SUBSCRIPTION AGREEMENT
XXXXX MINING INC.
Xxxxx Mining, Inc., a Delaware corporation with its principal office at 0000
Xxxxxxx, Xx. Xxxxxxx, Xxxxxx, Xxxxxx, X0X 0X0 (hereinafter the "Company") and
the undersigned (hereinafter the "Subscriber") agree as follows:
WHEREAS:
A. The Company desires to offer for sale to accredited investors a maximum of
6,000,000 Units ($1,500,000) at an offering price of $0.25 per Unit. Each Unit
consists of one (1) share of Common Stock, par value $0.001, and one (1) Warrant
(the "Warrant") to purchase one (1) share of common stock, exercisable for 12
months from the closing of the offering. The exercise price for the Warrant is
priced at $0.30.
B. Subscriber desires to acquire the number of Units set forth on the signature
page hereof.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter set-forth, the parties hereto do hereby agree as follows:
SUBSCRIPTION FOR UNITS
1.1 Subject to the terms and conditions hereinafter set-forth, the Subscriber
hereby subscribes for and agrees to purchase from the Company such number of
Units as is set-forth upon the signature page hereof at a price equal to $0.25
per Unit, and the Company agrees to sell such Units to Subscriber for said
purchase price subject to the Company's right to sell to Subscriber such lesser
number of Units as it may, in its sole discretion, deem necessary or desirable.
Upon execution, this subscription shall be irrevocable by Subscriber.
1.2 The purchase price for the Units subscribed to hereunder is payable by the
Subscriber contemporaneously with the execution and delivery of this
Subscription Agreement to Xxxxx Xxxxx, Chief Executive Officer, Xxxxxx000.xxx
Inc., 0000 Xxxxxxx, Xx. Xxxxxxx, Xxxxxx, Xxxxxx, X0X 0X0. Payment can be made
either by submitting a personal check, cashier's check or money order for the
full purchase price of $0.25 per Unit with the executed Subscription Agreement.
The Company reserves the right to reject a subscription for any reason or to
admit an investor who subscribes for less than the minimum number of Units.
Payments shall be made payable to "Xxxxx Mining, Inc."
REPRESENTATIONS AND WARRANTIES BY SUBSCRIBER
2.1 Subscriber hereby severally represents and warrants to the Company the
following:
(A) Subscriber recognizes that the purchase of Units subscribed to herein
involves a high degree of risk in that the Company has a limited
operating history and may require substantial funds in addition to the
proceeds of this private placement;
(B) an investment in the Company is highly speculative and only investors
who can afford the loss of their entire investment should consider
investing in the Company and the Units;
(C) Subscriber has been delivered a private placement offering memorandum
(the "Memorandum") furnished by the Company to Subscriber and has had
full opportunity to review the Memorandum with Subscriber's legal and
financial advisers prior to execution of this Subscription Agreement;
(D) Subscriber has such knowledge and experience in finance, securities,
investments, including investment in non-listed and non registered
securities, and other business matters so as to be able to protect its
interests in connection with this transaction.
(E) The Subscriber will be an "Accredited Investor" as such term is
defined in Rule 501 of Regulation D promulgated under the United
States Securities Act of 1933, as amended.
(F) Subscriber hereby acknowledges that this offering of Units has not
been reviewed by the United States Securities and Exchange Commission
("SEC") and that the Units are being issued by the Company pursuant to
an exemption from registration provided by Rule 506 of Regulation D
pursuant to the United States Securities Act.
(G) Subscriber is acquiring the Units as principal for Subscriber's own
benefit;
(H) Subscriber is not aware of any advertisement of the Units.
REPRESENTATIONS BY THE COMPANY
3.1 The Company represents and warrants to the Subscriber that:
(A) The Company is a corporation duly organized, existing and in good
standing under the laws of the State of Delaware and has the corporate
power to conduct the business which it conducts and proposes to conduct.
(B) Upon issue, the Shares will be duly and validly issued, fully paid and
non-assessable common shares in the capital of the Company.
TERMS OF SUBSCRIPTION
4.1 Pending acceptance of this subscription by the Company, all funds paid
hereunder shall be deposited by the Company and immediately available to the
Company for its general corporate purposes. In the event the subscription is not
accepted, the subscription funds will constitute a non-interest bearing demand
loan of the Subscriber to the Company. There is a no minimum offering. The
minimum investment amount for a single investor is $900 for 3,600 Units.
4.2 Subscriber hereby authorizes and directs the Company to deliver the
securities to be issued to such Subscriber pursuant to this Subscription
Agreement to Subscriber's address indicated herein.
4.3 The Units are being offered on a "best efforts" basis as more particularly
set forth in the Memorandum.
