false
0000314203
0000314203
2024-07-12
2024-07-12
iso4217:USD
xbrli:shares
iso4217:USD
xbrli:shares
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): |
July 12, 2024 |
McEWEN MINING INC.
(Exact name of registrant as specified in
its charter)
Colorado |
|
001-33190 |
|
84-0796160 |
(State or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(IRS Employer Identification No.) |
150 King Street West, Suite 2800
Toronto,
Ontario, Canada
|
M5H 1J9 |
(Address of principal executive offices) |
(Zip Code) |
Registrant’s telephone number including area code: |
(866) 441-0690 |
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing
is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the
Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of
the Act:
Title of each class |
|
Trading Symbol(s) |
|
Name of each exchange on which registered |
Common Stock |
|
MUX |
|
New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging
growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of
the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth
company ¨
If an emerging
growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with
any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item
1.01 Entry Into a Material Definitive Agreement
On
July 12, 2024, each of McEwen Mining Inc. (the “Company”), through its wholly-owned subsidiary, Minera Andes Inc.,
an Alberta corporation (“Minera Andes”), and Evanachan Limited, an Ontario corporation (“Evanachan”),
an entity wholly-owned by Robert R. McEwen, the Executive Chairman and Chief Owner of the Company, consummated the previously announced
commitment to invest in McEwen Copper, Inc., an Alberta corporation (“McEwen Copper”), purchasing 466,667 and
166,666 common shares of McEwen Copper for a purchase price of $14 million and $5 million, respectively. In connection with such investments,
on July 12, 2024, each of the purchasers entered into a subscription agreement, the form of which is attached hereto as Exhibit 99.1
and is incorporated by reference herein.
As
indicated on the Company’s Current Report on Form 8-K, filed on June 27, 2024, the investments by each of the Company
and Mr. McEwen are part of a larger private placement offering by McEwen Copper, whereby McEwen Copper is offering a total of up
to 2,333,333 common shares at a subscription price of $30.00 per share, for gross proceeds of up to $70,000,000 (the “Offering”).
Subscription for the remaining 1,700,000 common shares in McEwen Copper is available to qualified accredited investors, subject to a $2
million minimum investment and certain other conditions. Subsequent subscriptions by non-U.S. residents will be made pursuant to an executed
subscription agreement in the form attached hereto as Exhibit 99.1, and subscriptions by U.S. residents will be made pursuant to
an executed subscription agreement, the form of which is attached hereto as Exhibit 99.2 and is incorporated by reference herein.
Prior
to the Offering, the Company indirectly owned 47.7% of McEwen Copper through Minera Andes and Mr. McEwen indirectly owned 12.9% though
Evanachan. Assuming completion of the full amount of the Offering, the Company will indirectly own 45.8% of McEwen Copper and Mr. McEwen
will indirectly own 12.5%.
Each
of the subscription agreements discussed above may contain customary representations, warranties, conditions and agreements in connection
with the Offering. They are not intended to provide any other factual information about the Company, McEwen Copper, or any
other Company subsidiary. The representations, warranties and covenants contained in the agreements are made only for purposes of such
agreements and as of specific dates, are solely for the benefit of the parties to such agreements and may be subject to limitations agreed
upon by the contracting parties.
The
sales of McEwen Copper common shares referenced above and any additional sales in connection with the Offering were made and are expected
to continue to be made in transactions not registered with the SEC as such offers and sales are expected to be exempt from the registration
requirements of the Securities Act of 1933, as amended (the “Securities Act”), including pursuant to Section 4(a)(2) of
the Securities Act, Regulation S and/or Rule 506 of Regulation D, each promulgated under the Securities Act. Each of the investors
in the Offering in the U.S. will be required to be an accredited investor as defined in Regulation D. In each transaction exempt under
Regulation S, the offers and sales are expected to be made in offshore transactions and no directed selling efforts are expected to be
made in the U.S. In each case, offering restrictions are expected to be imposed.
Item
2.01. Completion of Acquisition or Disposition of Assets.
The information set forth
in Item 1.01 above is incorporated by reference into this Item 2.01.
Item
3.02 Unregistered Sales of Equity Securities
The information set forth in Item 1.01 above is
incorporated by reference into this Item 3.02.
Item
9.01 Financial Statements and Exhibits.
(d) Exhibits.
The following exhibits are furnished or filed with this report, as applicable:
Cautionary Statement
With the exception of
historical matters, the matters discussed in this Current Report on Form 8-K and the exhibits hereto include forward-looking statements
within the meaning of applicable securities laws that involve risks and uncertainties that could cause actual results to differ materially
from projections or estimates contained therein. Such forward-looking statements include, among others, statements regarding the Offering
and the proceeds expected to be generated thereby. Factors that could cause actual results to differ materially from projections or estimates
include, among others, economic and market conditions and the results of the operations of McEwen Copper as well as other factors described
in the Company’s Annual Report on Form 10-K for the year ended December 31, 2023, and other filings with the United States
Securities and Exchange Commission. Most of these factors are beyond the Company’s ability to predict or control. The Company disclaims
any obligation to update any forward-looking statement made in this Current Report on Form 8-K and the exhibits hereto, whether as
a result of new information, future events, or otherwise. Readers are cautioned not to put undue reliance on forward-looking statements.
