SUBSCRIPTION AGREEMENT
EXHIBIT
10.1
This
Subscription Agreement (this "Agreement") by and between METALLINE MINING
COMPANY, a Nevada corporation (the "Corporation"), and
________________________________ (the "Subscriber ") is effective as of the
date
of the Corporation's acceptance of this Agreement as set forth
below.
RECITALS:
Whereas,
the Corporation desires to sell to the Subscriber, and the Subscriber desires
to
purchase from the Corporation, shares of the Corporation's common stock in
accordance with the terms and conditions set forth herein:
Now,
therefore, in consideration of the mutual covenants and agreements contained
herein, together with other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Subscription
for Securities.
The
Subscriber hereby subscribes for ________ shares of common stock, par value
$.01
per share, of the Corporation. For each share purchased pursuant to this
Agreement, the purchaser will also receive a warrant to purchase one share
of
the Company's common stock at an exercise price of $1.25 per share (the
"Warrants" and, together with the shares, the "Securities"), at a price of
$0.80
per share for an aggregate purchase price of _____________________________
Dollars ($____________).
2. Acceptance
of Subscription.
This
Agreement is not effective until the Corporation has received full payment
of
the aggregate purchase price and accepted this Agreement. This Agreement may
be
rejected in whole or in part at the sole discretion of the Corporation.
3. Representations
and Warranties of the Subscriber.
The
Subscriber understands that the offering and sale of the Securities is intended
to be exempt from registration under the Securities Act of 1933, as amended
(the
"Securities Act"), by virtue of Sections 4(2) and 4(6) of the Act and Regulation
D promulgated under the Act, as well as other exemptions that may be available.
The Subscriber understands that the Corporation will rely on the Subscriber's
representations and warranties herein to secure said exemptions. Accordingly,
the Subscriber represents and warrants to the Corporation as
follows:
(a) The
Subscriber is an "Accredited Investor" as defined under Rule 501(a) of the
Securities Act by virtue of the fact that the Subscriber (check applicable
boxes):
(i) [
] is
a
director or executive officer of the Corporation;
(ii) [
] is
a
natural person who has an individual net worth, or joint net worth with his
or
her spouse, at the time of the purchase exceeding $1,000,000. As used in this
subparagraph, "net worth" means total tangible assets as currently valued less
total liabilities;
(iii) [
] is
a
natural person who had individual income in excess of $200,000 in each of the
two most recent years or joint income with his or her spouse in excess of
$300,000 in each of those years and has a reasonable expectation of reaching
the
same income level in the current year;
(iv)
[
] is
an
entity in which all of the equity owners are Accredited Investors;
(v) [
] is
a
trust (1) not formed for the specific purpose of acquiring the Securities,
(2)
having total assets in excess of $5,000,000, and (3) whose purchase of the
Securities is directed by a sophisticated person (as described in
Rule 506(b)(2)(ii) under the Act);
(vi) [
] is
a
bank, savings and loan association or other institution as defined in Section
3(a)(5)(A) of the Securities Act, whether acting in its individual capacity
or
as a fiduciary;
(vii) [
] is
a
broker or dealer registered pursuant to the Securities Exchange Act of 1934,
as
amended;
(viii) [
] is
an
insurance company, as defined in the Securities Act;
(ix) [
] is
an
investment company registered under the Investment Company Act of 1940, as
amended, or as a business development company as defined by that
Act;
(x) [
] is
a
Small Business Investment Company licensed by the United States Small Business
Administration;
(xi) [
] is
a plan
established and maintained by a state, its political subdivisions, or an agency
or instrumentality of a state or its political subdivisions for the benefit
of
its employees, which has total assets in excess of $5 million;
(xii) [
] is
an
employee benefit plan within the meaning of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), if the investment decision is to
be
made by a plan fiduciary, as defined in Section 3(21) of ERISA, which is either
a bank, savings and loan association, an insurance company, or a registered
investment advisor, or if the employee benefit plan has total assets in excess
of $5 million;
(xiii) [
] is
a
self-directed employee benefit plan with (1) a net worth in excess of $5
million, and (2) whose investment decisions are made by, and solely for the
benefit of, persons that are accredited investors;
(xiv) [
] is
a
private business development company, as defined in the Investment Advisors
Act
of 1940, as amended; or
(xv) [
] is
a
tax-exempt organization (under Section 501(c)(3) of the Internal Revenue Code
of
1986, as amended), corporation, Massachusetts or similar business trust, or
partnership (1) not formed for the specific purpose of acquiring the Securities
and (ii) having total assets in excess of $5,000,000.
(b) The
Corporation has made available to the Subscriber all documents that the
Subscriber has requested, and the Subscriber has requested all documents and
other information that the Subscriber has deemed necessary to consider, relating
to this investment in the Corporation and the Corporation has provided answers
to all questions concerning the offering and an investment in the
Corporation.
(c) The
Securities are being purchased for investment purposes only, for the
Subscriber's own account, and not with a view to distribution or resale thereof
in any manner within the meaning of the Securities Act. The Subscriber will
not
take or cause to be taken any action that will cause the Subscriber or the
Corporation to be deemed an “underwriter” of the Securities as that term is
defined in Section 2(11) of the Securities Act.
