Exhibit 10.1
THIS PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT (THE "SUBSCRIPTION AGREEMENT")
RELATES TO AN OFFERING OF SECURITIES IN AN OFFSHORE TRANSACTION TO PERSONS WHO
ARE NOT U.S. PERSONS (AS DEFINED HEREIN) PURSUANT TO REGULATION S UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT").
NONE OF THE SECURITIES TO WHICH THIS SUBSCRIPTION AGREEMENT RELATES HAVE BEEN
REGISTERED UNDER THE 1933 ACT, 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
AND PROVINCIAL LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE SECURITIES
MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE 1933 ACT.
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (the "Agreement") made as of JUNE 14, 2008.
BETWEEN: SPRING CREEK CAPITAL CORP. (the "Company")
AND: STRAND GROUP LTD. (the "Subscriber")
WHEREAS:
The Subscriber wishes to purchase 960,000 shares of common stock in the
Company for a purchase price of $96,000;
SPRING CREEK CAPITAL CORP. has agreed to sell certain shares of common
stock to the Subscriber; and
NOW THEREFORE THIS AGREEMENT witnesses that, for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. INTERPRETATION
1.1 In this Agreement, words importing the singular number only shall include
the plural and vice versa, words importing gender shall include all genders and
words importing persons shall include individuals, corporations, partnerships,
associations, trusts, unincorporated organizations, governmental bodies and
other legal or business entities of any kind whatsoever.
1.2 Any reference to currency is to the currency of the United States of America
unless otherwise indicated.
2. DOCUMENTS REQUIRED FROM SUBSCRIBER
2.1 The Subscriber must complete, sign and return to the Company:
(a) an executed copy of this Agreement, and
2.2 The Subscriber shall complete, sign and return to the Company as soon as
possible, on request by the Company, any documents, questionnaires, notices and
undertakings as may be required by regulatory authorities, the National
Association of Securities Dealers Over-the-Counter Bulletin Board (the "OTC
Bulletin Board") and applicable law.
3. CLOSING
3.1 Closing of the offering of the Shares (the "Closing") shall occur on or
before June 30, 2008, or on such other date as may be determined by the Company
(the "Closing Date"), payment shall be as follows:
(A) $96,000 upon signing of this subscription;
4. ACKNOWLEDGEMENTS OF SUBSCRIBER
4.1 The Subscriber acknowledges and agrees that:
(a) none of the Shares have been or will be registered under 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, as
that term is defined in Regulation S under the 1933 Act ("Regulation
S"), except in accordance with the provisions of Regulation S,
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 and provincial securities laws;
(b) the Company has not undertaken, and will have no obligation, to
register any of the Shares under the 1933 Act or any other securities
legislation;
(c) he has received and carefully read this Agreement;
(d) the decision to execute this Agreement and purchase the Shares 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
Company and such decision is based entirely upon a review of any
public information which has been filed by the Company with the
Securities and Exchange Commission ("SEC") in compliance, or intended
compliance, with applicable securities legislation;
(e) he and his advisor(s) have had a reasonable opportunity to ask
questions of and receive answers from the Company in connection with
the sale of the Shares hereunder, and to obtain additional
information, to the extent possessed or obtainable by the Company
without unreasonable effort or expense;
(f) the books and records of the Company were available upon reasonable
notice for inspection, subject to certain confidentiality
restrictions, by the Subscriber during reasonable business hours at
its principal place of business and that all documents, records and
books in connection with the sale of the Shares hereunder have been
made available for inspection by him and his attorney and/or
advisor(s);
(g) the Company is entitled to rely on the representations and warranties
of the Subscriber contained in this Agreement and the Subscriber will
hold harmless the Company from any loss or damage it or they may
suffer as a result of the Subscriber's failure to correctly complete
this Agreement;
2
(h) the Subscriber will indemnify and hold harmless the Company 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 Subscriber contained herein or in any document
furnished by the Subscriber to the Company in connection herewith
being untrue in any material respect or any breach or failure by the
Subscriber to comply with any covenant or agreement made by the
Subscriber to the Company in connection therewith;
(i) the Subscriber has been advised to consult the Subscriber's own legal,
tax and other advisors with respect to the merits and risks of an
investment in the Shares and with respect to applicable resale
restrictions, and it is solely responsible (and the Company is not in
any way responsible) for compliance with:
