Exhibit 10.1
THIS PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT RELATES TO AN OFFERING OF
SECURITIES IN AN OFFSHORE TRANSACTION TO PERSONS WHO ARE NOT U.S. PERSONS (AS
DEFINED HEREIN) PURSUANT TO REGULATION S UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT").
NONE OF THE SECURITIES TO WHICH THIS PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
(THE "SUBSCRIPTION AGREEMENT") RELATES HAVE BEEN REGISTERED UNDER THE 1933 ACT,
OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, NONE MAY BE
OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS
(AS DEFINED HEREIN) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S
UNDER THE 1933 ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
1933 ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN EACH CASE ONLY
IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING
TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE
WITH THE 1933 ACT.
CONFIDENTIAL
PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
(Subscribers Resident Outside of the United States)
TO: Cindisue Mining Corp. (the "Company")
11255 Tierrasanta Blvd., Unit 78
San Diego, CA 92124
Purchase of Shares
1. SUBSCRIPTION
1.1 The undersigned (the "Subscriber") hereby irrevocably subscribes for and
agrees to purchase from the Company, on the basis of the representations and
warranties and subject to the terms and conditions set forth herein, 300,000
shares (the "Shares") at the price of US $0.05 per Share (such subscription and
agreement to purchase being the "Subscription") for the total purchase price of
US $15,000 (the "Subscription Proceeds"), in a transaction exempt from the
registration requirements of the Securities Act of 1933, as amended (the
"Securities Act").
1.2 Each Share will consist of one restricted common share in the capital of the
Company. The Shares may be referred to as the "Securities".
1.3 Subject to the terms hereof, the Subscription will be effective upon its
acceptance by the Company. The Subscriber acknowledges that the offering of the
Shares (the "Offering") contemplated hereby is part a private placement of
approximately 300,000 Shares having no maximum subscription level and no minimum
aggregate subscription level.
2. PAYMENT
2.1 The Subscription Proceeds must accompany this Subscription and shall be paid
by bank wire transfer directly to the Company.
2.2 The Subscriber acknowledges and agrees that this Subscription Agreement, the
Subscription Proceeds and any other documents delivered in connection herewith
will be held on behalf of the Company. In the event that this Subscription
Agreement is not accepted by the Company for whatever reason, which the Company
expressly reserves the right to do, within 30 days of the delivery of an
executed Subscription Agreement by the Subscriber, this Subscription Agreement,
the Subscription Proceeds (without interest thereon) and any other documents
delivered in connection herewith will be returned to the Subscriber at the
address of the Subscriber as set forth in this Subscription Agreement.
2.3 Where the Subscription Proceeds are paid to the Company, the Company is
entitled to treat such Subscription Proceeds as an interest free loan to the
Company until such time as the Subscription is accepted and the certificates
representing the Securities have been issued to the Subscriber.
3. DOCUMENTS REQUIRED FROM SUBSCRIBER
3.1 The Subscriber must complete, sign and return to the Company an executed
copy of this Subscription Agreement.
3.2 The Subscriber shall complete, sign and return to the Company as soon as
possible, on request by the Company, any documents, questionnaires, notices and
undertakings as may be required by regulatory authorities, and applicable law.
4. CLOSING
4.1 Closing of the offering of the Shares (the "Closing") shall occur on or
before January 2, 2013, or on such other date as may be determined by the
Company (the "Closing Date").
4.2 The Company may, at its discretion, elect to close the Offering in one or
more closings, in which event the Company may agree with one or more subscribers
(including the Subscriber hereunder) to complete delivery of the Securities to
such subscriber(s) against payment therefor at any time on or prior to the
Closing Date.
