Attached files
file | filename |
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8-K - MV Portfolios, Inc. | v206711_8k.htm |
EX-10.3 - MV Portfolios, Inc. | v206711_ex10-3.htm |
EX-10.2 - MV Portfolios, Inc. | v206711_ex10-2.htm |
EX-10.4 - MV Portfolios, Inc. | v206711_ex10-4.htm |
EX-10.1 - MV Portfolios, Inc. | v206711_ex10-1.htm |
EX-99.1 - MV Portfolios, Inc. | v206711_ex99-1.htm |
SUBSCRIPTION AGREEMENT
ADDENDUM
California
Gold Corp.
c/o
Gottbetter & Partners, LLP
488
Madison Avenue, 12th
Floor
New York,
New York 10022
December
22, 2010
WHEREAS,
You have previously entered into a Subscription Agreement (the “Agreement”) with
California Gold Corp., a Nevada Corporation (the “Company”), in
connection with the private placement offering (the “Offering”) of
40,000,000 and a maximum of 60,000,000 shares (the “Shares”) of the
common stock, par value $0.001 per share (the “Common Stock”), of
the “Company, at a purchase price of $0.025 per Share.
NOW,
THEREFORE, we are hereby modifying the Agreement to add the following
terms:
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1.
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Each
share of stock purchased in the Offering shall be accompanied by a
warrant, the original of which is included herewith (the “Warrants”),
representing the right to purchase one-half of one share of Common Stock,
exercisable for a period of 18 months at an exercise price of $0.25 per
whole share; and
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2.
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The
registration rights provisions set forth at Section 5 of the Agreement are
replaced in their entirety and revised as indicated on Exhibit A
hereto to provide, additionally, for a registration provision covering the
resale of all of the shares issuable upon exercise of the
Warrants.
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Note that
the Company is currently a “shell company” as defined in Rule 12b-2 under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”).
Pursuant to Rule 144(i), securities issued by a current or former shell company
(that is, the Shares, the Warrants and the shares of Common Stock issuable upon
exercise of the Warrants, together, the “Securities”) that
otherwise meet the holding period and other requirements of Rule 144
nevertheless cannot be sold in reliance on Rule 144 until one year after the
Company (a) is no longer a shell company; and (b) has filed current “Form 10
information“ (as defined in Rule 144(i)) with the SEC reflecting that it is no
longer a shell company, and provided that at the time of a proposed sale
pursuant to Rule 144, the Company is subject to the reporting requirements of
section 13 or 15(d) of the Exchange Act and has filed all reports and other
materials required to be filed by section 13 or 15(d) of the Exchange Act, as
applicable, during the preceding 12 months (or for such shorter period that the
issuer was required to file such reports and materials), other than Form 8-K
reports. As a result, the restrictive legends on certificates for the
Securities cannot be removed except in connection with an actual sale meeting
the foregoing requirements or pursuant to an effective registration
statement.
All other
terms of the Agreement and the Offering will remain unchanged.
Thank you
very much for your support of the Company.
Very
truly yours:
CALIFORNIA GOLD CORP.
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By:
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/s/ James D. Davidson | |
Name: James D. Davidson | |||
Title: President and CEO | |||
2
Exhibit
A
Section 5
of the Agreement is replaced in full with the provisions set forth below. Unless
otherwise defined below, capitalized terms used herein shall have those meanings
given to them in the Agreement, as amended by this Addendum:
5. Registration
Rights.
