate the transactions to be performed by each of them in connection with the Closing is subject to satisfaction of the following conditions:
(a) the representations and warranties set forth in Article C above shall be true and correct in all material respects at and as of the Closing Date;
(b) Seller shall have performed and complied with all of his covenants hereunder in all material respects through the Closing;
(c) no action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state,
local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the
transactions contemplated by this Agreement to be rescinded following consummation, or (C) affect adversely the rights of Purchaser to own the common shares;
(d) all actions to be taken by Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions,
instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Purchaser; and
Purchaser may waive any condition specified in this section if each Purchaser executes a writing so stating at or
prior to the Closing.
2. Conditions to Obligation of the Seller. The obligation
of Seller to consummate the transactions to be performed by them in connection with the Closing is subject to satisfaction of the following conditions:
(a) the representations and warranties set forth Article B above shall be true and correct in all material respects at and as of the Closing Date;
(b) Purchaser shall have performed and complied with all of his covenants hereunder in all material respects through the Closing;
(c) no action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state,
local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement or (B) cause any of the
transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect); and
(d) all actions to be taken by Purchaser in connection with consummation of the transactions contemplated hereby and all certificates, opinions,
instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Seller.
The Seller may waive any condition specified in this section if they execute a writing so stating at or prior to
the Closing.
G. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All of the representations and warranties of the parties contained in this Agreement shall survive the Closing
hereunder (even if the damaged party knew or had reason to know of any misrepresentation or breach of warranty or covenant at the time of Closing) and continue in full force and effect forever thereafter (subject to any applicable statutes of
limitations).
H. MISCELLANEOUS PROVISIONS
1. Successors and Assigns. Except as
otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon
any party, other than the parties hereto or their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
2. Governing Law; Attorneys’ Fees. This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia, without regards to conflict of law principles
thereof. To the extent any dispute arises between the Parties hereto regarding any of the subject matter hereof, the prevailing party in any action or arbitration proceeding, including any action for emergency or equitable relief brought in
connection therewith will be entitled to reasonable attorneys’ fees and court costs from the losing party.
3. Titles and Subtitles. The titles
and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
4. Notices. All notices required or
permitted hereunder shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the party to be notified, (ii) when sent by confirmed telex or email if sent during normal business hours of the recipient, if not, then on
the next business day; (iii) five days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one day after deposit with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt, to the addresses of the Sellers and Purchaser set forth of the signature page hereto.
5. Amendments and Waivers. Any term
of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of Seller and Purchaser.
6. Severability. If one or more
provisions of this Agreement are held to be unenforceable under applicable law, such provision shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms.
7. Entire Agreement. This Agreement
and the documents referred to herein constitute the entire agreement among the parties and no party shall be liable or bound to any other party in any manner by any warranties, representations or covenants except as specifically set forth herein or
therein.
8. Counterparts. This Agreement may
be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
9. Expenses. Each of the parties will
bear his or her own costs and expenses (including legal fees and expenses) incurred in connection with this Agreement and the transactions contemplated hereby.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties
have executed this Agreement as of the date first above written.
|
SELLER:
|
|
Joseph Ovsenek
(Signature)
|
|
Address:
2821 Kitchener Street
Vancouver, BC
V5K 3E4
Email: jovsenek@p2gold.com
|
| |
|
PURCHASER:
|
|
|
Dennis Higgs
_
|
|
|
(Signature)
|
|
Address:
4520 West 5th Ave
Vancouver, B.C.
V6R 1S7
Email: dennis.higgs@austin.gold
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this
“Agreement”) is made as of this 18th
day of October, 2023, by and between Joseph Ovsenek, a resident of British Columbia, Canada (the “Seller”) and Brooklyn Higgs, a resident of
British Columbia, Canada (“Higgs” or the “Purchaser”).
RECITALS
WHEREAS,
Seller owns 50,000 common shares of Austin Gold Corp., a British Columbia corporation (the “Company”); and
WHEREAS,
Seller desires to sell all of such common shares to Purchaser, and Purchaser desires to purchase from Seller all of such common shares for the consideration and on the terms set forth in this Agreement.
AGREEMENT
NOW, THEREFORE,
in consideration of the foregoing and the promises and covenants contained herein, the sufficiency of which is hereby acknowledged, all parties hereto agree as follows:
A. PURCHASE OF SHARES
1. The Shares. Subject to the
satisfaction of the terms and conditions set forth in this Agreement, Seller agrees to sell 50,000 common shares of the Company to Purchaser, and Purchaser agrees to buy from Seller 50,000 common shares of the Company for cash consideration in the
aggregate amount of C$50,000.00 (the “Purchase Price”) to the Seller, representing a price of C$1.00 per common share.
2. Payment of Purchase Price. The
payment of the Purchase Price by Purchaser to Seller shall be made at the Closing (as defined herein) by wire transfer to an account designated in writing by each such Seller at least one business day before the Closing Date or by delivery of other
immediately available funds, including certified checks or bank drafts in the name as designated in writing by Seller at least one business day before the Closing Date, or by delivery against payment (“DAP”) if transacted within brokerage accounts.
3. The Closing. Following the
satisfaction or waiver of all conditions to the obligations of the parties to consummate the transactions contemplated hereby, the closing of the transactions contemplated by this Agreement (the “Closing”) shall take place at the offices of Dorsey & Whitney LLP in Denver, Colorado commencing at 10:30 a.m. local time on October 25, 2023 or such other location and
date as Purchaser and Sellers may mutually determine (the “Closing Date”).
4. Transfer of Shares. Concurrently with the delivery of the Purchase
Price at the Closing, Seller shall deliver to Purchaser the stock certificate(s) representing the 50,000 common shares from the Seller endorsed in blank or accompanied by duly executed assignment documents, free and clear from any restrictions on
transfer.
B. REPRESENTATIONS AND WARRANTIES OF PURCHASERS
The Purchaser hereby represents, warrants and covenants that:
1. Authorization.
Purchaser has full power and authority to enter into this Agreement, and such agreement constitutes a valid and legally binding obligation, enforceable in accordance with its terms except (i) as limited by applicable bankruptcy and other laws of
general application affecting enforcement of creditors’ rights generally and (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.
