EXHIBIT 4.21
PACIFIC ENERGY RESOURCES LTD.
000 Xxxx Xxxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxxxxxxx 00000
UNIT SUBSCRIPTION AGREEMENT
(U.S. RESIDENTS)
TO: Pacific Energy Resources Ltd. (the "CORPORATION")
The undersigned (the "SUBSCRIBER") hereby irrevocably subscribes for and agrees
to purchase from Pacific Energy Resources Ltd. (the "CORPORATION") units of the
Corporation (the "UNITS") in the number set forth below at a subscription price
equal to CAD$2.20 per Unit. Each Unit shall consist of one (1) share of common
stock of the Corporation (a "COMMON SHARE") and one-half (1/2) Common Share
purchase warrant of the Corporation ("WARRANT"). Each one (1) whole Warrant
shall entitle the holder to acquire one (1) Common Share (a "WARRANT SHARE") at
a price equal to CAD$2.65 per Warrant Share for a period of eighteen (18) months
from the date of issue of the Warrants. The Subscriber agrees to be bound by the
attached terms and conditions of subscription (the "TERMS AND CONDITIONS") and
agrees that the Corporation and its agents and attorneys may rely upon the
representations, warranties and covenants contained therein and in the
Subscriber Certificate (as hereinafter defined). This subscription, plus the
Terms and Conditions of the completed and executed Subscriber Certificate, are
collectively referred to as the "SUBSCRIPTION AGREEMENT" or the "AGREEMENT."
SUBSCRIPTION AND SUBSCRIBER INFORMATION
Please print all information (other than signatures), as applicable, in the space provided below
Number of Units*:
-------------------------------------------------------------- ------------------------------------------
(Name of Subscriber)
Share Price: X
Account Reference (if applicable): --------------------------------------
----------------------------
Aggregate Subscription Price:
By: ------------------------------
----------------------------------------------------------- (the "SUBSCRIPTION PRICE")
Authorized Signature
-------------------------------------------------------------- IF THE SUBSCRIBER IS SIGNING AS AGENT FOR A PRINCIPAL
(Official Capacity or Title - if the Subscriber is not an (BENEFICIAL PURCHASER)AND IS NOTPURCHASING AS TRUSTEE OR
individual) AGENT FOR ACCOUNTS FULLY MANAGED BY IT, COMPLETE THE
FOLLOWING AND ENSURE THAT THAT APPLICABLE EXHIBIT(S) ARE
COMPLETED ON BEHALF OF SUCH PRINCIPAL:
--------------------------------------------------------------
(Name of individual whose signature appears above if different
than the name of the Subscriber printed above.) -----------------------------------------------------------
(Name of Principal)
--------------------------------------------------------------
(Subscriber's Address, including State) -----------------------------------------------------------
(Principal's Address)
--------------------------------------------------------------
-----------------------------------------------------------
--------------------------------------------------------------
(Telephone Number) (Email Address)
*Calculated based on a fixed exchange rate of US$1.00 = CAD$_______ (which is the noon buying rate as reported by the Federal
Reserve Bank of New York on the Closing Date)
ACCOUNT REGISTRATION INFORMATION: DELIVERY INSTRUCTIONS AS SET FORTH BELOW:
-------------------------------- ----------------------------------------
-------------------------------------------------------------- ----------------------------------------------------------
(Name) (Name)
-------------------------------------------------------------- ----------------------------------------------------------
(Account Reference, if applicable) (Account Reference, if applicable)
----------------------------------------------------------
-------------------------------------------------------------- (Address)
(Address, including Zip Code)
----------------------------------------------------------
(Contact Name) (Telephone Number)
Number and kind of securities of the Corporation held, if any: State whether Subscriber is an insider* of the
Corporation:
--------------------------------------------------------------
Yes / / No / /
--------------------------------------------------------------
* The term "insider" means a person who is a director or
senior officer (chair, vice chair, president, vice
president, secretary, treasurer or general manager) or
holder of more than 10% of the voting rights attached to
all outstanding voting securities of the Corporation.
TYPE OF OWNERSHIP (CHECK ONE)
____ Individual Ownership ____ Joint Tenants with Right of
Survivorship
(both parties must sign)
____ Corporation* ____ Community Property
(Spouse's signature
required)
____ Partnership* ____ Tenants-in-common
(both parties must sign)
____ Trust or Pension Plan*
-------------------
* Copy of Articles of Incorporation, Bylaws and Corporate Resolution,
Partnership or Trust Agreement, as applicable, must be attached.