No Offer or Solicitation
The information contained
in this Current Report on Form 8-K and the exhibits hereto is not intended
to and does not constitute an offer to sell or the solicitation of an offer to subscribe for or buy or an invitation to purchase or subscribe
for any securities or the solicitation of any vote or approval in any jurisdiction pursuant to the Offering or otherwise, nor shall there
be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law. In particular, this Current Report
on Form 8-K is not an offer of securities for sale into the United States or in any other jurisdiction.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
McEWEN MINING INC. |
|
|
|
Date: July 18, 2024 |
By: |
/s/ Carmen Diges |
|
|
Carmen Diges, General Counsel |
Exhibit 99.1
McEWEN COPPER INC.
(the "Issuer")
PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
(COMMON SHARES)
INSTRUCTIONS TO SUBSCRIBER
| 1. | You must complete all the information in the
boxes on page ii and sign where indicated with an "X". |
| 2. | You
must complete and sign Exhibit "A" - "Canadian Investor Questionnaire"
that starts on page
A-1. The purpose of this form is to determine whether you meet the standards for participation
in a private placement under applicable Canadian securities laws. In order for the Issuer
to satisfy its obligations under applicable Canadian securities laws, you may be required
to provide additional evidence to verify the information you have provided in Exhibit "A"
- "Canadian Investor Questionnaire" that starts on page A-1. |
| 3. | Please make sure that your subscription includes: |
| (a) | a signed copy of this Subscription Agreement. |
| (b) | payment by certified cheque, money order,
bank draft, wire transfer or other acceptable means in the amount of the Subscription Amount
payable to "McEwen Copper Inc." |
Subscription
Procedure: |
|
|
|
|
Completed Subscription Agreement and payment to be delivered to: |
|
|
|
McEwen Copper Inc. |
|
150 King Street West, S. 2800 |
|
Toronto, ON M5H 1J9 |
|
|
|
Attention: Carmen
Diges |
|
Email: cdiges@mcewenmining.com |
|
|
Wire
Transfer Instructions: |
|
|
|
|
If paying by wire transfer, wire funds as follows: |
|
|
|
Beneficiary
Name: McEwen Copper Inc. |
|
Beneficiary
Address: STE 2800, 150 KING ST W TORONTO, ON M5H 1J9 |
|
Beneficiary
Account Number: 000024065686 |
|
Beneficiary
Bank and Address: ROYAL BANK OF CANADA 200 BAY ST TORONTO, ON M5J 2J5 |
|
SWIFT:
ROYCCAT2 |
|
Bank
Number: 003 |
|
Transit
Number: 00002 |
|
Intermediary
Bank and Address: JP MORGAN CHASE BANK NEW YORK, NEW YORK |
|
SWIFT
CODE: CHASUS33 |
|
ABA
NUMBER: 021000021 |
|
SORT
CODE //CC000300002 |
|
|
|
Reference: McEwen Copper Inc. – subscription proceeds |
|
|
|
|
McEWEN COPPER INC.
PRIVATE
PLACEMENT SUBSCRIPTION AGREEMENT
The
undersigned (the "Subscriber") hereby irrevocably subscribes for and agrees to purchase from McEwen Copper Inc. (the
"Issuer") the number of common shares in the capital of the Issuer (each, a "Common Share")
on the terms set out in the Investor Term Sheet set out in Exhibit "B" that starts on page B-1. The Subscriber agrees
to be bound by the terms and conditions set forth in the attached "Terms and Conditions of Subscription for Common Shares"
(the "Terms and Conditions").
Subscriber
Information |
|
Common
Shares to be Purchased |
|
|
|
|
|
Number of Common Shares: |
|
|
|
|
X $30/Share |
|
|
|
|
|
|
(Name of Subscriber) |
|
|
|
|
|
|
|
|
|
|
|
Subscription
Amount: US$ |
|
|
X |
|
|
(the “Subscription Amount”) |
|
|
(Signature
of Authorized Signatory – if the Subscriber is not an Individual) |
|
|
|
|
|
|
|
|
|
|
|
|
If
the Subscriber is subscribing as an agent on behalf of a beneficial purchaser (check the appropriate box): |
(Name
and Title of Authorized Signatory – if the Subscriber is not an Individual) |
|
|
|
|
|
|
|
¨ the
Subscriber is a trust company or trust corporation or a registered adviser acting on behalf of a fully managed account and deemed
under applicable securities laws to be purchasing as principal, or |
(Subscriber’s Address, including postal or zip code) |
|
|
|
|
|
|
|
¨ the
following information is true and correct and, as applicable, Exhibit “A” hereto has been completed for each beneficial
purchaser: |
(Telephone Number) |
|
|
|
|
|
|
|
|
|
|
|
(Email Address) |
|
|
(Name of Beneficial Purchaser) |
|
|
|
|
|
|
|
|
|
|
|
(Address of Beneficial Purchaser) |
|
|
|
|
|
|
|
|
|
|
|
(Beneficial Purchaser’s Telephone Number) |
|
|
|
|
|
|
|
|
|
|
|
(Beneficial Purchaser’s EMail Address)
|
|
Register
the Common Shares as set forth below: |
|
Deliver
the Common Shares as set forth below: |
|
|
|
|
|
|
|
|
(Name to Appear on Share Certificate) |
|
|
(Attention - Name) |
|
|
|
|
|
|
|
|
|
(Account Reference, if applicable) |
|
|
(Account Reference, if applicable) |
|
|
|
|
|
|
|
|
|
(Address, including postal or zip code) |
|
|
(Street Address, including postal or zip code – no PO Boxes permitted) |
|
|
|
|
|
|
|
|
|
|
|
(Telephone Number) |
|
ACCEPTANCE
The Issuer hereby accepts the Subscription (as
defined herein) on the terms and conditions contained in this private placement subscription agreement (this "Agreement")
as of the _____ day of ________________, 2024.