(d) The
Subscriber understands that an investment in the Securities is highly
speculative and subject to substantial risks. The Subscriber has such knowledge
and experience in financial and business matters that the Subscriber is capable
of evaluating the merits and risks of an investment in the
Securities.
(e) The
Subscriber is capable of bearing the risk of the loss of the entire investment
in the Securities. The Subscriber has an adequate net worth and means of
providing for current needs and contingencies notwithstanding the loss of an
investment in the Securities.
(f) The
Subscriber understands that the Securities are not and will not be registered
under the Securities Act or any state securities laws and are being offered
in
reliance upon exemptions from registration thereunder. Accordingly, the
Subscriber understands that the Securities may not be sold, distributed,
assigned, offered, pledged or otherwise transferred unless they are subsequently
registered under the Securities Act and under applicable state or foreign
securities laws, or an exemption from such registration is available. The
Subscriber understands that the Corporation is under no obligation to register
the Securities or to assist the Subscriber in complying with any exemption
from
such registration. The Subscriber further understands that the Corporation
is
not registered as an investment corporation under the Investment Corporation
Act
of 1940, as amended ("Investment Corporation Act"), in reliance upon an
exemption from such registration.
(g) The
Subscriber consents to the placement of a legend on any certificates
representing the Securities, which legend shall be in form substantially as
follows:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY APPLICABLE STATE
SECURITIES LAWS, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED, ASSIGNED,
OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (a) THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS
COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES OR (b) THE ISSUER
RECEIVES A SATISFACTORY OPINION OF LEGAL COUNSEL FOR THE HOLDER OF THESE
SECURITIES (CONCURRED IN BY LEGAL COUNSEL FOR THE ISSUER) STATING THAT SUCH
TRANSACTION IS EXEMPT FROM REGISTRATION.
(h) The
Subscriber understands that no federal or state agency has passed upon the
Securities or made any finding or determination as to the merits or fairness
of
this transaction.
(i) The
Subscriber is a resident of the state indicated in Section 4 hereof and, if
an
individual, has reached the age of majority according to the laws of that state.
If the Subscriber is a corporation, partnership, or other entity, the Subscriber
and the individual representative of the Subscriber who is executing this
Agreement each hereby represent and warrant that the purchase of the Securities
pursuant to this Agreement has been duly authorized by all necessary corporate,
partnership, or other action; that such individual is duly authorized to bind
the Subscriber to this Agreement; and that the Subscriber was not organized
for
the purpose of investing in the Corporation.
(j) No
representations or warranties have been made to Subscriber by the Corporation,
or any officer, employee, agent or affiliate of any of them.
(k) These
representations and warranties are true and accurate as of the date of this
Agreement and shall be true and accurate as of the date of delivery of the
subscription price, and shall survive such delivery. If in any respect, such
representations and warranties shall not be true and accurate prior to the
issuance of Securities to the Subscriber, the Subscriber shall give immediate
written notice of such fact to the Corporation specifying which representations
and warranties are not true and accurate and in what respects they are not
accurate.
4. Indemnity.
The
Subscriber agrees to indemnify and hold harmless the Corporation and its
affiliates from and against any and all loss, liability, claim, damage, cost
or
expense incurred (including, without limitation, any and all expenses whatsoever
reasonably incurred in investigating, preparing for or defending against any
litigation commenced or threatened or any claim whatsoever) arising out of
or
based upon any false representation or warranty or breach or failure by the
Subscriber herein or in any other document furnished by the Subscriber to the
Corporation or any of its affiliates in connection with this
transaction.
5. Notices.
Any
notices or other communications required or permitted hereby shall be sufficient
if sent by registered or certified mail, postage prepaid, return receipt
requested, to the following addresses:
Corporation:
Metalline
Mining Company
0000
X.
Xxxxxxxx Xxx.
Xxxxx
x'Xxxxx, Xxxxx 00000
ATTN:
Xxxxxx Xxxxxxx
Subscriber:
________________________
________________________
________________________
6. Successors
and Assigns.
This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and to their respective representatives, successors and permitted
assigns. The Subscriber shall not transfer or assign this Agreement without
the
prior written consent of the Corporation, and any attempted assignment without
such consent will be void.
7. Applicable
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Idaho without regard to conflict of law principles and in accordance
with the laws of the United States.
8. Attorneys'
Fees and Costs.
In any
action at law or equity to enforce or interpret any of the provisions or rights
under this Agreement, the prevailing party shall be entitled to costs, expenses
and reasonable attorneys' fees incurred therein, including, without limitation,
such costs, expenses and fees on any appeal.
9. Entire
Agreement.
This
Agreement constitutes the entire agreement among the parties hereto with respect
to the subject matter hereof and may be amended only by a writing executed
by
all parties hereto.
10. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
an original, but all of which together shall constitute one instrument (any
one
or more of which may be by facsimile).
IN
WITNESS WHEREOF, the undersigned has executed this Agreement as of the ___day
of
_________, 2005.
SUBSCRIBER:
By:
______________________________
______________________________
__________________________________
Social
Security or Federal I.D. Number
Address:
__________________________
__________________________
__________________________
__________________________
Payment
Enclosed $ _________________
Accepted
as to _______________ Shares
METALLINE
MINING COMPANY
By:
_______________________________
Xxxxxx
X.
Xxxxxxx
President
Date:
______________________________
