Exhibit 10.4
NON U.S. RESIDENT
DEER BAY RESOUCES INC.
SUBSCRIPTION AGREEMENT
AND
PURCHASER QUESTIONNAIRE
Deer Bay Resources Inc.
0000 Xxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
Gentlemen:
PART I
Deer Bay Resources Inc., a Nevada corporation (the "Corporation") is
offering on a private placement basis shares of its restricted common stock
(each share known as the "Common Stock") to eligible investors who subscribe to
this issue by this document (the "Investor") at a price of U.S. $____ per share
of Common Stock in the capital of the Corporation. The Corporation offers, and
the Subscriber accepts, the shares of Common Stock on the terms and conditions
as set forth in this subscription agreement.
1. Subscription. The undersigned hereby tenders this subscription and
applies for the purchase of _______ shares of Common Stock in the capital of the
Corporation for an aggregate purchase price of $_______. By execution below, the
undersigned acknowledges that the Corporation is relying upon the accuracy and
completeness of the representations contained herein in complying with its
obligations under applicable securities laws.
2. Representations by Undersigned. The undersigned acknowledges and
represents as follows:
(a) Not a U.S. Person: the Investor: (i) is not a U.S. Person (as defined
in Rule 902 of Regulation S ("REGULATION S") under the United States
SECURITIES ACT OF 1933 (the "U.S. ACT"), which definition includes,
but is not limited to, any natural person resident in the United
States, any corporation or partnership incorporated or organized under
the laws of the United States or any estate or trust of which any
executor, administrator or trustee is a U.S. Person; (ii) is not
purchasing any of the shares of Common Stock for the account or
benefit of any U.S. Person or for offering, resale or delivery for the
account or benefit of any U.S. Person or for the account of any person
in any jurisdiction other than the jurisdiction set out in the name
and address of the Investor set forth hereinbelow; and (iii) was not
offered any shares of Common Stock in the United States and was
outside the United States at the time of execution and delivery of
this Agreement;
(b) No registration and sales under Regulation S: the Investor
acknowledges that the shares of Common Stock have not been registered
under the U.S. Act and the Corporation has no obligation or present
intention of filing a registration statement under the U.S. Act in
respect of the shares of Common Stock. The Investor agrees to resell
the shares of Common Stock only in accordance with the provisions of
Regulation S, pursuant to a registration under the U.S. Act or
pursuant to an available exemption from such registration, and that
hedging transactions involving the shares of Common Stock may not be
conducted unless in compliance with the U.S. Act. The Investor
understands that any certificate representing the shares of Common
Stock will bear a legend setting forth the foregoing restrictions. The
Investor understands that the shares of Common Stock are restricted
within the meaning of "RULE 144" promulgated under the U.S. Act; that
the exemption from registration under Rule 144 will not be available
in any event for at least one year from the date of purchase and
payment of the shares of Common Stock by the Investor, and even then
will not be available unless (i) a public trading market then exists
for the common stock of the Corporation, (ii) adequate information
concerning the Corporation is then available to the public and (iii)
other terms and conditions of Rule 144 are complied with; and that any
sale of the shares of Common Stock may be made by the Investor only in
limited amounts in accordance with such terms and conditions;
(c) No U.S. beneficial interest: no U.S. Person, either directly or
indirectly, has any beneficial interest in any of the shares of Common
Stock acquired by the Investor hereunder, nor does the Investor have
any agreement or understanding (written or oral) with any U.S. Person
respecting:
(i) the transfer or any assignment of any rights or interest in any
of the shares of Common Stock;
(ii) the division of profits, losses, fees, commissions or any
financial stake in connection with this subscription; or
(iii) the voting of the shares of shares of Common Stock;
(d) Experience: the Investor has the requisite knowledge and experience in
financial and business matters for properly evaluating the risks of an
investment in the Corporation;
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(e) Information: the Investor has received all information regarding the
Corporation reasonably requested by the Investor;
(f) Risk: the Investor understands that an investment in the Corporation
involves certain risks of which the Investor has taken full
cognizance, and which risks the Investor fully understands;
(g) Adequacy of information: the Investor has been given the opportunity
to ask questions of, and to receive answers from, the Corporation
concerning the terms and conditions of the offering and to obtain
additional information necessary to verify the accuracy of the
information contained in the information described in paragraph "(e)"
hereinabove, or such other information as the Investor desired in
order to evaluate an investment in the Corporation;
(h) Residency: the residence of the Investor as set forth hereinbelow is
the true and correct residence of the Investor and the Investor has no
present intention of becoming a resident or domiciliary of any other
State or jurisdiction;
(i) Independent investigation: in making a decision to invest in the
