STOCK PURCHASE AGREEMENT (the "Agreement") dated as of December 29, 1999,
by and between TIGRIS FINANCIAL GROUP LTD. ("Tigris"), an entity controlled by
Xxxxxx Xxxxxx, and TREND MINING CO. ("Trend"), a Montana corporation.
W I T N E S S E T H:
WHEREAS, Trend has issued and outstanding 6,155,103 shares of common stock
(the "Common Stock"), constituting all of the issued and outstanding capital
stock of Trend; and
WHEREAS, Tigris desires to invest in Trend, and Trend desires to have
Tigris invest in Trend, all upon the terms and conditions set forth in this
Agreement; and
WHEREAS, as of July 27, 1999, Trend entered into the "Lake Owen Option
Agreement" with General Minerals Corporation ("General Minerals") which, in
Section 5.3(b) provides General Minerals with certain rights in and to the
Common Stock of Trend (such rights and any other rights held by or for the
benefit of General Minerals, its principals, officers or directors are referred
to collectively herein as the "General Minerals Rights"); and
WHEREAS, the parties have previously entered into a "Share Purchase
Agreement Trend Mining Co. And Tigris Financial Group" (the "Prior Agreement"),
which this Agreement supercedes and amends and restates in its entirety.
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
FIRST: AMENDMENT AND RESTATEMENT. The Prior Agreement is hereby amended
and restated by this Agreement.
SECOND: PURCHASE AND SALE. Effective as of December 29, 1999 (the
"Closing Date"), Trend hereby sells to Tigris, and Tigris hereby purchases from
Trend, for a purchase price of $100,000 (receipt of which by Trend is hereby
acknowledged), one "unit" of Trend securities consisting of (i) 1,000,000 shares
of Common Stock (the "Tigris Stock"), as described in Section 2.1, (ii) the
options described in Section 2.2, and (iii) the right to purchase the Warrants
described in Section 2.3.
2.1 THE TIGRIS STOCK. The Tigris Stock purchased by Tigris on the Closing
Date represents 11.8% of Trend's issued and outstanding shares of Common Stock.
Trend agrees to deliver such stock to Tigris upon execution of this Agreement.
2.2 OPTIONS.
(a) Trend has granted Tigris (or its assignee(s) as described in
Section 2.4 below (Tigris and its assignees are sometimes referred to
collectively hereinafter as "TFG")) an option to acquire up to an additional
3,500,000 shares of Common Stock (the "First Option"), for an aggregate purchase
price equal to $490,000 ($0.14 per share). The First Option may be exercised by
TFG in whole or in part at any time from the date hereof through March 28, 2000
(the "First Option Period"). Should TFG exercise the First Option in full, it
would then own 42.6% of Trend's issued and outstanding shares of Common Stock.
(b) If TFG exercises the First Option in full on or before March 28,
2000, then Tigris shall have a second option from and after such exercise date
to acquire up to an additional 4,608,000 shares of Common Stock (the "Second
Option"), for an aggregate purchase price equal to $645,120 ($0.14 per share).
The Second Option may be exercised by TFG in whole or in part at any time from
the date the First Option is exercised through September 25, 2000 (the "Second
Option Period"). Should TFG exercise the Second Option in full, it would then
own 60.4% of Trend's issued and outstanding shares of Common Stock.
2.3 WARRANTS. Tigris shall have the right, at its option upon payment to
Trend by TFG of $10,000 at any time prior to December 31, 2000, to receive from
Trend warrants for an additional 6,250,000 shares of Common Stock (the
"Warrants"), which may be exercised for an aggregate purchase price equal to
$2,500,000 ($0.40 per share). The Warrants may be exercised by TFG in whole or
in part at any time from the date the Warrants are issued through September 30,
2003.
