Exhibit 10.1
NONE OF THE SECURITIES TO WHICH THIS PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
(THE "SUBSCRIPTION AGREEMENT") RELATES HAVE BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY U.S. STATE
SECURITIES LAWS, AND, UNLESS SO REGISTERED, NONE MAY BE OFFERED OR SOLD IN THE
UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREIN) EXCEPT 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 APPLICABLE
STATE SECURITIES LAWS.
INDEPENDENCE ENERGY CORP.
0000 Xxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxxx Xxxxxxxxxx
Attention: Xxxxxxx X. Xxxxxxx
PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
CONVERTIBLE DEBENTURE
NON U.S. SUBSCRIBERS
INSTRUCTIONS TO PURCHASER
1. THIS SUBSCRIPTION FORM is for use by Non U.S. Persons (as defined herein).
2. COMPLETE the information on page 2 of this Subscription Agreement.
3. COMPLETE the Questionnaire attached on page 3 to this Subscription
Agreement (the "Questionnaire").
4. All other information must be filled in where appropriate.
PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
TO: Independence Energy Corp. (the "Issuer" or the "Company")
Subject and pursuant to the terms set out in this Subscription Agreement and the
other schedules and appendices attached which are hereby incorporated by
reference, the Purchaser hereby irrevocably subscribes for, and on Closing will
purchase from the Company, the following securities at the following price:
Convertible debenture in the principal amount of USD $46,000
The Purchaser owns, directly or indirectly, the following securities of the
Issuer:
[Check if applicable] The Purchaser is an affiliate of the Issuer. [ ]
The Purchaser directs the Issuer to issue, register and deliver the certificates
representing the Convertible Debenture as follows:
REGISTRATION INSTRUCTIONS DELIVERY INSTRUCTIONS
Europa Capital AG
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Name to appear on certificate Name and account reference, if
applicable
Xxxxx Xxxxxxxx
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Contact name
00 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxx
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Address Address
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Telephone Number
EXECUTED by the Purchaser this _______ day of _____________, 2013. By executing
this Subscription Agreement, the Purchaser certifies that the Purchaser and any
beneficial purchaser for whom the Purchaser is acting is resident in the
jurisdiction shown as the "Address of Purchaser".
WITNESS: EXECUTION BY PURCHASER:
/s/ Xxxxx Xxxxxxxx
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Signature of Witness Authorized signatory
EUROPA CAPITAL AG
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Name of Witness Name of Purchaser
XXXXX XXXXXXXX, DIRECTOR
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Address of Witness Name of authorized signatory
(PLEASE PRINT)
Accepted this 5th day of April, 2013 00 XXXXXX XXXXXX, XXXXXX XXXX, XXXXXX
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INDEPENDENCE ENERGY CORP. Address of Purchaser
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Per: /s/ Xxxxxxx Xxxxxxx *Telephone Number
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Authorized Signatory ---------------------------------------
*EIN/Tax ID No.:
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* Required from all Purchasers
By signing this acceptance, the Issuer agrees to be bound by the General
Provisions on pages 3 to 12 of this Subscription Agreement and the other
schedules and appendices incorporated by reference.
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GENERAL PROVISIONS
1. SUBSCRIPTION
1.1 The undersigned (the "Purchaser") hereby irrevocably subscribes for and
agrees to purchase from the Issuer, on the basis of the representations and
warranties and subject to the terms and conditions set forth herein, such number
of Convertible Debentures (the "Debentures") as indicated on page 2 hereof, in
the principal amount of US$46,000 per Debenture, for the aggregate principal
amount indicated thereon (the "Subscription Proceeds") (the "Offering").
1.2 The Subscription will be effective upon the Closing Date (as defined in
below Section 4) subject to the prior delivery of the Subscription Proceeds and
to the execution and delivery by the parties of this Subscription Agreement and
all agreements and documents referenced herein.
1.3 NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE PURCHASER ACKNOWLEDGE
THAT, AS AT THE DATE OF THIS AGREEMENT, THE COMPANY HAS INSUFFICIENT AUTHORIZED
CAPITAL TO EFFECT A CONVERSION OF THE DEBENTURES IN ACCORDANCE WITH THE TERMS OF
THIS AGREEMENT. IN ADDITION, PURCHASER ACKNOWLEDGES THAT THE COMPANY HAS MADE NO
REPRESENTATION OR WARRANTY REGARDING ITS ABILITY TO INCREASE ITS AUTHORIZED
CAPITAL. HOWEVER, THE COMPANY AND THE PURCHASER EACH AGREES TO USE COMMERCIALLY
REASONABLE EFFORTS TO INCREASE THE AUTHORIZED CAPITAL OF THE COMPANY IN AN
AMOUNT SUFFICIENT TO ACCOMMODATE THE POTENTIAL CONVERSION OF THE DEBENTURES IN
ACCORDANCE WITH THIS AGREEMENT.
2. DESCRIPTION OF DEBENTURES
2.1 Each Debenture has a face value of USD$46,000. Certificate(s) representing
the Debenture will be in the form attached as Exhibit A hereto. Each Debenture
shall have a term expiring on the date that is three (3) years from the date of
issuance (the "Due Date"). All or any portion of the outstanding principal sum
and accrued interest of each Debenture is convertible from time to time on or
after the Closing Date at the option of the Purchaser into common shares (the
"Shares") in the capital stock of the Company. Each Debenture and the Shares are
herein collectively referred to as the "Securities". The price per share at
which each Debenture may be converted shall be $$0.01 per Share.