(i) any applicable laws of the jurisdiction in which the Subscriber
is resident in connection with the distribution of the Shares
hereunder, and
(ii) applicable resale restrictions;
(j) in addition to resale restrictions imposed under U.S. securities laws,
there are additional restrictions on the Subscriber's ability to
resell the Shares under the Securities Act (British Columbia) and
Multilateral Instrument 45-102 adopted by the British Columbia
Securities Commission;
(k) the Company has advised the Subscriber that the Company is relying on
an exemption from the requirements to provide the Subscriber with a
prospectus to sell the Shares and, as a consequence of acquiring the
Shares pursuant to such exemption certain protections, rights and
remedies provided by the applicable securities legislation of British
Columbia including statutory rights of rescission or damages, will not
be available to the Subscriber;
(l) none of the Shares are listed on any stock exchange or automated
dealer quotation system and no representation has been made to the
Subscriber that any of the Shares will become listed on any stock
exchange or automated dealer quotation system, except that currently
certain market makers make market in the common shares of the Company
on the OTC Bulletin Board;
(m) the Subscriber is outside the United States when receiving and
executing this Agreement and is acquiring the Shares as principal for
its own account, for investment purposes only, and not with a view to,
or for, resale, distribution or fractionalization thereof, in whole or
in part, and no other person has a direct or indirect beneficial
interest in such Shares;
(n) none of the Shares may 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 (as defined herein);
(o) neither the SEC nor any other securities commission or similar
regulatory authority has reviewed or passed on the merits of the
Shares;
(p) no documents in connection with the sale of the Shares hereunder have
been reviewed by the SEC or any state securities administrators;
(q) there is no government or other insurance covering any of the Shares;
3
(r) the issuance and sale of the Shares to the Subscriber will not be
completed if it would be unlawful or if, in the discretion of the
Company acting reasonably, it is not in the best interests of the
Company;
(s) the Subscriber is purchasing the Shares pursuant to an exemption from
the registration and the prospectus requirements of applicable
securities legislation on the basis that the Subscriber is an
accredited investor of the Company and, as a consequence:
(i) is restricted from using most of the civil remedies available
under securities legislation,
(ii) may not receive information that would otherwise be required to
be provided under securities legislation, and
(iii)the Company is relieved from certain obligations that would
otherwise apply under securities legislation;
(t) the statutory and regulatory basis for the exemption claimed for the
offer and sale of the Shares, although in technical compliance with
Regulation S, would not be available if the offering is part of a plan
or scheme to evade the registration provisions of the 1933 Act; and
(u) this Agreement is not enforceable by the Subscriber unless it has been
accepted by the Company.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SUBSCRIBER
5.1 The Subscriber hereby represents and warrants to and covenants with the
Company (which representations, warranties and covenants shall survive the
Closing) that:
(a) the Subscriber is not a U.S. Person;
(b) by completing the Questionnaire, the Subscriber is representing and
warranting that the Subscriber is an "Accredited Investor", as that
term is defined in National Instrument 45-106 adopted by the British
Columbia Securities Commission;
(c) the Subscriber is not acquiring the Shares for the account or benefit
of, directly or indirectly, any U.S. Person;
(d) the Subscriber is resident in the jurisdiction set out under the
heading "Name and Address of Subscriber" on the signature page of this
Agreement and the sale of the Shares to the Subscriber as contemplated
in this Agreement complies with or is exempt from the applicable
securities legislation of the jurisdiction of residence of the
Subscriber;
(e) the Subscriber is purchasing the Shares as principal for investment
purposes only and not with a view to resale or distribution and, in
particular, the Subscriber has no intention to distribute, either
directly or indirectly, any of the Shares in the United States or to
U.S. Persons;
(f) the Subscriber is outside the United States when receiving and
executing this Agreement;
(g) the Subscriber is aware that an investment in the Company is
speculative and involves certain risks, including the possible loss of
the entire investment;
(h) the Subscriber has made an independent examination and investigation
of an investment in the Shares 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 any way whatsoever for the Subscriber's
decision to invest in the Shares and the Company;
4