Corporation the Investor has relied solely upon independent
investigations made by the Investor, and the particular tax
consequences arising from an investment in the Corporation will depend
upon the Investor's individual circumstances;
(j) Principal: the Investor is purchasing the shares of Common Stock as
principal for the Investor's own account and not for the benefit of
any other person, except as otherwise stated herein, and not with a
view to the resale or distribution of all or any of the shares of
Common Stock;
(k) Decision to purchase: the decision of the Investor to enter into this
Agreement and to purchase the shares of Common Stock pursuant hereto
has been based only on the representations of this Agreement and any
collateral business plan or offering memorandum provided herewith or
based upon the Investor's relationship with a director and/or senior
officer of the Corporation. It is not made on other information
relating to the Corporation and not upon any oral representation as to
fact or otherwise made by or on behalf of the Corporation or any other
person. The Investor agrees that the Corporation assumes no
responsibility or liability of any nature whatsoever for the accuracy,
adequacy or completeness of any business plan information which has
been created based upon the Corporation's management experience. In
particular, and without limiting the generality of the foregoing, the
decision to subscribe for the shares of Common Stock has not been
influenced by:
(i) newspaper, magazine or other media articles or reports related to
the Corporation or its business;
(ii) promotional literature or other materials used by the Corporation
for sales or marketing purposes; or
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(iii)any representations, oral or otherwise, that the Corporation
will become a listed Corporation, that any of the shares of
Common Stock will be repurchased or have any guaranteed future
realizable value or that there is any certainty as to the success
of the Corporation or the liquidity or value of any of the shares
of Common Stock;
(l) Advertisements: the Investor acknowledges that the Investor has not
purchased the shares of Common Stock as a result of any 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;
(m) Information not received: the Investor has not received, nor has the
Subscriber requested, nor does the Investor have any need to receive,
any offering memorandum or any other document (other than financial
statements or any other document the content of which is prescribed by
statute or regulation) describing the business and affairs of the
Corporation which has been prepared for delivery to, and review by,
prospective purchasers in order to assist them in making an investment
decision in respect of the shares of Common Stock, and the Investor
has not become aware of any advertisement in printed media of general
and regular paid circulation, radio or television with respect to the
distribution of the shares of Common Stock;
(n) Information received: the Investor has had access to such additional
information, if any, concerning the Corporation as the Investor has
considered necessary in connection with the Investor's investment
decision to acquire the shares of Common Stock;
(o) Satisfaction with information received: the Investor acknowledges
that, to the Investor's satisfaction:
(i) the Investor has either had access to or has been furnished with
sufficient information regarding the Corporation and the terms of
this investment transaction to the Investor's satisfaction;
(ii) the Investor has been provided the opportunity to ask questions
concerning this investment transaction and the terms and
conditions thereof and all such questions have been answered to
the Investor's satisfaction; and
(iii)the Investor has been given ready access to and an opportunity
to review any information, oral or written, that the Investor has
requested, in particular to any offering memorandum or business
plan of the Corporation, if available concurrent with or as a
part of this Agreement;
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(p) Reliance of representative: the Investor, by reason of the Investor's
knowledge and experience in financial and business matters, is capable
of evaluating the risks and merits of an investment in the shares of
Common Stock or, if the Investor is relying upon the investment advice
of a representative who has advised the undersigned in connection with
this investment (the "REPRESENTATIVE"), the undersigned believes the
Representative to be sophisticated and competent in the area of
investment advice and analysis and therefore capable of evaluating the
risks and merits of an investment in the shares of Common Stock;
(q) Economic risk: the Investor has such knowledge and experience in
financial and business affairs as to be capable of evaluating the
merits and risks of the Investor's investment in and to any of the
shares of Common Stock, and the Investor is able to bear the economic
risk of a total loss of the Investor's investment in and to any of the
shares of Common Stock;
(r) Speculative investment: the Investor understands that an investment in
any of the shares of Common Stock is a speculative investment and that
there is no guarantee of success of the Corporation's management's
plans. Management's plans are an effort to apply present knowledge and
experience to project a future course of action which is hoped will
result in financial success employing the Corporation's assets and
with the present level of management's skills and of those whom the
Corporation will need to attract (which cannot be assured).