2.2 Each Debenture shall accrued interest at the rate of six percent (6%) per
annum, payable on the Due Date. Notwithstanding any prepayment of principal made
in respect of the Debenture in accordance with below section 2.3, the principal
amount of the Debenture shall bear aggregate minimum interest of $8,280 (the
"Minimum Interest Charge").
2.3 Each Debenture is due and payable on the Due Date, if not converted on the
Due Date. The Purchaser may, at its option, elect to convert a Debenture in
accordance with the foregoing in lieu of receiving any funds payable under the
Debenture.
2.4 The Company may prepay all or any portion of the principal or the Minimum
Interest Charge not converted at any time prior to the Due Date.
3. PAYMENT
3.1 The Subscription Proceeds must accompany this Subscription and shall be paid
by certified cheque or bank draft drawn on a bank in the United States
reasonably acceptable to the Issuer, and made payable and delivered to the
Issuer. Alternatively, the Subscription Proceeds may be wired to the Issuer or
its designee pursuant to wiring instructions that will be provided to the
Purchaser upon request. If the funds are wired to the designee, the designee and
Issuer shall confirm acceptance and delivery of the funds to the satisfaction of
the Issuer.
3.2 The Purchaser acknowledges and agrees that this Subscription Agreement, the
Subscription Proceeds and any other documents delivered in connection herewith
will be held on behalf of the Issuer. In the event that this Subscription
Agreement is not accepted by the Issuer for whatever reason, which the Issuer
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expressly reserves the right to do, within 30 days of the delivery of an
executed Subscription Agreement by the Purchaser, this Subscription Agreement,
the Subscription Proceeds (without interest thereon) and any other documents
delivered in connection herewith will be returned to the Purchaser at the
address of the Purchaser as set forth in this Subscription Agreement.
3.3 Where the Subscription Proceeds are paid to the Issuer, the Issuer is
entitled to treat such Subscription Proceeds as an interest free loan to the
Issuer until the earlier of such time as the Subscription is accepted and the
certificates representing the Debentures have been issued to the Purchaser and
30 days following the delivery of an executed Subscription Agreement by the
Purchaser.
4. CLOSING
4.1 Closing of the offering of the Debentures (the "Closing") shall occur on or
before April 5, 2013 (the "Closing Date").
5. ACKNOWLEDGEMENTS OF PURCHASER
5.1 The Purchaser acknowledges and agrees that:
(a) the Securities have not been registered under the 1933 Act, or under
any state securities or "blue sky" laws of any state of the United
States, and are being offered only in a transaction not involving any
public offering within the meaning of the 1933 Act, and, unless so
registered, may not be offered or sold in the United States or to U.S.
Persons (as defined herein), except 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
applicable state securities laws;
(b) the Issuer will refuse to register any transfer of the Securities 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, or in a transaction not subject to, the
registration requirements of the 1933 Act;
(c) Subject to compliance with applicable securities laws, the Purchaser
may enter into lawful hedging transactions in the course of any
hedging position the Purchaser assumes and may enter into lawful short
positions or other lawful derivative transactions relating to the
Securities or to interests in the Securities and may deliver the
Securities or such interests in the Securities to close out the
Purchaser's short or other positions or to otherwise settle such
derivative transactions, and the Purchaser may loan or pledge the
Securities or interests in the Securities to third parties who in turn
may dispose of the Securities.
(d) the decision to execute this Subscription Agreement and purchase the
Securities agreed to be purchased hereunder has not been based upon
any oral or written representation as to fact or otherwise made by or
on behalf of the Issuer and such decision is based entirely upon a
review of public information contained in the Issuer's filings with
the United States Securities and Exchange Commission (the "Issuer
Public Information"). If the Issuer has presented a business plan or
any other type of corporate profile to the Purchaser, the Purchaser
acknowledges that the business plan, the corporate profile and any
projections or predictions contained in any such documents may not be
achieved or be achievable;
(e) the Purchaser and the Purchaser's advisor(s) have had a reasonable
opportunity to ask questions of and receive answers from the Issuer
regarding the Offering, and to obtain additional information, to the
extent possessed or obtainable without unreasonable effort or expense,
necessary to verify the accuracy of the information contained in the
Issuer Public Information, or any business plan, corporate profile or
any other document provided to the Purchaser;
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(f) the books and records of the Issuer were available upon reasonable
notice for inspection, subject to certain confidentiality
restrictions, by the Purchaser during reasonable business hours at its
principal place of business and that all documents, records and books
pertaining to this Offering have been made available for inspection by
the Purchaser, the Purchaser's attorney and/or advisor(s);
(g) subject to sections 3.2 and 3.3 of this Subscription Agreement, by
execution hereof the Purchaser has waived the need for the Issuer to
communicate its acceptance of the purchase of the Securities pursuant
to this Subscription Agreement;
(h) the Issuer is entitled to rely on the representations and warranties
and the statements and answers of the Purchaser contained in this
Subscription Agreement and in the Questionnaire, and the Purchaser
will hold harmless the Issuer from any loss or damage it may suffer as
a result of the Purchaser's failure to correctly complete this
Subscription Agreement or the Questionnaire;
(i) the Purchaser will indemnify and hold harmless the Issuer and, where
applicable, its respective directors, officers, employees, agents,
advisors and shareholders from and against any and all loss,
liability, claim, damage and expense whatsoever (including, but not
limited to, any and all fees, costs and expenses whatsoever reasonably
incurred in investigating, preparing or defending against any claim,