(i) the Subscriber (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, (iii) is able to bear
the economic risks of an investment in the Shares for an indefinite
period of time and can afford the complete loss of such investment and
(iv) has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of its
investment in the Shares and the Company;
(j) the Subscriber understands and agrees that the Company and others will
rely upon the truth and accuracy of the acknowledgements,
representations and agreements contained in this Agreement and agrees
that if any of such acknowledgements, representations and agreements
are no longer accurate or have been breached, the Subscriber shall
promptly notify the Company;
(k) the Subscriber has the legal capacity and competence to enter into and
execute this Agreement and to take all actions required pursuant
hereto;
(l) the Subscriber has duly executed and delivered this Agreement and it
constitutes a valid and binding agreement of the Subscriber
enforceable against the Subscriber in accordance with its terms;
(m) the Subscriber is not an underwriter of, or dealer in, the common
shares of the Company, nor is the Subscriber participating, pursuant
to a contractual agreement or otherwise, in the distribution of the
Shares;
(n) the Subscriber understands and agrees that none of the Shares have
been registered under 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, 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 and
provincial securities laws;
(o) it is not an underwriter of, or dealer in, the common shares of the
Company, nor is the Subscriber participating, pursuant to a
contractual agreement or otherwise, in the distribution of the Shares;
(p) the Subscriber understands and agrees that offers and sales of any of
the Shares prior to the expiration of a period of one year after the
date of original issuance of the Shares (the one year period
hereinafter referred to as the "Distribution Compliance Period") shall
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 shall 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 applicable state and
provincial securities laws;
(q) the Subscriber understands and agrees not to engage in any hedging
transactions involving any of the Shares unless such transactions are
in compliance with the provisions of the 1933 Act and in each case
only in accordance with applicable state and provincial securities
laws;
(r) the Subscriber 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;
(s) the Subscriber acknowledges that it 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
5
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
the Subscriber 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;
(t) the Subscriber is not aware of any advertisement of any of the Shares
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; and
(u) no person has made to the Subscriber any written or oral
representations:
(i) that any person will resell or repurchase any of the Shares;
(ii) that any person will refund the purchase price of any of the
Shares;
(iii) as to the future price or value of any of the Shares; or
(iv) that any of the Shares 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 Shares of
the Company on any stock exchange or automated dealer quotation
system.
5.2 In this Agreement, the term "U.S. Person" shall have the meaning ascribed
thereto in Regulation S.
6. REPRESENTATIONS AND WARRANTIES WILL BE RELIED UPON BY THE COMPANY
6.1 The Subscriber acknowledges that the representations and warranties
contained herein are made by it with the intention that such representations and
warranties may be relied upon by the Company and its legal counsel in
determining the Subscriber's eligibility to purchase the Shares under applicable
securities legislation, or (if applicable) the eligibility of others on whose
behalf it is contracting hereunder to purchase the Shares under applicable
securities legislation. The Subscriber further agrees that by accepting delivery
of the certificates representing the Shares on the Closing Date, it will be
representing and warranting that the representations and warranties contained
herein are true and correct as at the Closing Date with the same force and
effect as if they had been made by the Subscriber on the Closing Date and that
they will survive the purchase by the Subscriber of Shares and will continue in
full force and effect notwithstanding any subsequent disposition by the
Subscriber of such Shares.
7. RESALE RESTRICTIONS
7.1 The Subscriber acknowledges that any resale of the Shares will be subject to
resale restrictions contained in the securities legislation applicable to each
Subscriber or proposed transferee. The Subscriber acknowledges that the Shares
have not been registered under the 1933 Act of the securities laws of any state
of the United States. The Shares may not be offered or sold in the United States
unless registered in accordance with United States federal securities laws and
all applicable state and provincial securities laws or exemptions from such
registration requirements are available.