5. ACKNOWLEDGEMENTS OF SUBSCRIBER
5.1 The Subscriber acknowledges and agrees that:
(a) none of the Securities have been registered under the 1933 Act, or
under any state securities or "blue sky" laws of any state of the
United States, and, unless so registered, may not be offered or sold
in the United States or, directly or indirectly, to U.S. Persons, as
that term is defined in Regulation S under the 1933 Act ("Regulation
S"), except in accordance with the provisions of Regulation S,
pursuant to an effective registration statement under the 1933 Act, or
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the 1933 Act and in each case in
accordance with applicable state and federal securities laws;
(b) except as provided in this Subscription Agreement, the Subscriber
acknowledges that the Company has not undertaken, and will have no
obligation, to register any of the Securities under the 1933 Act;
(c) the decision to execute this Subscription Agreement and acquire the
Securities hereunder has not been based upon any oral or written
representation as to fact or otherwise made by or on behalf of the
Company, and such decision is based entirely upon a review of
information (the receipt of which is hereby acknowledged) which has
been filed by the Company (the "Public Record") with the Securities
and Exchange Commission (the "SEC");
(d) neither the SEC nor any other securities commission or similar
regulatory authority has reviewed or passed on the merits of the
Shares;
(e) there is no government or other insurance covering any of the
Securities;
(f) there are risks associated with an investment in the Securities;
(g) the Subscriber has not acquired the Shares as a result of, and will
not itself engage in, any "directed selling efforts" (as defined in
Regulation S under the 1933 Act) in the United States in respect of
the Shares which would include any activities undertaken for the
purpose of, or that could reasonably be expected to have the effect
of, conditioning the market in the United States for the resale of any
of the Securities; provided, however, that the Subscriber may sell or
otherwise dispose of the Shares pursuant to registration thereof under
the 1933 Act and any applicable state and federal securities laws or
under an exemption from such registration requirements;
(h) the Subscriber and the Subscriber's advisor(s) have had a reasonable
opportunity to ask questions of and receive answers from the Company
in connection with the distribution of the Securities hereunder, and
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to obtain additional information, to the extent possessed or
obtainable without unreasonable effort or expense, necessary to verify
the accuracy of the information about the Company;
(i) the Subscriber will indemnify and hold harmless the Company and, where
applicable, its directors, officers, employees, agents, advisors and
shareholders, from and against any and all loss, liability, claim,
damage and expense whatsoever (including, but not limited to, any and
all fees, costs and expenses whatsoever reasonably incurred in
investigating, preparing or defending against any claim, lawsuit,
administrative proceeding or investigation whether commenced or
threatened) arising out of or based upon any representation or
warranty of the Subscriber contained herein or in any document
furnished by the Subscriber to the Company in connection herewith
being untrue in any material respect or any breach or failure by the
Subscriber to comply with any covenant or agreement made by the
Subscriber to the Company in connection therewith;
(j) none of the Securities are listed on any stock exchange or automated
dealer quotation system and no representation has been made to the
Subscriber that any of the Securities will become listed on any stock
exchange or automated dealer quotation system, except that currently
market makers make a market for the Company's common shares on the
FINRA's OTC Bulletin Board;
(k) the Company will refuse to register any transfer of the Shares not
made in accordance with the provisions of Regulation S, pursuant to an
effective registration statement under the 1933 Act or pursuant to an
available exemption from the registration requirements of the 1933 Act
and in accordance with applicable state and federal securities laws;
(l) the statutory and regulatory basis for the exemption claimed for the
offer of the Shares, although in technical compliance with Regulation
S, would not be available if the offering is part of a plan or scheme
to evade the registration provisions of the 1933 Act or any applicable
state and federal securities laws;
(m) the Subscriber has been advised to consult the Subscriber's own legal,
tax and other advisors with respect to the merits and risks of an
investment in the Shares and with respect to applicable resale
restrictions, and it is solely responsible (and the Company is not in
any way responsible) for compliance with:
(i) any applicable laws of the jurisdiction in which the Subscriber
is resident in connection with the distribution of the Shares
hereunder, and
(ii) applicable resale restrictions; and
(n) this Subscription Agreement is not enforceable by the Subscriber
unless it has been accepted by the Company, and the Subscriber
acknowledges and agrees that the Company reserves the right to reject
any subscription for any reason.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SUBSCRIBER
(a) The Subscriber hereby represents and warrants to and covenants with
the Company (which representations, warranties and covenants shall
survive the Closing) that:
(b) the Subscriber has the legal capacity and competence to enter into and
execute this Subscription Agreement and to take all actions required
pursuant hereto and, if the Subscriber is a corporation, it is duly
incorporated and validly subsisting under the laws of its jurisdiction
