Contract
Exhibit 2
NONE
OF THE SECURITIES TO WHICH THIS AGREEMENT RELATES HAVE BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED ("XXX 0000 XXX"), 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.
UNLESS
PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THE SECURITIES TO WHICH
THIS AGREEMENT RELATES MUST NOT BE TRADED BEFORE [THE DAY THAT IS FOUR MONTHS
AND A DAY AFTER THE CLOSING DATE].
THIS
AGREEMENT is made as of the 24th day of
September 2010.
TRANSFER
AGREEMENT
BETWEEN:
PHILEX MINING CORPORATION, a
corporation organized under the laws of the Philippines, having an office at the
Philex Building, 27 Brixton Street, Pasig City
(the
"Vendor")
AND:
PHILEX PETROLEUM CORPORATION,
a corporation organized under the laws of the Philippines, having an office at
00 Xxxxxxx Xxxxxx, Xxxxx Xxxx
(the
"Purchaser")
WHEREAS:
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A.
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The
Vendor is the registered and beneficial owner of 225,000,000 common shares
in the capital of FEC Resources Inc., a company organized under the laws
of Canada (the "Company") and a
reporting issuer in British Columbia;
and
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B.
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The
Vendor has agreed to sell and the Purchaser has agreed to purchase
225,000,000 common shares in the capital of the Company beneficially owned
by the Vendor (the "Shares") on the terms
and conditions hereinafter set forth in this
Agreement.
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NOW
THEREFORE, in consideration of the mutual covenants and agreements herein
contained and other good and valuable consideration (the receipt and sufficiency
of which are hereby acknowledged by each of the parties), the parties covenant
and agree as follows:
1.
Purchase
and Sale
1.1
On the
basis of the representations and warranties of the parties hereto and subject to
the terms and conditions hereof, the Purchaser hereby purchases from the Vendor,
and the Vendor hereby sells to the Purchaser, the Shares (the "Transfer"). The
purchase price of the Shares is an aggregate purchase price of Three Hundred
Forty Two Million Three Hundred Thirty Seven Thousand Six Hundred Ninety Eight
Pesos (Php 342,337,698.00) (the "Purchase Price").
1.2
The
Vendor hereby acknowledges receipt of the Purchase Price in full from the
Purchaser.
1.3
The
Purchaser hereby acknowledges receipt from the Vendor of the share
certificate(s) representing the Shares (the Certificates), together with one or
more signed stock transfer powers of attorney endorsed by the Vendor for
transfer, in the form acceptable to the Company and the Company’s registrar and
transfer agent for the purposes of effecting the Transfer and the registration
of the Shares in the name of the Purchaser; provided that Vendor shall cause the
signatures appearing on the stock transfer powers of attorney to be
medallion-guaranteed within a reasonable period, not exceeding 90 days from
execution of this Agreement, unless the Purchaser agrees to an extension
thereof. The Vendor shall provide all other documents and instruments as the
Purchaser or the Company’s registrar and transfer agent may reasonably
require.
2.
Representations
and Warranties
2.1
The
Vendor represents and warrants to the Purchaser, with the intent that the
Purchaser will rely thereon in entering into this Agreement and in concluding
the Transfer as contemplated herein, that:
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(a)
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the
Vendor is the registered and beneficial owner of the Shares and the Vendor
has no interest, legal or beneficial, direct or indirect, in any shares
of, or the assets or business of the Company other than the
Shares;
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(b)
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the
Shares are validly issued and outstanding as fully paid and non-assessable
in the capital of the Company and are free and clear of all liens, charges
and encumbrances;
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(c)
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the
Vendor has the power and capacity and good and sufficient right and
authority to enter into this Agreement on the terms and conditions herein
set forth and to transfer the legal and beneficial title and ownership of
the Shares to the Purchaser;
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(d)
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neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will violate: (i) any contract
or agreement to which the Vendor is a party; (ii) any provisions of the
articles or bylaws or resolutions of the directors or shareholders of the
Vendor; (iii) any judgement, decree or order of any governmental body
having jurisdiction over the Vendor; or (iv) any applicable laws or
regulations;
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(e)
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no
person, firm, corporation or entity of any kind has or will have any
agreement or option or any right capable at any time of becoming an
agreement to:
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(i)
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purchase
or otherwise acquire the Shares; or
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(ii)
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require
the Vendor to sell, transfer, assign, pledge, charge, mortgage or in any
other way dispose of or encumber any of the Shares other than under this
Agreement; and
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(f)
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this
Agreement and all other documents required to be executed and delivered by
the Vendor have been duly, or will when executed and delivered be duly,
executed and delivered by the Vendor, and constitute the legal, valid and
binding obligations of the Vendor, enforceable against the Vendor in
accordance with their terms, subject to laws of general application
relating to bankruptcy, insolvency, the relief of debtors, specific
performance, injunctive relief and other equitable
remedies.