7.2 The Subscriber acknowledges that restrictions on the transfer, sale or other
subsequent disposition of the Shares by the Subscriber may be imposed by
securities laws in addition to any restrictions referred to in Section 7.1
above, and, in particular, the Subscriber acknowledges and agrees that:
6
(a) none of the Shares may 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; and
(b) the Company is not a reporting issuer in any of the Provinces of
Canada and therefore resale of any of the Shares in Canada is
restricted except pursuant to an exemption from applicable securities
legislation.
8. ACKNOWLEDGEMENT AND WAIVER
8.1 The Subscriber has acknowledged that the decision to purchase the Shares was
solely made on the basis of publicly available information. The Subscriber
hereby waives, to the fullest extent permitted by law, any rights of withdrawal,
rescission or compensation for damages to which the Subscriber might be entitled
in connection with the distribution of any of the Shares.
9. LEGENDING AND REGISTRATION OF SUBJECT SHARES
9.1 The Subscriber hereby acknowledges that a legend may be placed on the
certificates representing any of the Shares to the effect that the Shares
represented by such certificates are subject to a hold period and may not be
traded until the expiry of such hold period except as permitted by applicable
securities legislation.
9.2 The Subscriber 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.
10. COSTS
10.1 The Subscriber acknowledges and agrees that all costs and expenses incurred
by the Subscriber (including any fees and disbursements of any special counsel
retained by the Subscriber) relating to the purchase of the Shares shall be
borne by the Subscriber.
11. GOVERNING LAW
11.1 This Agreement is governed by the laws of the STATE OF NEVADA applicable
herein.
12. SURVIVAL
12.1 This 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 Shares by the Subscriber pursuant hereto.
13. ASSIGNMENT
13.1 This Agreement is not transferable or assignable.
14. EXECUTION
14.1 The Company shall be entitled to rely on delivery by facsimile machine of
an executed copy of this Agreement and acceptance by the Company of such
facsimile copy shall be equally effective to create a valid and binding
agreement between the Subscriber and the Company in accordance with the terms
hereof.
15. SEVERABILITY
15.1 The invalidity or unenforceability of any particular provision of this
Agreement shall not affect or limit the validity or enforceability of the
remaining provisions of this Agreement.
7
16. ENTIRE AGREEMENT
16.1 Except as expressly provided in this Agreement and in the agreements,
instruments and other documents contemplated or provided for herein, this
Agreement contains the entire agreement between the parties with respect to the
sale of the Shares and there are no other terms, conditions, representations or
warranties, whether expressed, implied, oral or written, by statute or common
law, by the Company or by anyone else.
17. NOTICES
17.1 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 Subscriber shall be directed to the
address on page 9 and notices to the Company shall be directed to it at the
address set forth on page 1 of this Agreement.
18. COUNTERPARTS
18.1 This 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.
8
IN WITNESS WHEREOF the Subscriber has duly executed this Agreement as of the
date first above mentioned.
DELIVERY INSTRUCTIONS
1. Delivery - please deliver the certificates to:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
2. Registration - registration of the certificates which are to be delivered
at closing should be made as follows:
---------------------------------------------------------------------------
(name)
---------------------------------------------------------------------------
(address)
3. The undersigned hereby acknowledges that it will deliver to the Company all
such additional completed forms in respect of the Subscriber's purchase of
the Shares as may be required for filing with the appropriate securities
commissions and regulatory authorities.
STRAND GROUP LTD.
(Name of Subscriber - Please type or print)
-------------------------------------------
(Signature and, if applicable, Office)
Address:
----------------------------------
----------------------------------
9
A C C E P T A N C E
The above-mentioned Agreement in respect of the Shares is hereby accepted by
SPRING CREEK CAPITAL CORP.
DATED, the 14th day of June, 2008.
SPRING CREEK CAPITAL CORP.
Per:
-----------------------------------
President
10