lawsuit, administrative proceeding or investigation whether commenced
or threatened) arising out of or based upon any representation or
warranty of the Purchaser contained herein, the Questionnaire or in
any other document furnished by the Purchaser to the Issuer in
connection herewith, being untrue in any material respect or any
breach or failure by the Purchaser to comply with any covenant or
agreement made by the Purchaser to the Issuer in connection therewith;
(j) the Purchaser has been advised to consult its own legal, tax and other
advisors with respect to the merits and risks of an investment in the
Securities and with respect to applicable resale restrictions and it
is solely responsible (and the Issuer is not in any way responsible)
for compliance with applicable resale restrictions;
(k) the Securities are not listed on any stock exchange or on the NASDAQ
automated dealer quotation system and no representation has been made
to the Purchaser that any of the Securities will become listed on any
stock exchange or on the NASDAQ automated dealer quotation system;
(l) the Securities are currently quoted on the OTC (QB) electronic
inter-dealer quotation system operated by OTC Markets Group, Inc.,
however there is no guarantee that the Securities will remain quoted
on the OTC (QB) or on any other inter-dealer quotation system;
(m) neither the SEC nor any other securities commission or similar
regulatory authority has reviewed or passed on the merits of the
Securities ;
(n) no documents in connection with this Offering have been reviewed by
the SEC or any state securities administrators;
(o) there is no government or other insurance covering any of the
Securities; and
(p) this Subscription Agreement is not enforceable by the Purchaser unless
it has been accepted by the Issuer, and the Purchaser acknowledges and
agrees that the Issuer reserves the right to reject any Subscription
for any reason.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER
6.1 The Purchaser hereby represents and warrants to and covenants with the
Issuer (which representations, warranties and covenants shall survive the
Closing) that:
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(a) the Purchaser is not a U.S. Person (as defined herein);
(b) the Purchaser is not acquiring the Securities for the account or
benefit of, directly or indirectly, any U.S. Person (as defined
herein);
(c) the Purchaser is resident in the jurisdiction set out on page 2 of
this Subscription Agreement;
(d) the Purchaser:
(i) is knowledgeable of, or has been independently advised as to, the
applicable securities laws of the securities regulators having
application in the jurisdiction in which the Purchaser is
resident (the "International Jurisdiction") which would apply to
the acquisition of the Securities,
(ii) is purchasing the Securities pursuant to exemptions from
prospectus or equivalent requirements under applicable securities
laws or, if such is not applicable, the Purchaser is permitted to
purchase the Securities under the applicable securities laws of
the securities regulators in the International Jurisdiction
without the need to rely on any exemptions,
(iii)acknowledges that the applicable securities laws of the
authorities in the International Jurisdiction do not require the
Company to make any filings or seek any approvals of any kind
whatsoever from any securities regulator of any kind whatsoever
in the International Jurisdiction in connection with the issue
and sale or resale of any of the Securities, and
(iv) represents and warrants that the acquisition of the Securities by
the Subscriber does not trigger:
A. any obligation to prepare and file a prospectus or similar
document, or any other report with respect to such purchase
in the International Jurisdiction, or
B. any continuous disclosure reporting obligation of the
Company in the International Jurisdiction, and
the Purchaser will, if requested by the Company, deliver to the
Company a certificate or opinion of local counsel from the
International Jurisdiction which will confirm the matters
referred to in subparagraphs (ii), (iii) and (iv) above to the
satisfaction of the Company, acting reasonably;
(e) the Purchaser is acquiring the Securities as principal for investment
only and not with a view to, or for, resale, distribution or
fractionalization thereof, in whole or in part, and, in particular, it
has no intention to distribute either directly or indirectly any of
the Securities in the United States or to U.S. Persons (as defined
herein);
(f) the Purchaser is outside the United States when receiving and
executing this Subscription Agreement;
(g) the Purchaser understands and agrees not to engage in any hedging
transactions involving any of the Securities unless such transactions
are in compliance with the provisions of the 1933 Act and in each case
only in accordance with applicable state securities laws;
(h) the Purchaser acknowledges that it has not acquired the Securities 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
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States in respect of any of the Securities 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 Securities; provided, however,
that the Purchaser may sell or otherwise dispose of any of the
Securities pursuant to registration of any of the Securities pursuant
to the 1933 Act and any applicable state securities laws or under an
exemption from such registration requirements and as otherwise
provided herein;
(i) the Purchaser has the legal capacity and competence to enter into and
execute this Subscription Agreement and to take all actions required
pursuant hereto and, if the Purchaser is a corporation, it is duly
incorporated and validly subsisting under the laws of its jurisdiction
of incorporation and all necessary approvals by its directors,
shareholders and others have been obtained to authorize execution and
performance of this Subscription Agreement on behalf of the Purchaser;
(j) the entering into of this Subscription Agreement and the transactions
contemplated hereby do not result in the violation of any of the terms
and provisions of any law applicable to, or, if applicable, the
constating documents of, the Purchaser, or of any agreement, written
or oral, to which the Purchaser may be a party or by which the
Purchaser is or may be bound;
(k) the Purchaser has duly executed and delivered this Subscription
Agreement and it constitutes a valid and binding agreement of the
Purchaser enforceable against the Purchaser;
(l) the Purchaser has received and carefully read this Subscription
Agreement;
(m) the Purchaser (i) has adequate net worth and means of providing for