2. Residence
and Legal Capacity. Purchaser is a resident of the jurisdiction indicated on the signature page hereof, is of the age of majority for the jurisdiction in which such Purchaser resides and has sufficient legal capacity to execute this
Agreement.
3. Access
to Information. Purchaser has had access during the course of this transaction and prior to the execution of this Agreement to all information necessary to enable Purchaser to evaluate the merits and risks of a prospective investment
in the Company.
4. No-Conflict. Neither the execution
and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will (A) violate any statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which Purchaser is subject or (B) result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other arrangement to which Purchaser is a party or by which he is bound, which breach, default, acceleration, right or requirement would prevent the Purchaser from consummating the
transactions contemplated by this Agreement.
5. Brokers’ Fees. Purchaser has no
liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which any other Purchaser or Sellers could become liable or obligated.
6. Investment Intent. Purchaser is
not acquiring the common shares with a view to or for sale in connection with any distribution thereof within the meaning of the U.S. Securities Act of 1933, as amended (the “U.S. Securities Act”). Purchaser is aware that the common shares are being sold to her in a transaction that is exempt from the registration requirements of the U.S. Securities Act and pursuant to similar
exemptions from any applicable securities laws or regulations of any state of the United States. Purchaser has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of investments
such as the Shares and is able to bear the economic risk of loss of its entire investment.
7. U.S. Resale Restrictions.
Purchaser understands and acknowledges that the Shares have not been registered under the U.S. Securities Act or any applicable securities laws of any state of the United States or regulations and may not be offered, sold, pledged or transferred,
directly or indirectly in the United States or to, or for the account or benefit of a U.S. Person, unless so registered or pursuant to an available exemption from such registration requirements. Unless registered, such control share provisions
restrict the ability of the Purchaser to sell her shares in the open market in the United States subject to certain hold period, manner of sale, volume of sale and notice of sale restrictions and the Purchaser understands that they are purchasing
the Shares from affiliates of the Company and the Purchaser understands that any offer or sale of the Shares prior to the end of a 40-day distribution compliance period from the date of closing is not made to a person in the United States or for
the account or benefit of a U.S. person. “United States” and “U.S. person” are as defined in Regulation S under the U.S. Securities Act.
C. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents, warrants and covenants that:
1. Authorization. Such Seller has
full power and authority to enter into this Agreement, and such agreement constitutes a valid and legally binding obligation, enforceable in accordance with its terms against such Seller except (i) as limited by applicable bankruptcy and other laws
of general application affecting enforcement of creditors’ rights generally and (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.
2. Residence and Legal Capacity. Such
Seller is a resident of the jurisdiction indicated on the signature page hereof, is of the age of majority for the jurisdiction in which they reside and have sufficient legal capacity to execute this Agreement.
3. Ownership of the Shares. Seller is
the sole registered and beneficial owner of the common shares being sold pursuant to this Agreement and has full power and authority to convey such common shares free and clear of all liens, encumbrances, restrictions and claims of every kind and,
upon delivery of and payment for such common shares as herein provided, Purchaser shall acquire good and valid title thereto, free and clear of all liens, encumbrances, restrictions and claims of every kind, except for the restrictions as may be
imposed pursuant to applicable securities laws. There is no outstanding subscription, warrant, call, commitment, option or other agreement or right of any kind to purchase or otherwise to receive or acquire from Purchasers any interest in such
Shares. Seller is not a party to any voting trust, proxy, or other agreement or understanding with respect to the voting of any capital stock of the Company.
4. Access to Information. Seller has
had the opportunity to ask questions and receive answers concerning the terms and conditions of the transaction contemplated by this Agreement and have had access to such information concerning the Company as the Seller has considered necessary or
appropriate in connection with their investment decision to sell the common shares, including access to the Company’s public filings available on the Internet at www.sedar.com and www.sec.gov, and that any answers to questions and any reasonable
requests for information have been complied with to the Sellers’ complete satisfaction. Sellers have had the opportunity to seek independent legal and tax advice relative to this transaction and Sellers have such knowledge and experience in
financial and business matters, either alone or in consultation with their advisors, as to be capable of evaluating the merits and risks of the sale of the Shares.
5. No-Conflict. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will (A) violate any statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to
which Seller is subject or (B) result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease,
license, instrument, or other arrangement to which Seller is a party or by which he or she is bound, which breach, default, acceleration, right or requirement would prevent the Sellers from consummating the transactions contemplated by this
Agreement.
6. No Consents. No consent of any third-party is necessary for the
Seller to sell the common shares or consummate any of the transactions contemplated by this Agreement. Any consent of the Seller’s spouse required pursuant to any applicable communal property laws of the Seller’s jurisdiction of residence has been
obtained and will be delivered at Closing.
7. Brokers’ Fees. Seller has no
liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which any Purchaser could become liable or obligated.
8. Private Resale. Seller: (A) acquired the common shares for their
own account for investment purposes and not with a view to any distribution of such common shares, (B) have not engaged in any form of general solicitation or general advertising in connection with the sale of the common shares, and (C) Purchaser
was the only offeree with respect to the sale of such common shares.
9. Release of Future Gains. Seller acknowledges that by selling the common shares he is foregoing any potential future gains and/or dividends or distributions resulting from the ownership of the common shares
and Seller hereby releases Purchaser from any and all claims, rights or actions of Seller against Purchaser in relation to any such future gains and/or dividends or distributions. Seller acknowledges that the market value of the common
shares is currently and could, in the future and depending on the success of the Company’s business, become worth substantially more than the price at which the Purchaser is purchasing the common shares from the Seller. Seller acknowledges that the
market value of the common shares could, in the future and depending on the success of the Company’s business, become worth substantially more than the price at which the Purchaser is purchasing the common shares from the Seller. Seller understands
that the Company has from time to time explored, and will continue to explore, exit strategies, including, without limitation, selling the Company, merger, consolidation and similar transactions. Seller understands that any future sale of common
shares of the Company in relation to such a transaction could be at a premium or a discount to the per common share Purchase Price, and such sale could occur at any time or not at all.