ACCEPTANCE: The Corporation hereby accepts the subscription as set forth above
on the terms and conditions contained in this Subscription Agreement.
PACIFIC ENERGY RESOURCES LTD. ------------------
Subscription No.
By: ------------------
----------------------------
October __, 2007
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
TERMS AND CONDITIONS OF SUBSCRIPTION FOR UNITS
1. DEFINITIONS.
1.1 In this Agreement, which includes the cover page and all of the
appendices, the following words have the following meanings unless otherwise
indicated:
(a) "1933 ACT" means Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
(b) "CLOSING" means the completion of the issue and sale of the
Units to the Subscriber hereunder.
(c) "COMMON SHARE" has the meaning ascribed to it on the cover
page of this Agreement.
(d) "CORPORATION" means Pacific Energy Resources Ltd.
(e) "EXCHANGE" means the Toronto Stock Exchange.
(f) "OFFERING" means this private placement;
(g) "SEC" means the United States Securities and Exchange
Commission.
(h) "SUBSCRIBER" has the meaning ascribed to it on the cover page
of this Agreement.
(i) "SUBSCRIBER CERTIFICATE" means the accredited investor
certificate attached hereto as Exhibit "A".
(j) "UNIT" has the meaning ascribed to it on the cover page of
this Agreement.
(k) "WARRANT" has the meaning ascribed to it on the cover page of
this Agreement.
(l) "WARRANT SHARE" has the meaning ascribed to it on the cover
page of this Agreement.
1.2 All capitalized terms in this Agreement not defined above have the
meanings ascribed to them in this Agreement.
2. PURCHASE AND SALE OF UNITS.
2.1 The Units will be registered in the name of the Subscriber.
2.2 The issue of the Units will not restrict or prevent the Corporation
from obtaining any other financing, or from issuing additional securities from
time to time.
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2.3 Closing will be completed at the offices of the Corporation, in Long
Beach, California, at 1:00 p.m. (Pacific Time), or such other place or time as
the Corporation may designate (the "CLOSING TIME") on October 18, 2007 (the
"CLOSING DATE").
2.4 The Corporation shall have the right to reject this Subscription
Agreement if it believes for any reason that the Subscriber is not an
"accredited investor" within the meaning of Rule 501 of Regulation D promulgated
by the SEC as presently in effect, or for any other reason in its sole and
absolute discretion. Acceptance is evidenced only by execution of this
Subscription Agreement by the Corporation in the space provided above.
2.5 Fractional Warrants will not be issued to the Subscriber. Instead,
the number of Warrants issued to any one Subscriber will be rounded down to the
nearest whole number of Warrants issuable to such Subscriber at the Closing.
3. REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENTS OF THE SUBSCRIBER.
3.1 The Subscriber represents and warrants, as at the date of this
Agreement and at the Closing, that:
(a) the Subscriber is purchasing the Units for Subscriber's own
account or for accounts fully-managed by Silver Point Capital, L.P., for
long-term investment, and not with a view to, or for sale in connection
with, the distribution thereof. The Subscriber has no present intention of
selling, granting any participation in, or otherwise distributing the
Units. The Units will not be resold without registration under the 1933
Act and qualification under the securities laws of all applicable states,
unless such sale would be exempt therefrom;
(b) the Subscriber is an "accredited investor" as that term is
defined in Rule 501(a) of Regulation D promulgated under the 1933 Act;
(c) the Subscriber has received, completed and returned to the
Corporation the Subscriber Certificate relating to his general ability to
bear the risks of an investment in the Corporation and his suitability as
an investor in a private offering, and hereby affirms the correctness of
his answers in such Subscriber Certificate;
(d) the Subscriber (i) has adequate means of providing for his
current needs and possible personal contingencies, without the need for
liquidity of his investment in the Corporation; (ii) can bear the economic
risk of losing his entire investment herein; and (iii) has such knowledge
and experience in financial and business matters that he is capable of
evaluating the relative risks and merits of this investment;
(e) it never has been represented, guaranteed or warranted to
Subscriber by the Corporation, its agents, or employees or any other
person, expressly or by implication, any of the following:
(i) the approximate or exact length of time that Subscriber
will be required to remain as owner of the Units;
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(ii) THE PROFIT OR RETURN, IF ANY, TO BE REALIZED AS A RESULT
OF THE CORPORATION'S VENTURE; or
(iii) that the past performance or experience on the part of
the Corporation or any affiliate, its agents, or employees or of any
other person, will in any way indicate the predictable results of
the ownership of the Units or the overall Corporation's venture;
(f) the Subscriber, if an individual, is at least twenty-one (21)
years of age;
(g) the Subscriber has no reason to anticipate any change in the
Subscriber's personal circumstances, financial or otherwise, which may
cause or require any sale or distribution by the Subscriber of all or any
part of the Units subscribed for herein;
(h) the Subscriber has reviewed the documents regarding the
Corporation available on SEDAR (XXX.XXXXX.XXX) and the Exchange's web site
(xxx.xxx.xxx) carefully (collectively, the "DISCLOSURE DOCUMENTS"), is