its current financial needs and possible personal contingencies, (ii)
has no need for liquidity in this investment, and (iii) is able to
bear the economic risks of an investment in the Securities for an
indefinite period of time, and can afford the complete loss of such
investment;
(n) the Purchaser has the requisite knowledge and experience in financial
and business matters as to be capable of evaluating the merits and
risks of the investment in the Securities and the Company, and the
Subscriber is providing evidence of knowledge and experience in these
matters through the information requested in the Questionnaire;
(o) the Purchaser understands and agrees that the Company and others will
rely upon the truth and accuracy of the acknowledgements,
representations, warranties, covenants and agreements contained in
this Subscription Agreement and the Questionnaire, and agrees that if
any of such acknowledgements, representations and agreements are no
longer accurate or have been breached, the Purchaser shall promptly
notify the Company;
(p) the Purchaser is aware that an investment in the Company is
speculative and involves certain risks, including the possible loss of
the investment;
(q) the Purchaser is purchasing the Securities for its own account for
investment purposes only and not for the account of any other person
and not for distribution, assignment or resale to others, and no other
person has a direct or indirect beneficial interest is such
Securities, and the Purchaser has not subdivided his interest in the
Sewcurities with any other person;
(r) the Purchaser is not an underwriter of, or dealer in, the shares of
the Company's common stock, nor is the Purchaser participating,
pursuant to a contractual agreement or otherwise, in the distribution
of the Securities;
(s) the Purchaser has made an independent examination and investigation of
an investment in the Securities and the Company and has depended on
the advice of its legal and financial advisors and agrees that the
Company will not be responsible in anyway whatsoever for the Purchaser
's decision to invest in the Securities and the Company;
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(t) if the Purchaser is acquiring the Securities as a fiduciary or agent
for one or more investor accounts, the Purchaser has sole investment
discretion with respect to each such account, and the Subscriber has
full power to make the foregoing acknowledgements, representations and
agreements on behalf of such account;
(u) the Purchaser is not aware of any advertisement of any of the
Securities and 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;
(v) no person has made to the Purchaser any written or oral
representations:
(i) that any person will resell or repurchase any of the Securities,
(ii) that any person will refund the purchase price of any of the
Securities,
(iii) as to the future price or value of any of the Securities, or
(iv) that any of the Securities will be listed and posted for trading
on any stock exchange or automated dealer quotation system or
that application has been made to list and post any of the
Securities of the Company on any stock exchange or automated
dealer quotation system; and
7. ACKNOWLEDGEMENT AND WAIVER
7.1 The Purchaser has acknowledged that the decision to purchase the Securities
was solely made on the basis of the Issuer Public Information (as defined in
paragraph 5.1 (d) above). Accordingly, the Purchaser hereby waives, to the
fullest extent permitted by law, any rights of withdrawal, rescission or
compensation for damages to which the Purchaser might be entitled in connection
with the distribution of any of the Securities.
8. REPRESENTATIONS AND WARRANTIES OF THE ISSUER
8.1 The Issuer represents and warrants to the Purchaser as of the date hereof
and as of each applicable Closing Date that:
(a) the Issuer is a corporation duly organized, existing and in good
standing under the laws of the State of Nevada and has the power and
authority to conduct the business which it conducts and proposes to
conduct;
(b) the Issuer's execution, delivery, performance of this Agreement, the
Securities and any other agreement executed and delivered by the
Issuer pursuant to this Agreement or in connection herewith
(collectively, the "Transaction Documents") have been duly authorized,
executed and delivered by the Issuer and are valid and binding
agreement enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights generally and to general principles of
equity. The Issuer has full corporate power and authority necessary to
enter into and deliver the Transaction Documents and to perform its
obligations thereunder;
(c) no consent, approval, authorization or order of any court,
governmental agency or body or arbitrator having jurisdiction over the
Issuer, or any other Person is required for the execution by the
Issuer of the Transaction Documents and compliance and performance by
the Issuer of its obligations under the Transaction Documents
including, without limitation, the issuance and sale of the
Securities;
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(d) except as disclosed in the Issuer Public Information, the Issuer is
not in default of any material term, covenant or condition under or in
respect of any judgment, order, agreement or instrument to which it is
a party or to which it or any of the property or assets thereof are or
may be subject, and no event has occurred and is continuing, and no
circumstance exists which has not been waived, which constitutes a
default in respect of any commitment, agreement, document or other
instrument to which the Issuer is a party or by which it is otherwise
bound entitling any other party thereto to accelerate the maturity of
any amount owing thereunder or which could have a material adverse
effect upon the condition (financial or otherwise), property, assets,
operations or business of the Issuer;
(e) the Securities have been duly authorized and, when issued in
accordance with the terms of this Agreement and the Securities, as
applicable, and upon payment of the agreed upon consideration
therefore:
(i) will be, free and clear of any security interests, liens, claims
or other encumbrances, subject to restrictions upon transfer
under the 1933 Act and any applicable state securities laws;
(ii) will not have been issued or sold in violation of any preemptive
or other similar rights of the holders of any securities of the
Issuer; and
(iii)assuming the representations and warrants of the Purchaser
pursuant to this Agreement are true and correct, will not result
in a violation of Section 5 under the 1933 Act.