10. No Representations Regarding Price. Sellers acknowledges that Purchaser has not made any representations to them regarding the potential future price of the common shares and that the Seller has independently
determined, either alone or in consultation with their advisors, that the Purchase Price is sufficient compensation for the value of the common shares and is fair and equitable to the Seller. Seller further understands that the Purchase
Price was determined through an arm’s length negotiation between Seller and Purchaser and that Seller did not rely on Purchaser or any other person to determine the value of the common shares, and that the actual fair market value of the common
shares could be higher or lower than the Purchase Price.
11. Use of Proceeds. Seller represents that they will not use the
proceeds of the sale of the common shares for any unlawful purpose.
12. Release of Claims. Seller on his own behalf and on behalf of his
respective heirs, family members, executors, agents, and assigns, hereby and forever releases the Purchaser and his heirs, family members, executors, agents, and assigns (“Releasees”) from, and agrees not to sue concerning, or in any manner to institute, prosecute, or pursue, any claim, complaint, charge, duty, obligation, or cause of action relating to any matters of
any kind, whether presently known or unknown, suspected or unsuspected, that Seller may possess against any of the Releasees arising from this or related to this Agreement or relating to the Purchase Price.
13. Tax Consequences. Seller has reviewed with their own tax advisors
the federal, state, local and foreign tax consequences of this Agreement and the transactions contemplated hereunder. Seller is relying solely on their own such advisors and not on any statements or representations of the Company or its agents or
the Purchaser or their agents. Seller understands, acknowledges and agrees that they shall be responsible for their own tax liability that may arise
as a result of this Agreement or the transactions contemplated hereunder. The Purchaser makes no representations or warranties with respect to the tax consequences of the payments and any other consideration provided to Seller or made on
their behalf under the terms of this Agreement.
D. INDEMNITY
Seller shall indemnify, defend and hold Purchaser harmless against any and all liabilities, loss, cost or damage, together with all
reasonable costs and expenses related thereto (including reasonable legal and accounting fees and expenses), arising from, relating to, or connected with any untrue, inaccurate or breached statement, representation, warranty or covenant of such
Seller set forth in this Agreement.
Purchaser shall indemnify, defend and hold Seller harmless against any and all liabilities, loss, cost or damage, together with all
reasonable costs and expenses related thereto (including reasonable legal and accounting fees and expenses), arising from, relating to, or connected with any untrue, inaccurate or breached statement, representation, warranty or covenant of Purchaser
set forth in this Agreement.
E. BEST EFFORTS TO CLOSE
Each of the parties will use his or her reasonable best efforts to take all action and to do all things necessary,
proper, or advisable in order to consummate and make effective the transactions contemplated by this Agreement.
F. CONDITIONS TO OBLIGATIONS TO CLOSE
1. Conditions to Obligation of Purchaser. The obligation of
Purchaser to consummate the transactions to be performed by each of them in connection with the Closing is subject to satisfaction of the following conditions:
(a) the representations and warranties set forth in Article C above shall be true and correct in all material respects at and as of the Closing Date;
(b) Seller shall have performed and complied with all of his covenants hereunder in all material respects through the Closing;
(c) no action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state,
local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the
transactions contemplated by this Agreement to be rescinded following consummation, or (C) affect adversely the rights of Purchaser to own the common shares;
(d) all actions to be taken by Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions,
instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Purchaser; and
Purchaser may waive any condition specified in this section if each Purchaser executes a writing so stating at or
prior to the Closing.
2. Conditions to Obligation of the Seller. The obligation
of Seller to consummate the transactions to be performed by them in connection with the Closing is subject to satisfaction of the following conditions:
(a) the representations and warranties set forth Article B above shall be true and correct in all material respects at and as of the Closing Date;
(b) Purchaser shall have performed and complied with all of his covenants hereunder in all material respects through the Closing;
(c) no action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state,
local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement or (B) cause any of the
transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect); and
(d) all actions to be taken by Purchaser in connection with consummation of the transactions contemplated hereby and all certificates, opinions,
instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Seller.
The Seller may waive any condition specified in this section if they execute a writing so stating at or prior to
the Closing.
G. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All of the representations and warranties of the parties contained in this Agreement shall survive the Closing
hereunder (even if the damaged party knew or had reason to know of any misrepresentation or breach of warranty or covenant at the time of Closing) and continue in full force and effect forever thereafter (subject to any applicable statutes of
limitations).
H. MISCELLANEOUS PROVISIONS
1. Successors and Assigns. Except as
otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon
any party, other than the parties hereto or their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
2. Governing Law; Attorneys’ Fees. This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia, without regards to conflict of law principles
thereof. To the extent any dispute arises between the Parties hereto regarding any of the subject matter hereof, the prevailing party in any action or arbitration proceeding, including any action for emergency or equitable relief brought in
connection therewith will be entitled to reasonable attorneys’ fees and court costs from the losing party.
3. Titles and Subtitles. The titles
and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
4. Notices. All notices required or
permitted hereunder shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the party to be notified, (ii) when sent by confirmed telex or email if sent during normal business hours of the recipient, if not, then on
the next business day; (iii) five days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one day after deposit with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt, to the addresses of the Sellers and Purchaser set forth of the signature page hereto.
5. Amendments and Waivers. Any term
of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of Seller and Purchaser.
6. Severability. If one or more
provisions of this Agreement are held to be unenforceable under applicable law, such provision shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms.
7. Entire Agreement. This Agreement
and the documents referred to herein constitute the entire agreement among the parties and no party shall be liable or bound to any other party in any manner by any warranties, representations or covenants except as specifically set forth herein or
therein.
8. Counterparts. This Agreement may
be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
9. Expenses. Each of the parties will
bear his or her own costs and expenses (including legal fees and expenses) incurred in connection with this Agreement and the transactions contemplated hereby.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties
have executed this Agreement as of the date first above written.
|
SELLER:
|
|
Joseph Ovsenek
(Signature)
|
|
Address:
2821 Kitchener Street
Vancouver, BC
V5K 3E4
Email: jovsenek@p2gold.com
|
| |
|
PURCHASER:
|
|
|
Brooklyn Higgs
_
|
|
|
___________________________________
(Signature)
|
|
Address: 4520 West 5th Ave
Vancouver, B.C.
