Exhibit 10.1
FORM OF PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
(for completion by non-United States residents)
REGAL ROCK, INC.
The undersigned (the "Purchaser") hereby irrevocably subscribes for and agrees
to purchase up to _________ units (the "Units") in the capital of Regal Rock,
Inc. (the "Company"), a Nevada company, at a price of US $0.75 per Unit for the
aggregate purchase price of US $___________ (the "Purchase Price"). Each Unit
shall consist of one share of common stock, $0.001 par value per share ("Common
Stock") in the capital of the Company, and one common stock purchase warrant (a
"Warrant") entitling the Purchaser to purchase an additional share of the
Company's common stock for US $1.00 for a period of two years from the
completion of the purchase. Together with this Subscription Agreement, the
Purchaser is delivering to the Company the full amount of the purchase price
for the Units in respect of which it is subscribing. The Offering is being
conducted in reliance upon the exemption from registration requirements of the
Securities Act of 1933, as amended (the "Securities Act") set forth in
Regulation S promulgated under the Securities Act.
2. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. In order to induce the
Company to accept this subscription, the Purchaser hereby represents and
warrants to, and covenants with, the Company as follows:
A. The Purchaser is purchasing the Units for the Purchaser's own account (not
as a nominee or agent)for investment purposes and not with a view toward resale
or distribution of any part thereof. The Purchaser has no present arrangement
or intention to sell or distribute the Units, or to grant participation in the
Units. The Purchaser does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participation to such
person, or to any third person, with respect to any of the Units sold hereby;
B. The Purchaser acknowledges and agrees that the United States Securities &
Exchange Commission has not reviewed the offering of the Units and that the
Units have not been registered under the Securities Act and may not be offered
or sold in the United States or to U.S. persons unless the Units are registered
under the Securities Act, sold in accordance with the provisions of Regulation
S promulgated under the Securities Act or pursuant to an available exemption
from registration. The certificate representing the shares of Common Stock and
Warrants comprising the Units will bear the following legend and the Purchaser
agrees to abide by the terms thereof:
THE WARRANT EVIDENCED HEREBY AND THE SECURITIES ISSUABLE HEREUNDER,
ARE BEING OFFERED TO INVESTORS WHO ARE NOT U.S. PERSONS (AS DEFINED
IN REGULATION S UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT")) AND WITHOUT REGISTRATION WITH THE UNITED STATES
SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT IN
RELIANCE UPON REGULATION S PROMULGATED UNDER THE SECURITIES ACT.
TRANSFER OF THIS WARRANT TO, AND THE EXERCISE OF THIS WARRANT BY OR
ON BEHALF OF, A U.S. PERSON, IS PROHBITED, EXCEPT IN ACCORDANCE WITH
THE PROVISIONS OF REGULATION S, PURSUANT TO REGISTRATION UNDER THE
SECURITIES ACT, OR PURSUANT TO AVAILABLE EXEMPTION FROM
REGISTRATION. HEDGING TRANSACTIONS MAY NOT BE CONDUCTED UNLESS IN
COMPLIANCE WITH THE SECURITIES ACT.