2.4 NON-DILUTION BY REASON OF "NON-TIGRIS WARRANTS." Trend hereby
covenants, represents and warrants that, except to the extent contemplated by
Section 2.3, there are at the date hereof no more than 234,714 warrants
outstanding (the "Non-Tigris Warrants"). If the Non-Tigris Warrants are
exercised at any time when option rights are outstanding under Section 2.2 or
the Warrants are outstanding under Section 2.3, (a) Tigris shall have the right
to acquire additional shares of Common Stock at the same price as such exercised
Non-Tigris Warrants sufficient to maintain TFG's then percentage ownership of
shares of Common Stock, (b) any option rights granted to TFG pursuant to Section
2.2 but not exercised at the date any of the Non-Tigris Warrants are exercised
shall be increased to reflect the percentage increase in outstanding shares of
Common Stock, and (c) any Warrants purchased by TFG pursuant to Section 2.3 but
not exercised at the date any of the Non-Tigris Warrants are exercised shall be
increased to reflect the percentage increase in outstanding shares of Common
Stock.
2.5 NON-DILUTION BY REASON OF THE GENERAL MINERALS RIGHTS OR Otherwise.
Trend hereby covenants, represents and warrants that, except for the General
Minerals Rights, there are no anti-dilution or other rights, warrants, options,
contracts, or interests (preemptive or otherwise), calls, commitments or demands
of any character relating to any authorized and issued or unissued shares of
capital stock of Trend. If at any time General Minerals exercises the General
Minerals Rights, (a) TFG shall have the right to acquire additional shares of
Common Stock at the lower of (i) the same price as such exercised General
Minerals Rights or (ii) the price paid by TFG for the Tigris Shares, in each
case sufficient to maintain TFG's then percentage ownership of shares of Common
Stock, (b) any option rights granted to TFG pursuant to Section 2.2 but not
exercised at the date any of the General Minerals Rights are exercised shall be
increased to reflect the percentage increase in outstanding shares of Common
Stock, and (c) any Warrants purchased by TFG pursuant to Section 2.3 but not
exercised at the date any of the General Minerals Rights are exercised shall be
increased to reflect the percentage increase in outstanding shares of Common
Stock.
2
2.6 UNLIMITED ASSIGNMENT RIGHTS OF TIGRIS. Notwithstanding any
restrictions contained in Trend's organizational documents or imposed by Trend's
board of directors or management, Tigris may sell, assign, transfer or
hypothecate its rights under this Agreement with respect to shares of Common
Stock and/or the First or Second Options (collectively, the "Options") and/or
the Warrants to any person or entity, whether affiliated or unaffiliated with
Tigris or Xx. Xxxxxx, as long as such sale, assignment, transfer or
hypothecation is in compliance with applicable laws. Should Tigris assign all or
any portion of its rights under the Options or the Warrants to any other person
or entity, such person or entity shall succeed to Tigris's rights under such
Option(s) or Warrants.
THIRD: REPRESENTATIONS AND WARRANTIES OF TREND. Trend hereby represents
and warrants to Tigris that:
3.1 ORGANIZATION; GOOD STANDINg. Trend is, and on the Closing Date was, a
corporation duly organized, validly existing and in good standing under the laws
of the State of Montana and in each other jurisdiction in which failure to do so
could have a material adverse effect on Trend's business or its ability to
perform its obligations under this Agreement.
3.2 AUTHORITY. The board of directors of Trend has validly authorized the
execution and delivery by Trend of this Agreement and all other documents
contemplated hereby and the consummation of the transactions contemplated
herein. Trend has the power and authority to execute and deliver this Agreement
and all other documents contemplated hereby, to consummate the transactions
contemplated herein and to take all other actions required to be taken by it
pursuant to the provisions hereof; and this Agreement is, and all other
documents contemplated hereby shall be, valid and binding upon Trend and
enforceable against Trend in accordance with their respective terms.
3.3 CAPITALIZATION. Trend is authorized to issue up to 30,000,000 shares
of Common Stock, 6,155,103 of which are legally and validly issued and
outstanding, are fully paid and non-assessable and which are owned of record and
beneficially by the shareholders of Trend. There are no other series or classes
of capital stock of Trend authorized or issued. Except as set forth in Section
2, there are no outstanding warrants, options, contracts, rights (preemptive or
otherwise), calls, commitments or demands of any character relating to any
authorized and issued or unissued shares of capital stock of Trend or other
instruments convertible into or exchangeable for such stock, or which obligate
Trend to seek authorization to issue additional shares of any class of stock,
nor will any be created by virtue of this Agreement or the transactions hereby
contemplated or by virtue of any other act or failure to act by Trend without
the express written consent of Tigris.