McEWEN
COPPER INC. |
|
|
|
|
Per: |
|
|
|
Authorized
Signatory |
|
TERMS AND CONDITIONS OF
SUBSCRIPTION FOR COMMON SHARES
1.1 On
the basis of the representations and warranties, and subject to the terms and conditions, set forth in this Agreement, the Subscriber
hereby irrevocably subscribes for and agrees to purchase the Common Shares for the Subscription Amount shown on page ii of this
Agreement (such subscription and agreement to purchase the Common Shares being the "Subscription") by way of a private placement
offering (the "Offering"), and the Issuer agrees to sell the Common Shares to the Subscriber, effective upon the Closing Date.
2.1 The
Subscription Amount must accompany this Subscription and be paid by certified cheque, money order, bank draft or wire transfer to the
Issuer pursuant to the wire instructions provided by the Issuer in the Instructions to Subscriber on page i. The Subscriber authorizes
the Issuer to treat the Subscription Amount as an interest free loan until the closing of the Offering (the "Closing").
2.2 The
Subscriber acknowledges and agrees that this Agreement, the Subscription Amount and any other documents delivered in connection herewith
will be held by or on behalf of the Issuer. In the event that this Agreement is not accepted by the Issuer for whatever reason, which
the Issuer expressly reserves the right to do, the Issuer will return the Subscription Amount (without interest thereon) to the Subscriber
at the address of the Subscriber as set forth on page ii of this Agreement, or as otherwise directed by the Subscriber, in writing,
to the Issuer, prior to the return of the Subscription Amount by the Issuer.
| 3. | Documents
Required from Subscriber |
3.1 The
Subscriber must complete, sign and return to the Issuer the following documents:
| (b) | the
Canadian Investor Questionnaire (the "Questionnaire") attached as Exhibit "A"
that starts on page A-1, along with any additional evidence that may be requested
by the Issuer to verify the information provided in the Questionnaire; and |
| (c) | such other supporting documentation that
the Issuer may request to establish the Subscriber's eligibility to participate in the Offering. |
The Subscriber acknowledges and agrees that the
Issuer will not consider the Subscription for acceptance unless the Subscriber has provided all of such documents to the Issuer.
3.2 As
soon as practicable upon any request by the Issuer, the Subscriber will complete, sign and return to the Issuer any additional
documents, questionnaires, notices and undertakings the Issuer may reasonably require or otherwise, may be required by any regulatory
authorities or applicable laws.
4.1 The
closing date (the "Closing Date") on such date as may be determined by the Issuer in its sole discretion. The
Issuer may, at its discretion, elect to close the Offering in one or more closings, in which event the Issuer may agree with one or more
purchasers (including the Subscriber) to complete delivery of the Common Shares to such purchaser(s) against payment therefor at
any time on or prior to the Closing Date.
4.2 The
Closing is conditional upon and subject to:
| (a) | the Issuer having obtained any necessary
approvals and consents for the Offering; |
| (b) | the
Issuer having obtained and provided to the Subscriber waivers for the purposes of the transactions
contemplated herein from the shareholders of the Issuer in respect of the pre-emptive rights
set out in the unanimous shareholder agreement of the Issuer dated August 20, 2021 (the
“Shareholder Agreement”), or the Issuer having provided notice
to the shareholders of the Issuer under the pre-emptive rights provisions of the Shareholder
Agreement and the relevant exercise period having expired, or the Issuer having provided
notice in writing to the Subscriber outlining in reasonable detail the extent to which the
shareholders of the Issuer have exercised such pre-emptive rights, as applicable; |
| (c) | the
issue and sale of the Common Shares being exempt from the requirement to file a prospectus
and the requirement to deliver an offering memorandum under applicable securities laws relating
to the sale of the Common Shares, or the Issuer having received such orders, consents or
approvals as may be required to permit such sale without the requirement to file a prospectus
or deliver an offering memorandum. |
4.3 The
Subscriber acknowledges that the original share certificates representing the Common Shares ("Certificates") will be
held by the Issuer in the Issuer's minute book. The Issuer will deliver electronic copies of the Certificates to the Subscriber within
seven business days of the Closing Date, provided that the Subscriber has satisfied the requirements of Section 3.1 hereof and the
Issuer has accepted this Agreement.