C. The Purchaser has had the opportunity to ask and receive answers to any
and all questions the Purchaser had with respect to the Company, its business
plan, management and current financial condition. The Purchaser acknowledges
that the Company is newly organized, does limited operating history, will
likely require additional capital to complete its business plan and that
there is no assurance that the Company can obtain additional capital or
successfully complete its business plan;
D. The Purchaser is an accredited investor and has such knowledge and
expertise in financial and business matters that the Purchaser is capable of
evaluating the merits of and risks involved in an investment in the Units and
acknowledges that an investment in the Units entails a number of very
significant risks and the Purchaser is able to withstand the total loss of its
investment. The Purchaser acknowledges that the Company has recommended that
each Purchaser obtain independent legal and financial advice prior to
subscribing, including but not limited to advice as to the legality of any
resale of the securities comprising the Units, as well as the suitability of
the investment for the Purchaser;
E. Except as set forth in this Agreement, no representations or warranties
have been made to the Purchaser by the Company or any agent, employee or
affiliate of the Company and in entering into this transaction the Purchaser
is not relying upon any information, other than that contained in this
Agreement and the result of independent investigation by the Purchaser;
F. The Purchaser understands that the Units are being offered and sold to it
in reliance on specific exemptions from the registration requirements of the
United States federal and state securities laws and that the Company is
relying upon the truth and accuracy of the representations, warranties,
agreements, acknowledgments and understandings of the Purchaser set forth
herein in order to determine the applicability of such exemptions and the
suitability of the Purchaser to acquire the Units;
G. The Purchaser has full power and authority to execute and deliver this
Agreement and to perform its obligations hereunder, and this Agreement is a
legally binding obligation of the Purchaser enforceable against the Purchaser
in accordance with its terms;
H. The Purchaser is not purchasing the Units as a result of any advertisement
of the offering of the Units;
I. This subscription for the Units has not been induced by any
representations or warranties by any person whatsoever with regard to the
future value of the Company's securities;
J. The Subscriber is not a "U.S. Person" as defined by Regulation S of the
Securities Act and is not acquiring the Units for the account or benefit of a
U.S. Person. A "U. S. Person" is defined by Regulation S of the Securities Act
to be any person who is:
(a) any natural person resident in the United States;
(b) any partnership or corporation organized or incorporated under
the laws of the United States;
(c) any estate of which any executor or administrator is a U.S.
person;
(d) any trust of which any trustee is a U.S. person;
(e) any agency or branch of a foreign entity located in the United
States;
(f) any non-discretionary account or similar account (other than an
estate or trust) held by a dealer or other fiduciary organized,
incorporate, or (if an individual) resident in the United States;
and
(g) any partnership or corporation if:
1. organized or incorporated under the laws of any foreign
jurisdiction; and
2. formed by a U.S. person principally for the purpose of
investing in securities not registered under the Securities
Act, unless it is organized or incorporated, and owned, by
accredited investors (as defined in Section 230.501 (a) of the
Securities Act) who are not natural persons, estates or
trusts.
K. The Purchaser agrees not to engage in hedging transactions with regard to
the Units unless in compliance with the Securities Act; and
L. The Purchaser agrees to execute an agreement imposing restrictions on
transfer of the Units in the form the Company requires.
3. REPRESENTATIONS OF THE COMPANY. The Company represents and warrants to
the Purchaser that:
A. The Company is duly incorporated under the laws of the State of Nevada and
is in good standing in accordance with all applicable federal and state laws;
B. The execution, delivery and performance of this Agreement by the Company
and the performance of its obligations hereunder do not and will not constitute
a breach or violation of any of the terms and provisions of, or constitute a
default under or conflict with or violate any provisions of (i) the Company's
Articles of Incorporation or By-laws, (ii) any indenture, mortgage, deed of
trust, agreement or any instrument to which the Company is a party or by which
it or any of its property is bound, (iii) any applicable statute or regulation,
or (iv) any judgment, decree or order of any court or government body having
jurisdiction over the Company or any of its property;
C. The execution, delivery and performance of this Agreement and the
consummation of the issuance of the Units and the transactions contemplated by
this Agreement are within the Company's corporate powers and have been duly
authorized by all necessary corporate and stockholder action on behalf of the
Company;
D. There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against the Company or any of its
properties, which might result in any material adverse change in the condition
(financial or otherwise) or in the earnings, business affairs or business
prospects of the Company, or which might materially and adversely affect the
properties or assets thereof;
E. The Company is not in default in the performance or observance of any
material obligation,agreement, covenant, or condition contained in any material
indenture, mortgage, deed of trust, or other material instrument or agreement
to which it is a party or by which it or its property may be bound; and neither
the execution, nor the delivery by the Company, nor the performance by the
Company of its obligations under this Agreement will conflict with or result
in the breach or violation of any of the terms or provisions of, or
constitute a default or result in the creation or imposition of a lien or
charge on any assets or properties of the Company under any material deed
of trust or other material agreement or instrument to which the Company is
party or by which it is bound or any statute or the Articles of Incorporation
or By-laws of the Company, or any decree, judgment, order, ruling or
regulation of any court or government agency or body having jurisdiction over
the Company or its properties;
F. There is no fact known to the Company (other than general economic
conditions known to the public generally) that has not been disclosed in
writing to the Purchaser that (i) could reasonably be expected to have a
material adverse effect on the condition (financial or otherwise) or on the
earnings, business affairs, business prospects, properties or assets of the
Company, or (ii) could reasonably be expected to materially and adversely
affect the ability of the Company to perform its obligations pursuant to this
Agreement.