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2.2
The
Purchaser represents and warrants to the Vendor with the intent that
the Vendor will rely thereon in entering into this Agreement and in concluding
the Transfer as contemplated herein, that it:
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(a)
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is
not a U.S. Person and is not acquiring the Shares for the account or
benefit of, directly or indirectly, any U.S.
Person;
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(b)
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is
outside the United States when receiving and executing this
Agreement;
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(c)
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understands
that the Shares have not been registered under the United States Securities Act of 1933,
as amended (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,
except in accordance with the provisions of Regulation S promulgated under
the 1933 Act, 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
only in accordance with any applicable securities
laws;
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(d)
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understands
and agrees that offers and sales of any of the Shares prior to the
expiration of a prescribed period after the date of transfer of the Shares
(the "Distribution
Compliance Period") will only be made in compliance with the safe
harbor provisions set forth in Regulation S, pursuant to the registration
provisions of the 1933 Act or an exemption therefrom, and that all offers
and sales after the Distribution Compliance Period will be made only in
compliance with the registration provisions of the 1933 Act or an
exemption therefrom and in each case only in accordance with all
applicable securities laws;
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(e)
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understands
and agrees that the Shares may not be offered or sold to a U.S. Person or
for the account or benefit of a U.S. Person (other than a distributor)
prior to the end of the Distribution Compliance
Period;
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(f)
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understands
and agrees not to engage in any hedging transactions involving the Shares
prior to the end of the Distribution Compliance Period unless such
transactions are in compliance with the provisions of the 1933
Act;
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(g)
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understands
and agrees that 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;
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(h)
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acknowledges
that Purchaser 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 0000 Xxx) in the United States in respect of any 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 Shares; provided,
however, that Purchaser may sell or otherwise dispose of any of the Shares
pursuant to registration of any of the Shares pursuant to the 1933 Act and
any applicable state securities laws or under an exemption from such
registration requirements and as otherwise provided
herein;
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(i)
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acknowledges
that the Company is relying on exemptions in National Instrument 45-106 -
Prospectus and
Registration Exemptions of the Canadian Securities Administrators
from the requirements to provide the Purchaser with a prospectus and to
transfer the Shares through a person registered to sell securities under
the Securities Act
(British Columbia) (the "B.C. Act") and, as a
consequence of acquiring the Shares pursuant to these exemptions, certain
protections, rights and remedies provided by the B.C. Act, including
statutory rights of rescission or damages, will not be available to the
Purchaser;
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(j)
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is
acquiring the Shares as principal for investment only and not with a view
to resale or distribution and, in particular, the Purchaser has no
intention to distribute either directly or indirectly any of the Shares in
the United States or to U.S. Persons, except in compliance with the
registration provisions of the 1933 Act or an exemption
therefrom;
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(k)
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has
the power and capacity and good and sufficient right and authority to
enter into this Agreement on the terms and conditions set forth in this
Agreement;
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(l)
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has
not taken any action which would impose any obligation or liability to any
person for finder’s fees, agent’s commissions or like payments in
connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated
hereby;
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(m)
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understands
that the sale of the Shares to the Purchaser as contemplated in this
Agreement complies with or is exempt from the applicable securities
legislation of the jurisdiction of residence of the
Purchaser;
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(n)
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has
adequate net worth and means of providing for its current financial needs
and possible personal contingencies;
and
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(o)
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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.
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2.3
The
Purchaser agrees to deliver, along with an executed copy of this Agreement such
other supporting documentation that the Company or its legal counsel may request
to establish the Purchaser’s exemption from the prospectus and registration
requirements of the B.C. Act.
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2.4
In this
Agreement, the term "U.S.
Person" will have the meaning ascribed thereto in Regulation
S.
3.
Legending
and Registration of the Shares
3.1
The
Purchaser 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 Agreement. The Purchaser hereby acknowledges that the
following legend will be placed on the certificate(s) representing the Shares
registered in the name of the Purchaser to the effect that the Shares
represented by such certificates may not be traded except as permitted by
applicable securities legislation:
THE
SECURITIES REPRESENTED HEREBY HAVE BEEN OFFERED IN AN OFFSHORE TRANSACTION TO A
PERSON WHO IS NOT A U.S. PERSON (AS DEFINED HEREIN) PURSUANT TO REGULATION S
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933
ACT").