(a) Registration of Shares
Underlying the Warrants. The Company shall file a registration
statement on Form S-1 (the “Registration
Statement”) relating to the resale by the Subscribers of all of the
shares of Common Stock issuable upon exercise of the Warrants (the “Warrant
Shares”). Notwithstanding the foregoing, in the event that the
Securities and Exchange Commission (the “SEC”) limits the amount of shares of
Common Stock that may be sold, the Company may scale back from the Registration
Statement such number of Warrant Shares on a pro-rata basis. In such
event, the Company shall give the Subscribers prompt notice of the number of
Warrant Shares excluded therein
(b) Piggyback
Registration. If the Company shall determine to
register for sale for cash any of its Common Stock, for its own account or for
the account of others (other than the Subscriber) pursuant to a registration
statement (other than the Registration statement) initially filed after the date
of this Agreement, other than (i) a registration relating solely to employee
benefit plans or securities issued or issuable to employees, consultants (to the
extent the securities owned or to be owned by such consultants could be
registered on Form S-8) or any of their family members (including a registration
on Form S-8) or (ii) a registration relating solely to a Securities Act Rule 145
transaction or a registration on Form S-4 in connection with a merger,
acquisition, divestiture, reorganization or similar event, the Company shall
promptly give to the Subscriber written notice thereof (and in no event shall
such notice be given less than 20 calendar days prior to the filing of such
registration statement), and shall include as a piggyback registration (the
“Piggyback
Registration”) all of the Shares specified in a written request delivered
by the Subscriber to the Company within 10 calendar days after receipt of such
written notice from the Company, and including any of the Warrant Shares subject to a cutback comment from the
SEC with respect to the registration statement discussed in Section 5(a)
above. However, the Company may, without the consent of the Subscriber,
withdraw such registration statement prior to its becoming effective if the
Company or such other stockholders have elected to abandon the proposal to
register the securities proposed to be registered
thereby. Notwithstanding the foregoing, in the event that the SEC
limits the amount of shares that may be registered in such registration
statement, the Company may scale back from the registration statement such
number of Shares, on a pro-rata basis, as is required to meet the scale back
requirements. Additionally, in any such registration statement, SEC scale back
requirements shall apply first, to the Subscriber’s Shares second, to the
Warrant Shares and third, to any other shares being registered pursuant to a
mandatory or demand registration obligation of the Company.
(c) Underwriting. If
a Piggyback Registration is for a registered public offering that is to be made
by an underwriting, the Company shall so advise the Subscriber of the shares
eligible for inclusion in such registration statement pursuant to Section
5(b). In that event, the right of any Subscriber to Piggyback
Registration shall be conditioned upon such Subscriber’s participation in such
underwriting and the inclusion of such Subscriber’s shares in the underwriting
to the extent provided herein. The Subscriber proposing to sell any of its
shares through such underwriting shall (together with the Company and any other
stockholders of the Company selling their securities through such underwriting)
enter into an underwriting agreement in customary form with the underwriter
selected for such underwriting by the Company or the selling stockholders, as
applicable. Notwithstanding any other provision of this Section, if the
underwriter or the Company determines that marketing factors require a
limitation on the number of shares of Common Stock or the amount of other
securities to be underwritten, the underwriter may exclude some or all
Subscriber’s shares (first, the Shares and second, the Warrant Shares) from such
registration and underwriting. The Company shall so advise the
Subscriber (unless the Subscriber failed to timely elect to include its shares
through such underwriting or has indicated to the Company its decision not to do
so), and indicate to such Subscriber the number of shares that may be included
in the registration and underwriting, if any. The number of shares to be
included in such registration and underwriting shall be allocated among all of
the subscribers in the Offering (the “Subscribers”) as
follows:
3
(i) If
the Piggyback Registration was initiated by the Company, the number of shares
that may be included in the registration and underwriting shall be allocated
first to the Company and then, subject to obligations and commitments existing
as of the date hereof, to all selling stockholders, including the Subscribers,
who have requested to sell in the registration on a pro rata basis according to
the number of shares requested to be included therein; and
(ii) If
the Piggyback Registration was initiated by a mandatory registration or the
exercise of demand registration rights by a stockholder or stockholders of the
Company (other than the any of the Subscribers), then the number of shares that
may be included in the registration and underwriting shall be allocated first to
such selling stockholders who are entitled to the mandatory registration or who
exercised such demand and then, subject to obligations and commitments existing
as of the date hereof, to all other selling stockholders, including the
Subscribers, who have requested to sell in the registration on a pro rata basis
according to the number of shares requested to be included therein.
