Exhibit 10.26
SUBSCRIPTION AGREEMENT
(U.S. INVESTORS)
THIS SUBSCRIPTION AGREEMENT dated as of the ____ day of _________ 2002.
BETWEEN:
Trend Mining Company, a Delaware corporation with an address
at X.X. Xxx 0000, Xxxx Xxxxx, XX 00000, X.X.X. (the "Issuer")
AND:
_________________________________________________
Name of Purchaser
_________________________________________________
Mailing Address
(the "Investor")
WITNESSES THAT WHEREAS:
A. The Issuer is subject to the regulatory jurisdiction of the United States
Securities and Exchange Commission and any other securities commission of any
State of the United States in which the securities of the Issuer are offered
(collectively, the "Commissions").
B. The Investor has agreed to purchase shares of Common Stock of the Issuer on
the terms and conditions set forth herein at a price of U.S. $0.10 per share.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements herein contained, the parties agree as follows:
1. PURCHASE AND SALE OF SHARES
1.1 The Investor hereby subscribes for and pays for in accordance with the
terms of this Agreement, _______ Shares at a price of U.S. $.10 per Share.
1.2 The Investor shall deliver the sum of U.S. $________ to the Issuer.
1.3 Subscriptions delivered to the Placement Agents are not subject to
revocation by the Investor. The Investor acknowledges and agrees that this
Agreement shall not be binding on the Issuer unless and until it, along with all
other requisite documents, has been delivered to Trend Mining Company at the
above address, and the Issuer has accepted the Agreement upon satisfying itself
that all applicable securities laws have been complied with, and that, if
applicable, the Investor is a sophisticated purchaser or accredited investor.
2. REPRESENTATIONS AND WARRANTIES
2.1 The Investor represents and warrants to the Issuer that:
(a) the Investor is purchasing the Shares as principal and not on behalf
of any third party;
(b) the Investor knows that the Shares are being acquired pursuant to
exemptions under the United States Securities Act of 1933, as amended
(the "Securities Act");
(c) the Investor is an "accredited investor" as defined in Rule 501(a) of
Regulation D under the Securities Act; and
(d) the Investor is not acquiring the Shares as a result or any
information about the affairs of the Issuer that is not generally
known to the public other than knowledge of this particular
transaction. The Investor has had the opportunity to inquire of the
Management of the Company concerning the affairs of the Company and
hereby represents that he/she understands the high risks associated
with this investment and that he/she may lose some or all of this
investment.
2.2 The Issuer represents and warrants to the Investor that:
(a) the Issuer is a corporation duly incorporated and in good standing
under the laws of the State of Delaware; and
(b) this Agreement has been duly authorized by all necessary corporate
action on the part of the Issuer and it constitutes a valid obligation
of the Issuer duly binding upon it and enforceable in accordance with
its terms.
3. COVENANTS
The Investor covenants with the Issuer to execute and deliver such further
documents and do all such further acts and things as may be necessary to comply
with the Commissions' requirements for this private placement and to carry out
the intent of this Agreement.
4. SECURITIES LAWS MATTERS
4.1 The Investor is aware of, acknowledges and agrees with the Issuer as
follows:
(a) at the time of issuance the Shares will NOT have been registered with
the Securities and Exchange Commission. The Company is issuing such
shares in reliance on the exemptions under the Securities Act, and
applicable securities laws of certain states in which the Investor(s)
reside(s);
(b) the holder hereof, by purchasing such securities, agrees for the
benefit of the Issuer that such Shares may be offered, sold, pledged
or otherwise transferred only (i) to the Issuer, (ii) outside the
United States in accordance with Rule 904 of Regulation S under the
Securities Act or (iii) in a transaction that does not require
registration under the Securities Act or any applicable state
securities laws and rules and regulations governing the offer and sale
of securities, or (iv) pursuant to registration under the Securities
Act and as further described below;
-2-
(c) any person to whom any of the Shares, or any interest therein, are
transferred will, in turn, be subject to applicable retransfer
restrictions except pursuant to the registration of such shares as
described below;
(d) the Investor fully comprehends that the Issuer is relying to a
material degree on the representations, warranties and agreements
contained herein and in his or her Investment Representation Letter
and/or Investor Questionnaire submitted to the Issuer (if applicable),
and with such realization, authorizes the Issuer to act as it may see
fit in full reliance hereon, including the placement on the
certificates or other documents evidencing the Shares of the following
legend and any legends required by any applicable state securities
laws:
THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE RESTRICTED SECURITIES AS
THAT TERM IS DEFINED IN RULE 144 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), AND HAVE NOT BEEN
REGISTERED UNDER THE ACT. THESE
SECURITIES MAY NOT BE OFFERED FOR SALE,
SOLD OR TRANSFERRED EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT OR PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE
ACT, THE AVAILABILITY OF WHICH IS TO BE
ESTABLISHED TO THE SATISFACTION OF THE
ISSUER. THE SECURITIES REPRESENTED BY
THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN
CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. THE ISSUER MAY
REQUIRE AN OPINION OF COUNSEL SKILLED IN
SECURITIES MATTERS AND OTHER EVIDENCE OF
COMPLIANCE WITH THE ACT PRIOR TO
PERMITTING A TRANSFER OF THESE
SECURITIES.