V6R 1S7
Email: contact.bhiggs@gmail.com
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this
“Agreement”) is made as of this 18th
day of October, 2023, by and between Joseph Ovsenek, a resident of British Columbia, Canada (the “Seller”) and Douglas Higgs, a resident of British
Columbia, Canada (“Higgs” or the “Purchaser”).
RECITALS
WHEREAS,
Seller owns 50,000 common shares of Austin Gold Corp., a British Columbia corporation (the “Company”); and
WHEREAS,
Seller desires to sell all of such common shares to Purchaser, and Purchaser desires to purchase from Seller all of such common shares for the consideration and on the terms set forth in this Agreement.
AGREEMENT
NOW, THEREFORE,
in consideration of the foregoing and the promises and covenants contained herein, the sufficiency of which is hereby acknowledged, all parties hereto agree as follows:
A. PURCHASE OF SHARES
1. The Shares. Subject to the
satisfaction of the terms and conditions set forth in this Agreement, Seller agrees to sell 50,000 common shares of the Company to Purchaser, and Purchaser agrees to buy from Seller 50,000 common shares of the Company for cash consideration in the
aggregate amount of C$50,000.00 (the “Purchase Price”) to the Seller, representing a price of C$1.00 per common share.
2. Payment of Purchase Price. The
payment of the Purchase Price by Purchaser to Seller shall be made at the Closing (as defined herein) by wire transfer to an account designated in writing by each such Seller at least one business day before the Closing Date or by delivery of other
immediately available funds, including certified checks or bank drafts in the name as designated in writing by Seller at least one business day before the Closing Date, or by delivery against payment (“DAP”) if transacted within brokerage accounts.
3. The Closing. Following the
satisfaction or waiver of all conditions to the obligations of the parties to consummate the transactions contemplated hereby, the closing of the transactions contemplated by this Agreement (the “Closing”) shall take place at the offices of Dorsey & Whitney LLP in Denver, Colorado commencing at 10:30 a.m. local time on October 25, 2023 or such other location and
date as Purchaser and Sellers may mutually determine (the “Closing Date”).
4. Transfer of Shares. Concurrently with the delivery of the Purchase
Price at the Closing, Seller shall deliver to Purchaser the stock certificate(s) representing the 50,000 common shares from the Seller endorsed in blank or accompanied by duly executed assignment documents, free and clear from any restrictions on
transfer.
B. REPRESENTATIONS AND WARRANTIES OF PURCHASERS
The Purchaser hereby represents, warrants and covenants that:
1. Authorization.
Purchaser has full power and authority to enter into this Agreement, and such agreement constitutes a valid and legally binding obligation, enforceable in accordance with its terms except (i) as limited by applicable bankruptcy and other laws of
general application affecting enforcement of creditors’ rights generally and (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.
2. Residence
and Legal Capacity. Purchaser is a resident of the jurisdiction indicated on the signature page hereof, is of the age of majority for the jurisdiction in which such Purchaser resides and has sufficient legal capacity to execute this
Agreement.
3. Access
to Information. Purchaser has had access during the course of this transaction and prior to the execution of this Agreement to all information necessary to enable Purchaser to evaluate the merits and risks of a prospective investment
in the Company.
4. No-Conflict. Neither the execution
and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will (A) violate any statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which Purchaser is subject or (B) result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other arrangement to which Purchaser is a party or by which he is bound, which breach, default, acceleration, right or requirement would prevent the Purchaser from consummating the
transactions contemplated by this Agreement.
5. Brokers’ Fees. Purchaser has no
liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which any other Purchaser or Sellers could become liable or obligated.
6. Investment Intent. Purchaser is
not acquiring the common shares with a view to or for sale in connection with any distribution thereof within the meaning of the U.S. Securities Act of 1933, as amended (the “U.S. Securities Act”). Purchaser is aware that the common shares are being sold to him in a transaction that is exempt from the registration requirements of the U.S. Securities Act and pursuant to similar
exemptions from any applicable securities laws or regulations of any state of the United States. Purchaser has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of investments
such as the Shares and is able to bear the economic risk of loss of its entire investment.
7. U.S. Resale Restrictions.
Purchaser understands and acknowledges that the Shares have not been registered under the U.S. Securities Act or any applicable securities laws of any state of the United States or regulations and may not be offered, sold, pledged or transferred,
directly or indirectly in the United States or to, or for the account or benefit of a U.S. Person, unless so registered or pursuant to an available exemption from such registration requirements. Unless registered, such control share provisions
restrict the ability of the Purchaser to sell his shares in the open market in the United States subject to certain hold period, manner of sale, volume of sale and notice of sale restrictions and the Purchaser understands that they are purchasing
the Shares from affiliates of the Company and the Purchaser understands that any offer or sale of the Shares prior to the end of a 40-day distribution compliance period from the date of closing is not made to a person in the United States or for
the account or benefit of a U.S. person. “United States” and “U.S. person” are as defined in Regulation S under the U.S. Securities Act.
C. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents, warrants and covenants that:
1. Authorization. Such Seller has
full power and authority to enter into this Agreement, and such agreement constitutes a valid and legally binding obligation, enforceable in accordance with its terms against such Seller except (i) as limited by applicable bankruptcy and other laws
of general application affecting enforcement of creditors’ rights generally and (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.
2. Residence and Legal Capacity. Such
Seller is a resident of the jurisdiction indicated on the signature page hereof, is of the age of majority for the jurisdiction in which they reside and have sufficient legal capacity to execute this Agreement.
3. Ownership of the Shares. Seller is
the sole registered and beneficial owner of the common shares being sold pursuant to this Agreement and has full power and authority to convey such common shares free and clear of all liens, encumbrances, restrictions and claims of every kind and,
upon delivery of and payment for such common shares as herein provided, Purchaser shall acquire good and valid title thereto, free and clear of all liens, encumbrances, restrictions and claims of every kind, except for the restrictions as may be
imposed pursuant to applicable securities laws. There is no outstanding subscription, warrant, call, commitment, option or other agreement or right of any kind to purchase or otherwise to receive or acquire from Purchasers any interest in such
Shares. Seller is not a party to any voting trust, proxy, or other agreement or understanding with respect to the voting of any capital stock of the Company.
