SUBSCRIPTION AGREEMENT
Exhibit
10.15
This
Agreement is made as of the ___ day of ___________, 2007 and between the
undersigned subscriber (the “Subscriber”) and Pacific Copper Corp. a Delaware
corporation (the “Corporation”).
RECITAL
The
Subscriber desires to subscribe for and purchase from the Corporation and the
Corporation desires to issue to the Subscriber Units of the Corporation in
accordance with the terms and conditions of this Agreement.
AGREEMENT
NOW,
THEREFORE,
in
consideration of the mutual promises and covenants contained in this Agreement,
the Corporation and the Subscriber hereby agree as follows:
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1.
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Subscription.
The Subscriber shall purchase, and the Corporation shall issue,
_____________ units of the Corporation (the “Units”) for the price of
$___________ (U.S. funds) (the “Purchase Price”). Each Unit shall consist
of one common share (the “Share(s)”) and one half a common share purchase
warrant (the “Warrant(s)”), Each full Warrant will be exercisable for one
common share at $0.75 (US funds) per share on or before April 30,
2009.
Except as required by law, subsequent to delivery of this Agreement,
the
subscription evidenced hereby is
irrevocable.
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2.
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Payment
of Purchase Price.
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The
Subscriber submits herewith a bank draft or certified check for the
full
Purchase Price payable to Pacific Copper Corp. and delivers to the
Corporation the attached hereto as Exhibit A and such other documents
and
instruments as may be reasonably required by the Corporation.
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| b. |
The
“Closing” means the transactions relating to the sale and purchase of the
Units, which will take place on receipt of the items referred to
in (a)
above.
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3.
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Representations
by Subscriber.
The Subscriber represents and warrants to the Corporation as
follows:
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a.
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He
is acquiring the Units for his own account as principal, for investment
and not with a view to resale or distribution. Immediately prior
to
purchasing the Units:
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i.
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he
is an “accredited investor” as that term is defined in Rule 501(a) under
the Securities Act of 1933, as amended (the “Securities Act”) or if a
Canadian citizen under National Policy 45-106 or he has such knowledge
and
experience in financial and business matters that he is capable of
evaluating the merits and risks involved in purchasing the Units;
and
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ii.
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he
is able to bear the economic risk of purchasing the Units (i.e.,
at the
time of purchasing the Units he could afford a complete loss without
having his standard of living materially affected
thereby).
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b.
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He
has been informed as to, and is familiar with, the business activities
of
the Corporation and its affiliates, and has had an opportunity and
proceeded, or waived the opportunity, to (i) review the books and
records
of the Corporation and its affiliates and to ask questions of, and
receive
answers from, appropriate representatives of the Corporation and
its
affiliates concerning the Corporation and its affiliates and the
terms and
conditions of this Agreement, and (ii) obtain and review all additional
information relating to the history and proposed business plan of
the
Corporation and its affiliates that he deems necessary.
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c.
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He
fully understands that this offering has not been registered under
the
Securities Act in reliance upon exemptions therefrom, and, accordingly,
to
the extent that he is not supplied with the information which would
have
been contained in a registration statement filed under the Securities
Act,
he must rely on his own access to such
information.
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d.
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He
has had an opportunity to obtain and has obtained a general and complete
understanding satisfactory to him of the Corporation, its affiliates
and
their services, potential assets, finances, and manner of doing business
sufficient to permit him to evaluate (i) the Corporation and its
prospects
and (ii) the risks and merits of purchasing the Units.
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e.
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He
(i) recognizes that purchasing the Units involves risk, (ii) has
carefully
considered whether purchasing the Units is appropriate for him, and
(iii)
has obtained such individual financial, tax and legal advice as he
deems
necessary or appropriate to fully understand the risks involved and
to
evaluate an investment in the
Units.
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f.
