EXHIBIT 10.1
ATLAS MINING COMPANY
COMMON STOCK SUBSCRIPTION AGREEMENT
This Atlas Mining Company Common Stock Subscription Agreement (the
"Agreement") is hereby submitted by ____________________________________________
(the "Purchaser") for acceptance by Atlas Mining Company, a Idaho corporation
(the "Company") as of , 2002.
1. ISSUANCE AND SALE OF COMMON STOCK. Subject to the terms hereof, at the
closing as provided for hereunder, the Company will issue and sell to the
Purchaser and the Purchaser will buy from the Company the number of shares of
the Company's Common Stock indicated on the signature page below (the "Shares"),
at a purchase price of $.25 per share.
2. CLOSING; DELIVERY.
2.1 CLOSING. The closing (the "Closing") of the purchase and sale of
the Shares to the Purchaser hereunder shall be held at the offices of the
Company, located at 1221 West Yellowstone Avenue, Osburn, Idaho, 83849, at the
time and date upon which the Company accepts and signs this Agreement. The
Company may issue and sell additional shares of its Common Stock at additional
closings related to the Offering registered on Form SB-2 (SEC File No:
333-72830) at a purchase price of not less than $.25 per share, up to the
aggregate maximum of 6,000,000 shares. Notwithstanding anything to the contrary
in this Section 2.1, unless otherwise extended by the Company, no such Closing
or closings for the sale and issuance by the Company of shares of its Common
Stock shall occur on the ninetieth (90) day following the effectiveness of the
Company's Registration Statement SB-2.
2.2 DELIVERY. At the Closing of the sale of the Shares to the
Purchaser, the Purchaser shall deliver to the Company cash, a check or wire
transfer payable to the Company, or any other consideration acceptable to the
Company, at the Company's sole discretion, for the appropriate aggregate
purchase price of the Shares. Upon receipt of the Purchaser's payment and the
acceptance by the Company of this Agreement from the Purchaser, the Company will
prepare a stock certificate representing the Shares purchased by the Purchaser
and promptly transmit such stock certificate to the Purchaser at the address
specified below.
3. THE COMPANY'S REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Purchaser as follows:
3.1 ORGANIZATION AND STANDING. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Idaho and has all requisite corporate power and authority to carry on its
businesses as now conducted and as proposed to be conducted. The Company is
qualified or licensed to do business as a foreign corporation in all
jurisdictions where such qualification or licensing is required, except where
the failure to so qualify would not have a material adverse effect upon the
Company.
3.2 CORPORATE POWER. The Company has now, or will have at the date of
each of the respective Closings, all requisite corporate power necessary for the
authorization, execution and delivery of this Agreement and to sell and issue
the Shares, and to carry out and perform all of its obligations hereunder.
3.3 AUTHORIZATION. This Agreement, including the obligation to issue
the Shares to be issued hereunder, when executed and delivered by the Company,
will constitute a valid and legally binding obligation of the Company,
enforceable in accordance with its terms, subject to laws of general application
relating to bankruptcy, insolvency and the relief of debtors and rules of law
1
governing specific performance, injunctive relief or other equitable remedies.
The Company has duly authorized the execution, delivery and performance of this
Agreement, including the issuance of the Shares by the Company.
3.4 NO CONSENT. No consent, approval or authorization of or
designation, declaration or filing with any governmental authority or other
outside third party on the part of the Company is required in connection with
the valid execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby.
3.5 CAPITALIZATION. As of the date of the Closing, the authorized
capital stock of the Company will consist of 60,000,000 shares of Common Stock,
of which 7,006,727 shares are issued and outstanding. The maximum aggregate
number of shares of Common Stock to be issued and sold by the Company will not
exceed the number of shares currently authorized in the Articles of
Incorporation. All such issued and outstanding shares of Common Stock have been
duly authorized and validly issued and are fully paid and nonassessable, and
have been issued in compliance with all applicable state and federal laws
concerning the issuance of securities.
3.6 COMPLIANCE WITH OTHER INSTRUMENTS, NONE BURDENSOME, ETC. The
Company is not in violation of any term of its Certificate of Incorporation or
Bylaws, as amended, or any mortgage, indenture, contract, agreement, instrument,
judgment, decree or order by which the Company is bound or to which its
properties are subject or, to its knowledge any statute, rule or regulation
applicable to the Company which would materially and adversely affect the
business, assets, liabilities, financial condition, operations or prospects of
the Company. The execution, delivery and performance of and compliance with this
Agreement and the transactions contemplated hereby will not result in any such
violation and will not be in conflict with or constitute a default under any of
the foregoing and will not result in the creation of any mortgage, pledge, lien,
encumbrance or charge upon any of the properties or assets of the Company
pursuant to any of the foregoing.
3.7 VALID ISSUANCE. The Shares, when issued in compliance with the
provisions of this Agreement, will be validly issued, fully paid and
nonassessable and will be free of any liens or encumbrances created by or
imposed upon the holders thereof through action of the Company except as set
forth in this Agreement. Subject to the accuracy of each Purchaser's
representations in Section 4 hereof, the Shares will be issued in compliance
with all applicable federal and state securities laws.
3.8 FREELY TRADABLE. All shares issued pursuant to this Subscription
Agreement have been registered pursuant to the Securities Act of 1933, as
amended, on Form SB-2 (SEC File No: 333-72380)(the "Registration Statement").