3.4 PRIVATE PLACEMENT MEMORANDUM. The Private Placement Memorandum, dated
November 8, 1999, does not, to the management of Trend's best knowledge and
belief, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
contained therein not misleading, except to the extent that this Agreement has
modified or changed any statement contained in such Memorandum. From November 8,
1999 through the date on which this Agreement is executed, no event has occurred
which could constitute a material adverse change to Trend or to an investment
therein or to the investments contemplated by this Agreement. Certain material
4
issues related to a royalty arrangement with General Minerals on the Lake Owen
property were omitted from the Memorandum, but have been disclosed to TFG
subsequently.
3.5 NO DEFAULT; NON-CONTRAVENTION. Neither the execution and delivery of
this Agreement or any other document contemplated hereby nor the consummation of
the transactions contemplated herein (a) shall constitute any violation or
breach of (i) the Certificate of Incorporation or the bylaws of Trend, (ii) any
provision of any contract, agreement, instrument, judicial or administrative
order or decree to which Trend is a party or by which any of the Tigris Stock or
the Options may be affected or secured, or (iii) any order, writ injunction,
decree, statute, rule or regulation applicable to Trend, or (b) shall result in
the creation of any mortgages, pledges, liens, security interests, conditional
sale agreements, charges, encumbrances or restrictions of any kind or nature on
the Tigris Stock or the Options.
3.6 CONSENTS AND APPROVALS. No consent, authorization, order or approval
of, or filing or registration with, any governmental authority or other person
is required for the execution and delivery by Trend of this Agreement or any
other document contemplated hereby or the consummation by Trend of the
transactions contemplated herein.
Fourth: Covenants of the Parties.
4.1 CONDUCT OF BUSINESS. Throughout the periods during which the Options
described in Section 2.2 are outstanding and unexercised (the "Options Period"),
Trend shall desist from securing funds from any third parties, and from issuing
new shares, options, warrants and/or any rights with respect to its capital
stock without first obtaining Tigris's prior written consent, even in the
ordinary course of business. Throughout the period during which the First Option
is outstanding and unexercised, this Section shall not preclude Trend or its
agents from discussing possible funding opportunities with interested third
parties, but no investment in Trend will be concluded or agreed to during the
Options Period without the prior written consent of Tigris. Should the First
Option be exercised in its entirety, Trend and its agents shall be precluded
from discussing possible funding opportunities with interested third parties
without the prior written consent of Tigris.
4.2 CONFIDENTIALITY. Without Tigris's prior written consent obtained with
respect to each separate event or occurrence, during the Options Period Trend
shall, and shall cause its respective affiliates, officers, directors, employees
and agents (collectively, "Representatives") to, treat and safeguard as
confidential and secret TFG's investment in Trend and Trend shall not and shall
not permit its Representatives to use, disclose, furnish or make accessible to
any person any information concerning TFG's investment in Trend, except as may
be required by law in the reasonable determination of Trend's counsel. For
purposes of this Section 4.2, such confidentiality shall not include any
information which is at the time of its disclosure by Trend or any of its
representatives in the public domain other than as a result of any breach by the
Trend or its Representatives of this Section 4.2.
4.3 ELECTION OF DIRECTORS. Promptly following the exercise by TFG of any
Option or portion thereof hereunder, Tigris shall be offered proportional board
representation on Trend's board of directors. Trend covenants, represents and
warrants that, if necessary or appropriate, it will reorganize its board of
directors to effectuate the foregoing.
4
4.4 CPM GROUP. If Tigris exercises the First Option, Trend will retain CPM
Group as advisors to Trend and Trend's board of directors on mutually agreeable
terms.
4.5 DUE DILIGENCE. Tigris shall appoint one or more or more independent
geologist(s) and/or mine engineer(s) and/or other mining or financial experts to
review Trend's properties and business. Trend shall fully cooperate with
Tigris's advisors and shall promptly make available any information,
confidential or otherwise, that may be requested. An overall review of Trend's
properties shall be undertaken, including but not limited to review of any
environmental liabilities and exposures Trend may face in its properties, and
the validity of the claims Trend has staked. To the extent that this has not
already been satisfactorily provided by Trend, Tigris's due diligence may
include requests of Trend's counsel (which Trend will do its utmost to
facilitate) to provide opinions of counsel confirming, among other items, the
following: (i) the validity of title of the various properties and claims
encompassing Trend's property portfolio; and (ii) confirmation that Trend's
agreements and its joint-ventures in its various jurisdictions are valid,
binding and enforceable.