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He
recognizes that he must bear the economic risk involved in purchasing
the
Units for an indefinite period of time because, among other reasons,
the
Units or the underlying Shares or Warrant Shares have not been registered
under the Securities Act and therefore cannot be sold, pledged, assigned
or otherwise disposed of unless (i) they are subsequently registered
under
the Securities Act or (ii) an exemption from such registration is
available and an opinion of counsel acceptable to the Corporation
that the
transfer is not in violation of any federal securities act or state
securities law is provided to the
Corporation.
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g.
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All
information which he has provided to the Corporation, whether provided
by
him directly or indirectly, concerning himself, his financial position
and
his knowledge of financial and business matters is correct and complete
as
of the date of this Agreement. He will notify the Corporation immediately
if, prior to the date of this Agreement, there is any material change
in
any information provided to the Corporation by
him.
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h.
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He
recognizes that no federal or state agency has passed upon the offering
of
the Units to him or to any other person or made any finding or
determination regarding the fairness of such
offering.
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2
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i.
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He
understands that neither the Corporation nor any associates or affiliates
thereof are guaranteeing the success of or any return from the
Corporation.
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j.
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He
recognizes that there is no current market for the Units, the Shares
or
the Warrant Shares; that there can be no assurances that such a market
will exist any time in the future and accordingly he may not be able
to
sell or dispose of any of the Units, the Shares or the Warrant Shares
even
if he had held them for a number of years; that his right to transfer
the
Shares or Warrant Shares will be restricted by federal and state
securities laws and a legend to this effect will be placed on the
certificates representing the Shares and Warrant Shares if they are
issued
prior to being registered; that such laws impose strict limitations
upon
such transfer; and although the Corporation is undertaking to file
a
registration statement as set out herein there is no guarantee that
said
registration statement will become effective and the Corporation,
other
than its undertaking, is under no obligation in connection with the
subsequent transfer thereof by him or to aid him in obtaining an
exemption
from such registration.
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k.
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If
the subscriber is not a U.S. person and the Shares or Warrant Shares
are
being offered outside the United States, the following representations
and
warranties of the Subscriber, among other things, pertain to U.S.
securities laws and the sale or transfer in the United States of
the
Shares or Warrant Shares. The Subscriber represents and warrants
to the
Corporation as follows:
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The
Subscriber understands that prior to the registration of the Shares or Warrant
Shares in the U.S., such securities may not be offered or sold, directly or
indirectly, in the United States to or, or for the account or benefit of, a
“U.S. Person” (as defined in Rule 902 of Regulation S promulgated under the
Securities Act), which definition includes, but is not limited to: (1) any
natural person resident in the United States, (2) any partnership or corporation
organized under the laws of the United States, (3) any estate or trust of which
the executor or administrator or trustee, respectively, is a U.S. person, (4)
any discretionary or non-discretionary account held by a dealer or fiduciary
for
the benefit or account of a U.S. person and any partnership or company organized
or incorporated under the laws of a foreign jurisdiction by a U.S. person
principally for the purpose of investing in securities not registered under
the
Securities Act (a “U.S. Person”) until registered under the Securities Act and
the securities laws of all applicable states or unless an exemption from such
registration requirements is available. The Subscriber agrees not to engage
in
any hedging transaction involving of the Shares or Warrant Shares.
The
Subscriber understands that the Corporation may implement procedures to ensure
that the Shares or Warrant Shares may not be delivered within the United States
other than in offerings deemed to meet the definition of an “offshore
transaction” pursuant to Rule 902(h) of Regulation S promulgated under the
Securities Act or an exemption from registration under the Securities Act is
available.