The Issuer will use its reasonable commercial efforts to reserve from
its duly authorized capital stock the common shares issuable pursuant
to the Debentures in order to issue the Shares;
(f) the Issuer has not engaged in any form of general solicitation or
general advertising (within the meaning of Regulation D under the 0000
Xxx) in connection with the offer or sale of the Securities;
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(g) During the two (2) years prior to the date hereof, the Issuer has
filed annual, quarterly and current reports pursuant to US securities
laws and has filed all reports required to be filed by it under such
US securities laws (all of the foregoing filed prior to the date
hereof or prior to the Closing Date, and all exhibits included therein
and financial statements, notes and schedules thereto and documents
incorporated by reference therein being hereinafter referred to as the
"SEC Documents"). As of their respective dates, such reports complied
in all material respects with the requirements under US securities
laws except to the extent that the Issuer filed amendments to such
reports in which event the SEC Documents, as amended, complied in all
material aspects with the requirements under US securities laws and
the rules and regulations of the SEC promulgated thereunder. None of
the SEC Documents at the time they were filed with the SEC contained
any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(h) there is no action, suit or legal proceeding ("Action") which
adversely affects or challenges the legality, validity or
enforceability of any of the Loan Documents or the Securities. The SEC
has not issued any stop order or other order suspending the
effectiveness of any registration statement filed by the Issuer under
US securities laws;
(i) the Issuer is not, and is not an affiliate of, and immediately
following the Closing Date will not have become, and "investment
company" within the meaning of the Investment Company Act of 1940, as
amended;
(j) Neither the Issuer, nor to the knowledge of the Issuer, any agent or
other Person acting on behalf of the Issuer, has, directly or
indirectly:
(i) used any funds, or will use any proceeds from the sale of the
Debentures, for any unlawful contributions, gifts, entertainment
or other unlawful expenses related to foreign or domestic
political activity;
(ii) made any unlawful payment to foreign or domestic government
officials or employees or to any foreign political parties or
campaigns from corporate funds;
(iii)failed to disclose fully any contribution made by the Issuer (or
made by any Person acting on their behalf of which the Issuer is
aware) which is in violation of law; or
(iv) has violated in any material respect any provision of the Foreign
Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder;
(k) The operation of the Issuer are and have been conducted at all times
in compliance with the money laundering statutes of applicable
jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations, guidelines, issued, administered or
enforced by any applicable governmental agency (collectively, the
"Money Laundering Laws") and no action, suit, or proceeding by or
before any court or governmental agency, authority or body or any
arbitrator involving the Issuer with respect to the Money Laundering
Laws is pending, or the best knowledge of the Issuer, threatened;
(l) None of the Issuer, any of their affiliates and any Person acting in
their behalf has, directly or indirectly, made any offers or sales of
any security or solicited any offers to buy any security, under
circumstances that would require registration of any of the 1933 Act,
whether through integration with prior offerings or otherwise, or
cause this offering of the Securities to require approval of the
shareholders of the Issuer for the purposes of any applicable
shareholder approval provisions, including, without limitation, under
the rules and regulations of any exchange or automated quotation
system on which any of the securities of the Issuer are listed,
designated or quoted;
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(m) the Issuer is not in violation of any term of or in default under any
certificate of designations of any outstanding series of common or
preferred stock of the Issuer, its Articles of Incorporation or Bylaws
or their organizational charter or certificate of incorporation or
bylaws, respectively. The Issuer is not in violation of any judgment,
decree or order or any statute, ordinance, rule or regulation
applicable to the Issuer, and the Issuer will not conduct its business
in violation of any of the foregoing, except for possible violations
which could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The Issuer possesses all
certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct
their respective businesses, except where the failure to possess such
certificates, authorizations or permits would not have, individually
or in the aggregate, a Material Adverse Effect, and the Issuer has not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit.
(n) the Issuer understands and acknowledges that the number of Shares
issuable upon conversion of the Debentures will increase in certain
circumstances. The Issuer further acknowledges that its obligation to
issue Shares upon conversion of the Debentures in accordance with this
Agreement and the Debentures is absolute and unconditional regardless
of the dilutive effect that such issuance may have on the ownership
interests of other shareholders of the Issuer;
(o) the Issuer has leasehold title to all real property and good and
marketable title to all personal property owned by them which is
material to the business of the Issuer, free and clear of all liens,
encumbrances and defects except such as do not materially affect the
value of such property and do not interfere with the use made and
proposed to be made of such property by the Issuer. Any real property
and facilities held under lease by the Issuer are held by them under
valid, subsisting and enforceable leases with such exceptions as are
not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Issuer; and
(p) the Issuer:
(i) is in compliance with any and all Environmental Laws (as
hereinafter defined);
(ii) has received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their
respective businesses; and
(iii)is in compliance with all terms and conditions of any such
permit, license or approval where, in each of the foregoing
clauses (i), (ii) and (iii), the failure to so comply could be
reasonably expected to have, individually or in the aggregate, a
Material Adverse Effect.
The term "Environmental Laws" means all federal, state, local or
foreign laws relating to pollution or protection of human health or
the environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata), including,
without limitation, laws relating to emissions, discharges, releases
or threatened releases of chemicals, pollutants, contaminants, or
toxic or hazardous substances or wastes (collectively, "Hazardous
Materials") into the environment, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials, as well as all
authorizations, codes, decrees, demands or demand letters,
injunctions, judgments, licenses, notices or notice letters, orders,
permits, plans or regulations issued, entered, promulgated or approved
thereunder.
9. LEGENDING OF SUBJECT SECURITIES
9.1 The Purchaser hereby acknowledges that that upon the issuance thereof, and
until such time as the same is no longer required under the applicable
securities laws and regulations, the certificates representing any of the
Securities will bear a legend in substantially the following form:
11
NONE OF THE SECURITIES TO WHICH THIS PRIVATE PLACEMENT SUBSCRIPTION
AGREEMENT (THE "SUBSCRIPTION AGREEMENT") RELATES HAVE BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR
ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, NONE MAY BE
OFFERED OR SOLD IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREIN)
EXCEPT 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 APPLICABLE STATE SECURITIES LAWS.