NONE
OF THE SECURITIES REPRESENTED HEREBY HAVE BEEN REGISTERED UNDER THE 1933 ACT, OR
ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR
SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES (AS DEFINED HEREIN) OR TO
U.S. PERSONS 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 COMPLIANCE WITH THE 1933
ACT. "UNITED STATES" AND "U.S. PERSON" ARE AS DEFINED BY REGULATION S UNDER THE
1933 ACT.
UNLESS
PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT
TRADE THE SECURITY BEFORE [THE DAY THAT IS FOUR MONTHS AND A DAY AFTER THE
CLOSING DATE].
3.2
The
Purchaser acknowledges and agrees that pursuant to British Columbia Instrument
51-509 - Issuers Quoted in the
U.S. Over-the-Counter Markets ("BCI 51-509"), as adopted by
the British Columbia Securities Commission, a subsequent trade in the Shares by
the Purchaser in or from British Columbia will be a distribution subject to the
prospectus and registration requirements of applicable Canadian securities
legislation (including the B.C. Act) unless certain conditions are met, which
conditions include, among others, a requirement that any certificate
representing the Shares (or ownership statement issued under a direct
registration system or other book entry system) bear the restrictive legend (the
"BC Legend") specified
in BCI 51-509.
3.3
The
Purchaser undertakes not to trade or resell any of the Shares in or from British
Columbia unless the trade or resale is made in accordance with BCI
51-509.
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3.4
By
executing and delivering this Agreement, the Purchaser will have directed the
Vendor and the Company not to include the BC Legend on any certificates
representing the Shares to be issued to the Purchaser. As a consequence, the
Purchaser will not be able to rely on the resale provisions of BCI 51-509, and
any subsequent trade in any of the Shares in or from British Columbia will be a
distribution subject to the prospectus and registration requirements of the B.C.
Act.
3.5
If the
Purchaser wishes to trade or resell any of the Shares in or from British
Columbia, the Purchaser agrees and undertakes to return, prior to any such trade
or resale, any certificate representing the Shares to the Company’s registrar
and transfer agent to have the BC Legend imprinted on such certificate or to
instruct the Company’s registrar and transfer agent to include the BC Legend on
any ownership statement issued under a direct registration system or other book
entry system.
4. Further
Assurances
4.1
The
parties to this Agreement hereby agree to execute and deliver all such further
documents and instruments and do all acts and things as may be necessary or
convenient to carry out the full intent and meaning of and to effect the
transactions contemplated by this Agreement.
5.
Entire
Agreement
5.1
This
Agreement contains the entire agreement between the parties with respect to the
subject matter hereof and supersede all prior arrangements and understandings,
both written and oral, expressed or implied, with respect
thereto. Any preceding correspondence or offers are expressly
superseded and terminated by this Agreement.
6. Independent
Legal Advice
6.1
Each
party hereto acknowledges that it has obtained independent legal advice
regarding the execution of this Agreement, or has been advised of its respective
right to obtain independent legal advice, and if such party has not in fact
obtained independent legal advice, such party acknowledges herewith that such
party understands the contents of this Agreement and waives the need for
independent legal advice, and that it is executing the same voluntarily and
without duress or pressure from the other parties or anyone on their
behalf.
7.
Jurisdiction
7.1
This
Agreement will be exclusively construed and enforced in accordance with the laws
of the Republic of the Philippines.
8.
Currency
8.1
All funds
referenced in this Agreement are stated in Philippine pesos.
9.
Electronic
Means
9.1
Delivery
of an executed copy of this 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 Agreement as of the date set
forth on page one of this Agreement.
10.
Counterparts
10.1
This
Agreement may be executed in any number of counterparts, each of which, when so
executed and delivered, will constitute an original and all of which together
will constitute one instrument.
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IN WITNESS WHEREOF the parties
hereto have duly executed this Agreement as of the date first written
above.
PHILEX
MINING CORPORATION
Per:
/s/ Xxxx Xxxxxxx X.
Xxxxxxxxx, Xx.
XXXX
XXXXXXX X. XXXXXXXXX, XX.
President
& COO
Authorized
Signatory
PHILEX
PETROLEUM CORPORATION
Per:
/s/ Xxxxxx X.
Xxxxxxx
XXXXXX X.
XXXXXXX
Treasurer
Authorized
Signatory