fully familiar with and understands the contents thereof;
(i) the Subscriber confirms that all documents, records and books
pertaining to the Corporation and to the investment requested by the
Subscriber have been made available to the Subscriber and that the
Subscriber has been given an opportunity to make further inquiries of the
Corporation and its representatives in order to verify the accuracy of the
information contained in the Disclosure Documents and has had the
opportunity to review all facts concerning the Corporation which the
Subscriber deems pertinent;
(j) the Subscriber, if a partnership, corporation, trust, or other
entity, declares:
(i) the person executing this Subscription Agreement has the
necessary power and authority to do so; and
(ii) the Subscriber was not organized for the specific
purpose of acquiring the Units;
(k) the exhibits to this Agreement will be completed truthfully
and with reasonable diligence;
(l) as to the source of subscription funds,
(i) to the best of the Subscriber's knowledge, none of the
subscription funds used for the purchase of the Subscriber's Units
(A) have been or will be derived from or related to any activity
that is deemed criminal under the laws of the United States or any
other jurisdiction, or (B) are being tendered on behalf of a person
or entity who has not been identified to the Subscriber; and
(ii) the Subscriber will promptly notify the Corporation if
the Subscriber discovers that any of the representations in above
subparagraph (l)(i) above ceases to be true, and to provide the
Corporation with appropriate information in connection therewith;
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(m) the Subscriber warrants that the information herein provided
to the Corporation by the Subscriber is true and correct as of the date
hereof, and the Subscriber agrees to advise the Corporation, prior to its
acceptance of this subscription, of any material change in any such
information; and
(n) the Subscriber agrees that the representations and warranties
of the Subscriber set forth in this Section 3 shall survive the acceptance
of this subscription, in the event the subscription is accepted.
3.2 The Subscriber understands and acknowledges that:
(a) no federal or state agency has made any finding or
determination as to the fairness of the offering of Units for investment
or any recommendation or endorsement of the offering;
(b) the Units have not been registered under the 1933 Act or
qualified under any state securities laws in reliance on exemptions from
registration provided thereunder;
(c) there are restrictions imposed by law on the Subscriber's
ability to resell the Units and it is the responsibility of the Subscriber
to find out what those restrictions are and to comply with them before
selling the securities comprising the Units;
(d) the Subscriber acknowledges and agrees with the Corporation
that the Corporation shall refuse to register any transfer of the Units
not made pursuant to registration under the 1933 Act, or pursuant to an
available exemption from registration under the 1933 Act (including
Regulation S);
(e) the Corporation may be required to provide applicable
securities regulatory authorities with a list setting forth the identities
of the beneficial purchasers of the Units and the Subscriber acknowledges
and agrees that it will provide, on request, particulars as to the
identity of such beneficial purchasers as may be required by the
Corporation in order to comply with the foregoing;
(f) by providing personal information to the Corporation, the
Subscriber and each person for whom it is contracting hereunder, is
consenting to the Corporation's collection, use and disclosure of that
information for the purposes of the subscription of Units and the offering
in general, for corporate governance purposes and to contact the
Subscriber as an investor. The Subscriber, and each person for whom it is
contracting hereunder, acknowledges that, from time to time, the
Corporation may be required to disclose such personal information and, by
providing such personal information to the Corporation, the Subscriber and
each person for whom it is contracting hereunder, hereby expressly
consents to such disclosure, and the Subscriber and each person for whom
it is contracting agrees and acknowledges that the Corporation may use and
disclose personal information as follows:
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(i) for internal use with respect to managing the
relationships between and contractual obligations of the Corporation
and the Subscriber and each person for whom it is contracting;
(ii) for use and disclosure for income tax related purposes,
including without limitation, where required by law, disclosure to
the Internal Revenue Service;
(iii) disclosure to securities regulatory authorities and
other regulatory bodies with jurisdiction with respect to reports of
trades and similar regulatory filings;
(iv) disclosure to a governmental or other authority to which
the disclosure is required by court order or subpoena compelling
such disclosure and where there is no reasonable alternative to such
disclosure;
(v) disclosure to professional advisers of the Corporation
in connection with the performance of their professional services;
(vi) disclosure to any person where such disclosure is
necessary for legitimate business reasons and is made with the prior
written consent of the Subscriber and each person for whom it is
contracting;
(vii) disclosure to a court determining the rights of the
parties under this Agreement; or
(viii) for use and disclosure as otherwise required by law.