4. NON-BINDING UNTIL ACCEPTED. The Purchaser understands that this
subscription is not binding upon the Company until the Company accepts it,which
acceptance is at the sole discretion of the Company and is to be evidenced by
the Company's execution of this Agreement where indicated. The funds advanced
by the Purchaser cannot be used by the Company until the Company has accepted
the subscription and has executed this Agreement.
5. NON-ASSIGNABILITY. Neither this Agreement nor any of the rights of the
Purchaser hereunder may be transferred or assigned by the Purchaser. Moreover,
the Company shall refuse to register any transfer of the Units, or the shares
of Common Stock or Warrants comprising the Units, not made in accordance with
the provisions of Regulation S, pursuant to registration under the Securities
Act, or pursuant to an available exemption from registration.
6. MODIFICATION/ENTIRE AGREEMENT. This Agreement (i) may only be modified by
a written instruction executed by the Purchaser and the Company; (ii)sets forth
the entire agreement of the Purchaser and the Company with respect to the
subject matter hereof; and (iii) shall enure heirs, legal representatives,
successors and permitted assigns.
7. GOVERNING LAW. This Agreement will be construed and enforced in
accordance with and governed by the laws of the State of Nevada.
8. NOTICES. All Notices or other communication hereunder shall be in writing
and shall be deemed to have been duly given if delivered personally (including
courier service) or mailed by certified or registered mail, return receipt
requested, postage prepaid.
IN WITNESS WHEREOF the Purchaser has executed this Private Placement
Subscription Agreement on the date set forth below.
The Subscriber hereby offers to subscribe for _________ Units on the terms and
conditions of this Agreement and agrees to pay the Purchase Price and delivers
herewith a certified check, money order or bank draft in the sum of
U.S.$__________ (U.S.) made payable to the Company.
DATED: _________________________
(sign below if Subscriber is an individual)
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| ||Signature of the Subscriber |
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| ||Printed Name of Subscriber |
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| ||Residential Address of Subscriber|
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(sign below if Subscriber is a corporation)
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|EXECUTED by |)))))))| |
|___________________________| |___________________________|
|in the presence of: | |per: |
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| | |Authorized Signatory |
|Witness | | |
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ACCEPTANCE BY THE COMPANY
This Agreement is accepted by the Company as of the ____ day of _________,
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||REGAL ROCK, INC. |
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||per: |
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||Authorized Signatory|
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INVESTOR QUALIFICATION FORM
The undersigned Subscriber represents and warrants to the Company that the
Subscriber (please check one):
[ ]HIGH NET WORTH INDIVIDUAL - the Subscriber is an individual who
beneficially owns, or who together with his/her spouse beneficially
owns, financial assets having an aggregate realizable value that,
before taxes but net of any related liabilities, exceeds
CDN$1,000,000.
[ ]HIGH NET INCOME INDIVIDUAL - the Subscriber is an individual whose
net income before taxes exceeded CDN$200,000 in each of the two most
recent years or whose net income before taxes combined with that of
his/her spouse exceeded $300,000 in each of those years, and who in
either case has a reasonable expectation of exceeding the same net
income level in the current year.
[ ]HIGH NET ASSETS ENTITY - the Subscriber is a corporation, limited
partnership, limited liability partnership, trust or estate, other
than a mutual fund, that had net assets of at least CDN$5,000,000 as
reflected in its most recently prepared financial statements.