No shares
excluded from the underwriting by reason of the underwriter’s marketing
limitation shall be included in such registration. If the Subscriber disapproves
of the terms of any such underwriting, the Subscriber may elect to withdraw such
Subscriber’s shares therefrom by delivering a written notice to the Company and
the underwriter. The shares so withdrawn from such underwriting shall also be
withdrawn from such registration; provided, however, that, if by
the withdrawal of such shares, a greater number of shares held by other
Subscribers may be included in such registration (up to the maximum of any
limitation imposed by the underwriters), then the Company shall offer to all
Subscribers who have included shares in the registration the right to include
additional shares pursuant to the terms and limitations set forth herein in the
same proportion used above in determining the underwriter
limitation.
c. Indemnification.
(i) In
the event of the offer and sale of shares under the Securities Act, the Company
shall, and hereby does, indemnify and hold harmless, to the fullest extent
permitted by law, each Subscriber, its directors, officers, partners, each other
person who participates as an underwriter in the offering or sale of such
securities, and each other person, if any, who controls or is under common
control with such Subscriber or any such underwriter within the meaning of
Section 15 of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, and expenses to which the Subscriber or any such
director, officer, partner or underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions or proceedings, whether commenced
or threatened, in respect thereof) arise out of or are based upon any untrue
statement of any material fact contained in any registration statement prepared
and filed by the Company under which shares were registered under the Securities
Act, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, or any omission to
state therein a material fact required to be stated or necessary to make the
statements therein in light of the circumstances in which they were made not
misleading, and the Company shall reimburse the Subscriber, and each such
director, officer, partner, underwriter and controlling person for any legal or
any other expenses reasonably incurred by them in connection with investigating,
defending or settling any such loss, claim, damage, liability, action or
proceeding; provided, that such
indemnity agreement found in this Section 5(c)(i) shall in no event exceed the
net proceeds from the sale of such shares received by the Company; and provided further,
that the Company shall not be liable in any such case (i) to the extent that any
such loss, claim, damage, liability (or action or proceeding in respect thereof)
or expense arises out of or is based upon an untrue statement in or omission
from such registration statement, any such preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement in reliance upon and in
conformity with written information furnished to the Company for use in the
preparation thereof or (ii) if the person asserting any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense who
purchased the shares that are the subject thereof did not receive a copy of an
amended preliminary prospectus or the final prospectus (or the final prospectus
as amended or supplemented) at or prior to the written confirmation of the sale
of such shares to such person because of the failure of such Subscriber or
underwriter to so provide such amended preliminary or final prospectus and the
untrue statement or omission of a material fact made in such preliminary
prospectus was corrected in the amended preliminary or final prospectus (or the
final prospectus as amended or supplemented). Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
the Subscribers, or any such director, officer, partner, underwriter or
controlling person and shall survive the transfer of such shares by the
Subscriber.
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(ii) As
a condition to including shares in any registration statement filed pursuant to
this Agreement, each Subscriber agrees to be bound by the terms of this Section
5(c) and to indemnify and hold harmless, to the fullest extent permitted by law,
the Company, each of its directors, officers, partners, legal counsel and
accountants and each underwriter, if any, and each other person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities, joint or several, to which
the Company or any such director or officer or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof) that arises out of or is based upon an untrue
statement in or omission from such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished by the
Subscriber for use in the preparation thereof, and such Subscriber shall
reimburse the Company, and such Subscribers, directors, officers, partners,
legal counsel and accountants, persons, underwriters, or control persons, each
such director, officer, and controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating, defending, or
settling any such loss, claim, damage, liability, action or proceeding; provided, however, that such
indemnity agreement found in this Section 5(c)(ii) shall in no event exceed the
net proceeds received by such Subscriber as a result of the sale of shares
pursuant to such registration statement, except in the case of fraud or willful
misconduct. Such indemnity shall remain in full force and effect,
regardless of any investigation made by or on behalf of the Company or any such
director, officer or controlling person and shall survive the transfer by any
Subscriber of such shares.