Additionally, all plans are capable of being frustrated by new or
unrecognized or unappreciated present or future circumstances which
can typically not be accurately, or at all, predicted;
(s) Status of the subscriber in the U.K.: if the Investor is a resident of
the United Kingdom, it: (i) is either a United Kingdom "business
investor" (a Corporation which has, or whose parent Corporation has,
at least(pound)5,000,000 in net assets or paid up share capital or
(pound)500,000 if it or its parent Corporation has over 20 members) or
a United Kingdom "authorized person" or "exempted person" within the
meaning of the FINANCIAL SERVICES ACT, 1986 of the United Kingdom;
(ii) has read and understood the contents of this Agreement and agrees
to be legally bound thereby; (iii) has not received any "application
form" within the meaning of applicable securities legislation; (iv)
has not received, is not aware of and has not relied on any
"investment advertisement" within the meaning of the FINANCIAL
SERVICES ACT, 1986 of the United Kingdom; and (v) its ordinary
business is the buying or selling of shares;
(t) Address: the Investor is resident as set out on the last page of this
Agreement as the "Investor's Address", and the address as set forth on
the last page of this Agreement is the true and correct address of the
Investor;
(u) Risk and resale restriction: the Investor is aware of the risks and
other characteristics of the shares of Common Stock and of the fact
that the Investor will not be able to resell the shares of Common
Stock except in accordance with the applicable securities legislation
and regulatory policy;
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(v) Representations as to resale: no person has made to the Investor any
written or oral representations:
(i) that any person will resell or repurchase any of the shares of
Common Stock;
(ii) that any person will refund the purchase of any of the shares of
Common Stock;
(iii)as to the future price or value of any of the shares of Common
Stock; or
(iv) that the shares of Common Stock will be listed and posted for
trading on any stock exchange, over-the-counter or bulletin board
market, or that application has been made to list and post any
the Shares for trading on any stock exchange, over-the-counter or
bulletin board market; and
the Investor will not resell the shares of Common Stock except in
accordance with the provisions of applicable securities legislation
and stock exchange, over-the-counter and/or bulletin board market
rules;
(w) Reports and undertakings: if required by applicable securities
legislation, policy or order or by any securities commission, stock
exchange or other regulatory authority, the Investor will execute and
otherwise assist the Corporation in filing such reports, undertakings
and other documents as may be reasonably required with respect to the
issue of the shares of Common Stock;
(x) Resale restrictions: the Investor has been independently advised as to
the applicable hold period imposed in respect of the shares of Common
Stock by securities legislation in the jurisdiction in which the
Subscriber's resides and confirms that no representation has been made
respecting the applicable hold periods for the shares of Common Stock
and is aware of the risks and other characteristics of the shares of
Common Stock and of the fact that the Investor may not be able to
resell the shares of Common Stock except in accordance with the
applicable securities legislation and regulatory policy. In this
regard the Investor agrees that if the Investor decides to offer, sell
or otherwise transfer any of the shares of Common Stock, the Investor
will not offer, sell or otherwise transfer any of such shares of
Common Stock, directly or indirectly, unless:
(i) the sale is to the Corporation; or
(ii) the sale is made outside the United States in compliance with the
requirements of Rule 904 of Regulation S under the U.S. Act and
in compliance with applicable state securities laws; or
(iii)the sale is made pursuant to an exemption from registration
under the U.S. Act provided by Rule 144 thereunder and as set
forth in Article "4" hereinbelow, if applicable, and in
compliance with applicable state securities laws; or
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(iv) with the prior written consent of the Corporation, the sale is
made pursuant to another applicable exemption from registration
under the U.S. Act and in compliance with applicable state
securities laws;
(y) No prospectus filing: the Investor acknowledges that this is an
offering made on a private basis without a prospectus and that no