| 5. | Acknowledgements
and Agreements of the Subscriber |
5.1 The
Subscriber acknowledges and agrees that:
| (a) | no prospectus has been filed by the Issuer
with any securities commission or any other regulatory authority in connection with the issuance
of the Common Shares; |
| (b) | the Subscriber has not received, nor has
the Subscriber requested nor had any need to receive, or been provided with a prospectus,
offering memorandum or any document purporting to describe the business and affairs of the
Issuer which has been prepared for review by prospective purchasers to assist in making an
investment decision in respect of the Common Shares and that the Subscriber's decision, or,
if applicable, the decision of others for whom the undersigned is contracting hereunder,
to enter into this Agreement and to purchase the Common Shares from the Issuer is based entirely
upon this Agreement and publicly available information concerning the Issuer and not upon
any other verbal or written representation as to fact or otherwise made by or on behalf of
the Issuer; |
| (c) | the Issuer's constating documents contain
restrictions on the transfer of the Common Shares, which provide that no Common Shares may
be transferred without the prior approval of the board of directors of the Issuer; |
| (d) | the
Issuer is not a "reporting issuer" as that term is defined in applicable Canadian
securities laws, nor will it become a reporting issuer in any jurisdiction in Canada or elsewhere
upon completion of the Offering and, as a result: |
| (i) | unless
the Issuer becomes a reporting issuer at a later date, the Issuer will not be subject to
the continuous disclosure requirements of any securities laws, including any requirement
relating to the production and filing of audited financial statements or other financial
information, and |
| (ii) | any
applicable hold periods under applicable securities laws may never expire, and the Common
Shares may be subject to restrictions on resale for an indefinite period of time; |
| (e) | the issuance of the Common Shares will
be made pursuant to exemptions from the registration and prospectus requirements of applicable
Canadian securities laws and therefore: |
| (i) | the Subscriber is restricted from using
most of the civil remedies available under applicable securities laws, |
| (ii) | the Subscriber may not receive information
about the Issuer that would otherwise be required to be provided to it under applicable securities
laws, |
| (iii) | the Issuer is relieved from certain obligations
that would otherwise apply under applicable securities laws, |
| (iv) | no
securities commission or similar regulatory authority has reviewed or passed on the merits
of the Common Shares, |
| (v) | there is no government or other insurance
covering the Common Shares, and |
| (vi) | there are risks associated with the purchase
of the Common Shares, including that the Subscriber may lose the Subscriber's entire investment; |
| (f) | an
investment in the Issuer is highly speculative and only investors who can afford the loss
of their entire investment should consider investing in the Issuer and the Common
Shares; |
| (g) | any
subscription monies paid by the Subscriber for the Common Shares is being raised as
"seed" or "risk" capital for the Issuer, which is in a speculative stage,
and there is no market for the Common Shares whatsoever; |
| (h) | none of the Common Shares have been or
will be registered under the United States Securities Act of 1933, as amended (the
"1933 Act"), or under any 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 any U.S. Person (as defined in Section 6.2)
except in accordance with the provisions of Regulation S under the 1933 Act ("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 any other applicable state, provincial
and foreign securities laws; |
| (i) | the Issuer has not undertaken, and will
have no obligation, to register any of the Common Shares under the 1933 Act or any other
securities laws; |
| (j) | the Issuer will refuse to register the
transfer of any of the Common Shares to a U.S. Person not made pursuant to an effective registration
statement under the 1933 Act or pursuant to an available exemption from the registration
requirements of the 1933 Act, and in each case will only register such transfer in accordance
with applicable laws; |
| (k) | it will hold harmless the Issuer from
any loss or damage it may suffer as a result of the Subscriber's failure to correctly complete
this Agreement or the Questionnaire; |
| (l) | it and its advisor(s) have had a
reasonable opportunity to ask questions of, and receive answers from, the Issuer in connection
with the distribution of the Common Shares hereunder, and to obtain additional information,
to the extent possessed or obtainable by the Issuer without unreasonable effort or expense; |
| (m) | the
books and records of the Issuer were available upon reasonable notice for inspection, subject
to certain confidentiality restrictions, by the Subscriber during reasonable business hours
at the Issuer's principal place of business, and all documents, records and books in connection
with the distribution of the Common Shares hereunder have been made available by the
Issuer for inspection by the Subscriber, its legal counsel and/or its advisor(s) if
requested by the Subscriber; |
| (n) | any
resale, assignment, transfer, hypothecation or pledge of any of the Common Shares by the
Subscriber will be subject to: (i) resale restrictions contained in the securities laws
applicable to the Issuer, the Subscriber and any proposed transferee; and (ii) the Issuer's
constating documents and it is the responsibility of the Subscriber to find out what those
restrictions are and to comply with such restrictions before selling any of the Common Shares; |
| (o) | it
consents to the placement of a legend or legends on the Certificates and any other document
evidencing any of the Common Shares setting forth the restrictions on transferability and
sale thereof contained in this Agreement, including the following: |
"THE SECURITIES REPRESENTED
BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER CONTAINED IN THE CONSTATING DOCUMENTS OR UNANIMOUS SHAREHOLDER AGREEMENT
OF THE COMPANY.