9.2 The Purchaser hereby acknowledges and agrees to the Issuer making a notation
on its records or giving instructions to the registrar and transfer agent of the
Issuer in order to implement the restrictions on transfer set forth and
described in this Subscription Agreement.
10. COSTS
10.1 The Purchaser acknowledges and agrees that all costs and expenses incurred
by the Purchaser (including any fees and disbursements of any special counsel
retained by the Purchaser) relating to the purchase of the Debentures shall be
borne by the Purchaser.
11. GOVERNING LAW
11.1 This Subscription Agreement will be governed by and construed in accordance
with the internal laws of Nevada (without reference to its rules governing the
choice or conflict of laws), and the parties hereto irrevocably attorn and
submit to the exclusive jurisdiction of the courts of Nevada with respect to any
dispute related to this Subscription Agreement.
12. SURVIVAL
12.1 This Subscription Agreement, including without limitation the
representations, warranties and covenants contained herein, shall survive and
continue in full force and effect and be binding upon the parties hereto
notwithstanding the completion of the purchase of the Securities by the
Purchaser pursuant hereto. 13. ASSIGNMENT 13.1 This Subscription Agreement is
not transferable or assignable.
14. SEVERABILITY
14.1 The invalidity or unenforceability of any particular provision of this
Subscription Agreement shall not affect or limit the validity or enforceability
of the remaining provisions of this Subscription Agreement.
15. ENTIRE AGREEMENT
15.1 Except as expressly provided in this Subscription Agreement and in the
agreements, instruments and other documents contemplated or provided for herein,
this Subscription Agreement contains the entire agreement between the parties
with respect to the sale of the Securities and there are no other terms,
conditions, representations or warranties, whether expressed, implied, oral or
written, by statute or common law, by the Issuer or by anyone else.
16. NOTICES
16.1 All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Purchaser shall be directed to the
address on page 2 and notices to the Issuer shall be directed to it at
INDEPENDENCE ENERGY CORP., 0000 Xxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxxx,
Xxxxxxxxxx, 00000.
12
17. COUNTERPARTS AND ELECTRONIC MEANS
This Subscription Agreement may be executed in any number of counterparts, each
of which, when so executed and delivered, shall constitute an original and all
of which together shall constitute one instrument. 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 hereinafter set
forth.
18. TIME IS OF THE ESSENCE
Time is of the essence of this Subscription Agreement.
13
EXHIBIT A
NONE OF THE SECURITIES TO WHICH THIS PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
(THE "SUBSCRIPTION AGREEMENT") RELATES HAVE BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY U.S. STATE
SECURITIES LAWS, AND, UNLESS SO REGISTERED, NONE MAY BE OFFERED OR SOLD IN THE
UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREIN) EXCEPT 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 APPLICABLE
STATE SECURITIES LAWS.
US $46,000
----------
6% CONVERTIBLE DEBENTURE
Issued by:
INDEPENDENCE ENERGY CORP.
(herein the "Company")
Due April _______, 2016 Debenture #001
All amounts described herein refer to US dollars unless otherwise specified.
1. PROMISE TO PAY
(a) Principal
For value received, the Company, a Nevada corporation, HEREBY PROMISES TO REPAY
to Europa Capital AG (the "Holder") the principal sum of FORTY SIX THOUSAND
DOLLARS in the lawful money of United States of America (USD$46,000), together
with interest on the balance of the principal sum from time to time remaining
unpaid as provided for in Section 1(b) hereof, at 4:00 p.m. (Pacific Standard
Time) on April , 2016 (the "Due Date") subject to such principal sum being
reduced through conversion of a portion of same into common shares in the
capital of the Company pursuant to Section 5 hereof.
(b) Interest
The outstanding portion of the principal sum from time to time will bear
interest at a rate equal to six percent (6%) per annum, payable at the Due Date,
if any.
2. DEFAULT
(a) One hundred percent (100%) of the principal money hereby secured and accrued
interest shall immediately become due and payable:
(i) if the Company defaults in the observance or performance of any term,
covenant or condition contained in this Debenture and such default is
not remedied within fifteen (15) business days after service on the
Company by the Holder of a notice in writing requiring that such
default be remedied;
14
(ii) if the Company becomes bankrupt or insolvent or goes into liquidation,
either voluntarily or under any order of a court of a competent
jurisdiction, or makes a general assignment for the benefit of its
creditors, or otherwise acknowledges its insolvency;
(iii) the Company ceases or threatens to cease to carry on business;
(iv) a receiver, receiver and manager or receiver-manager of any property,
assets or undertaking of the Company is appointed;
(v) any execution, sequestration or other process of any kind becomes
enforceable against the Company, or a distress or analogous process is
levied upon any property or asset of the Company;
(vi) the Company defaults in or under any obligation or agreement, other
than this Debenture, which requires payment by the Company of any
amount in excess of Two Hundred and Fifty Thousand Dollars in the
lawful money of the United States (USD$250,000);
(vii)the holder of any encumbrance against any property or asset of the
Company does anything to enforce or realize on such encumbrance;
(viii) the Company permits any sum which has been admitted as due and
payable by it, or which is not disputed to be due and payable by it,
to remain unpaid for ninety (90) days after legal proceedings have
been taken to compel payment thereof;
(ix) the Company loses its certificate of incorporation by expropriation,
forfeiture or otherwise; or
(x) the Holder in good faith believes, and has commercially reasonable
grounds to believe, that the prospect of payment or performance of any
of the obligations of the Company is materially impaired.