4. Access to Information. Seller has
had the opportunity to ask questions and receive answers concerning the terms and conditions of the transaction contemplated by this Agreement and have had access to such information concerning the Company as the Seller has considered necessary or
appropriate in connection with their investment decision to sell the common shares, including access to the Company’s public filings available on the Internet at www.sedar.com and www.sec.gov, and that any answers to questions and any reasonable
requests for information have been complied with to the Sellers’ complete satisfaction. Sellers have had the opportunity to seek independent legal and tax advice relative to this transaction and Sellers have such knowledge and experience in
financial and business matters, either alone or in consultation with their advisors, as to be capable of evaluating the merits and risks of the sale of the Shares.
5. No-Conflict. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will (A) violate any statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to
which Seller is subject or (B) result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease,
license, instrument, or other arrangement to which Seller is a party or by which he or she is bound, which breach, default, acceleration, right or requirement would prevent the Sellers from consummating the transactions contemplated by this
Agreement.
6. No Consents. No consent of any third-party is necessary for the
Seller to sell the common shares or consummate any of the transactions contemplated by this Agreement. Any consent of the Seller’s spouse required pursuant to any applicable communal property laws of the Seller’s jurisdiction of residence has been
obtained and will be delivered at Closing.
7. Brokers’ Fees. Seller has no
liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which any Purchaser could become liable or obligated.
8. Private Resale. Seller: (A) acquired the common shares for their
own account for investment purposes and not with a view to any distribution of such common shares, (B) have not engaged in any form of general solicitation or general advertising in connection with the sale of the common shares, and (C) Purchaser
was the only offeree with respect to the sale of such common shares.
9. Release of Future Gains. Seller acknowledges that by selling the common shares he is foregoing any potential future gains and/or dividends or distributions resulting from the ownership of the common shares
and Seller hereby releases Purchaser from any and all claims, rights or actions of Seller against Purchaser in relation to any such future gains and/or dividends or distributions. Seller acknowledges that the market value of the common
shares is currently and could, in the future and depending on the success of the Company’s business, become worth substantially more than the price at which the Purchaser is purchasing the common shares from the Seller. Seller acknowledges that the
market value of the common shares could, in the future and depending on the success of the Company’s business, become worth substantially more than the price at which the Purchaser is purchasing the common shares from the Seller. Seller understands
that the Company has from time to time explored, and will continue to explore, exit strategies, including, without limitation, selling the Company, merger, consolidation and similar transactions. Seller understands that any future sale of common
shares of the Company in relation to such a transaction could be at a premium or a discount to the per common share Purchase Price, and such sale could occur at any time or not at all.
10. No Representations Regarding Price. Sellers acknowledges that Purchaser has not made any representations to them regarding the potential future price of the common shares and that the Seller has independently
determined, either alone or in consultation with their advisors, that the Purchase Price is sufficient compensation for the value of the common shares and is fair and equitable to the Seller. Seller further understands that the Purchase
Price was determined through an arm’s length negotiation between Seller and Purchaser and that Seller did not rely on Purchaser or any other person to determine the value of the common shares, and that the actual fair market value of the common
shares could be higher or lower than the Purchase Price.
11. Use of Proceeds. Seller represents that they will not use the
proceeds of the sale of the common shares for any unlawful purpose.
12. Release of Claims. Seller on his own behalf and on behalf of his
respective heirs, family members, executors, agents, and assigns, hereby and forever releases the Purchaser and his heirs, family members, executors, agents, and assigns (“Releasees”) from, and agrees not to sue concerning, or in any manner to institute, prosecute, or pursue, any claim, complaint, charge, duty, obligation, or cause of action relating to any matters of
any kind, whether presently known or unknown, suspected or unsuspected, that Seller may possess against any of the Releasees arising from this or related to this Agreement or relating to the Purchase Price.
13. Tax Consequences. Seller has reviewed with their own tax advisors
the federal, state, local and foreign tax consequences of this Agreement and the transactions contemplated hereunder. Seller is relying solely on their own such advisors and not on any statements or representations of the Company or its agents or
the Purchaser or their agents. Seller understands, acknowledges and agrees that they shall be responsible for their own tax liability that may arise
as a result of this Agreement or the transactions contemplated hereunder. The Purchaser makes no representations or warranties with respect to the tax consequences of the payments and any other consideration provided to Seller or made on
their behalf under the terms of this Agreement.
D. INDEMNITY
Seller shall indemnify, defend and hold Purchaser harmless against any and all liabilities, loss, cost or damage, together with all
reasonable costs and expenses related thereto (including reasonable legal and accounting fees and expenses), arising from, relating to, or connected with any untrue, inaccurate or breached statement, representation, warranty or covenant of such
Seller set forth in this Agreement.
Purchaser shall indemnify, defend and hold Seller harmless against any and all liabilities, loss, cost or damage, together with all
reasonable costs and expenses related thereto (including reasonable legal and accounting fees and expenses), arising from, relating to, or connected with any untrue, inaccurate or breached statement, representation, warranty or covenant of Purchaser
set forth in this Agreement.
E. BEST EFFORTS TO CLOSE
Each of the parties will use his or her reasonable best efforts to take all action and to do all things necessary,
proper, or advisable in order to consummate and make effective the transactions contemplated by this Agreement.
F. CONDITIONS TO OBLIGATIONS TO CLOSE
1. Conditions to Obligation of Purchaser. The obligation of
Purchaser to consummate the transactions to be performed by each of them in connection with the Closing is subject to satisfaction of the following conditions:
(a) the representations and warranties set forth in Article C above shall be true and correct in all material respects at and as of the Closing Date;
(b) Seller shall have performed and complied with all of his covenants hereunder in all material respects through the Closing;
(c) no action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state,
local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the
transactions contemplated by this Agreement to be rescinded following consummation, or (C) affect adversely the rights of Purchaser to own the common shares;
(d) all actions to be taken by Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions,
instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Purchaser; and
Purchaser may waive any condition specified in this section if each Purchaser executes a writing so stating at or
prior to the Closing.