UNLESS PERMITTED UNDER SECURITIES
LEGISLATION, THE HOLDER OF THE SECURITIES REPRESENTED HEREBY MUST NOT TRADE THE SECURITIES BEFORE THE DATE THAT IS FOUR MONTHS AND A
DAY AFTER THE LATER OF (I) [insert Closing Date] AND (II) THE DATE THAT THE COMPANY BECOMES A REPORTING ISSUER IN ANY
PROVINCE OR TERRITORY IN CANADA.";
| (p) | it has been advised to consult its own
legal, tax and other advisors with respect to the Offering and the risks of an investment
in the Common Shares and with respect to applicable resale restrictions, and it is solely
responsible (and the Issuer 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 Common Shares
hereunder, and |
| (ii) | any applicable resale restrictions; |
| (q) | there
may be material tax consequences to the Subscriber of an acquisition or disposition of the
Common Shares and the Issuer gives no opinion and makes no representation to the Subscriber
with respect to the tax consequences to the Subscriber under federal, state, provincial,
local or foreign tax laws that may apply to the Subscriber's acquisition or disposition of
any of the Common Shares; |
| (r) | the
Issuer is relying on one of the "Accredited Investor" exemption or the "Minimum
Amount Investment" exemption from the prospectus requirements as set out in National
Instrument 45-106 – Prospectus Exemptions ("NI 45-106") adopted
by the Canadian Securities Administrators or subsection 73.4(2) of the Securities
Act (Ontario), as applicable, which, among other restrictions, impose: (i) a transfer
restriction on the Common Shares to the effect that, for so long as the Issuer is not a reporting
issuer, the Common Shares are subject to restrictions on transfer that are contained in the
Issuer's constating documents; and (ii) a requirement to legend the Certificates representing
the Common Shares to reflect such transfer restriction; |
| (s) | there is no market for any of the Common
Shares and no market for any of the Common Shares may ever exist; and |
| (t) | this Agreement is not enforceable by the
Subscriber unless it has been accepted by the Issuer and the Issuer reserves the right to
reject this Subscription for any reason. |
| 6. | Representations
and Warranties of the Subscriber |
6.1 The
Subscriber hereby represents and warrants to the Issuer (which representations and warranties will survive the Closing) that:
| (a) | the Subscriber is not a U.S. Person; |
| (b) | the Subscriber is resident in the jurisdiction
set out on page ii of this Agreement; |
| (c) | if the Subscriber is resident outside
of Canada: |
| (i) | the
Subscriber is knowledgeable of, or has been independently advised as to, the applicable securities
laws having application in the jurisdiction in which the Subscriber is resident (the "International
Jurisdiction") which would apply to the offer and sale of the Common Shares, |
| (ii) | the
Subscriber is acquiring the Common Shares pursuant to exemptions from prospectus or
equivalent requirements under applicable securities laws or, if such is not applicable, the
Subscriber is permitted to acquire the Common Shares under the applicable laws of the International
Jurisdiction without the need to rely on any exemptions, |
| (iii) | the applicable laws of the authorities
in the International Jurisdiction do not require the Issuer to make any filings or seek any
approvals of any kind from any securities regulator in the International Jurisdiction in
connection with the offer, issue, sale or resale of any of the Common Shares, |
| (iv) | the
acquisition of the Common Shares 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 Issuer in the International Jurisdiction, and |
| (v) | the Subscriber will, if requested by the
Issuer, deliver to the Issuer 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 Issuer, acting reasonably; |
| (d) | the Subscriber has the legal capacity
and competence to enter into and execute this Agreement and to take all actions required
pursuant hereto and, if the Subscriber is a corporate entity, 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 Agreement on behalf of the Subscriber; |
| (e) | the entering into of this 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
Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or
by which the Subscriber is or may be bound; |
| (f) | 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; |
| (g) | the
Subscriber has received and carefully read this Agreement; |
| (h) | the
Subscriber acknowledges receipt of a copy of the unanimous shareholder agreement of the Issuer
and acknowledges that it is a condition of becoming a shareholder of the Issuer that the
Subscriber must become a party to such unanimous shareholder agreement; |
| (i) | the
Subscriber is aware that an investment in the Issuer is speculative and involves certain
risks, including the possible loss of the entire investment; |
| (j) | the
Subscriber has made an independent examination and investigation of an investment in the
Common Shares and the Issuer and agrees that the Issuer will not be responsible in
any way for the Subscriber's decision to invest in the Common Shares and the Issuer; |
| (k) | the Subscriber is not an underwriter of,
or dealer in, any of the Common Shares, nor is the Subscriber participating, pursuant to
a contractual agreement or otherwise, in the distribution of the Common Shares; |
| (l) | the Subscriber is not aware of any advertisement
of any of the Common Shares and is not acquiring the Common 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; |
| (m) | no person has made to the Subscriber any
written or oral representations: |
| (i) | that any person will resell or repurchase
any of the Common Shares, |
| (ii) | that any person will refund the purchase
price of any of the Common Shares, or |
| (iii) | as to the future price or value of any
of the Common Shares; and |
| (n) | other
than as provided in the term sheet attached as Exhibit “B” to this Agreement,
there is no person acting or purporting to act in connection with the Offering who is entitled
to any brokerage or finder's fee payable by the Issuer. If any person establishes a claim
that any fee or other compensation is payable by the Issuer in connection with this subscription
for the Common Shares, the Subscriber or any beneficial purchaser for whom the undersigned
is acting covenants to indemnify and hold harmless the Issuer with respect thereto and with
respect to all costs reasonably incurred in the defence thereof. |
6.2 In
this Agreement, the term "U.S. Person" has the meaning ascribed thereto in Regulation S, and for the purpose of this
Agreement includes: (i) any person in the United States; (ii) any natural person resident in the United States; (iii) any
partnership or corporation organized or incorporated under the laws of the United States; (iv) any partnership or corporation organized
outside the United States by a U.S. Person principally for the purpose of investing in securities not registered under the 1933 Act,
unless it is organized or incorporated, and owned, by accredited investors who are not natural persons, estates or trusts; or (v) any
estate or trust of which any executor, administrator or trustee is a U.S. Person.