4.6 SILVER PROPERTIES. Upon the request of Tigris, Trend shall use its
commercially reasonable efforts to divest itself of any and all silver
properties.
4.7 REDOMICILATION. Upon the request of Tigris, Trend shall change its
domicile from Montana to the state or jurisdiction requested by Tigris.
4.8 EMPLOYMENT AGREEMENTS. Trend shall enter into employment agreements
with Xxxx Xxxxxxx and other key Trend personnel in form and substance mutually
satisfactory to Trend and Tigris.
FIFTH: DEMAND REGISTRATION.. At any time after the Closing Date, Tigris
may request that Trend register under the Securities Act of 1933, as amended
(the "Securities Act"), all or a portion of the securities held by TFG.
Following such request, Trend will use its best efforts to cause such of the
securities as may be requested by Tigris to be registered under the Securities
Act and the "Blue Sky" laws of such jurisdictions as are requested by Tigris.
All expenses incurred in connection with such demand registration, qualification
or compliance pursuant to this Article shall be borne by Trend.
SIXTH: MISCELLANEOUS.
6.1 SURVIVAL OF COVENANTS. The covenants set forth in Sections 4.1, 4.2,
4.3, 4.5 and 4.7 shall terminate if Tigris does not exercise the First Option.
6.2 SURVIVAL OF REPRESENTATIONS. All statements, certifications,
covenants, representations and warranties made herein by the parties to this
Agreement, and their respective obligations to be performed pursuant to the
terms hereof, shall survive the Closing Date.
6.3 NOTICES. Any notice, demand or request required or permitted to be
given or made to a party shall be in writing and shall be deemed given or made
when delivered, sent by facsimile with confirmation of receipt, or three days
after being mailed by certified or registered mail, postage prepaid and return
receipt requested, to such party as follows:
5
To Tigris:
Tigris Financial Group
000 Xxxx 00xx Xxxxxx, Xxx. 0X
Xxx Xxxx, XX 00000
Attn: Mr. Xxxxxx Xxxxxx
With a copy to:
Xxxxxxx Xxxxxxx, Esq.
Rosenman & Colin LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
To Trend:
Trend Mining Company
000 Xxxxxxx Xxx., Xxxxx 000
Xxxxx x'Xxxxx, XX 00000
Attn: Mr. Xxxx Xxxxxxx
Any party may designate another address or person for receipt of notices under
this Agreement by giving notice to the other parties in accordance with this
Section.
6.4 NO MODIFICATION EXCEPT IN WRITING. This Agreement may not be changed,
modified or amended except by a writing signed by the party to be charged and
then only to the extent therein set forth. This Agreement may not be discharged
except by performance in accordance with its terms or by a writing signed by the
party to be charged.
6.5 ENTIRE AGREEMENT. This Agreement, including all other documents to be
delivered in connection herewith, sets forth the entire agreement and
understanding between the parties as to the subject matter hereof and merges and
supersedes all prior discussions, agreements and understandings of every kind
and nature between them, and no party hereto shall be bound by any condition,
definition, warranty or representation other than as expressly provided for in
this Agreement or as may be on a date subsequent to the date hereof duly set
forth in writing signed by the party hereto which is to be bound thereby.
6.6 SEVERABILITY. If any provision of this Agreement or the application of
any provision hereof to any person or circumstances is held invalid, the
remainder of this Agreement and the application of such provision to other
persons or circumstances shall not be affected unless the provision held invalid
shall substantially impair the benefits of the remaining portions of this
Agreement.
6.7 ASSIGNMENT. This Agreement and all rights hereunder may not be
assigned by Trend except with the prior written consent of Tigris, but may be
assigned by Tigris. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
6
6.8 GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to contracts made
and to be performed wholly within said State, without giving effect to the
conflict of laws principles thereof.