The Investor understands that the imposition of such a legend condition may
affect the value, and the value as collateral, of the Shares;
(e) the Investor agrees that the Issuer may require that none of the
Shares or any interest therein may be sold, transferred or otherwise
disposed of unless registered under the Securities Act, without his or
her having first presented to the Issuer or its counsel a written
opinion of counsel experienced in securities law matters indicating
that the proposed disposition will not be in violation of any of the
registration provisions of the Securities Act and the rules and
regulations promulgated thereunder; and
(f) the Company agrees that within Fourteen (14) days of closing this
offering the Company will file a one time registration statement at
its own expense seeking registration of the shares sold pursuant to
the offering, as well as any other shares held by holders who may have
"piggyback" registration rights, and who timely notify the Company
that they desire to exercise such rights. The Company makes no
-3-
representation that such registration statement will be declared
effective by the Securities and Exchange Commission within any
specific timeframe, or if ever. Further, the Company will
contemporaneously make the required filings and comply with any
applicable "Blue Sky" provisions of the applicable states where
necessary, but makes no representation of its ability to clear such
securities in any state within any specific timeframe, if ever.
(g) the Investor acknowledges that the foregoing is not a complete
statement of the law applicable to resale or registration of the
Shares, but merely an outline of some of the more salient features.
For legal advice in these matters, the Investor will continue to rely
on its own legal counsel as the Investor has throughout this
transaction concerning the purchase of the Shares.
5. INDEMNIFICATION
5.1 The Investor hereby indemnifies and holds harmless the Issuer and its
officers, directors, shareholders, agents, employees, attorneys, successors, and
assigns from and against all damages, losses, costs, liabilities, and expenses
(including, costs of investigation, defense, and attorneys' fees) incurred by
reason of the failure of the Investor to fulfill any of the Investor's
obligations hereunder or by reason of any breach or inaccuracy of any of the
representations or warranties made by the Investor herein.
6. GENERAL
6.1 This Agreement is subject to the approval of such regulatory authorities
that have jurisdiction over the Issuer, including all Commissions.
6.2 Neither the Investor nor the Issuer may assign all or any part of his, her
or its interest in or to this Agreement without the written consent of the other
and any purported assignment without such consent will be void.
6.3 This Agreement is to be governed and interpreted according to the laws of
the State of Delaware without regard to conflict of laws or principles.
6.4 This Agreement shall ensure to the benefit of and be binding upon the
parties and their successors, personal representatives and permitted assigns.
6.5 Time is of the essence of this Agreement.
6.6 The parties to this Agreement may amend this Agreement only in writing.
6.7 The parties to this Agreement will execute and deliver such investor
questionnaires, documents, transfers, assurances, share certificates, warrant
certificates and procedures necessary for the purposes of giving effect to or
perfecting the transactions contemplated by this Agreement.
6.8 All notices or other communications given or made hereunder shall be in
writing and shall be delivered or mailed by registered or certified mail, return
receipt requested, postage prepaid, to the address given above, and such notice
will be deemed to be given on the date of receipt.
-4-
IN WITNESS WHEREOF the parties hereto have hereunder set their hands as of
the date first stated above.
TREND MINING COMPANY
By:___________________________________
President
If Investor is an individual:
_____________________________ ________________________________
Name of Investor Signature of Investor
_____________________________ ________________________________
Name of Witness Signature of Witness
_____________________________
Address of Investor
_____________________________
Occupation
If Investor is a corporation:
Name of Corporation:
By:___________________________________
Name:
Title:
-5-
