EXHIBIT 4.11
PACIFIC ENERGY RESOURCES LTD.
0000 Xxxx Xxxx X Xx.
Xxxx Xxxxx, Xxxxxxxxxx 00000-0000
UNIT SUBSCRIPTION AGREEMENT
(U.S. RESIDENTS)
TO: Pacific Energy Resources Ltd. (the "CORPORATION")
AND TO: Energy Capital Solutions, LP (the "PLACEMENT AGENT")
The undersigned (the "SUBSCRIBER") hereby irrevocably subscribes for and agrees
to purchase from Pacific Energy Resources Ltd. (the "CORPORATION") units of the
Corporation (the "UNITS") in the number set forth below at a subscription price
of CAD $1.30 per Unit. Each Unit shall consist of one (1) share of common stock
of the Corporation (a "COMMON SHARE") and one-half (1/2) Common Share purchase
warrant of the Corporation ("WARRANTS"). Each one (1) whole Warrant shall
entitle the holder to acquire one (1) Common Share (a "WARRANT SHARE") at a
price of CAD $1.70 per Warrant Share for a period of three years from the
Closing Date (as hereinafter defined). The Subscriber agrees to be bound by the
attached terms and conditions of subscription (the "TERMS AND Conditions") and
agrees that the Corporation may rely upon the representations, warranties and
covenants contained therein and in the applicable Subscriber Certificate (as
hereinafter defined). This subscription, plus the Terms and Conditions and each
completed and executed Subscriber Certificate are collectively referred to as
the "SUBSCRIPTION AGREEMENT" or the "AGREEMENT".
SUBSCRIPTION AND SUBSCRIBER INFORMATION
Please print all information (other than signatures), as applicable,
in the space provided below
Xxxxxxx and Company Ltd.
----------------------------------------------------- Number of Units*: 802,800
(Name of Subscriber) -------------------------
Share Price: X CAD 1.30
Account Reference (if applicable): ----------------------
------------------- =
Aggregate Subscription Price: US$900,000
By: --------------
------------------------------------------------- (the "SUBSCRIPTION PRICE")
Authorized Signature
President
-----------------------------------------------------
(Official Capacity or Title - if the Subscriber IF THE SUBSCRIBER IS SIGNING AS AGENT FOR A
is not an individual) PRINCIPAL (BENEFICIAL PURCHASER) AND IS NOT
PURCHASING AS TRUSTEE OR AGENT FOR ACCOUNTS
FULLY MANAGED BY IT, COMPLETE THE FOLLOWING:
Xxxx Xxxxxxx
-----------------------------------------------------
(Name of individual whose signature appears above -------------------------------------------
if different than the name of the Subscriber printed (Name of Principal)
above.)
XX Xxx 000, Xxxx Xxx
----------------------------------------------------- --------------------------------------------
(Subscriber's Address, including State) (Principal's Address)
Cayman Islands
-----------------------------------------------------
(000) 000-0000
-----------------------------------------------------
(Telephone Number) (Email Address)
*Calculated based on an exchange rate of US$1.00 = CAD$1.1596 (the noon buying
rate on December 26, 2006 as reported by the Federal Reserve Bank of New York)
ACCOUNT REGISTRATION INFORMATION: DELIVERY INSTRUCTIONS AS SET FORTH BELOW:
--------------------------------- -----------------------------------------
Xxxxxxx and Company Ltd. Xxxxxxx and Company
----------------------------------------------------- --------------------------------------------
(Name) (Name)
Xxxx X, Xxxxxxxxx Xxxxx
----------------------------------------------------- --------------------------------------------
(Account Reference, if applicable) (Account Reference, if applicable)
XX Xxx 000, Xxxx Xxx, Xxxxxx Xxxxxxx West Bay Road, Cayman Islands
----------------------------------------------------- --------------------------------------------
(Address, including Zip Code) (Address)
Xxxx Xxxxxxx (000) 000-0000
--------------------------------------------
(Contact Name) (Telephone Number)
Number and kind of securities of the Corporation State whether Subscriber is an insider* of
held, if any: the Corporation:
736,820 Shares of Common Stock
----------------------------------------------------- Yes [ ] No [X]
----------------------------------------------------- * The term "insider" means a person who is
a director or senior officer (chair, vice
chair, president, vice president,
secretary, treasurer or general manager) or
holder of more than 10% of the voting rights
attached to all outstanding voting securities
of the Corporation.