6.9 ARBITRATION. Any controversy or claim arising out of or relating to
this Agreement shall be resolved by binding arbitration on an expedited basis in
New York City in accordance with the then-prevailing rules of the American
Arbitration Association. There shall be three arbitrators selected within ten
days of notification to the other party of the dispute being referred to
arbitration; each side to any controversy, dispute, disagreement, or claim shall
select an arbitrator and the two arbitrators so selected shall select the third
arbitrator; provided that (i) the arbitrators shall be practicing attorneys who
are members of the New York State Bar, (ii) the arbitrators shall be
knowledgeable in industry standards and practices, (iii) the authority of the
arbitrators shall be limited to construing and enforcing the express terms of
this Agreement, and (iv) the arbitrators shall state the reasons for the award
in a written opinion. The award of the arbitrators, or a majority of then, shall
be final and judgment upon the award may be confirmed and entered in any United
States court, state or federal, or other court having jurisdiction. The parties
hereto waive any right of appeal of the arbitrators' award.
6.10 CAPTIONS. The captions appearing in this Agreement are inserted only
as a matter of convenience and for reference and in no way define, limit or
describe the scope and intent of this Agreement or any of the provisions hereof.
6.11 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
TIGRIS FINANCIAL GROUP
By: /s/Xxxxxx Xxxxxx
-----------------------------
Name: Xxxxxx Xxxxxx
Title: President
TREND MINING CO.
By: /s/Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: President
8
AMENDMENT TO STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of
June 27, 2000, between ELECTRUM LLC ("Electrum"), a Cayman Islands company, and
TREND MINING CO. ("Trend"), a Montana corporation.
W I T N E S S E T H :
WHEREAS, Trend and Tigris Financial Group, Ltd. ("Tigris") entered into
a Stock Purchase Agreement, dated as of December 29, 1999 (the "Stock Purchase
Agreement"); and
WHEREAS, Tigris assigned the Stock Purchase Agreement to Electrum by an
Assignment Agreement, dated as of March 8, 2000; and
WHEREAS, the parties hereto wish to amend the Stock Purchase Agreement as
hereinafter provided.
NOW, THEREFORE, the parties hereto agree as follows:
1. Section 2.2(b) of the Stock Purchase Agreement is hereby deleted in its
entirety and the following new Sections 2.2(b), 2.2(c) and 2.2(d) are inserted
in lieu thereof:
"(b) TFG has the option to acquire up to an additional 1,597,588 shares
of Common Stock (the "Second Option"), for an aggregate purchase
price of $100,000 ($0.062 per share). The Second Option may be
exercised by TFG in whole or in part at any time from June 27, 2000
through July 5, 2000 (the "Second Option Period").
"(c) If Tigris exercises the Second Option in full, then Tigris shall
have the option to acquire up to an additional 4,740,174 shares of
Common Stock (the "Third Option"), for an aggregate purchase price
of $545,120 ($0.115 per share). The Third Option may be exercised by
TFG in whole or in part at any time from the date the Second Option
is exercised through September 25, 2000 (the "Third Option Period").
"(d) If any options, warrants or other convertible securities to purchase
or otherwise acquire shares of Common Stock are outstanding as of
June 27, 2000, then, if TFG exercises the Third Option in full, TFG
shall have the preemptive right to purchase additional shares of
Common Stock to maintain a 60.4% ownership interest in the Common
Stock, subject to any reduction in said percentage to reflect the
issuance subsequent to June 27, 2000 of shares of Common Stock other
than pursuant to said options, warrants or other convertible
securities outstanding as of June 27, 2000. Said preemptive right
may be exercised in whole or in part at any time from the date the
Third Option is exercised in full until the later to occur of 60
days after said date or 60 days after the respective dates of the
issuance of the shares of Common Stock pursuant to said options,
warrants or convertible securities outstanding as of June 27, 2000."
2. Section 2.3 of the Stock Purchase Agreement is hereby deleted in its
entirety and the following new Section 2.3 is inserted in lieu thereof:
"2.3 WARRANTS. As a result of Electrum's payment to Trend of $10,000
effected by wire transfer on or about June 8, 2000, receipt of which
is hereby acknowledged, Trend shall promptly issue to Electrum, in
form and substance reasonably acceptable to Electrum, warrants to
purchase an additional 7,979,761 shares of
2
Common Stock (the "Warrants"), which may be exercised for an
aggregate purchase price of $3,191,900 ($0.40 per share). The
Warrants may be exercised by TFG in whole or in part at any time
through September 30, 2003."