federal, state, provincial or other agency has made any finding or
determination as to the merits of the investment nor made any
recommendation or endorsement of the shares of Common Stock, and that:
(i) the Investor may be or is restricted from using most of the civil
remedies available under applicable securities legislation; and
(ii) the Corporation is relieved from certain obligations that would
otherwise apply under applicable securities legislation;
(z) Confidentiality: the Investor understands that the Corporation's
business plan and this Agreement are confidential. Furthermore, the
Investor has not distributed such, or divulged the contents thereof,
to anyone other than such legal or financial advisors as the Investor
has deemed desirable for purposes of evaluating an investment in the
shares of Common Stock, and the Investor has not made any copies
thereof except for the Investor's own records;
(aa) Age of majority: the Investor, if an individual, has attained the age
of majority and is legally competent to execute this Agreement and to
take all actions required pursuant hereto;
(ab) Authorization and formation of Investor: the Investor, if a
corporation, partnership, trust or other form of business entity, is
authorized and otherwise duly qualified to purchase and hold the
shares of Common Stock, and such entity has not been formed for the
specific purpose of acquiring the shares of Common Stock in this
issue. If the Investor is one of the aforementioned entities it hereby
agrees that, upon request of the Corporation, it will supply the
Corporation with any additional written information that may be
requested by the Corporation. In addition, the entering into of this
Agreement and the transactions contemplated hereby will not result in
the violation of any of the terms of and provisions of any law
applicable to, or the constating documents, if a corporation, of, the
Subscriber or of any agreement, written or oral, to which the Investor
may be a party or by which the Investor may be bound;
(ac) Legal obligation: this Agreement has been duly and validly authorized,
executed and delivered by and constitutes a legal, valid, binding and
enforceable obligation of the Investor;
(ad) Legal and tax consequences. the Investor acknowledges that an
investment in the securities of the Corporation may have tax
consequences to the Investor under applicable law, which the Investor
is solely responsible for determining, and the Investor also
acknowledges and agrees that the Investor is responsible for obtaining
its own legal and tax advice;
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(ae) Compliance with applicable laws: the Investor knows of no reason (and
is sufficiently knowledgeable to determine the same or has sought
legal advice) why the delivery of this Agreement, the acceptance of it
by the Corporation and the issuance of the shares of Common Stock to
the Investor will not comply with all applicable laws of the
Investor's jurisdiction of residence or domicile, and all other
applicable laws, and the Investor has no reason to believe that the
Investor's subscription hereby will cause the Corporation to become
subject to or required to comply with any disclosure, prospectus or
reporting requirements or to be subject to any civil or regulatory
review or proceeding. In addition, the Investor will comply with all
applicable securities laws and will assist the Corporation in all
reasonable manner to comply with all applicable securities laws;
(af) Encumbrance or transfer of Securities: the Investor will not sell,
assign, gift, pledge or encumber in any manner whatsoever any of the
shares of Common Stock herein subscribed for without the prior written
consent of the Corporation and in accordance with applicable
securities legislation; and
(ag) Regulation S: the Investor further represents and warrants that the
Subscriber was not specifically formed to acquire any of the shares of
Common Stock subscribed for in this Agreement in violation of the
provisions of Regulation S.
I will hold title to my shares of Common Stock as follows:
___ Individual Ownership
___ Community Property
___ Joint Tenant with Right of Survivorship (both parties must sign)
___ Partnership
___ Tenants in Common
___ Corporation
___ Trust
___ Other (please specify)_______________________
General. The following information is to be provided by all Investors.
(Please print or type - attach additional information on separate sheets if
necessary.)
(i) Investor Information (for corporations, partnerships or trusts, please
give name of entity and name of authorized individual completing the
Subscription Agreement and Purchaser Questionnaire.