(g) during the ten trading day period prior to the date hereof,
the Subscriber has not purchased (except pursuant to this Subscription
Agreement), sold or "sold short" any securities of the Corporation.
4. ISSUANCE OF UNITS.
4.1 The Subscriber agrees to deliver to the Corporation, as soon as
possible and, in any event, not later than 9:00 a.m. (Pacific Standard time) on
October 18, 2007; (a) this duly completed and executed Subscription Agreement;
(b) a duly executed Accredited Investor Certificate attached hereto as Exhibit
"A"; and (c) a duly executed Flow of Funds and Direction letter attached hereto
as Exhibit "B" regarding payment of the Subscription Price as indicated on the
facing page hereof.
4.2 Promptly following the Closing, the Corporation will forward to the
Subscriber certificates representing the Common Shares and Warrants registered
in the name of the Subscriber or its nominee as per the directions of the
Subscriber on the facing page of this Agreement.
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5. CONDITION TO CLOSING.
The obligation of the Subscriber to purchase and pay for the Units and the
Closing are subject to the execution and delivery to the Corporation prior to or
at the Closing of the Flow of Funds and Direction letter by all parties thereto.
6. REGISTRATION STATEMENT.
The Common Shares and the Warrant Shares will be "Registrable Shares" as
that term is defined in the Registration Rights Agreement dated as of November
30, 2006 by and between the Corporation, Xxxxxxx, Xxxxx & Co., SPCP Group,
L.L.C. and SPCP Group III LLC.
7. LEGEND.
The certificates representing the Common Shares, the Warrants and the
Warrant Shares will bear a legend denoting the restrictions on transfer. The
Subscriber agrees to sell, assign or transfer those securities only in
accordance with such restrictions.
The legend will be in substantially the following form:
(i) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
LISTED ON THE TORONTO STOCK EXCHANGE ("TSX"); HOWEVER, THE SAID
SECURITIES CANNOT BE TRADED THROUGH THE FACILITIES OF TSX SINCE THEY
ARE NOT FREELY TRANSFERABLE, AND CONSEQUENTLY ANY CERTIFICATE
REPRESENTING SUCH SECURITIES IS NOT "GOOD DELIVERY" IN SETTLEMENT OF
TRANSACTIONS ON TSX."
(ii) "[THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE
OF THIS WARRANT][THE SECURITIES REPRESENTED HEREBY] HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("U.S.
SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. [THIS WARRANT AND
THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT][THE
SECURITIES REPRESENTED HEREBY] MAY NOT BE OFFERED, SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE ASSIGNED EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE U.S.
SECURITIES ACT OR PURSUANT TO AN EXEMPTION THEREFROM."
8. RELIANCE UPON REPRESENTATIONS, WARRANTIES AND COVENANTS.
The Subscriber acknowledges that the representations and warranties and
covenants and acknowledgments contained in this Agreement are made with the
intent that they may be relied upon by the Corporation in determining the
Subscriber's eligibility to purchase the Units and the Subscriber hereby agrees
to indemnify the Corporation against all losses, claims, costs, expenses and
damages or liabilities which it may suffer or incur caused or arising from its
reliance thereon. The Subscriber further agrees that the foregoing
representations and warranties shall survive the purchase by the Subscriber of
the Units and shall continue in full force and effect notwithstanding any
subsequent disposition by the Subscriber of any of the Units.
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9. MISCELLANEOUS.
9.1 The Corporation and the Subscriber shall be entitled to rely on
delivery by facsimile machine of an executed copy of this subscription, and
acceptance by the Corporation or the Subscriber of such facsimile copy shall be
equally effective to create a valid and binding agreement between the Subscriber
and the Corporation in accordance with the terms hereof.
9.2 Without limitation, this subscription and the transactions
contemplated hereby are conditional upon and subject to the Corporation
receiving Exchange approval of this subscription and the transactions
contemplated hereby.
9.3 This Agreement is not assignable or transferable by the parties
hereto without the express written consent of the other party
hereto.