If
the
Shares or Warrant Shares are certificated prior to registration and the
shareholder is a non-U.S. person, a restrictive legend in substantially the
following form shall be placed on each such certificate evidencing any of the
Shares and Warrant Shares:
3
The
shares represented by this Certificate have not been registered under the United
States Securities Act of 1933, as amended (the “Securities Act”) or under any
applicable state securities laws (the “State Laws”). The shares have been
acquired for investment purposes and may not be sold, transferred, pledged
or
otherwise disposed of except in compliance with the registration requirements
of
the Securities Act and applicable State Laws, or pursuant to applicable
exemptions from such registration requirements which may include sale through
a
Designated Offshore Securities Market. Further, unless the shares represented
by
this Certificate have been registered under the Securities Act, the sale,
transfer, pledge or other disposition of these shares in the United States
is
prohibited except in accordance with the provisions of Regulation S (Rule 901
through 905 and the Preliminary Notes) promulgated under the Securities
Act.
Any
transfer of the Shares or Warrant Shares on the books and records of the
Corporation will only be affected in accordance with such legend.
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l.
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If
the Subscriber is a non-U.S. citizen, the Subscriber undertakes and
agrees
that it will not offer or sell the Shares
or Warrant Shares
in
the United States unless such Shares
or Warrant Shares
are registered under the U.S. Securities Act and the securities laws
of
all applicable states of the United States or an exemption from such
registration requirements is available, and further that it will
not
resell the Securities in any jurisdiction, except in accordance with
the
provisions of applicable securities legislation, regulations, rules,
policies and orders and stock exchange
rules.
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4.
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Registration
Corporation undertakes to include the Shares and Warrant Shares issued
to
the Subscriber in a re-sale registration statement on Form SB-2 to
be
filed under the provisions of the Securities and Exchange Act of
1933 as
amended. These Shares may not be transferred prior to (a) such
registration statement being made effective by the SEC or (b) the
consent
of the board of directors of the Corporation if an exemption from
registration under the Act and any applicable State regulation is
available.
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5.
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Lock
Up Agreement Once
registered the Shares will be subject to a Lock Up Agreement providing
that one third of the Shares may be re-sold when the registration
statement becomes effective, one third may be re-sold 90 days from
the
date of effectiveness, and one third may be re-sold 180 days from
the date
of effectiveness. Each subscriber will be issued three certificates
for
the Shares subscribed for and two of those certificates will be legended
to reflect the forgoing restrictions on re-sale. The Warrant Shares
will
be free trading when issued.
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6.
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Applicable
Law.
This Agreement shall be construed in accordance with and governed
by the
laws of the State of Delaware, without regard to the principles of
conflict of laws.
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4
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7.
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Binding
Effect.
Except as otherwise provided herein, this Agreement shall be binding
upon
and inure to the benefit of the Corporation and the Subscriber and
their
successors, heirs, executors, administrators, legal representatives
and
assigns.
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8.
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Assignments.
This Agreement may not be assigned by any of the parties hereto.
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9.
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Entire
Agreement.
This Agreement constitutes the entire agreement between the parties
pertaining to the subject matter hereof and supersedes any prior
understandings, oral or written.
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10.
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Notices.
Any notice required to be given in connection with this Agreement
will be
in writing and delivered personally, by registered or certified mail
(return receipt requested), or sent by facsimile transmission with
a
confirmation sent by way of one of the above methods, addressed to
the
recipient at the address set forth
below:
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a.
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If
to the Subscriber, to the address set forth on the signature page
hereto.
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b.
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If
to the Corporation, addressed to:
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0000
Xxxxx Xxxx Xxxx., Xxxxx 00X
Xxxxxxxx,
XX X0X 0X0
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11.
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Counterparts.
This Agreement may be executed in multiple counterparts, each of
which
shall be deemed an original, and all of which together shall constitute
one and the same instrument. Execution and delivery of this Agreement
by
exchange of facsimile copies bearing facsimile signature of a party
shall
constitute a valid and binding execution and delivery of this Agreement
by
such party. Such facsimile copies shall constitute enforceable original
documents.
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5
SUBSCRIPTION
AGREEMENT SIGNATURE PAGE
Number
of
Units subscribed for: ___________
Total
Amount Paid: $_____________
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(Signature
of subscriber)
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(Printed
name of subscriber)
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Address
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Address
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Email
Address
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Subscription
for _____________ Units accepted as of ______________, 2007.