of incorporation and all necessary approvals by its directors,
shareholders and others have been obtained to authorize execution and
performance of this Subscription Agreement on behalf of the
Subscriber;
(c) the entering into of this Subscription Agreement and the transactions
contemplated hereby do not result in the violation of any of the terms
and provisions of any law applicable to the Subscriber or of any
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agreement, written or oral, to which the Subscriber may be a party or
by which the Subscriber is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription
Agreement and it constitutes a valid and binding agreement of the
Subscriber enforceable against the Subscriber in accordance with its
terms;
(e) the Subscriber is acquiring the Securities pursuant to an exemption
from the registration and prospectus requirements of applicable
securities legislation in all jurisdictions relevant to this
Subscription, and, as a consequence, the Subscriber will not be
entitled to use most of the civil remedies available under applicable
securities legislation and the Subscriber will not receive information
that would otherwise be required to be provided to the Subscriber
pursuant to applicable securities legislation;
(f) the Subscriber is not acquiring the Shares for the account or benefit
of, directly or indirectly, any U.S. Person;
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the
heading "Name and Address of Subscriber" on the signature page of this
Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this
Subscription Agreement complies with or is exempt from the applicable
securities legislation of the jurisdiction of residence of the
Subscriber;
(j) the Subscriber is outside the United States when receiving and
executing this Subscription Agreement and is acquiring the Shares as
principal for the Subscriber's own account, for investment purposes
only, and not with a view to, or for, resale, distribution or
fractionalisation thereof, in whole or in part, and no other person
has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber is not an underwriter of, or dealer in, the common
shares of the Company, nor is the Subscriber participating, pursuant
to a contractual agreement or otherwise, in the distribution of the
Shares;
(l) the Subscriber (i) is able to fend for him/her/itself in the
Subscription; (ii) has such knowledge and experience in business
matters as to be capable of evaluating the merits and risks of its
prospective investment in the Shares; and (iii) has the ability to
bear the economic risks of its prospective investment and can afford
the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber has not acquired the
Shares as a result of, and will not itself engage in, any "directed
selling efforts" (as defined in Regulation S under the 1933 Act) in
the United States in respect of the Shares which would include any
activities undertaken for the purpose of, or that could reasonably be
expected to have the effect of, conditioning the market in the United
States for the resale of the Shares; provided, however, that the
Subscriber may sell or otherwise dispose of the Shares pursuant to
registration of the Shares pursuant to the 1933 Act and any applicable
state and federal securities laws or under an exemption from such
registration requirements and as otherwise provided herein;
(n) the Subscriber is not aware of any advertisement of any of the
Securities and is not acquiring the Shares as a result of any form of
general solicitation or general advertising including advertisements,
articles, notices or other communications published in any newspaper,
magazine or similar media or broadcast over radio or television, or
any seminar or meeting whose attendees have been invited by general
solicitation or general advertising; and
(o) no person has made to the Subscriber any written or oral
representations:
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(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the
Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading
on any stock exchange or automated dealer quotation system or
that application has been made to list and post any of the
Securities of the Company on any stock exchange or automated
dealer quotation system.
7. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
7.1 The Company acknowledges and agrees that the Subscriber is entitled to rely
upon the representations and warranties of the Company contained in this
Agreement and further acknowledges that the Subscriber will be relying upon such
representations and warranties in purchasing the Shares.
7.2 The Company warrants that the Public Record fairly represents the status of
the Company as at the dates indicated in the Public Record.
8. REPRESENTATIONS AND WARRANTIES WILL BE RELIED UPON BY THE COMPANY
8.1 The Subscriber acknowledges that the representations and warranties
contained herein are made by it with the intention that they may be relied upon
by the Company and its legal counsel in determining the Subscriber's eligibility
to purchase the Shares under applicable securities legislation, or (if
applicable) the eligibility of others on whose behalf it is contracting
hereunder to purchase the Shares under applicable securities legislation. The
Subscriber further agrees that by accepting delivery of the certificates
representing the Securities on the Closing Date, it will be representing and
warranting that the representations and warranties contained herein are true and
correct as at the Closing Date with the same force and effect as if they had
been made by the Subscriber at the Closing Date and that they will survive the
purchase by the Subscriber of Shares and will continue in full force and effect
notwithstanding any subsequent disposition by the Subscriber of such Shares.