2. Conditions to Obligation of the Seller. The obligation
of Seller to consummate the transactions to be performed by them in connection with the Closing is subject to satisfaction of the following conditions:
(a) the representations and warranties set forth Article B above shall be true and correct in all material respects at and as of the Closing Date;
(b) Purchaser shall have performed and complied with all of his covenants hereunder in all material respects through the Closing;
(c) no action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state,
local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement or (B) cause any of the
transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect); and
(d) all actions to be taken by Purchaser in connection with consummation of the transactions contemplated hereby and all certificates, opinions,
instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Seller.
The Seller may waive any condition specified in this section if they execute a writing so stating at or prior to
the Closing.
G. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All of the representations and warranties of the parties contained in this Agreement shall survive the Closing
hereunder (even if the damaged party knew or had reason to know of any misrepresentation or breach of warranty or covenant at the time of Closing) and continue in full force and effect forever thereafter (subject to any applicable statutes of
limitations).
H. MISCELLANEOUS PROVISIONS
1. Successors and Assigns. Except as
otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon
any party, other than the parties hereto or their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
2. Governing Law; Attorneys’ Fees. This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia, without regards to conflict of law principles
thereof. To the extent any dispute arises between the Parties hereto regarding any of the subject matter hereof, the prevailing party in any action or arbitration proceeding, including any action for emergency or equitable relief brought in
connection therewith will be entitled to reasonable attorneys’ fees and court costs from the losing party.
3. Titles and Subtitles. The titles
and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
4. Notices. All notices required or
permitted hereunder shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the party to be notified, (ii) when sent by confirmed telex or email if sent during normal business hours of the recipient, if not, then on
the next business day; (iii) five days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one day after deposit with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt, to the addresses of the Sellers and Purchaser set forth of the signature page hereto.
5. Amendments and Waivers. Any term
of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of Seller and Purchaser.
6. Severability. If one or more
provisions of this Agreement are held to be unenforceable under applicable law, such provision shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms.
7. Entire Agreement. This Agreement
and the documents referred to herein constitute the entire agreement among the parties and no party shall be liable or bound to any other party in any manner by any warranties, representations or covenants except as specifically set forth herein or
therein.
8. Counterparts. This Agreement may
be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
9. Expenses. Each of the parties will
bear his or her own costs and expenses (including legal fees and expenses) incurred in connection with this Agreement and the transactions contemplated hereby.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties
have executed this Agreement as of the date first above written.
|
SELLER:
|
|
Joseph Ovsenek
(Signature)
|
|
Address:
2821 Kitchener Street
Vancouver, BC
V5K 3E4
Email: jovsenek@p2gold.com
|
| |
|
PURCHASER:
|
|
|
Douglas Higgs
_
|
|
|
___________________________________
(Signature)
|
|
Address:
Townhouse 118,
9700 Glenacres Drive
Richmond, B.C.
V7A 1Y7
Email: nanooks1@telus.net
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this
“Agreement”) is made as of this 18th
day of October, 2023, by and between Joseph Ovsenek, a resident of British Columbia, Canada and Kenneth McNaughton, a resident of British Columbia, Canada, (each a “Seller” and together the “Sellers”) and Robert Hatch, a resident of Oregon, United States of America (the “Purchaser”).
RECITALS
WHEREAS,
Sellers each own 50,000 common shares of Austin Gold Corp., a British Columbia corporation (the “Company”); and
WHEREAS,
Sellers desire to sell all of such common shares to Purchaser, and Purchaser desires to purchase from Sellers all of such common shares for the consideration and on the terms set forth in this Agreement.
AGREEMENT
NOW, THEREFORE,
in consideration of the foregoing and the promises and covenants contained herein, the sufficiency of which is hereby acknowledged, all parties hereto agree as follows:
A. PURCHASE OF SHARES
1. The Shares. Subject to the
satisfaction of the terms and conditions set forth in this Agreement, Sellers each agree to sell 50,000 common shares of the Company to Purchaser, and Purchasers agrees to buy from each Seller 50,000 common shares of the Company for cash
consideration in the aggregate amount of US$36,500.00 (the “Purchase Price”) to each Seller (for a total of US$73,000), representing a price of
US$0.73 per common share.
2. Payment of Purchase Price. The
payment of the Purchase Price by Purchaser to each Seller shall be made at the Closing (as defined herein) by wire transfer to an account designated in writing by each such Seller at least one business day before the Closing Date or by delivery of
other immediately available funds, including certified checks or bank drafts in the name as designated in writing by each such Seller at least one business day before the Closing Date, or by delivery against payment (“DAP”) if transacted within brokerage accounts.
3. The Closing. Following the
satisfaction or waiver of all conditions to the obligations of the parties to consummate the transactions contemplated hereby, the closing of the transactions contemplated by this Agreement (the “Closing”) shall take place at the offices of Dorsey & Whitney LLP in Denver, Colorado commencing at 10:30 a.m. local time on October 25, 2023 or such other location and
date as Purchaser and Sellers may mutually determine (the “Closing Date”).
4. Transfer of Shares. Concurrently with the delivery of the Purchase
Price at the Closing, Sellers shall each deliver to Purchaser the stock certificate(s) representing the 50,000 common shares from each Seller endorsed in blank or accompanied by duly executed assignment documents, free and clear from any
restrictions on transfer.
B. REPRESENTATIONS AND WARRANTIES OF PURCHASERS
The Purchaser hereby represents, warrants and covenants that:
1. Authorization.
Purchaser has full power and authority to enter into this Agreement, and such agreement constitutes a valid and legally binding obligation, enforceable in accordance with its terms except (i) as limited by applicable bankruptcy and other laws of
general application affecting enforcement of creditors’ rights generally and (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.
2. Residence
and Legal Capacity. Purchaser is a resident of the jurisdiction indicated on the signature page hereof, is of the age of majority for the jurisdiction in which such Purchaser resides and has sufficient legal capacity to execute this
Agreement.
3. Access
to Information. Purchaser has had access during the course of this transaction and prior to the execution of this Agreement to all information necessary to enable Purchaser to evaluate the merits and risks of a prospective investment
in the Company.
4. No-Conflict. Neither the execution
and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will (A) violate any statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which Purchaser is subject or (B) result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other arrangement to which Purchaser is a party or by which he is bound, which breach, default, acceleration, right or requirement would prevent the Purchaser from consummating the
transactions contemplated by this Agreement.