PLEASE
COMPLETE SCHEDULE A
6
SCHEDULE
“A”
Accredited
Investor
-
(defined in NI 45-106) means:
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o
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(a)
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an
individual who, either alone or with a spouse, beneficially owns,
directly
or indirectly, financial assets having an aggregate realizable value
that
before taxes, but net of any related liabilities, exceeds
$1,000,000;
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o
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(b)
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an
individual whose net income before taxes exceeded $200,000 in each
of the
2 most recent calendar years or whose net income before taxes combined
with that of a spouse exceeded $300,000 in each of the 2 most recent
calendar years and who, in either case, reasonably expects to exceed
that
net income level in the current calendar year;
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o
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(c)
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an
individual who, either alone or with a spouse, has net assets of
at least
$5,000,000;
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o
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(d)
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a
person, other than an individual or investment fund, that has net
assets
of at least $5,000,000 as shown on its most recently prepared financial
statements;
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o
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(e)
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a
person in respect of which all of the owners of interests, direct,
indirect or beneficial, except the voting securities required by
law to be
owned by directors, are persons that are accredited
investors;
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o
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(f)
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a
Canadian financial institution, or a Schedule III bank;
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o
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(g)
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the
Business Development Bank of Canada incorporated under the Business
Development Bank of Canada Act (Canada);
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o
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(h)
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a
subsidiary of any person referred to in paragraphs (f) or (g), if
the
person owns all of the voting securities of the subsidiary, except
the
voting securities required by law to be owned by directors of that
subsidiary;
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o
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(i)
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a
person registered under the securities legislation of a jurisdiction
of
Canada as an adviser or dealer, other than a person registered solely
as a
limited market dealer under one or both of the Securities Act (Ontario)
or
the Securities Act (Newfoundland and Labrador);
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o
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(j)
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an
individual registered or formerly registered under the securities
legislation of a jurisdiction of Canada as a representative of a
person
referred to in paragraph (i);
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o
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(k)
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the
Government of Canada or a jurisdiction of Canada, or any crown
corporation, agency or wholly owned entity of the Government of Canada
or
a jurisdiction of Canada;
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o
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(l)
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a
municipality, public board or commission in Canada and a metropolitan
community, school board, the Comité de gestion de la taxe scolaire de
l’ le de Montréal or an intermunicipal management board in
Québec;
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o
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(m)
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any
national, federal, state, provincial, territorial or municipal government
of or in any foreign jurisdiction, or any agency of that
government;
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o
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(n)
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a
pension fund that is regulated by either the Office of the Superintendent
of Financial Institutions (Canada) or a pension commission or similar
regulatory authority of a jurisdiction of Canada;
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o
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(o)
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an
investment fund that distributes or has distributed its securities
only
to
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(i)
a person that is or was an accredited investor at the time of the
distribution;
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(ii)
a person that acquires or acquired securities in the circumstances
referred to in Sections 2.10 [Minimum amount investment], and 2.19
[Additional investment in investment funds] of NI 45-106;
OR
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(iii)
a person described in paragraph (i) or (ii) that acquires or acquired
securities under Section 2.18 [Investment fund reinvestment] of NI
45-106;
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o
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(p)
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an
investment fund that distributes or has distributed securities under
a
prospectus in a jurisdiction of Canada for which the regulator or,
in
Québec, the securities regulatory authority, has issued a
receipt;
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o
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(q)
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a
trust company or trust corporation registered or authorized to carry
on
business under the Trust and Loan Companies Act (Canada) or under
comparable legislation in a jurisdiction of Canada or a foreign
jurisdiction, acting on behalf of a fully managed account managed
by the
trust company or trust corporation, as the case may be;
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o
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(r)
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a
person acting on behalf of a fully managed account managed by that
person,
if that person
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(i)
is registered or authorized to carry on business as an adviser
or the
equivalent under the securities legislation of a jurisdiction of
Canada or
a foreign jurisdiction; and
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(ii)
in Ontario, is purchasing a security that is not a security of
an
investment fund;
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(s)
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a
registered charity under the Income Tax Act (Canada) that, in regard
to
the trade, has obtained advice from an eligibility adviser or an
adviser
registered under the securities legislation of the jurisdiction of
the
registered charity to give advice on the securities being
traded;
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(t)
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an
entity organized in a foreign jurisdiction that is analogous to any
of the
entities referred to in paragraphs (f) to (i) or paragraph (n) in
form and
function;
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(u)
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an
investment fund that is advised by a person registered as an adviser
or a
person that is exempt from registration as an adviser;
OR
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(v)
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a
person that is recognized or designated by the securities regulatory
authority or, except in Ontario and Québec, the regulator
as
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(i)
an accredited investor; or
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(ii)
an exempt purchaser in Alberta or British Columbia after NI 45-106
comes
into force.