| 7. | Representations
and Warranties will be Relied Upon |
7.1 The
Subscriber acknowledges that its representations and warranties contained herein and in the Questionnaire are made by it with the intention
that such representations and warranties will be relied upon by the Issuer in determining the Subscriber's eligibility to purchase the
Common Shares under applicable laws, or (if applicable) the eligibility of others on whose behalf the Subscriber is contracting
hereunder to purchase the Common Shares under applicable laws. The Subscriber further agrees that, as at the Closing, it will be representing
and warranting that its representations and warranties contained herein and in the Questionnaire are true and correct as at the Closing
with the same force and effect as if they had been made by the Subscriber on the Closing, and that they will survive the purchase by
the Subscriber of the Common Shares and will continue in full force and effect notwithstanding any subsequent disposition by the Subscriber
of the Common Shares.
| 8. | REPRESENTATIONS
AND WARRANTIES OF THE ISSUER |
8.1 The
Issuer hereby represents and warrants to the Subscriber (which representations and warranties will survive the Closing) that:
| (a) | the Issuer is validly subsisting under
the laws of its jurisdiction of incorporation, licensed, registered or qualified as an extra-provincial
or foreign corporation in all jurisdictions where the character of its properties owned or
leased or the nature of the activities conducted by it make such licensing, registration
or qualification necessary and shall carry on its business in the ordinary course and in
compliance in all material respects with all applicable laws, rules and regulations
of each such jurisdiction; |
| (b) | on the Closing Date, the Issuer will have
taken all corporate steps and proceedings necessary to approve the transactions contemplated
under this Subscription Agreement, including its execution and delivery; |
| (c) | the Issuer has not received notice from
any applicable regulatory authority that it is in default of any Securities Laws material
to the Subscriber; |
| (d) | at the time of closing on the Closing
Date, the Common Shares will be duly and validly created, authorized and issued; will be
validly issued as fully paid as non-assessable Common Shares in the capital of the Issuer; |
| (e) | the issuance and sale of the Common Shares
by the Issuer does not and will not constitute a breach of or default under the constating
documents of the Issuer or any law, regulation, order or ruling applicable to the Issuer
or any agreement, contract or indenture to which the Issuer is a party or by which it is
bound; |
| (f) | for
the purposes of the transactions contemplated herein, the Issuer has obtained waivers from
the shareholders of the Issuer in respect of the pre-emptive rights set out in the Shareholder
Agreement, or the Issuer has provided notice to the shareholders of the Issuer under the
pre-emptive rights provisions of the Shareholder Agreement and the relevant exercise period
has expired, or the Issuer has provided notice in writing to the Subscriber outlining
in reasonable detail the extent to which the shareholders of the Issuer have exercised such
pre-emptive rights, as applicable; and |
| (g) | this Subscription Agreement, when signed
by the Corporation, constitutes a binding and enforceable obligation of the Corporation,
enforceable in accordance with its terms. |
9.1 The
Subscriber hereby waives, to the fullest extent permitted by law, any rights of withdrawal, rescission or compensation for damages to
which the Subscriber may be entitled in connection with the distribution of any of the Common Shares.
| 10. | Pooling
or Escrow of COMMON Shares and Power of Attorney |
10.1 The
Subscriber acknowledges that the Issuer is not currently a reporting issuer in any jurisdiction. If the Issuer completes an initial public
offering that results in the Common Shares or other securities in the capital of the Issuer becoming listed on a stock exchange in Canada
or the United States of America, or the Issuer completes a reverse takeover, statutory merger or amalgamation, arrangement, share exchange,
business combination or other similar transaction which results in a class of shares of the issuer resulting from such transaction being
listed (the "Resulting Issuer") on a stock exchange in Canada or the United States of America and the shareholders of
the Issuer receiving such listed securities of the Resulting Issuer and/or cash in exchange for their Common Shares (in each case, a
"Liquidity Event"), the Common Shares may be required to be pooled or escrowed, either at the request of the Issuer's
selling agent or underwriter in connection with the Liquidity Event, or pursuant to the rules of any stock exchange, securities
commission or other securities regulatory authority having jurisdiction, and the Subscriber agrees to sign any such pooling or escrow
agreement and abide by any such restrictions as may be so imposed.
10.2 In
furtherance of the covenant in Section 10.1, the Subscriber hereby irrevocably appoints the Chief Executive Officer or the President
of the Issuer, as exists at the applicable time (in any case, the "President"), as the Subscriber's attorney-in-fact,
and authorizes the President as the Subscriber's attorney-in-fact, with full power and authority in the Subscriber's place and stead,
to approve and sign any pooling or escrow agreement, or any other document, on behalf of the Subscriber as the Issuer advises may be
required to provide for pooling or escrow of the Common Shares, or the approval and completion of any Liquidity Event, as the case may
be, in the event of a Liquidity Event or other transaction pursuant to which the Issuer may become listed, directly or indirectly, on
any stock exchange. This power of attorney is irrevocable, is coupled with an interest and has been given for valuable consideration,
the receipt and adequacy of which are acknowledged by the Subscriber. This power of attorney and other rights and privileges granted
hereunder will survive any legal or mental incapacity, dissolution, bankruptcy or death of the Subscriber. This power of attorney extends
to the heirs, executors, administrators, other legal representatives and successors, transferees and assigns of the Subscriber. Any person
dealing with the Issuer may conclusively presume and rely upon the fact that any document, instrument or agreement executed by the President
pursuant to this power of attorney is authorized and binding on the Subscriber, without further inquiry. The Subscriber (on its own behalf
and, if applicable, on behalf of each beneficial purchaser on whose behalf it is contracting) agrees to be bound by any representations
or actions made or taken by the President pursuant to this power of attorney, and waives any and all defences that may be available to
contest, negate or disaffirm any action of the President taken in good faith under this power of attorney.
