Exhibit 10.27
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT(the "Agreement"), is entered into as of the
4th day of January, 2006 (the "Effective Date") , by and between Billfighter
Investments Limited, an Anguilla limited liability company (the "Investor"), and
Reclamation Consulting and Applications, Inc., a corporation organized and
existing under the laws of the State of Colorado (the "Company").
WHEREAS, the Company has authorized seventy-five million (75,000,000)
shares of common stock (the "Common Stock") with a par value of one cent ($0.01)
per share, of which twenty-nine million, six hundred twenty thousand, eight
hundred thirteen (29,620,813) shares are issued and outstanding as of the date
hereof;
WHEREAS, contemporaneously herewith, the parties have entered into that
certain License Agreement, dated of even date herewith (the "License
Agreement"), pursuant to which the Investor has granted the Company the
exclusive right and license to use, modify, produce, market, sell and distribute
Reliant III automated spray applicator system (the "Licensed Product") in the
aggregate and mining industries anywhere in the world in consideration for,
among other things, the shares of the Company's Common Stock subscribed for
pursuant hereto (collectively, the "License Fee"); and
WHEREAS, subject to the terms and conditions contained herein, the
Investor desires to purchase four million (4,000,000) shares of the Company's
Common Stock (the "Shares") at eight cents ($0.08) per share for an aggregate
purchase price of Three Hundred and Twenty Dollars ($320,000) (the "Purchase
Price").
NOW, THEREFORE, in consideration of the foregoing premises and the
covenants and agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Subscription for the Shares. Upon execution of this Agreement, the
Investor hereby irrevocably agrees to subscribe for the Shares to be
issued by the Company in accordance with the terms of this Agreement. Such
Shares, once delivered to the Investor as set forth herein, shall be
validly issued, fully paid and non-assessable, and shall be recorded on
the books and records of the Company as issued to Billfighter Investments
Limited.
2. Consideration for and Issuance of the Shares. As consideration for the
Shares, the Investor agrees to credit the amount of the Purchase Price
towards the License Fee on the terms and conditions as more fully set
forth in the License Agreement. Upon the execution of License Agreement
and this Agreement, the Company shall cause the Investor to be issued a
stock certificate in the manner set forth above, evidencing the Investor's
ownership of the Shares.
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3. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Investor, as of the date hereof, the
following:
(a) the Company is a corporation duly organized and validly existing
under the laws of the State of Colorado, and has full power and
authority to enter into, execute and perform this Agreement, which
Agreement, once executed by the Company, shall be the valid and
binding obligation of such party, enforceable against such party by
any court of competent jurisdiction in accordance with its terms;
(b) the individuals signing this Agreement on behalf the Company are the
duly elected executive officers of the Company so indicated, and
have full power and authority to enter into and execute this
Agreement for and on behalf of the Company;
(c) the Company is not bound by or subject to any contract, agreement,
court order or judgment, administrative ruling, law, regulation or
any other item which prohibits or restricts such party from entering
into and performing this Agreement in accordance with its terms, or
requiring the consent of any third party prior to the entry into or
performance of this Agreement in accordance with its terms by such
party.
4. Representations and Warranties of the Investor. The Investor hereby
represents and warrants to the Company, as of the date hereof, the
following:
(a) the Investor is a limited liability company duly organized, validly
existing, and in good standing under the laws of Anguilla, with full
power and authority, and all necessary consents, authorizations,
approvals, orders and licenses to enter into, execute and perform
this Agreement and the License Agreement (collectively, the
"Agreements"), which Agreements, once executed by the Investor,
shall be the valid and binding obligation of such party, enforceable
against such party by any court of competent jurisdiction in
accordance with its terms;
(b) the Investor is not bound by or subject to any contract, agreement,
law, court order or judgment, administrative ruling, regulation or
any other item which prohibits or restricts such party from entering
into and performing the Agreements in accordance with their
respective terms, or requiring the consent of any third party prior
to the entry into or performance of each of the Agreements in
accordance with its respective terms by such party;
(c) with respect to the Shares being acquired by the Investor:
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(i) the Investor is acquiring the Shares for his own account, and
not with a view toward the subdivision, resale, distribution,
or fractionalization thereof; the Investor has no contract,
undertaking, or arrangement with any person to sell, transfer,
or otherwise dispose of the Shares (or any portion thereof
hereby subscribed for), and has no present intention to enter
into any such contract, undertaking, agreement or arrangement;
(ii) the subscription for Shares by the Investor is not the result
of any form of general solicitation or general advertising;
(iii) the Investor hereby acknowledges that: (A) the offering of the
Shares was made only through direct, personal communication
between the Investor and the Company; (B) the Investor has had
full access to material concerning the Company's planned
business and operations, which material was furnished or made
available to the Investor by officers or representatives of
the Company; (C) the Company has given the Investor the
opportunity to ask any questions and obtain all additional
information desired in order to verify or supplement the
material so furnished; and (D) the Investor understands and
acknowledges that a purchaser of the Shares must be prepared
to bear the economic risk of such investment for an indefinite
period because of: (I) the heightened nature of the risks
associated with an investment in the Company due to its status
as a development stage company; (II) illiquidity of the Shares
due to the fact that (1) the Shares have not been registered
under the Securities Act of 1933 (the "Act") or any state
securities act (nor passed upon by the SEC or any state
securities commission), and (2) the Shares may not be
registered or qualified by the Investor under federal or state
securities laws solely in reliance upon an available exemption
from such registration or qualification, and hence such Shares
cannot be sold unless they are subsequently so registered or
qualified, or are otherwise subject to any applicable
exemption from such registration requirements; and (3)
substantial restrictions on transfer of the Shares, as set
forth by legend on the face or reverse side of every
certificate evidencing the ownership of the Shares;
(d) the Investor is an "accredited investor" as such term is defined in
Rule 501 of Regulation D promulgated by the Securities and Exchange
Commission under the Act; and
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(e) the Investor has been advised to consult and has consulted with an
attorney regarding legal matters concerning the purchase and
ownership of the Shares, and with a tax advisor regarding the tax
consequences of purchasing such Shares.