[ ]ENTITY WHOLLY-OWNED BY ACCREDITED INVESTORS - the Subscriber is a
person or company in respect of which all of the owners of interests,
direct or indirect, legal or beneficial, are persons or companies that
are accredited investors.
[ ]REGISTRANT - the Subscriber is a person or company registered under
the Securities Act or the securities legislation of another
jurisdiction as an adviser or dealer, other than a limited market
dealer.
[ ]PROMOTER - the Subscriber is a promoter or an affiliated entity of a
promoter of the Company.
[ ]CLOSE RELATIVE - the Subscriber is a spouse, parent, grandparent or
child of an officer, director or promoter of the Company.
[ ]FRIEND, RELATIVE OR BUSINESS ASSOCIATE - the Subscriber is a close
personal friend, close business associate of a director, senior
officer or control person of the Company.
[ ]CONTROL PERSON OR AFFILIATE - the Subscriber is an affiliated entity
of the Company, or is a person or company holding a sufficient number
of any securities of the Company to affect materially control of the
Company or holding more than 20% of the outstanding voting securities
of the Company.
[ ]MUTUAL FUND FOR ACCREDITED INVESTORS - the Subscriber is a mutual
fund or non-redeemable investment fund that distributes its securities
only to persons or companies that are accredited investors.
[ ]MUTUAL FUND UNDER PROSPECTUS - the Subscriber is a mutual fund or
non-redeemable investment fund that distributes its securities under a
prospectus for which a receipt has been granted.
[ ]MANAGED ACCOUNT - the Subscriber is a managed investment portfolio
account and is not acquiring a security of a mutual fund or non-
redeemable investment fund.
[ ]ACCOUNT MANAGED BY TRUST CORPORATION - the Subscriber is an account
that is fully managed by a trust corporation registered under the Loan
and Trust Corporations Act.
[ ]BANK - the Subscriber is a bank listed in Schedule I or II of the
Bank Act (Canada), or is an authorized foreign bank listed in Schedule
III of that Act.
[ ]BUSINESS DEVELOPMENT BANK - the Subscriber is the Business
Development Bank incorporated under the Business Development Bank Act
(Canada).
[ ]CREDIT UNION - the Subscriber is a co-operative credit society,
credit union central, federation of caisses populaires, credit union
or league, or regional caisse populaire, or an association under the
Cooperative Credit Associations Act (Canada), in each case, located in
Canada.
[ ]INSURANCE COMPANY - the Subscriber is a company licensed to do
business as an insurance company in any jurisdiction.
[ ]SUBSIDIARY OF THE FOREGOING - the Subscriber is a subsidiary of any
company referred to in the foregoing five paragraphs, where the
company owns all of the voting shares of the subsidiary.
[ ]PENSION FUND - the Subscriber is a pension fund that is regulated by
either the Office of the Superintendent of Financial Institutions
(Canada) or a provincial pension commission or similar regulatory
authority.
[ ]ANALOGOUS ENTITY - the Subscriber is an entity organized outside of
Canada that is analogous to any of the entities referred to in the
foregoing seven paragraphs, or to a registered dealer or adviser under
the Securities Act.
[ ]CANADIAN GOVERNMENT - the Subscriber is the government of Canada or
of any jurisdiction, or is a crown corporation, instrumentality or
agency of a Canadian federal, provincial or territorial government.
[ ]CANADIAN MUNICIPALITY - the Subscriber is a Canadian municipality or
a Canadian provincial or territorial capital city.
[ ]FOREIGN GOVERNMENT - the Subscriber is a national, federal, state,
provincial, territorial or municipal government of or in any foreign
jurisdiction, or any instrumentality or agency thereof.
[ ]CHARITY - the Subscriber is a registered charity under the Income Tax
Act (Canada).
[ ]ISSUER BID - the Subscriber is the Company acquiring shares of its
own issue.
I certify that the statements made in this Investor Qualification Form are true
as of the date hereof.
DATED this ______ day of ___________________, 2007.
__________________________
Signature of Subscriber
__________________________
Name of Subscriber(please print)
__________________________
Name and Title of Authorized Signatory
(if Subscriber is not an individual-
please print)