MISCELLANEOUS
5.1 Any notice or other communication given hereunder shall be deemed sufficient
if in writing and sent by registered or certified mail, return receipt
requested, addressed to the Company, at 8720 Dufrost, Vancouver, British St.
Xxxxxxx, Quebec, Canada H1P 2Z5, Attention: Xx. Xxxxx Xxxxx, Chief Executive
Officer, and to Subscriber at his address indicated on the last page of this
Subscription Agreement. Notices shall be deemed to have been given on the date
of mailing, except notices of change of address, which shall be deemed to have
been given when received.
5.2 Notwithstanding the place where this Subscription Agreement may be executed
by any of the parties hereto, the parties expressly agree that all the terms and
provisions hereof shall be construed in accordance with and governed by the laws
of the State of Nevada.
5.3 The parties agree to execute and deliver all such further documents,
agreements and instruments and take such other and further action as may be
necessary or appropriate to carry out the purposes and intent of this
Subscription Agreement.
ACCREDITED INVESTOR STATUS
6.1 [ ] BY CHECKING THIS BOX, SUBSCRIBER REPRESENTS AND WARRANTS TO THE COMPANY
THAT THE SUBSCRIBER IS AN "ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN RULE
000 XX XXXXXXXXXX X XXXXXXXXXXX XXXXX XXX XXXXXX XXXXXX SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"). THE SUBSCRIBER ACKNOWLEDGES HAVING REVIEWED AND
CONSIDERED THE DEFINITION OF "ACCREDITED INVESTOR" ATTACHED TO THIS SUBSCRIPTION
AGREEMENT.
IN WITNESS WHEREOF, this Subscription Agreement is executed as of the 30 day of
NOVEMBER, 2007.
Number of Units Subscribed For: 2,000,000
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Total Dollar Amount: $500,000
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Signature of Subscriber: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx Managing Member
Name of Subscriber: Spectra Capital Management, LLC
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Address of Subscriber: 000 Xxxxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000
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Subscriber's SS# or
Tax Identification #: 00-0000000
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Email contact address: xxxxxxx@xxxxxx.xxx
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Primary Contact Number: (212) 857 - 9300 Fax Number: (212) 857 - 9301
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ACCEPTED BY: XXXXX MINING, INC.
Signature of Authorized Signatory: /s/ Xxxxxx Xxxxxxx
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Name of Authorized Signatory: Xxxxxx Xxxxxxx
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Position of Authorized Signatory: Chief Financial Officer
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Date of Acceptance: December 8, 2007
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ACCREDITED INVESTOR DEFINITION
The Subscriber will be an "Accredited Investor" as such term is defined in Rule
501 of Regulation D promulgated under the United States Securities Act of 1933,
as amended (the "Act") if the Subscriber is any of the following:
(1) Any natural person whose individual net worth, or joint net worth with that
person's spouse, at the time of his purchase, exceeds $1,000,000;
(2) Any natural person who had an individual income in excess of $200,000 in
each of the two most recent years or joint income with that person's 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;
(3) Any director, executive officer of the Company;
(4) Any trust with total assets in excess of $5,000,000, not formed for the
specific purpose of acquiring the securities offered, whose purchase is directed
by a sophisticated person as described in Rule 503(b)(2)(ii);
(5) Any private business development company as defined in Section 202(a)(22) of
the Investment Advisers Act of 1940;
(6) Any organization described in Section 501(c)(3) of the Internal Revenue
Code, corporation, Massachusetts or similar business trust, or partnership. not
formed for the specific purpose of acquiring the securities offered, with total
assets in excess of $5,000,000;
(7) Any bank as defined in Section 3(a)(2) of the Act or any savings and loan
association or other institution as defined in Section 3(a)(5)(A) of the Act
whether acting in its individual or fiduciary capacity;
(8) Any insurance company as defined in Section 2(13) of the Act;
(9) Any investment company registered under the Investment Company Act of 1940
or a business development company as defined in Section 2(a)(48) of that Act;
(10) Any Small Business Investment Company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment Act
of 1958;
(11) Any plan established and maintained by a state, its political subdivisions,
or any agency or instrumentality of a state or its political subdivisions, for
the benefit of its employees, if such plan has total assets in excess of
$5,000,000;
(12) Any employee benefit plan within the meaning of the Employee Retirement
Income Security Act of 1974, if the investment decision is made by a plan
fiduciary, as defined in Section 3(21) of such Act, which is either a bank,
savings and loan association, insurance company, or registered investment
adviser, if the employee benefit plan has total assets in excess of $5,000,000,
or if a self-directed plan, with investment decisions made solely by persons
that are accredited investors; and
(13) Any entity in which all of the equity owners are accredited investors.
