Exhibit 10.28
SUBSCRIPTION AGREEMENT
(U.S. INVESTORS)
THIS SUBSCRIPTION AGREEMENT dated as of the 14th day of January 2003.
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:
Xxxx Xxxx
Name of Purchaser
0000 Xxxx Xx., #000, Xxxxxx Xxxx, XX 00000
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, 450,000 Shares at a price of U.S. $.21 per Share.
1.2 The Investor shall deliver the sum of U.S. $93,000 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;
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(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 representation that
such registration
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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.
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IN WITNESS WHEREOF the parties hereto have hereunder set their hands as
of the date first stated above.
TREND MINING COMPANY
By: /s/ Xxxx X. Xxxxxxx
President
If Investor is an individual:
Xxxx X. Xxxx /s/ Xxxx X. Xxxx
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:
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