5. Brokers’ Fees. Purchaser has no
liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which any other Purchaser or Sellers could become liable or obligated.
6. Investment Intent. Purchaser is
not acquiring the common shares with a view to or for sale in connection with any distribution thereof within the meaning of the U.S. Securities Act of 1933, as amended (the “U.S. Securities Act”). Purchaser is aware that the common shares are being sold to him in a transaction that is exempt from the registration requirements of the U.S. Securities Act and pursuant to similar
exemptions from any applicable securities laws or regulations of any state of the United States. Purchaser has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of investments
such as the Shares and is able to bear the economic risk of loss of its entire investment.
7. U.S. Resale Restrictions.
Purchaser understands and acknowledges that the Shares have not been registered under the U.S. Securities Act or any applicable securities laws of any state of the United States or regulations and may not be offered, sold, pledged or transferred,
directly or indirectly in the United States or to, or for the account or benefit of a U.S. Person, unless so registered or pursuant to an available exemption from such registration requirements and as a director and officer to the Company,
Purchaser is considered an “affiliate” of the Company and is subject to control shares provisions under Rule 144 of the U.S. Securities Act. Unless registered, such control share provisions restrict the ability of the Purchaser to sell his shares
in the open market in the United States subject to certain hold period, manner of sale, volume of sale and notice of sale restrictions. The Purchaser understands that they are purchasing the Shares from affiliates of the Company and therefore the
Shares are “restricted securities” under Rule 144 of the U.S. Securities Act and are subject to a hold period of at least six month pursuant to the requirements of Rule 144 in relation to any sale of the Shares in the open market in the United
States.
C. REPRESENTATIONS AND WARRANTIES OF SELLER
Each Seller, severally and not jointly, hereby represents, warrants and covenants that:
1. Authorization. Such Seller has
full power and authority to enter into this Agreement, and such agreement constitutes a valid and legally binding obligation, enforceable in accordance with its terms against such Seller except (i) as limited by applicable bankruptcy and other laws
of general application affecting enforcement of creditors’ rights generally and (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.
2. Residence and Legal Capacity. Such
Seller is a resident of the jurisdiction indicated on the signature page hereof, is of the age of majority for the jurisdiction in which they reside and have sufficient legal capacity to execute this Agreement.
3. Ownership of the Shares. Seller is
the sole registered and beneficial owner of the common shares being sold pursuant to this Agreement and has full power and authority to convey such common shares free and clear of all liens, encumbrances, restrictions and claims of every kind and,
upon delivery of and payment for such common shares as herein provided, Purchaser shall acquire good and valid title thereto, free and clear of all liens, encumbrances, restrictions and claims of every kind, except for the restrictions as may be
imposed pursuant to applicable securities laws. There is no outstanding subscription, warrant, call, commitment, option or other agreement or right of any kind to purchase or otherwise to receive or acquire from Purchasers any interest in such
Shares. Seller is not a party to any voting trust, proxy, or other agreement or understanding with respect to the voting of any capital stock of the Company.
4. Access to Information. Seller has
had the opportunity to ask questions and receive answers concerning the terms and conditions of the transaction contemplated by this Agreement and have had access to such information concerning the Company as the Seller has considered necessary or
appropriate in connection with their investment decision to sell the common shares, including access to the Company’s public filings available on the Internet at www.sedar.com and www.sec.gov, and that any answers to questions and any reasonable
requests for information have been complied with to the Sellers’ complete satisfaction. Sellers have had the opportunity to seek independent legal and tax advice relative to this transaction and Sellers have such knowledge and experience in
financial and business matters, either alone or in consultation with their advisors, as to be capable of evaluating the merits and risks of the sale of the Shares.
5. No-Conflict. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will (A) violate any statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to
which either Seller is subject or (B) result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract,
lease, license, instrument, or other arrangement to which either Seller is a party or by which he or she is bound, which breach, default, acceleration, right or requirement would prevent the Sellers from consummating the transactions contemplated
by this Agreement.
6. No Consents. No consent of any third-party is necessary for the
Seller to sell the common shares or consummate any of the transactions contemplated by this Agreement. Any consent of the Seller’s spouse required pursuant to any applicable communal property laws of the Seller’s jurisdiction of residence has been
obtained and will be delivered at Closing.
7. Brokers’ Fees. Seller has no
liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which any Purchaser could become liable or obligated.
8. Private Resale. Seller: (A) acquired the common shares for their
own account for investment purposes and not with a view to any distribution of such common shares, (B) have not engaged in any form of general solicitation or general advertising in connection with the sale of the common shares, and (C) Purchaser
was the only offeree with respect to the sale of such common shares.
9. Release of Future Gains. Seller acknowledges that by selling the common shares he is foregoing any potential future gains and/or dividends or distributions resulting from the ownership of the common shares
and Seller hereby releases Purchaser from any and all claims, rights or actions of Seller against Purchaser in relation to any such future gains and/or dividends or distributions. Seller acknowledges that the market value of the common
shares is currently and could, in the future and depending on the success of the Company’s business, become worth substantially more than the price at which the Purchaser is purchasing the common shares from the Seller. Seller acknowledges that the
market value of the common shares could, in the future and depending on the success of the Company’s business, become worth substantially more than the price at which the Purchaser is purchasing the common shares from the Seller. Seller understands
that the Company has from time to time explored, and will continue to explore, exit strategies, including, without limitation, selling the Company, merger, consolidation and similar transactions. Seller understands that any future sale of common
shares of the Company in relation to such a transaction could be at a premium or a discount to the per common share Purchase Price, and such sale could occur at any time or not at all.
10. No Representations Regarding Price. Sellers acknowledges that Purchaser has not made any representations to them regarding the potential future price of the common shares and that the Seller has independently
determined, either alone or in consultation with their advisors, that the Purchase Price is sufficient compensation for the value of the common shares and is fair and equitable to the Seller. Seller further understands that the Purchase
Price was determined through an arm’s length negotiation between Seller and Purchaser and that Seller did not rely on Purchaser or any other person to determine the value of the common shares, and that the actual fair market value of the common
shares could be higher or lower than the Purchase Price.
11. Use of Proceeds. Seller represents that they will not use the
proceeds of the sale of the common shares for any unlawful purpose.