This Registration Statement will be or has become effective as of the date of
the execution of this Agreement and no stop order shall have been issued
regarding the shares issued. Accordingly, the shares subscribed to and issued
pursuant to this Agreement are freely tradable and unrestricted.
4. REPRESENTATIONS, WARRANTIES OF THE PURCHASER. The Purchaser represents
and warrants to the Company with respect to this purchase as follows:
4.1 PROSPECTUS. The Purchaser has received a copy of this Prospectus
registered on Form SB-2 (SEC File No: 333-72380).
4.2 EFFECTIVENESS. The Purchaser has not received any soliciting
materials regarding the shares subscribed to herein aside from the Prospectus
discussed in Section 4.1 of this Agreement. The Purchaser has not tendered this
Agreement prior to effectiveness of the Registration Statement and understands
that no shares will be issued prior to the date of effectiveness.
2
4.3 HIGH RISK. The Purchaser realizes that an investment in the Shares
involves a high degree of risk, and has reviewed the risk factors in the
Prospectus beginning on page 6 of the Prospectus.
5. MISCELLANEOUS.
5.1 GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the State of California without regard to the conflict of laws
provisions. The parties hereto agree to submit to the exclusive jurisdiction of
the federal and state courts of the State of California with respect to the
interpretation of this Agreement or for the purposes of any action arising out
of or relating to this Agreement.
5.2 SURVIVAL. The representations, warranties, covenants and agreements
made herein shall survive the Closing of the transactions contemplated hereby.
All statements as to factual matters contained in any certificate or other
instrument delivered by or on behalf of the Company pursuant hereto or in
connection with any of the transactions contemplated hereby shall be deemed to
be representations and warranties of the Company hereunder solely as of the date
of such certificate or instrument.
5.3 ENTIRE AGREEMENT; AMENDMENT. This Agreement, including any
agreements contemplated hereunder, constitutes the full and entire understanding
and agreement between the parties with regard to the subject matter hereof, and
no party shall be liable or bound to any other party in any manner by any
warranties, representations or covenants except as specifically set forth herein
or therein. Except as expressly provided herein, neither this Agreement nor any
term hereof may be amended, waived, discharged or terminated other than by a
written instrument signed by the party against whom enforcement of any such
amendment, waiver, discharge or termination is sought.
5.4 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand or by messenger,
addressed (a) if to a Purchaser, at such respective address as set forth in the
Schedule of Purchasers attached hereto as Attachment A or at other such address
as Purchaser shall have properly furnished in writing to the Company attention
of the President or (b) if to the Company, at Atlas Mining Company, Inc. 630
East Mullan Avenue, Osburn, Idaho, 83849, Attn: Mr. Bill Jacobson or at other
such address as the Company shall have properly furnished to the Purchasers in
writing. Such notices shall be deemed effective upon (i) personal delivery to
the party to be notified; (ii) upon the next business day if sent by confirmed
telex or facsimile; (iii) one business day after deposit with a nationally
recognized overnight carrier, specifying next day delivery; or (iv) five
business days after having been sent by registered or certified mail, return
receipt requested, postage prepaid.
5.5 EXPENSES. The Company and each Purchaser shall bear its own
expenses incurred on its behalf with respect to this Agreement and the
transactions contemplated hereby.
5.6 RULES OF CONSTRUCTION. The parties hereto agree that they have been
adequately represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any law, regulation, holding
or rule of construction providing that ambiguities in an agreement or other
document will be construed against the party drafting such agreement or
document.
5.7 SEVERABILITY. In the event that any provision of this Agreement or
the application thereof becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as to
reasonably affect the intent of the parties hereto. To the extent possible, the
parties further agree to replace such void or unenforceable provision of this
Agreement with a valid and enforceable provision that will achieve the economic,
business and other purposes of such void or unenforceable provision as closely
as possible.
3
5.8 BROKER'S FEES. Each party hereto represents and warrants that no
agent, broker, investment banker, person or firm acting on behalf of or under
the authority of such party hereto is or will be entitled to any broker's or
finder's fee or any other commission directly or indirectly in connection with
the transactions contemplated herein. Each party hereto further agrees to
indemnify each other party for any claims, losses or expenses incurred by such
other party as a result of the representation of this section being untrue.
5.9 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
4
ATLAS MINING COMPANY
COMMON STOCK SUBSCRIPTION AGREEMENT
SIGNATURE PAGE
The undersigned hereby subscribes for the following number of Shares of the
Company's Common Stock pursuant to the terms and conditions contained in this
Stock Subscription Agreement at a purchase price of $.25 per share:
PURCHASER:
Number of Shares of
Common Stock:
---------------
Purchase Price per Share: $.25
Total Purchase Price: $
---------------
IF FOR AN INDIVIDUAL: IF FOR AN ENTITY:
Entity Name:
--------------------
By: By:
-------------------------------------- -----------------------------
Print Name: Print Name:
------------------------------ ---------------------
Title:
--------------------------
COMPANY:
AGREED AND ACCEPTED AS TO _______________ SHARES EFFECTIVE AS OF
-----------
- ------------------------------.
Atlas Mining Company
a Idaho Corporation
By:
---------------------------------------
Bill Jacobson, President
ATTACHMENT A
------------
Names and Addresses of Purchasers