TYPE OF OWNERSHIP (CHECK ONE)
Individual Ownership Joint Tenants with Right of
-------- ------- Survivorship
(both parties must sign)
X Corporation* Community Property
-------- ------- (Spouse's signature required)
Partnership* Tenants-in-common
-------- ------- (both parties must sign)
Trust or Pension Plan*
--------
--------------------
* Copy of Articles of Incorporation, Bylaws and Corporate Resolution,
Partnership or Trust Agreement, as applicable, must be attached.
ACCEPTANCE: The Corporation hereby accepts the subscription as set forth above
on the terms and conditions contained in this Subscription Agreement.
PACIFIC ENERGY RESOURCES LTD.
----------------
By: December 28, 2006 Subscription No.
---------------------------
----------------
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TERMS AND CONDITIONS OF SUBSCRIPTION FOR UNITS
1. DEFINITIONS.
------------
1.1 In this Agreement, which includes the cover page and all of the
appendices, the following words have the following meanings unless otherwise
indicated:
(a) "1933 ACT" means Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
(b) "CLOSING DATE" means December 28, 2006 (unless a later
date is agreed to by the parties).
(c) "COMMON SHARE" means a share of common stock in the
capital of the Corporation.
(d) "CORPORATION" means Pacific Energy Resources Ltd.
(e) "EXCHANGE" means the Toronto Stock Exchange.
(f) "OFFERING" means this private placement;
(g) "SEC" means the United States Securities and Exchange
Commission.
(h) "SUBSCRIBER" means the purchaser of Units hereunder.
(i) "SUBSCRIBER CERTIFICATE" means the accredited investor
certificate attached hereto as Exhibit "A".
(j) "UNITS" means the units of the Corporation offered hereby;
each Unit consisting of one (1) Common Share and one-half (1/2)
Warrant.
(k) "WARRANTS" means the Common Share purchase warrants of the
Corporation comprising part of the Units.
(l) "WARRANT SHARES" means the Common Shares underlying the
Warrants.
1.2 All capitalized terms in this Agreement not defined above have the
meanings ascribed to them in this Agreement.
2. PURCHASE AND SALE OF UNITS.
---------------------------
2.1 The Units will be registered in the name of the Subscriber.
2.2 The issue of the Units will not restrict or prevent the Corporation
from obtaining any other financing, or from issuing additional securities from
time to time.
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2.3 Closing will be completed at the offices of the Corporation, in
Long Beach, California, at 1:00 p.m. (Pacific Time), or such other place or time
as the Corporation may designate (the "CLOSING TIME") on the Closing Date.
2.4 The Corporation shall have the right to reject this Subscription
Agreement if it believes for any reason that the Subscriber is not an
"accredited investor" within the meaning of Rule 501 of Regulation D promulgated
by the Securities and Exchange Commission as presently in effect, or for any
other reason in its sole and absolute discretion. Acceptance is evidenced only
by execution of this Subscription Agreement by the Corporation in the space
provided at the end of this Subscription Agreement.
3. REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGEMENTS OF THE SUBSCRIBER.
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3.1 The Subscriber represents and warrants, as at the date of this
Agreement and at the Closing, that:
(a) the Subscriber is purchasing the Units for Subscriber's
own account, for long-term investment, and not with a view to, or for
sale in connection with, the distribution thereof. Subscriber has no
present intention of selling, granting any participation in, or
otherwise distributing the Units. The Units will not be resold without
registration under the 1933 Act and qualification under the securities
laws of all applicable states, unless such sale would be exempt
therefrom;
(b) the Subscriber is an "accredited investor" as that term is
defined in Rule 501(a) of Regulation D promulgated under the 1933 Act;
(c) the Subscriber has received, completed and returned to the
Corporation the Subscriber Certificate relating to his general ability
to bear the risks of an investment in the Corporation and his
suitability as an investor in a private offering, and hereby affirms
the correctness of his answers in such Subscriber Certificate;
(d) the Subscriber (i) has adequate means of providing for his
current needs and possible personal contingencies, without the need for
liquidity of his investment in the Corporation; (ii) can bear the
economic risk of losing his entire investment herein; and (iii) has
such knowledge and experience in financial and business matters that he
is capable of evaluating the relative risks and merits of this
investment;
(e) it never has been represented, guaranteed or warranted to
Subscriber by the Corporation, its agents, or employees or any other
person, expressly or by implication, any of the following:
(i) the approximate or exact length of time that
Subscriber will be required to remain as owner of the Units;
(ii) THE PROFIT OR RETURN, IF ANY, TO BE REALIZED AS
A RESULT OF THE CORPORATION'S VENTURE; or
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(iii) that the past performance or experience on the
part of the Corporation or any affiliate, its agents, or
employees or of any other person, will in any way indicate the
predictable results of the ownership of the Units or the
overall Corporation venture;
(f) the Subscriber, if an individual, is at least twenty-one
(21) years of age;
(g) the Subscriber has no reason to anticipate any change in
Subscriber's personal circumstances, financial or otherwise, which may
cause or require any sale or distribution by Subscriber of all or any
part of the Units subscribed for herein;
(h) the Subscriber has reviewed the documents regarding the