3. COVENANTS OF THE COMPANY
The Company hereby covenants with the Holder that at all times during the
currency of this Debenture it:
(a) will well and truly pay all monies which it may become obligated to pay to
the Holder;
(b) promptly pay as and when due all amounts and perform all obligations as may
be required in order to prevent the enforcement of any security interests which
may rank prior to or equally with the security interests granted to the Holder
in respect of this Debenture;
(c) will maintain and secure its incorporation and corporate organization in
good standing;
(d) will conduct its business in a proper and businesslike manner and, subject
to all the provisions herein contained, diligently preserve all the rights,
powers, privileges and goodwill owned by it;
(e) will assume and pay all costs, charges and expenses, including legal costs
of the Holder incidental to:
(i) the preparation of this Debenture; and
15
(ii) any proceedings taken to enforce the remedies under this Debenture, or
by reason of non-payment or procuring payment of the monies secured by
this Debenture; and
(f) will strictly comply with every covenant and undertaking hereunder.
4. WAIVER
The Holder may waive any breach of the Company of any of the provisions
contained in this Debenture, or any default by the Company in the observance or
performance of any covenant or condition required to be observed or performed by
the Company under the terms of this Debenture; provided always that no failure
or delay on the part of the Holder to exercise any right, power or remedy given
herein or by statute or at law or in equity or otherwise shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy.
5. CONVERSION
Upon issuance of this Debenture, the Holder shall have the right to convert all
or any portion of the principal sum and accrued interest of this Debenture
remaining outstanding and owing to the Holder (the "Convertible Indebtedness")
(as at the date of the election to so convert) into common shares in the capital
stock of the Company (the "Shares"). Notwithstanding anything to the contrary
herein, no portion of the Minimum Interest Charge may converted until accrued.
The conversion price shall be $$0.01 per share. The Holder may, at its option,
elect to convert the Debentures held by the Holder in accordance with the
foregoing in lieu of receiving any funds payable under the Debentures.
Upon issuance of this Debenture, the Company shall also have the right to repay
all or any portion of the Convertible Indebtedness or the Minimum Interest
Charge (as at the date of the election to so convert) from time to time.
Any such conversion may be effected by the presentation of this Debenture at the
offices of the Company, accompanied by a conversion notice (the "Conversion
Notice") in the form attached as Appendix 1, signed by the Holder, notifying the
Company as to the exercise of the right of conversion, specifying the amount of
the Convertible Indebtedness being converted, and setting forth the name(s) and
address(es) of the nominee(s) of the Holder in whose name(s) the Shares issuable
upon such conversion are to be registered. Such conversion shall be deemed to
have been effected immediately prior to the close of business on the date the
Company receives the Conversion Notice.
Any such repayment by the Company may be effected by the presentation of a
repayment notice (the "Repayment Notice"), in the form attached as Appendix 2,
at the address of the Holder provided in the Subscription Agreement signed by
the Company notifying the Holder as to the exercise of the right of repayment,
specifying the amount of the Convertible Indebtedness being repaid. Such
repayment shall be deemed to have been effected immediately prior to the close
of business on the date the Company or the Holder receives a Repayment Notice.
As promptly as practicable after the presentation of this Debenture for
conversion, the Company shall cause to be issued to the Holder or the Holder's
nominee(s) a certificate or certificates representing the number of fully paid
and non-assessable Shares into which all or any portion of the Convertible
Indebtedness has been converted and shall cause the Holder or the Holder's
nominee(s) to be entered in its books as the holder(s) of the number of Shares
into which any of the Convertible Indebtedness is converted.
In the event that any amounts remain outstanding hereunder after giving effect
to such conversion and/or repayment, the Company shall issue a new Debenture
having a face amount equal to the remaining Convertible Indebtedness owing by
the Company to the Holder as promptly as practicable after the presentation of
this Debenture for conversion.
The conversion or repayment of the Convertible Indebtedness shall in respect of
the amount so converted or repaid be deemed to have been made immediately prior
to the close of business on the date on which this Debenture is surrendered for
16
conversion or repaid. The Holder's rights in respect of the converted or repaid
portion shall terminate at such time of surrender, and, if any, the nominee(s)
of the Holder entitled to receive the Shares into which all or any portion of
any of the Convertible Indebtedness is converted shall be treated, as between
the Company and such person or persons, as having become the holder or holders
of record of such Shares on that date, provided that if this Debenture is
surrendered for conversion on any day on which the register for the Company's
common shares is closed, the Holder or the Holder's nominee(s) entitled to
receive Shares upon the conversion of this Debenture shall become the
shareholder(s) of record of such Shares as of the date on which the common share
register is next open.
6. FRACTIONAL SHARES
No fractional Shares shall be issued upon conversion of any Debentures, and in
lieu of any fractional Shares which would otherwise be issuable upon conversion,
the Company shall pay a cash adjustment equal to such fraction multiplied by the
Conversion Price then in effect; and in determining the number of Shares and the
payment, if any in lieu of fractional shares that the Holder shall receive, the
principal sums of all debentures being converted as at a particular date shall
be aggregated.
7. RESERVES AND ADJUSTMENTS
(a) The Company covenants and agrees that so long as this Debenture is
outstanding it will at all times reserve out of its unissued share capital
against the conversion rights conferred on the holder of such Debenture a
sufficient number of unissued Shares to entitle all of the principal sum and
accrued interest outstanding under such Debenture outstanding to be converted
upon the basis and upon the terms and conditions provided for in this Debenture.