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For
the
purposes hereof:
(a) “Canadian
financial institution”
means
(i) an
association governed by the Cooperative
Credit Associations Act
(Canada)
or a central cooperative credit society for which an order has been made under
section 473(1) of the Cooperative
Credit Associations Act
(Canada), or
(ii) a
bank,
loan corporation, trust company , trust corporation, insurance company, treasury
branch, credit union, caisse populaire, financial services cooperative, or
league that, in each case, is authorized by an enactment of Canada or a
jurisdiction of Canada to carry on business in Canada or a jurisdiction of
Canada;
8
(b) “control
person”
has
the
meaning ascribed to that term in securities legislation except Ontario where
“control
person”
means
any person that holds or is one of a combination of persons that
hold
(i) a
sufficient number of any of the securities of an issuer so as to affect
materially the control of the issuer, or
(ii) more
than
20% of the outstanding voting securities of an issuer except where there is
evidence showing that the holding of those securities does not affect materially
the control of that issuer;
(c) “eligibility
adviser”
means
a
person that is registered as an investment dealer or in an equivalent category
of registration under the securities legislation of the jurisdiction of a
purchaser and authorized to give advice with respect to the type of security
being distributed;
(d) “executive
officer”
means,
for an issuer, an individual who is
(i) a
chair,
vice-chair or president,
(ii) a
vice-president in charge of a principal business unit, division or function
including sales, finance or production,
(iii) an
officer of the issuer or any of its subsidiaries and who performs a
policy-making function in respect of the issuer, or
(iv) performing
a policy-making function in respect of the issuer;
(e) “financial
assets”
means
(i) cash, (ii) securities or (iii) a contract of insurance, a deposit or an
evidence of a deposit that is not a security for the purposes of securities
legislation;
(f) “founder”
means,
in respect of an issuer, a person who,
(i) acting
alone, in conjunction or in concert with one or more persons, directly or
indirectly, takes the initiative in founding, organizing or substantially
reorganizing the business of the issuer, and
(ii) at
the
time of the trade is actively involved in the business of the
issuer;
(g) “fully
managed account”
means
an account of a client for which a person makes the investment decisions if
that
person has full discretion to trade in securities for the account without
requiring the client's express consent to a transaction;
(h) “investment
fund”
has
the
meaning ascribed thereto in National Instrument 81-106 - Investment Fund
Continuous Disclosure;
(i) “person”
includes
(i) an
individual,
(ii) a
corporation,
(iii) a
partnership, trust, fund and an association, syndicate, organization or other
organized group of persons, whether incorporated or not, and
(iv) an
individual or other person in that person's capacity as a trustee, executor,
administrator or personal or other legal representative;
9
(j) “related
liabilities”
means
(i) liabilities
incurred or assumed for the purpose of financing the acquisition or ownership
of
financial assets, or
(ii) liabilities
that are secured by financial assets.