Corporation available on SEDAR (XXX.XXXXX.XXX) and the Exchange's web
site (xxx.xxx.xxx) carefully, as well as the "Risk Factors" delivered
by the Corporation to the Subscriber (collectively, the "DISCLOSURE
DOCUMENTS"), and is fully familiar with and understands the contents
thereof;
(i) the Subscriber confirms that all documents, records and
books pertaining to the Corporation and to the investment requested by
the Subscriber have been made available to the Subscriber and that the
Subscriber has been given an opportunity to make further inquiries of
the Corporation and its representatives in order to verify the accuracy
of the information contained in the Disclosure Documents and has had
the opportunity to review all facts concerning the Corporation which
the Subscriber deems pertinent;
(j) the Subscriber, if a partnership, corporation, trust, or
other entity, declares:
(i) the person executing this Subscription Agreement
has the necessary power and authority to do so; and
(ii) the Subscriber was not organized for the
specific purpose of acquiring the Units;
(k) the exhibits to this Agreement will be completed
truthfully and with reasonable diligence;
(l) as to the source of subscription funds,
(i) to the best of the Subscriber's knowledge, none
of the subscription funds used for the purchase of the
Subscriber's Units (A) have been or will be derived from or
related to any activity that is deemed criminal under the laws
of the United States or any other jurisdiction, or (B) are
being tendered on behalf of a person or entity who has not
been identified to the Subscriber; and
(ii) the Subscriber will promptly notify the
Corporation if the Subscriber discovers that any of the
representations in above subparagraph (l)(i) above ceases to
be true, and to provide the Corporation with appropriate
information in connection therewith;
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(m) the Subscriber warrants that the information herein
provided to the Corporation by the Subscriber is true and correct as of
the date hereof, and the Subscriber agrees to advise the Corporation,
prior to its acceptance of this Subscription, of any material change in
any such information; and
(n) the Subscriber agrees that the representations and
warranties of the Subscriber set forth in this Section 3 shall survive
the acceptance of this subscription, in the event the subscription is
accepted.
3.2 The Subscriber understands and acknowledges that:
(a) no federal or state agency has made any finding or
determination as to the fairness of the offering of Units for
investment or any recommendation or endorsement of the offering;
(b) the Units have not been registered under the 1933 Act or
qualified under any state securities laws in reliance on exemptions
from registration provided thereunder;
(c) there are restrictions imposed by law on the Subscriber's
ability to resell the Units and it is the responsibility of the
Subscriber to find out what those restrictions are and to comply with
them before selling the securities comprising the Units;
(d) the Subscriber acknowledges and agrees with the
Corporation that the Corporation shall refuse to register any transfer
of the Units not made pursuant to registration under the 1933 Act, or
pursuant to an available exemption from registration under the 1933 Act
(including Regulation S);
(e) the Corporation may be required to provide applicable
securities regulatory authorities with a list setting forth the
identities of the beneficial purchasers of the Units and the Subscriber
acknowledges and agrees that it will provide, on request, particulars
as to the identity of such beneficial purchasers as may be required by
the Corporation in order to comply with the foregoing;
(f) by providing personal information to the Corporation, the
Subscriber and each person for whom it is contracting hereunder, is
consenting to the Corporation's collection, use and disclosure of that
information for the purposes of the subscription of Units and the
offering in general, for corporate governance purposes and to contact
the Subscriber as an investor. The Subscriber, and each person for whom
it is contracting hereunder, acknowledges that, from time to time, the
Corporation may be required to disclose such personal information and,
by providing such personal information to the Corporation, the
Subscriber and each person for whom it is contracting hereunder, hereby
expressly consents to such disclosure, and the Subscriber and each
person for whom it is contracting agrees and acknowledges that the
Corporation may use and disclose personal information as follows:
(i) for internal use with respect to managing the
relationships between and contractual obligations of the
Corporation and the Subscriber and each person for whom it is
contracting;
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(ii) for use and disclosure for income tax related
purposes, including without limitation, where required by law,
disclosure to the Internal Revenue Service;
(iii) disclosure to securities regulatory authorities
and other regulatory bodies with jurisdiction with respect to
reports of trades and similar regulatory filings;
(iv) disclosure to a governmental or other authority
to which the disclosure is required by court order or subpoena
compelling such disclosure and where there is no reasonable
alternative to such disclosure;
(v) disclosure to professional advisers of the
Corporation in connection with the performance of their
professional services;
(vi) disclosure to any person where such disclosure
is necessary for legitimate business reasons and is made with
the prior written consent of the Subscriber and each person
for whom it is contracting;
(vii) disclosure to a court determining the rights of
the parties under this Agreement; or
(viii) for use and disclosure as otherwise required
by law.