| 11. | Collection
of Personal Information |
11.1 The
Subscriber acknowledges and consents to the fact that the Issuer is collecting the Subscriber's personal information for the purpose
of fulfilling this Agreement and completing the Offering. The Subscriber acknowledges that its personal information (and, if applicable,
the personal information of any person on whose behalf the Subscriber is contracting hereunder) may be included in record books in connection
with the Offering and may be disclosed by the Issuer to: (i) stock exchanges or securities regulatory authorities; (ii) the
Issuer's registrar and transfer agent; (iii) Canadian tax authorities; (iv) authorities pursuant, among other legislation,
to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada); and (v) any other parties involved in the
Offering, including the Issuer's Counsel. By executing this Agreement, the Subscriber is deemed to be consenting to the foregoing collection,
use and disclosure of the Subscriber's personal information (and, if applicable, the personal information of any other person on whose
behalf the Subscriber is contracting hereunder) for the foregoing purposes and to the retention of such personal information for as long
as permitted or required by applicable laws. Notwithstanding that the Subscriber may be purchasing the Common Shares as agent on behalf
of an undisclosed principal, the Subscriber agrees to provide, on request, particulars as to the nature and identity of such undisclosed
principal, and any interest that such undisclosed principal has in the Issuer, all as may be required by the Issuer in order to comply
with the foregoing. Furthermore, the Subscriber is hereby notified that:
| (a) | the Issuer may deliver to any securities
commission having jurisdiction over the Issuer, the Subscriber or this Subscription, including
any Canadian provincial securities commissions, the United States Securities and Exchange
Commission and/or any state securities commissions (collectively, the "Commissions"),
certain personal information pertaining to the Subscriber, including the Subscriber's full
name, residential address and telephone number, the number of securities of the Issuer owned
by the Subscriber, the number of Common Shares purchased by the Subscriber, the total Subscription
Amount paid, the prospectus exemption relied on by the Issuer and the date of distribution
of the Common Shares; |
| (b) | such information is being collected indirectly
by the Commissions under the authority granted to them in applicable securities laws; |
| (c) | such information is being collected for
the purposes of the administration and enforcement of applicable securities laws; and |
| (d) | in
Ontario, the Administrative Support Clerk, Suite 1903, Box 55, 20 Queen Street West,
Toronto ON, M5H 3S8, Telephone: (416) 593-3684 in the public official who can answer questions
about the collection of personal information. |
12.1 The
Subscriber acknowledges and agrees that all costs and expenses incurred by the Subscriber (including any fees and disbursements of any
legal counsel or tax or financial advisors retained by the Subscriber) relating to the purchase of the Common Shares will be paid by
the Subscriber.
| 13. | Delivery
of Subscription Agreement |
13.1 The
Issuer and the Issuer's Counsel will be entitled to rely on delivery by DocuSign or other means of electronic communication of an executed
copy of this Agreement, and acceptance by the Issuer of such copy will be equally effective to create a valid and binding agreement between
the Subscriber and the Issuer in accordance with the terms hereof. If less than a complete copy of this Agreement is delivered to the
Issuer or the Issuer's Counsel prior to or at Closing, the Issuer and the Issuer's Counsel are entitled to assume that the Subscriber
accepts and agrees to all of the terms and conditions of the pages not delivered prior to or at Closing as written herein, unaltered.
13.2 The
Subscriber hereby authorizes the Issuer to correct any minor errors in, or complete any minor information missing from, any part of this
Agreement and any other acknowledgements, provisions, forms, certificates or documents executed by the Subscriber and delivered to the
Issuer or the Issuer's Counsel in connection with the Subscription.
| 14. | Beneficial
Subscribers |
14.1 Whether
or not explicitly stated in this Agreement, any acknowledgement, representation, warranty, covenant or agreement made by the Subscriber
in this Agreement, including the exhibits and appendices hereto, will be treated as if made by the disclosed principal, if any.
15.1 This
Agreement and all matters related hereto or arising herefrom are governed by the laws of the Province of Ontario and the federal laws
of Canada applicable therein. The Subscriber, in its personal or corporate capacity and, if applicable, on behalf of each beneficial
or undisclosed purchaser for whom it is acting, irrevocably attorns to the exclusive jurisdiction of the courts of the Province of Ontario
in all matters related to, or arising from, this Agreement.
16.1 This
Agreement, including the representations, warranties and covenants contained herein, will survive and continue in full force and effect
and be binding upon the Issuer and the Subscriber, notwithstanding the completion of the purchase of the Common Shares by the Subscriber.
17.1 This
Agreement is not transferable or assignable.
18.1 The
invalidity or unenforceability of any particular provision of this Agreement will not affect or limit the validity or enforceability
of the remaining provisions of this Agreement.
19.1 Except
as expressly provided in this Agreement and in the Questionnaire and any other documents contemplated or provided for herein, this Agreement
contains the entire agreement between the Issuer and the Subscriber with respect to the sale of the Common Shares and there are no other
terms, conditions, representations or warranties, whether expressed, implied, oral or written, by statute or common law, by or of the
Issuer or any other person.