9.4 Time is of the essence of this Agreement.
9.5 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 Units and there are no other terms, conditions, representations or
warranties whether expressed, implied, oral or written, by statute, by common
law, by the Corporation or by anyone else.
9.6 The parties to this Agreement may amend this Agreement only in
writing.
9.7 This Agreement inures to the benefit of and is binding upon the
parties to this Agreement and their successors and permitted assigns.
9.8 A party to this Agreement will give all notices to or other written
communications with the other party to this Agreement concerning this Agreement
by hand or by registered mail or overnight courier addressed to the address
given above.
9.9 This Agreement will be governed by and construed in accordance with
the laws of the State of California, without regard to conflicts of law
principles.
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EXHIBIT "A"
U.S. ACCREDITED INVESTOR CERTIFICATE
The undersigned ("SUBSCRIBER"), in connection with the acquisition of
units ("UNITS") of Pacific Energy Resources Ltd. ("PERL" or the "CORPORATION")
pursuant to that certain subscription agreement (the "AGREEMENT"), hereby makes
the following representations and warranties:
The Subscriber understands that the Corporation is relying on this
information in determining to offer the Units to the undersigned in a manner
exempt from the registration requirements of the Securities Act of 1933, as
amended (the "1933 ACT"), and applicable state securities laws.
1. ACCREDITED INVESTOR.
The Subscriber represents and warrants that he, she or it falls within the
category (or categories) marked. PLEASE INDICATE EACH CATEGORY OF ACCREDITED
INVESTOR THAT YOU, THE SUBSCRIBER, SATISFY, BY PLACING YOUR INITIALS ON THE
APPROPRIATE LINE BELOW.
_____ Category 1. A bank, as defined in Section 3(a)(2) of the 1933 Act,
whether acting in its individual or fiduciary capacity;
or
_____ Category 2. A savings and loan association or other institution as
defined in Section 3(a) (5) (A) of the 1933 Act, whether
acting in its individual or fiduciary capacity; or
_____ Category 3. A broker or dealer registered pursuant to Section 15 of
the Securities Exchange Act of 1934; or
_____ Category 4. An insurance company as defined in Section 2(13) of the
1933 Act; or
_____ Category 5. An investment company registered under the Investment
Company Act of 1940; or
_____ Category 6. A business development company as defined in Section
2(a) (48) of the Investment Company Act of 1940; or
_____ Category 7. A small business investment company licensed by the U.S.
Small Business Administration under Section 301(c) or
(d) of the Small Business Investment Act of 1958; or
_____ Category 8. A plan established and maintained by a state, its
political subdivision or any agency or instrumentality
of a state or its political subdivisions, for the
benefit of its employees, with assets in excess of
US$5,000,000; or
A-1
_____ Category 9. An employee benefit plan within the meaning of the
Employee Retirement Income Security Act of 1974 in which
the investment decision is made by a plan fiduciary, as
defined in Section 3(21) of such Act, which is either a
bank, savings and loan association, insurance company or
registered investment advisor, or an employee benefit
plan with total assets in excess of US$5,000,000 or, if
a self-directed plan, the investment decisions are made
solely by persons who are accredited investors; or
_____ Category 10. A private business development company as defined in
Section 202(a) (22) or the Investment Advisors Act of
1940; or
_____ Category 11. An organization described in Section 501(c)(3) of the
Internal Revenue Code, a corporation, a Massachusetts or
similar business trust, or a partnership, not formed for
the specific purpose of acquiring the Units, with total
assets in excess of US$5,000,000; or
_____ Category 12. A director, executive officer or general partner of the
Corporation; or
_____ Category 13. A natural person whose individual net worth, or joint
net worth with that person's spouse, at the time of this
purchase exceeds US$1,000,000; or
_____ Category 14. A natural person who had an individual income in excess
of US$200,000 in each of the two most recent years or
joint income with that person's spouse in excess of
US$300,000 in each of those years and has a reasonable
expectation of reaching the same income level in the
current year; or
_____ Category 15. A trust, with total assets in excess of US$5,000,000,
not formed for the specific purpose of acquiring the
Units, whose purchase is directed by a sophisticated
person as described in SEC Rule 506(b)(2)(ii); or
_____ Category 16. An entity in which all of the equity owners are
accredited investors.
A-2
IN WITNESS WHEREOF, Subscriber has executed this Certificate as of October
18, 2007.
SUBSCRIBER:
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(Signature and office, if applicable)
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(Print Name)
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(Address)
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(City/State/Zip Code)
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(Area Code/Telephone Number)
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