(g) during the ten trading day period prior to the date
hereof, the Subscriber has not purchased, sold or "sold short" any
securities of the Corporation (except pursuant to this Subscription
Agreement).
4. SUBSCRIBER'S DELIVERIES; ISSUANCE OF SECURITIES.
------------------------------------------------
4.1 The Subscriber has delivered to the Corporation, or agrees to
deliver to the Corporation as soon as possible: (a) this duly completed and
executed Subscription Agreement; (b) a duly executed Accredited Investor
Certificate attached hereto as Exhibit "A"; (c) a duly executed Registration
Rights Agreement attached hereto as Exhibit "B", together with a duly completed
selling security holder questionnaire attached thereto as an exhibit; and (d)
wire transfer of funds representing the aggregate subscription price as
indicated on the facing page hereof.
4.2 Reasonably promptly after the Closing Date, the Corporation will
forward to the Subscriber certificates representing the Units registered in the
name of the Subscriber or its nominee as per the directions of the Subscriber on
the face page of this Agreement.
5. REGISTRATION STATEMENT.
-----------------------
The Corporation will prepare and file with the SEC a registration
statement covering 110% of the Common Shares and 110% of the Warrant Shares in
accordance with the terms of the Registration Rights Agreement executed by the
Corporation and attached hereto as Exhibit "B."
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6. LEGEND.
-------
The certificates representing the Units will bear a legend denoting the
restrictions on transfer. The Subscriber agrees to sell, assign or transfer the
Units only in accordance with such restrictions.
The legend will be in substantially the following form:
(i) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE
ARE LISTED ON THE TORONTO STOCK EXCHANGE ("TSX"); HOWEVER, THE
SAID SECURITIES CANNOT BE TRADED THROUGH THE FACILITIES OF TSX
SINCE THEY ARE NOT FREELY TRANSFERABLE, AND CONSEQUENTLY ANY
CERTIFICATE REPRESENTING SUCH SECURITIES IS NOT "GOOD
DELIVERY" IN SETTLEMENT OF TRANSACTIONS ON TSX."
(ii) "[THIS WARRANT AND THE SECURITIES ISSUABLE UPON
EXERCISE OF THIS WARRANT][THE SECURITIES REPRESENTED HEREBY]
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED ("U.S. SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
[THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF
THIS WARRANT][THE SECURITIES REPRESENTED HEREBY] MAY NOT BE
OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE
ASSIGNED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE U.S. SECURITIES ACT OR PURSUANT TO AN
EXEMPTION THEREFROM."
7. RELIANCE UPON REPRESENTATIONS, WARRANTIES AND COVENANTS.
--------------------------------------------------------
The Subscriber acknowledges that the representations and warranties and
covenants and acknowledgements contained in this Agreement are made with the
intent that they may be relied upon by the Corporation in determining the
Subscriber's eligibility to purchase the Units and the Subscriber hereby agrees
to indemnify the Corporation against all losses, claims, costs, expenses and
damages or liabilities which it may suffer or incur caused or arising from its
reliance thereon. The Subscriber further agrees that the foregoing
representations and warranties shall survive the purchase by the Subscriber of
the Units and shall continue in full force and effect notwithstanding any
subsequent disposition by the Subscriber of any of the Units.
8. MISCELLANEOUS.
--------------
8.1 The Corporation and the Subscriber shall be entitled to rely on
delivery by facsimile machine of an executed copy of this subscription, and
acceptance by the Corporation or the Subscriber of such facsimile copy shall be
equally effective to create a valid and binding agreement between the Subscriber
and the Corporation in accordance with the terms hereof.
8.2 Without limitation, this subscription and the transactions
contemplated hereby are conditional upon and subject to the Corporation
receiving Exchange approval of this subscription and the transactions
contemplated hereby.
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8.3 This Agreement is not assignable or transferable by the parties
hereto without the express written consent of the other party hereto.
8.4 Time is of the essence of this Agreement.
8.5 Except as expressly provided in this Agreement and in the
agreements, instruments and other documents contemplated or provided for herein,
this Agreement contains the entire agreement between the parties with respect to
the Units and there are no other terms, conditions, representations or
warranties whether expressed, implied, oral or written, by statute, by common
law, by the Corporation or by anyone else.