(iii) Promptly
after receipt by an indemnified party of notice of the commencement of any
action or proceeding involving a claim referred to in this Section (including
any governmental action), such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the
indemnifying party of the commencement of such action; provided, that the
failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under this Section, except to
the extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action is brought against an
indemnified party, unless in the reasonable judgment of counsel to such
indemnified party a conflict of interest between such indemnified and
indemnifying parties may exist or the indemnified party may have defenses not
available to the indemnifying party in respect of such claim, the indemnifying
party shall be entitled to participate in and to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof, unless in such indemnified
party’s reasonable judgment a conflict of interest between such indemnified and
indemnifying parties arises in respect of such claim after the assumption of the
defenses thereof or the indemnifying party fails to defend such claim in a
diligent manner, other than reasonable costs of
investigation. Neither an indemnified nor an indemnifying party shall
be liable for any settlement of any action or proceeding effected without its
consent. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any
settlement, which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such indemnified party of a release from all
liability in respect of such claim or litigation. Notwithstanding
anything to the contrary set forth herein, and without limiting any of the
rights set forth above, in any event any party shall have the right to retain,
at its own expense, counsel with respect to the defense of a claim. Each
indemnified party shall furnish such information regarding itself or the claim
in question as an indemnifying party may reasonably request in writing and as
shall be reasonably required in connection with defense of such claim and
litigation resulting therefrom.
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(iv) If
an indemnifying party does not assume, or is not permitted to assume, the
defense of an action pursuant to Sections 5(c)(iii) or in the case of the
expense reimbursement obligation set forth in Sections 5(c)(i) and 5(c)(ii), the
indemnification required by Sections 5(c)(i) and 5(c)(ii) shall be made by
periodic payments of the amount thereof during the course of the investigation
or defense, as and when bills received or expenses, losses, damages or
liabilities are incurred.
(v) If
the indemnification provided for in Section 5(c)(i) or 5(c)(ii) is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, liability, claim, damage or expense referred to herein, the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such loss, liability, claim, damage or expense (i) in such proportion
as is appropriate to reflect the proportionate relative fault of the
indemnifying party on the one hand and the indemnified party on the other
(determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission relates to information supplied
by the indemnifying party or the indemnified party and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission), or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law or provides a lesser sum to the
indemnified party than the amount hereinafter calculated, then in such
proportion as is appropriate to reflect not only the proportionate relative
fault of the indemnifying party and the indemnified party, but also the relative
benefits received by the indemnifying party on the one hand and the indemnified
party on the other, as well as any other relevant equitable considerations. No
indemnified party guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
indemnifying party who was not guilty of such fraudulent
misrepresentation.
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(vi) Notwithstanding
the foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into in connection
with an underwritten public offering are in conflict with the foregoing
provisions, the provisions in the underwriting agreement shall
control.
(vii) Indemnification
similar to that specified in this Section (with appropriate modifications) shall
be given by the Company and each Subscriber of shares with respect to any
required registration or other qualification of securities under any federal or
state law or regulation or governmental authority other than the Securities
Act.
d. Assignment of
Rights. No Subscriber may assign its rights under this Section
5 to any party without the prior written consent of the Company; provided, however, that any
Subscriber may assign its rights under this Section 5 without such consent to a
Permitted Assignee as long as (i) such transfer or assignment is effected in
accordance with applicable securities laws; (ii) such transferee or assignee
agrees in writing to become subject to the terms of this Agreement; and (iii)
such subscriber notifies the Company in writing of such transfer or assignment,
stating the name and address of the transferee or assignee and identifying the
shares with respect to which such rights are being transferred or
assigned.
For
purposes of this Section 5(d), “Permitted Assignee” means (1) with respect to a
partnership, its partners or former partners in accordance with their
partnership interests, (2) with respect to a corporation, its stockholders in
accordance with their interest in the corporation, (3) with respect to a limited
liability company, its members or former members in accordance with their
interest in the limited liability company, (4) with respect to an individual
party, any family member (spouse, descendants or trust the beneficial interests
of which are owned by any of such individuals) of such party, (5) an entity that
is controlled by, controls, or is under common control with a transferor, or (6)
a party to this Agreement.
e. Compliance. The
Subscriber covenants and agrees that such Subscriber will comply with the
prospectus delivery requirements of the Securities Act as applicable to such
Subscriber in connection with sales of Shares pursuant to a registration
statement required hereunder.
f. Information by
Subscriber. The Subscriber covenants and agrees that such
Subscriber, if included in any registration, shall furnish to the Company such
information as the Company may reasonably request in writing regarding such
Subscriber and the distribution proposed by such Subscriber including any
selling shareholder questionnaire if requested by the
Company.