9. LEGENDING OF SUBJECT SECURITIES
9.1 The Subscriber hereby acknowledges that that upon the issuance thereof, and
until such time as the same is no longer required under the applicable
securities laws and regulations, the certificates representing any of the
Securities will bear a legend in substantially the following form:
"THESE SECURITIES WERE ISSUED IN AN OFFSHORE TRANSACTION TO PERSONS WHO
ARE NOT U.S. PERSONS (AS DEFINED HEREIN) PURSUANT TO REGULATION S UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT").
ACCORDINGLY, NONE OF THE SECURITIES TO WHICH THIS CERTIFICATE RELATES
HAVE BEEN REGISTERED UNDER THE 1933 ACT, OR ANY U.S. STATE SECURITIES
LAWS, AND, UNLESS SO REGISTERED, NONE MAY BE OFFERED OR SOLD IN THE
UNITED STATES OR, DIRECTLY OR INDIRECTLY, TO U.S. PERSONS (AS DEFINED
HEREIN) EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN EACH CASE ONLY IN
ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING
TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN
ACCORDANCE WITH THE 1933 ACT."
9.2 The Subscriber hereby acknowledges and agrees to the Company making a
notation on its records or giving instructions to the registrar and transfer
agent of the Company in order to implement the restrictions on transfer set
forth and described in this Subscription Agreement.
9.3 The Subscriber hereby acknowledges and agrees to the Company making a
notation on its records or giving instructions to the registrar and transfer
agent of the Company in order to implement the restrictions on transfer set
forth and described in this Subscription Agreement.
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10. COSTS
10.1 The Subscriber acknowledges and agrees that all costs and expenses incurred
by the Subscriber (including any fees and disbursements of any special counsel
retained by the Subscriber) relating to the purchase of the Shares shall be
borne by the Subscriber.
11. GOVERNING LAW
11.1 This Subscription Agreement is governed by the laws of the State of Nevada.
The Subscriber, in its personal or corporate capacity and, if applicable, on
behalf of each beneficial purchaser for whom it is acting, irrevocably attorns
to the jurisdiction of the courts of the State of Nevada.
12. SURVIVAL
12.1 This Subscription Agreement, including without limitation the
representations, warranties and covenants contained herein, shall survive and
continue in full force and effect and be binding upon the parties hereto
notwithstanding the completion of the purchase of the Shares by the Subscriber
pursuant hereto.
13. ASSIGNMENT
13.1 This Subscription Agreement is not transferable or assignable.
14. SEVERABILITY
14.1 The invalidity or unenforceability of any particular provision of this
Subscription Agreement shall not affect or limit the validity or enforceability
of the remaining provisions of this Subscription Agreement.
15. ENTIRE AGREEMENT
15.1 Except as expressly provided in this Subscription Agreement and in the
agreements, instruments and other documents contemplated or provided for herein,
this Subscription Agreement contains the entire agreement between the parties
with respect to the sale of the Shares and there are no other terms, conditions,
representations or warranties, whether expressed, implied, oral or written, by
statute or common law, by the Company or by anyone else.
16. NOTICES
16.1 All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Subscriber shall be directed to the
address on the signature page of this Subscription Agreement and notices to the
Company shall be directed to the address on the cover page of this Subscription
Agreement.
17. COUNTERPARTS AND ELECTRONIC MEANS
17.1 This Subscription Agreement may be executed in any number of counterparts,
each of which, when so executed and delivered, shall constitute an original and
all of which together shall constitute one instrument. Delivery of an executed
copy of this Subscription Agreement by electronic facsimile transmission or
other means of electronic communication capable of producing a printed copy will
be deemed to be execution and delivery of this Subscription Agreement as of the
date hereinafter set forth.
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IN WITNESS WHEREOF the Subscriber has duly executed this Subscription Agreement
as of the date of acceptance by the Company.
ACR Holdings LTD
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(Name of Subscriber - Please type or print)
Trust Company Complex
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(Signature and, if applicable, Office)
Ajeltake Road
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(Address of Subscriber)
Ajeltake Island, MH96960
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(City, State or Province, Postal Code of Subscriber)
Marshall Islands
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(Country of Subscriber)
ACCEPTANCE
The above-mentioned Subscription Agreement in respect of the Shares is hereby
accepted by Cindisue Mining Corp.
DATED at London, the 2nd day of January , 2013.
Cindisue Mining Corp.
Per: /s/ Daniel Martinez
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Authorized Signatory
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