(b) In the event of any subdivision or redivision or change of the Shares at any
time while this Debenture is outstanding into a greater number of Shares, the
Company shall deliver, at the time of the exercise thereafter of the right of
conversion by the registered holder of this Debenture, such additional number of
Shares as would have resulted from such subdivision, redivision or change if the
right of conversion had been exercised prior to the date of such subdivision,
redivision or change. In the event of any consolidation or change of the Shares
any time while this Debenture is outstanding into a lesser number of Shares, the
number of Shares deliverable by the Company on the exercise thereafter of the
right of conversion shall be reduced to such number of Shares as would have
resulted from such consolidation or change if the right of conversion had been
exercised prior to the date of such consolidation or change; and
(c) If the Company shall declare and pay a stock dividend upon its Shares or a
dividend upon its Shares payable at the option of the respective holders either
in Shares or in cash then in each such case from and after the payment date of
such dividend the conversion right herein provided for shall be increased in
proportion to the increase in the number of outstanding Shares of the
appropriate class resulting from such dividend.
8. NOTICES
Any notice, direction or other instrument required or permitted to be given
under this Debenture by the Holder to the Company or the Company to the Holder
shall be in writing and may be given by delivering same or transmitting same by
facsimile transmission or similar method.
Any notice, direction or instrument aforesaid shall:
(a) if delivered, be deemed to have been given or made at the time of delivery;
and
(b) if transmitted by facsimile transmission or similar method will be deemed to
have been given or made on the next business day following the day on which it
was so transmitted.
17
Any party may give written notice of change of address in the same manner, in
which event such notice shall thereafter be given to it as above provided at
such changed address.
9. NO MERGER
This Debenture shall not operate by way of merger of any indebtedness or
liability of the Company or any other person or persons to the Holder hereunder
or under any deed, guarantee, contract, draft, xxxx of exchange, promissory note
or other negotiable instrument by which the same may now or at any time
hereafter be represented or evidenced and no judgment recovered by the Holder
shall merge or in any way affect the Holder's right to interest as aforesaid.
10. ENUREMENT
This Debenture and the charges created hereby and all its provisions shall enure
to the benefit of the Holder, its successors and permitted assigns, and shall be
binding upon the Company, its successors and assigns.
11. ASSIGNABILITY
The obligations of the Company under this Debenture are not assignable without
the consent of the Holder. This Debenture shall be binding upon the Company and
its successors and assigns, and shall inure to the benefit of the Holder and the
permitted assigns of the Debenture.
12. TIME IS OF THE ESSENCE
Time shall be of the essence of this Debenture.
13. INTERPRETATION
The following rules shall be applied in interpreting this Debenture:
(a) Cross Reference
Unless otherwise stated a reference herein to a numbered or lettered clause
refers to the clause bearing that number or letter in this Debenture.
(b) Proper Law
The proper law of this Debenture is the law of the State of Nevada (without
reference to its rules governing the choice or conflict of laws), and the
parties hereto irrevocably attorn and submit to the exclusive jurisdiction of
the courts of Nevada in all matters concerning the interpretation and
enforcement of this Debenture.
(c) Severability
If a provision of this Debenture shall be found to be wholly or partially
invalid, this Debenture shall be interpreted as if the invalid provision had not
been a part hereof.
[THIS PART INTENTIONALLY LEFT BLANK]
18
(d) Headings
The headings of the clauses of this Debenture have been inserted for reference
only and do not defined, limit, alter or enlarge the meaning of any provision of
this Debenture.
IN WITNESS WHEREOF this Debenture has been executed and delivered this ______
day of April, 2013
INDEPENDENCE ENERGY CORP.
Per: /s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
I have authority to bind the Company
19
APPENDIX 1
FORM OF CONVERSION NOTICE
TO: INDEPENDENCE ENERGY CORP.
The undersigned, the registered holder (the "Holder") of the enclosed Debenture,
hereby irrevocably elects to convert such Debenture (or $ of the principal
amount and accrued interest thereof) into common shares (the "Shares") of
Independence Energy Corp., in accordance with the terms of the enclosed
Debenture and directs that the Shares issuable and deliverable upon the
conversion be issued and delivered to the person indicated below.
DATED: Europa Capital AG
----------------------------- ---------------------------------------
Name of Holder (Please Print)
By:
------------------------------------
Authorized Signatory
---------------------------------------
Official Capacity or Title
(Please Print)
---------------------------------------
Address
---------------------------------------
Address
---------------------------------------
Telephone Number
Register the Shares as set forth Deliver the Shares as set forth
below: below:
----------------------------------- ---------------------------------------
Name Name
----------------------------------- ---------------------------------------
Account reference, if applicable Account reference, if applicable
----------------------------------- ---------------------------------------
Address Contact Name
----------------------------------- ---------------------------------------
Address Address
---------------------------------------
Address
---------------------------------------
Telephone Number
20
APPENDIX 2
FORM OF REPAYMENT NOTICE
TO: EUROPA CAPITAL AG
The undersigned, the issuer of the Debenture # _____________ (the "Debenture"),
hereby irrevocably elects to repay such Debenture (or $_____________ of the
principal amount and accrued interest thereof), in accordance with the terms of
the Debenture.
DATED: INDEPENDENCE ENERGY CORP.
----------------------
By:
-----------------------------------------
Authorized Signatory
-----------------------------------------
Official Capacity or Title (Please Print)
21