3. Sections 2.4 and 2.5 of the Stock Purchase Agreement are hereby
deleted in their entireties.
4. The Stock Purchase Agreement, as hereby amended, shall remain in
full force and effect.
5. This Agreement may be executed in counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
ELECTRUM LLC
By: /s/Vijayabalan Muregesu
-------------------------------------
Name: Vijayabalan Muregesu
Title: Director
TREND MINING CO.
By: /s/Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: President
3
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR REGISTERED OR QUALIFIED UNDER ANY
STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS SUCH SALE, TRANSFER, PLEDGE OR HYPOTHECATION IS IN
ACCORDANCE WITH SUCH ACT AND APPLICABLE STATE SECURITIES LAWS.
Number of Shares of Common Stock: 7,979,761 Warrant No. 1
WARRANT
to Purchase
Common Stock, No Par Value
of
Trend Mining Company
a Montana corporation
THIS IS TO CERTIFY THAT for value received, Electrum LLC, is entitled to
purchase from Trend Mining Company, a Montana corporation (hereinbelow called
the "Issuer" or the "Company"), on or after June 9, 2000, but not later than
5:00 p.m. eastern standard time on September 30, 2003 (the "Expiration Date"),
7,979,761 shares of the Company's Common Stock, in whole or in part, at a
purchase price of $0.40 per share of Common Stock, all on the terms and
conditions hereinbelow provided.
Section 1. CERTAIN DEFINITIONS. As used in this Warrant, unless
the context otherwise requires:
"COMMON STOCK" shall mean the Issuer's authorized Common Stock, with
no par value.
"COMMON STOCK WARRANT" OR "WARRANT" shall mean this Warrant for the
purchase of up to 7,979,761 shares, in the aggregate, of Common Stock, and all
additional or new warrants issued upon division or combination of, or in
substitution for, this Warrant. All such additional or new warrants shall at all
times be identical as to terms and conditions and date, except as to the number
of shares of Common Stock for which they may be exercised.
"EXERCISE PRICE" shall mean the purchase price of $0.40 per share of
Common Stock.
"MARKETABLE SECURITIES" shall mean securities registered under the
Securities Act of 1933 (the "Securities Act") and, if such securities are held
by an affiliate of the Issuer, which are permitted to be sold under Rule 144 in
a single ninety-day period.
"WARRANT STOCK" shall mean the shares of Common Stock purchasable by
the holder of a Warrant upon the exercise of such Warrant.
Section 2. EXERCISE OF WARRANT. This Warrant is made pursuant to and
subject to the terms and conditions of that Amendment to Share Purchase
Agreement between Tigris Financial and Issuer dated effective February 20, 2000.
This Warrant may be exercised in whole or in part on or after June 09, 2000 and
thereafter through the Expiration Date.
The holder of this Warrant may exercise this Warrant, in whole or in
part by delivering to the Issuer at its office maintained for such purpose
pursuant to Section 13, (i) a written notice of such holder's election to
exercise this Warrant, which notice shall specify the number of shares of Common
Stock to be purchased, (ii) this Warrant and (iii) a sum equal to the aggregate
of the Exercise Price for such shares of Common Stock, by wire transfer in
immediately available funds.
Such notice shall be in the form of the Subscription Form set out at
the end of this Warrant. Upon delivery thereof, the Issuer shall cause to be
executed and delivered to such holder within ten business days, a certificate or
certificates representing the aggregate number of fully-paid and nonassessable
shares of Common Stock issuable upon such exercise.
Subject to the restrictions in Sections 9 and 10, the stock
certificate or certificates for Warrant Stock so delivered shall be in such
denominations as may be specified in said notice and shall be registered in the
name of such holder or such other name or names as shall be designated in said
notice. Such certificate or certificates shall be deemed to have been issued and
such holder or any other person so designated to be named therein shall be
deemed to have become a holder of record of such shares, including to the extent
permitted by law the right to vote such shares or to consent or to receive
notice as a shareholder, as of the time said notice is delivered to the Issuer
as aforesaid. If this Warrant shall have been exercised only in part, the Issuer
shall, at the time of delivery of such certificate or certificates, deliver to
such holder a new Warrant dated the date it is issued, evidencing the rights of
such holder to purchase the remaining shares of Common Stock called for by this
Warrant, which new Warrant shall in all other respects be identical with this
Warrant, or, at the request of such holder, appropriate notation may be made on
this Warrant and the Warrant shall be returned to such holder.