8.6 The parties to this Agreement may amend this Agreement only in
writing.
8.7 This Agreement inures to the benefit of and is binding upon the
parties to this Agreement and their successors and permitted assigns.
8.8 A party to this Agreement will give all notices to or other written
communications with the other party to this Agreement concerning this Agreement
by hand or by registered mail addressed to the address given above.
8.9 This Agreement will be governed by and construed in accordance with
the laws of the State of California.
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EXHIBIT "A"
ACCREDITED INVESTOR CERTIFICATE
-------------------------------
The undersigned ("SUBSCRIBER"), in connection with the acquisition of
units ("UNITS") of Pacific Energy Resources Ltd. ("PERL" or the "CORPORATION")
pursuant to that certain subscription agreement (the "AGREEMENT"), hereby makes
the following representations and warranties:
Subscriber understands that the Corporation is relying on this
information in determining to offer Units to the undersigned in a manner exempt
from the registration requirements of the Securities Act of 1933, as amended
(the "1933 ACT"), and applicable state securities laws.
1. ACCREDITED INVESTOR.
--------------------
Subscriber represents and warrants that he, she or it falls within the
category (or categories) marked. PLEASE INDICATE EACH CATEGORY OF ACCREDITED
INVESTOR THAT YOU, THE SUBSCRIBER, SATISFY, BY PLACING YOUR INITIALS ON THE
APPROPRIATE LINE BELOW.
_____ Category 1. A bank, as defined in Section 3(a)(2) of the 1933
Act, whether acting in its individual or fiduciary
capacity; or
_____ Category 2. A savings and loan association or other institution
as defined in Section 3(a) (5) (A) of the 1933 Act,
whether acting in its individual or fiduciary
capacity; or
__X__ Category 3. A broker or dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934; or
_____ Category 4. An insurance company as defined in Section 2(13) of
the 1933 Act; or
_____ Category 5. An investment company registered under the Investment
Company Act of 1940; or
_____ Category 6. A business development company as defined in Section
2(a) (48) of the Investment Company Act of 1940; or
_____ Category 7. A small business investment company licensed by the
U.S. Small Business Administration under Section
301(c) or (d) of the Small Business Investment Act of
1958; or
_____ Category 8. A plan established and maintained by a state, its
political subdivision or any agency or
instrumentality of a state or its political
subdivisions, for the benefit of its employees, with
assets in excess of US$5,000,000; or
_____ Category 9. An employee benefit plan within the meaning of the
Employee Retirement Income Security Act of 1974 in
which the investment decision is made by a plan
fiduciary, as defined in Section 3(21) of such Act,
which is either a bank, savings and loan association,
insurance company or registered investment advisor,
or an employee benefit plan with total assets in
excess of US$5,000,000 or, if a self-directed plan,
the investment decisions are made solely by persons
who are accredited investors; or
_____ Category 10. A private business development company as defined in
Section 202(a) (22) or the Investment Advisors Act of
1940; or
_____ Category 11. An organization described in Section 501(c)(3) of the
Internal Revenue Code, a corporation, a Massachusetts
or similar business trust, or a partnership, not
formed for the specific purpose of acquiring the
Units, with total assets in excess of US$5,000,000;
or
_____ Category 12. A director, executive officer or general partner of
the Corporation; or
_____ Category 13. A natural person whose individual net worth, or joint
net worth with that person's spouse, at the time of
this purchase exceeds US$1,000,000; or
_____ Category 14. A natural person who had an individual income in
excess of US$200,000 in each of the two most recent
years or joint income with that person's spouse in
excess of US$300,000 in each of those years and has a
reasonable expectation of reaching the same income
level in the current year; or
_____ Category 15. A trust, with total assets in excess of US$5,000,000,
not formed for the specific purpose of acquiring the
Units, whose purchase is directed by a sophisticated
person as described in SEC Rule 506(b)(2)(ii); or
_____ Category 16. An entity in which all of the equity owners are
accredited investors.
[signature page follows]
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IN WITNESS WHEREOF, Subscriber has executed this Certificate as of
December 26, 2006.
SUBSCRIBER: --------------------------------------
(Signature and office, if applicable)
XXXX XXXXXXX, PRESIDENT
--------------------------------------
(Print Name)
XX XXX 000
--------------------------------------
(Address)
WEST BAY, CAYMAN ISLANDS
--------------------------------------
(City/State/Zip Code)
(000) 000-0000
--------------------------------------
(Area Code/Telephone Number
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