5. Undertaking with Respect to Registration of the Shares. The Company hereby
agrees with the Investor, in the event of any subsequent registration of
the Company's Common Stock for public sale with the Securities and
Exchange Commission in the twelve (12) month period following the
Effective Date of this Agreement, that it shall undertake, at the request
of the Investor, to include in such registration all of the Shares
subscribed for pursuant hereto, subject to approval by the Company and its
underwriter(s) in such public offering. If the underwriter(s) should
determine that inclusion of all applicable Shares in such public offering
is not possible, or would impair or restrict in any way the ability of
such underwriter(s) to offer and sell the Common Stock covered by such
registration, then the Company shall endeavor to include such number of
Shares therein as the underwriter(s) will allow, after giving priority to
the Common Stock being offered by the Company for its own account and such
other selling stockholders as the Company may be obligated to include in
such offering. All costs and expenses incurred in such registration shall
be borne by the Company, other than the Investor's pro rata portion of the
underwriters' costs and the selling commission and discounts payable in
respect of such public offering.
6. Miscellaneous Provisions.
(a) Notices. All notices, requests, demands and other communications to
be given hereunder shall be in writing and shall be deemed to have
been duly given on the date of personal service or transmission by
fax if such transmission is received during the normal business
hours of the addressee, or on the first business day after sending
the same by overnight courier service or by telegram, or on the
third business day after mailing the same by first class mail, or on
the day of receipt if sent by certified or registered mail,
addressed as set forth below, or at such other address as any party
may hereafter indicate by notice delivered as set forth in this
Section 6(a):
If to Investor: Billfighter Investments Limited
Hannah Waiver House,
The Valley, Anguilla BWI
Attention: Bernadine Romney
If to Company: Reclamation Consulting and Applications, Inc.
23832 Rockfield Boulevard, Suite 275
Lake Forest, California 92630
Attention: Gordon Davies
President
Tel: (949) 609-0590
Fax: (949) 609-0594
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With a copy (which shall
not constitute notice) to: August Law Group, P.C.
19200 Von Karman Avenue, Suite 900
Los Angeles, California 92612
Attention: Kenneth S. August
President
Tel: (949) 752-7772
Fax: (949) 752-7776
(b) Binding Agreement; Assignment. This Agreement shall constitute the
binding agreement of the parties hereto, enforceable against each of
them in accordance with its terms. This Agreement shall inure to the
benefit of each of the parties hereto, and their respective
successors and permitted assigns; provided, however, that this
Agreement may not be assigned (whether by contract or by operation
of law) by the Investor without the prior written consent of the
Company.
(c) Entire Agreement. This Agreement constitutes the entire and final
agreement and understanding between the parties with respect to the
subject matter hereof and the transactions contemplated hereby, and
supersedes any and all prior oral or written agreements, statements,
representations, warranties or understandings between the parties,
all of which are merged herein and superseded hereby.
(d) Waiver. No waiver of any provision of this Agreement shall be deemed
to be or shall constitute a waiver of any other provision, whether
or not similar, nor shall any waiver constitute a continuing waiver.
No waiver shall be binding unless executed in writing by the party
making the waiver.
(e) Headings. The headings provided herein are for convenience only and
shall have no force or effect upon the construction or
interpretation of any provision hereof.
(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(g) Further Documents and Acts. Each party agrees to execute such other
and further documents and to perform such other and further acts as
may be reasonably necessary to carry out the purposes and provisions
of this Agreement.
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(h) Governing Law; Venue. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of
California applicable to the performance and enforcement of
contracts made within such state, without giving effect to the law
of conflicts of laws applied thereby. In the event that any dispute
shall occur between the parties arising out of or resulting from the
construction, interpretation, enforcement or any other aspect of
this Agreement, the parties hereby agree to accept the exclusive
jurisdiction of the Courts of the State of California sitting in and
for the County of Orange. In the event either party shall be forced
to bring any legal action to protect or defend its rights hereunder,
then the prevailing party in such proceeding shall be entitled to
reimbursement from the non-prevailing party of all fees, costs and
other expenses (including, without limitation, the reasonable
expenses of its attorneys) in bringing or defending against such
action.
(j) Specific Performance; Remedies Cumulative. The parties hereby agree
with each other that, in the event of any breach of this Agreement
by any party where such breach may cause irreparable harm to any
other party, or where monetary damages may not be sufficient or may
not be adequately quantified, then the affected party or parties
shall be entitled to specific performance, injunctive relief or such
other equitable remedies as may be available to it, which remedies
shall be cumulative and non-exclusive, and in addition to such other
remedies as such party may otherwise have at law or in equity.
(k) Severable Provisions. The provisions of this Agreement are
severable, and if any one or more provisions is determined to be
illegal, indefinite, invalid or otherwise unenforceable, in whole or
in part, by any court of competent jurisdiction, then the remaining
provisions of this Agreement and any partially unenforceable
provisions to the extent enforceable in the pertinent jurisdiction,
shall continue in full force and effect and shall be binding and
enforceable on the parties.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
THE COMPANY:
RECLAMATION CONSULTING
AND APPLICATIONS, INC. ATTEST:
By: /s/ Gordon W. Davies By: /s/ Michael Davies
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Gordon Davies Michael Davies
President Secretary
BILLFIGHTER INVESTMENTS, LIMITED
By: /s/ Bernadine Romney
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Name: Bernadine Romney
Authorized Signatory
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