The Issuer shall pay all expenses, taxes and other charges payable
in connection with the preparation, issue and delivery of stock certificates
under this Section 2.
2
All shares of Common Stock issuable upon the exercise of this
Warrant in accordance with the terms hereof shall be validly issued, fully paid
and nonassessable, and free from all liens and other encumbrances thereon, other
than liens or other encumbrances created by the holder hereof.
Section 3. ADJUSTMENT OF EXERCISE PRICE AND WARRANT STOCK. If the
Issuer shall at any time prior to the Expiration Date subdivide its outstanding
Common Stock, by split-up or otherwise, or combine its outstanding Common Stock,
or issue additional shares of its Common Stock in payment of a stock dividend in
respect of its Common Stock, the number of shares of Warrant Stock then issuable
on the exercise of the unexercised portion of this Warrant shall forthwith be
proportionately increased in the case of a subdivision or stock dividend, or
proportionately decreased in the case of a combination, and the Exercise Price
then applicable to shares covered by the unexercised portion of this Warrant
shall forthwith be proportionately decreased in the case of a subdivision or
stock dividend, or proportionately increased in the case of a combination.
Whenever the Exercise Price is adjusted as herein provided, the Issuer shall
promptly deliver to the registered holder of this Warrant a certificate of its
principal financial officer setting forth the Exercise Price after such
adjustment and a brief statement of the facts requiring such adjustment.
Section 4. RECLASSIFICATION, ETC. In case of any reclassification or
change of the outstanding Common Stock of the Issuer (other than as a result of
a subdivision, combination or stock dividend), or in case of any consolidation
of the Issuer with, or merger of the Issuer into, another corporation or other
business organization (other than a consolidation or merger in which the Issuer
is the continuing corporation and which does not result in any reclassification
or change of the outstanding Common Stock of the Issuer), at any time prior to
the Expiration Date, then, as a condition of such reclassification,
reorganization, change, consolidation or merger, lawful provision shall be made,
and duly executed documents evidencing the same from the Issuer or its successor
shall be delivered to the registered holder of this Warrant, so that the
registered holder of this Warrant shall have the right prior to the expiration
of this Warrant to purchase, at a total price not to exceed that payable upon
the exercise of the unexercised portion of this Warrant, the kind and amount of
shares of stock and other securities and property receivable upon such
reclassification, reorganization, change, consolidation or merger by a holder of
the number of shares of Common Stock of the Issuer which might have been
purchased by the registered holder of this Warrant immediately prior to such
reclassification, reorganization, change, consolidation or merger, and in any
such case appropriate provisions shall be made with respect to the rights and
interest of the registered holder of this Warrant to the end that the provisions
hereof (including without limitation, provisions for the adjustment of the
Exercise Price and of the number of shares purchasable upon exercise of this
Warrant) shall thereafter be applicable in relation to any shares of stock and
other securities and property thereafter deliverable upon exercise hereof.
Notwithstanding the foregoing, if pursuant to the terms of such consolidation or
merger, the consideration to be received by the holders of Common Stock of the
Issuer is cash and/or Marketable Securities, this Warrant shall expire to the
extent unexercised on the closing of such merger or consolidation.
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Section 5. CERTAIN NOTICES. If at any time prior to the expiration
or exercise of this Warrant, the Issuer shall pay any dividend or make any
distribution upon its Common Stock or shall make any subdivision or combination
of or other change in its Common Stock, the Company shall cause notice thereof
to be mailed, first class, postage prepaid, to the registered holder of this
Warrant at least twenty days prior to the date as of which holders of Common
Stock who shall participate in such dividend, distribution, subdivision,
combination or other change are to be determined. Such notice shall also specify
the time as of which holders of Common Stock who shall participate in such event
are to be determined. The Company shall also provide to the registered holder of
this Warrant at least twenty days prior written notice of the closing of the
sale of shares of Common Stock in an underwritten public offering pursuant to an
effective registration statement under the Securities Act of 1933, as amended.