(k) “spouse”
means,
an individual who,
(i) is
married to another individual and is not living separate and apart within the
meaning of the Divorce
Act
(Canada), from the other individual,
(ii) is
living
with another individual in a marriage-like relationship, including a
marriage-like relationship between individuals of the same gender,
or
(iii) in
Alberta, is an individual referred to in paragraph (i) or (ii) immediately
above
or is an adult interdependent partner within the meaning of the Adult
Interdependent Relationships Act
(Alberta); and
(l) “subsidiary”
means
an issuer that is controlled directly or indirectly by another issuer and
includes a subsidiary of that subsidiary;
(i) Affiliated
Entities and Control
1. An
issuer
is considered to be an affiliate of another issuer if one of them is a
subsidiary of the other, or if each of them is controlled by the same
person.
2. A
person
(first person) is considered to control another person (second person)
if
(a) the
first
person, directly or indirectly, beneficially owns or exercises control or
direction over securities of the second person carrying votes which, if
exercised, would entitle the first person to elect a majority of the directors
of the second person, unless the first person holds the voting securities only
to secure an obligation,
(b) the
second person is a partnership, other than a limited partnership, and the first
person holds more than 50% of the interests in the partnership, or
(c) the
second person is a limited partnership and the general partner of the limited
partnership is the first person.
All
monetary references are in Canadian Dollars
10
REPRESENTATION
LETTER
(FOR
FAMILY, FRIENDS AND BUSINESS ASSOCIATES)
TO: Pacific
Copper Corp. (the “Corporation”)
In
connection with the purchase of Units of the Corporation (“Units”) by the
undersigned subscriber, or if applicable, the principal on whose behalf the
undersigned purchased as agent (the “Subscriber” for the purposes of this
letter), the Subscriber hereby represents, warrants, covenants and ratifies
to
the Corporation that:
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1.
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The
Subscriber is resident in or is subject to the laws of
_________________;
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2.
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The
Subscriber is purchasing the Units as principal for its own
account;
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3.
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It
is (please initial):
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___
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(a)
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a
founder, director, executive officer or control person of the Corporation,
or of an affiliate of the Corporation; or
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___
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(b)
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a
spouse, parent, grandparent, brother, sister or child of a founder,
director, executive officer or control person of the Corporation,
or of an
affiliate of the Corporation; or
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___
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(c)
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a
parent, grandparent, brother, sister or child of the spouse of a
director,
senior officer or control person of the Corporation or of an affiliate
of
the Corporation; or
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___
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(d)
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a
close personal friend of a founder, director, executive officer or
control
person of the Corporation, or of an affiliate of the Corporation,
the
details of whose relationship is as follows; or
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Length
of Relationship
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Details
of Relationship
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___
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(e)
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a
close business associate of a founder, director, executive officer
or
control person of the Corporation, or of an affiliate of the Corporation,
the details of whose relationship is as follows; or
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Length
of Relationship
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Prior
Business Dealings
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Details
of Relationship
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___
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(f)
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a
person or company of which a majority of the voting securities are
beneficially owned by, or a majority of the directors are, persons
or
companies described in paragraphs (a) to (e) (and in the case of
paragraphs (d) or (e), the following information is
provided):
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Length
of Relationship
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Prior
Business Dealings (if applicable)
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Details
of Relationship
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___
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(g)
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a
trust or estate of which all of the beneficiaries or a majority of
the
trustees are persons or companies described in paragraphs (a) to
(e) (and
in the case of paragraphs (d) or (e), the following information is
provided):
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Length
of Relationship
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Prior
Business Dealings (if applicable)
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| Details of Relationship | ||
| 4. | The Subscriber represents and warrants that it is not resident in Saskatchewan. | |
| 5. |
Upon
execution of this letter by the Subscriber, this letter shall be
incorporated into and form a part of the Subscription
Agreement.
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Dated:
_______________________, 2007.
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Print
name of Subscriber
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Phone
Number (required)
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Email
(required)
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By:
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Signature
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Print
name of Signatory (if different from Subscriber)
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Title
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12