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Name_________________________________________________________________
Home Address_________________________________________________________
Home Telephone ______________________________________________________
Date of Birth/Organization___________________________________________
Citizenship: __________
Occupation___________________________________________________________
Employer_____________________________________________________________
Business Address_____________________________________________________
Business Telephone___________________________________________________
Length of Employment_________________________________________________
(ii) For Investors other than Individuals
In order to establish that the Investor is authorized to complete this
Subscription Agreement and Purchaser Questionnaire, the following must be
furnished:
A general or limited partnership must attach a copy of its partnership
agreement, which must show that the person signing this Subscription Agreement
and Purchaser Questionnaire and any other document related to its subscription
for the shares of Common Stock (the "Subscription Documents") is a general
partner of the partnership who has the authority to make the investment
decisions and to execute the Subscription Documents.
A limited liability corporation or a corporation must attach a copy of a
resolution of the board of directors showing that the corporation is authorized
to make this investment and that the person who is signing any of the
Subscription Documents is authorized to do so.
A trust must attach a copy of the trust agreement.
(iii) Investment Decision
If the Investor is a general partnership, did each partner elect whether he
will participate in the partnership's investment in the shares of Common
Stock? ____Yes _____No
If the answer is "No", please state the total number of partners of the
partnership and the total number of partners who elected to participate in
this investment. _____
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SIGNATURE PAGE FOR INDIVIDUALS
Dated: ___________, 2008
_________________________________________________________________
Signature
_________________________________________________________________
Signature (all record holders should sign)
_________________________________________________________________
Name(s) Printed
_________________________________________________________________
Name(s) Printed
_________________________________________________________________
Address to Which Correspondence Should be Directed
_________________________________________________________________
Street or P.O. Box
_________________________________________________________________
City, State and Zip Code
_________________________________________________________________
Social Security Number
_________________________________________________________________
Social Security Number
_________________________________________________________________
Telephone Number
WHEN COMPLETED AND SIGNED THIS SUBSCRIPTION SHOULD BE DELIVERED TO DEER BAY
RESOURCES, INC., 0000 XXXX XXXXXXXX, XXXXX 000, XXXXXXXXX, XXXXXXX XXXXXXXX,
XXXXXX X0X 0X0, ATTN: XXXXX X. XXXX, PRESIDENT.
ACCEPTED:
DEER BAY RESOURCES, INC.
By:_______________________________ Dated: ____________, 2008
President
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SIGNATURE PAGE FOR ENTITIES
Dated: ______________, 2008
_________________________________________________________________
Name of Entity
_________________________________________________________________
*Signature with Title
_________________________________________________________________
Name Printed
_________________________________________________________________
Address to Which Correspondence Should be Directed
_________________________________________________________________
Street or P.O. Box
_________________________________________________________________
City, State and Zip Code
_________________________________________________________________
Tax Identification Number
_________________________________________________________________
Telephone Number
*If Securities are being subscribed for by an entity, the Certificate of
Signatory that is attached to this document must also be completed.
WHEN COMPLETED AND SIGNED THIS SUBSCRIPTION AGREEMENT AND CERTIFICATE OF
SIGNATORY SHOULD BE DELIVERED TO DEER BAY RESOURCES, INC., 0000 X. XXXXXXXX,
XXXXX 000, XXXXXXXXX, XXXXXXX XXXXXXXX, XXXXXX X0X 0X0, ATTN: XXXXX X. XXXX,
PRESIDENT.
ACCEPTED:
DEER BAY RESOURCES, INC.
By:__________________________ Date:_____________, 2008
President
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CERTIFICATE OF SIGNATORY
(To be completed if the Securities are being
subscribed for by an entity)
I, ____________________, am the _______________ of ___________________ (the
"Entity").
I certify that I am empowered and duly authorized by the Entity to execute
and carry out the terms of the Subscription Agreement and Purchaser
Questionnaire and to purchase and hold the shares of Common Stock, and certify
further that the Subscription Agreement and Purchaser Questionnaire has been
duly and validly executed on behalf of the Entity and constitutes a legal and
binding obligation of the Entity.
IN WITNESS WHEREOF, I have set my hand this ___ day of ________________,
2008.
_______________________________________
Signature
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