12. Release of Claims. Seller on his own behalf and on behalf of his
respective heirs, family members, executors, agents, and assigns, hereby and forever releases the Purchaser and his heirs, family members, executors, agents, and assigns (“Releasees”) from, and agrees not to sue concerning, or in any manner to institute, prosecute, or pursue, any claim, complaint, charge, duty, obligation, or cause of action relating to any matters of
any kind, whether presently known or unknown, suspected or unsuspected, that Seller may possess against any of the Releasees arising from this or related to this Agreement or relating to the Purchase Price.
13. Tax Consequences. Seller has reviewed with their own tax advisors
the federal, state, local and foreign tax consequences of this Agreement and the transactions contemplated hereunder. Seller is relying solely on their own such advisors and not on any statements or representations of the Company or its agents or
the Purchaser or their agents. Seller understands, acknowledges and agrees that they shall be responsible for their own tax liability that may arise
as a result of this Agreement or the transactions contemplated hereunder. The Purchaser makes no representations or warranties with respect to the tax consequences of the payments and any other consideration provided to Seller or made on
their behalf under the terms of this Agreement.
D. INDEMNITY
Seller, severally and not jointly, shall indemnify, defend and hold Purchaser harmless against any and all liabilities, loss, cost or
damage, together with all reasonable costs and expenses related thereto (including reasonable legal and accounting fees and expenses), arising from, relating to, or connected with any untrue, inaccurate or breached statement, representation, warranty
or covenant of such Seller set forth in this Agreement.
Purchaser shall indemnify, defend and hold each Seller harmless against any and all liabilities, loss, cost or damage, together with all
reasonable costs and expenses related thereto (including reasonable legal and accounting fees and expenses), arising from, relating to, or connected with any untrue, inaccurate or breached statement, representation, warranty or covenant of Purchaser
set forth in this Agreement.
E. BEST EFFORTS TO CLOSE
Each of the parties will use his or her reasonable best efforts to take all action and to do all things necessary,
proper, or advisable in order to consummate and make effective the transactions contemplated by this Agreement.
F. CONDITIONS TO OBLIGATIONS TO CLOSE
1. Conditions to Obligation of Purchaser. The obligation of
Purchaser to consummate the transactions to be performed by each of them in connection with the Closing is subject to satisfaction of the following conditions:
(a) the representations and warranties set forth in Article C above shall be true and correct in all material respects at and as of the Closing Date;
(b) Seller shall have performed and complied with all of his covenants hereunder in all material respects through the Closing;
(c) no action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state,
local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the
transactions contemplated by this Agreement to be rescinded following consummation, or (C) affect adversely the rights of Purchaser to own the common shares;
(d) all actions to be taken by Seller in connection with consummation of the transactions contemplated hereby and all certificates, opinions,
instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Purchaser; and
Purchaser may waive any condition specified in this section if each Purchaser executes a writing so stating at or
prior to the Closing.
2. Conditions to Obligation of the Seller. The obligation
of each Seller to consummate the transactions to be performed by them in connection with the Closing is subject to satisfaction of the following conditions:
(a) the representations and warranties set forth Article B above shall be true and correct in all material respects at and as of the Closing Date;
(b) Purchaser shall have performed and complied with all of his covenants hereunder in all material respects through the Closing;
(c) no action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state,
local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement or (B) cause any of the
transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect); and
(d) all actions to be taken by Purchasers in connection with consummation of the transactions contemplated hereby and all certificates, opinions,
instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Seller.
The Seller may waive any condition specified in this section if they execute a writing so stating at or prior to
the Closing.
G. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All of the representations and warranties of the parties contained in this Agreement shall survive the Closing
hereunder (even if the damaged party knew or had reason to know of any misrepresentation or breach of warranty or covenant at the time of Closing) and continue in full force and effect forever thereafter (subject to any applicable statutes of
limitations).
H. MISCELLANEOUS PROVISIONS
1. Successors and Assigns. Except as
otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon
any party, other than the parties hereto or their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
2. Governing Law; Attorneys’ Fees. This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia, without regards to conflict of law principles
thereof. To the extent any dispute arises between the Parties hereto regarding any of the subject matter hereof, the prevailing party in any action or arbitration proceeding, including any action for emergency or equitable relief brought in
connection therewith will be entitled to reasonable attorneys’ fees and court costs from the losing party.
3. Titles and Subtitles. The titles
and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
4. Notices. All notices required or
permitted hereunder shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the party to be notified, (ii) when sent by confirmed telex or email if sent during normal business hours of the recipient, if not, then on
the next business day; (iii) five days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one day after deposit with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt, to the addresses of the Sellers and Purchaser set forth of the signature page hereto.
5. Amendments and Waivers. Any term
of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of Sellers and Purchaser.
6. Severability. If one or more
provisions of this Agreement are held to be unenforceable under applicable law, such provision shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms.
7. Entire Agreement. This Agreement
and the documents referred to herein constitute the entire agreement among the parties and no party shall be liable or bound to any other party in any manner by any warranties, representations or covenants except as specifically set forth herein or
therein.
8. Counterparts. This Agreement may
be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
9. Expenses. Each of the parties will
bear his or her own costs and expenses (including legal fees and expenses) incurred in connection with this Agreement and the transactions contemplated hereby.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties
have executed this Agreement as of the date first above written.
|
SELLERS:
|
|
Joseph Ovsenek
(Signature)
|
|
Address:
2821 Kitchener Street
Vancouver, BC
V5K 3E4
Email: jovsenek@p2gold.com
Kenneth McNaughton
(Signature)
|
|
Address:
3492 West 6th Ave.
Vancouver, BC
V6R 1T3
Email: kmcnaughton@p2gold.com
|
| |
|
PURCHASER:
|
|
|
Robert Hatch
_
|
|
|
___________________________________
(Signature)
|
|
Address:
1838 N. Valley View Road
Ashland, Oregon
97520
United States of America
Email: hatchgold@gmail.com
Austin Gold (AMEX:AUST)
Historical Stock Chart
From Oct 2024 to Nov 2024
Austin Gold (AMEX:AUST)
Historical Stock Chart
From Nov 2023 to Nov 2024