Failure to give any such notice, or any defect therein, shall not affect the
legality or validity of any such event.
Section 6. RESERVATION AND AUTHORIZATION OF COMMON STOCK. The Issuer
shall at all times reserve and keep available for issuance upon the exercise of
Warrant such number of its authorized but unissued shares of Common Stock as
will be sufficient to permit the exercise in full of the Warrant.
Section 7. STOCK AND WARRANT BOOKS. The Issuer will not at any time,
except upon dissolution, liquidation or winding up, close its stock books or
Warrant books so as to result in preventing or delaying the exercise of the
Warrant.
Section 8. NO VOTING RIGHTS. This Warrant shall not entitle the
holder hereof to any voting rights or other rights as a shareholder of the
Issuer.
Section 9. TRANSFER. This Warrant may not be transferred or
otherwise assigned or conveyed by the holder hereof without the prior written
consent of Issuer, which consent Issuer may withhold in its sole discretion.
Section 10. INVESTMENT REPRESENTATIONS; RESTRICTIONS ON TRANSFER OF
WARRANT AND WARRANT STOCK. The holder represents and agrees that: (i) upon
exercise of the Warrant, holder will acquire the Warrant Stock for its own
account for investment and not with any intent or view to any distribution,
resale or other disposition of the Warrant Stock; (ii) it will not sell or
transfer the Warrant or the Warrant Stock, unless such are registered under the
Securities Act of 1933 (the "Act"), except in a transaction that is exempt from
registration under the Act; and (iii) each certificate issued to represent any
of the Warrant Stock shall bear a legend calling attention to the foregoing
restrictions and agreements. The Company may require, as a condition of the
exercise of the Warrant, that the holder hereof sign such further
representations and agreements as it reasonably determines to be necessary or
appropriate to assure and to evidence compliance with the requirements of the
Act.
Section 11. LOSS, DESTRUCTION OF WARRANT CERTIFICATES. Upon receipt
of evidence satisfactory to the Issuer of the loss, theft, destruction or
mutilation of the Warrant and, in the case of any such loss, theft or
destruction, upon receipt of indemnity satisfactory to the Issuer or, in the
case of any such mutilation, upon surrender and cancellation of the Warrant, the
Issuer will
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make and deliver, in lieu of such lost, stolen, destroyed or mutilated Warrant,
a new Warrant of like tenor and representing the right to purchase the same
aggregate number of shares of Common Stock.
Section 12. AMENDMENTS. The terms of this Warrant may be amended,
and the observance of any term herein may be waived, but only with the written
consent of the Issuer as authorized by its Board of Directors and the holder of
this Warrant.
Section 13. OFFICE OF THE ISSUER. So long as this Warrant remains
outstanding, the Warrant may be presented for exercise, division or combination
as in this Warrant provided, to the Issuer at its office at 000 Xxxxxxx Xxxxxx,
Xxxxx 000, Xxxxx X'Xxxxx, Xxxxx, unless and until the Issuer shall designate and
maintain some other office for such purposes and deliver written notice thereof
to the holder of the Warrant.
Section 14. NOTICES GENERALLY. Any notice, demand or delivery
pursuant to the provisions hereof shall be sufficiently delivered or made if
sent by first class mail, postage prepaid, addressed to Tigris Financial Group
at its last known address appearing on the books of the Issuer, or to the Issuer
at its principal executive office at the address set forth in Section 13, or
such other address as shall have been furnished to the party giving or making
such notice, demand or delivery.
Section 15. SUCCESSORS AND ASSIGNS. This Warrant shall bind and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and permitted assigns.
Section 16. GOVERNING LAW. This Warrant shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to its rules as to conflicts of law.
IN WITNESS WHEREOF, the Issuer has caused this Warrant to be signed
in its name by its President or a Vice President and attested by its Secretary
or an Assistant Secretary.
Dated: June 9, 2000.
TREND MINING COMPANY, a Montana
corporation
By: Xxxx Xxxxxxx
----------------------------
Xxxx Xxxxxxx (name)
President (title)
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ATTEST:
/s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Assistant Secretary/Treasurer
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