20.1 All
notices and other communications hereunder will be in writing and will be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication, including DocuSign, electronic mail or other means of electronic communication capable of producing
a printed copy. Notices to the Subscriber will be directed to the address of the Subscriber set forth on page ii of this
Agreement and notices to the Issuer will be directed to the address of the Issuer set forth on the first page of this Agreement.
| 21. | Counterparts
and Electronic Means |
21.1 This
Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, will constitute an original and
all of which together will constitute one instrument. Delivery of an executed copy of this Agreement by DocuSign 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 Closing Date.
22.1 The
exhibits and appendices attached hereto form part of this Agreement.
The
Subscriber will indemnify and hold harmless the Issuer and, where applicable, its directors, officers, employees, agents, advisors
and shareholders, from and against any and all loss, liability, claim, damage and expense whatsoever (including 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
in this Agreement, the Questionnaire, or in any document furnished by the Subscriber to the Issuer 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 Issuer in connection therewith.
Exhibit "A"
CANADIAN INVESTOR QUESTIONNAIRE
Capitalized
terms used in this Canadian Investor Questionnaire (this "Questionnaire") and not specifically defined have the meaning
ascribed to them in the Private Placement Subscription Agreement (the "Agreement") between the undersigned (or, if the
undersigned is purchasing the Common Shares as agent on behalf of a disclosed beneficial purchaser, such beneficial purchaser)
(in any case, the "Subscriber") and McEwen Copper Inc. (the "Issuer") to which this Exhibit "A"
is attached.
In
connection with the purchase by the Subscriber of the Common Shares, the Subscriber hereby represents, warrants and certifies
to the Issuer that the Subscriber:
| (i) | is
acquiring the Common Shares as principal (or deemed principal under the terms of National
Instrument 45-106 – Prospectus Exemptions adopted by the Canadian Securities
Administrators ("NI 45-106")); |
| (ii) | is
resident in the jurisdiction set out as at the "Subscriber's Address" set out on
page ii of the Agreement; and |
| (iii) | has
not been provided with any offering memorandum in connection with the purchase of the Common
Shares. |
In
connection with the acquisition of the Common Shares, the Subscriber hereby represents, warrants and certifies to, and covenants
and agrees with, the Issuer that the Subscriber meets one or more of the following criteria:
I. SUBSCRIBERS
PURCHASING UNDER THE "ACCREDITED INVESTOR" EXEMPTION
the Subscriber is an "accredited
investor" within the meaning of NI 45-106, by virtue of satisfying the indicated criterion below (YOU MUST PLACE A CHECK-MARK
ON THE APPROPRIATE LINE(S)) (see certain guidance with respect to accredited investors that starts on page 19 below)
|
¨ |
(a) |
except in Ontario,
a person registered under the securities legislation of a jurisdiction of Canada as an adviser or dealer, |
|
¨ |
(b) |
an individual registered under
the securities legislation of a jurisdiction of Canada as a representative of a person referred to in paragraph (a), |
|
¨ |
(c) |
an individual formerly registered
under the securities legislation of a jurisdiction of Canada, other than an individual formerly registered solely as a representative
of a limited market dealer under one or both of the Securities Act (Ontario) or the Securities Act (Newfoundland and
Labrador), |
|
¨ |
(d) |
an individual who, either alone
or with a spouse, beneficially owns financial assets having an aggregate realizable value that, before taxes but net of any related
liabilities, exceeds $1,000,000 (YOU MUST ALSO COMPLETE AND SIGN APPENDIX "A" TO EXHIBIT A OF THIS QUESTIONNAIRE THAT
STARTS ON PAGE A-9), |
|
¨ |
(e) |
an individual who beneficially owns financial assets having an aggregate realizable value that, before
taxes but net of any related liabilities, exceeds $5,000,000, |
|
¨ |
(f) |
an individual whose
net income before taxes exceeded $200,000 in each of the 2 most recent calendar years or whose net income before taxes combined with
that of a spouse exceeded $300,000 in each of the 2 most recent calendar years and who, in either case, reasonably expects to exceed
that net income level in the current calendar year (YOU MUST ALSO COMPLETE AND SIGN APPENDIX "A" TO EXHIBIT A OF THIS
QUESTIONNAIRE THAT STARTS ON PAGE A-9), |
|
¨ |
(g) |
an individual who, either alone
or with a spouse, has net assets of at least $5,000,000 (YOU MUST ALSO COMPLETE AND SIGN APPENDIX "A" TO EXHIBIT OF
THIS QUESTIONNAIRE THAT STARTS ON PAGE A -9), |
|
¨ |
(h) |
a person, other than an individual
or investment fund, that has net assets of at least $5,000,000 as shown on its most recently prepared financial statements and
that has not been created or used solely to purchase or hold securities as an accredited investor as defined in this paragraph (h), |
|
¨ |
(i) |
an investment fund that distributes or has
distributed its securities only to:
(i) a
person that is or was an accredited investor at the time of the distribution,
(ii) a
person that acquires or acquired securities in the circumstances referred to in Sections 2.10 [Minimum amount investment]
or 2.19 [Additional investment in investment funds] of NI 45-106, or
(iii) a
person described in paragraph (i) or (ii) that acquires or acquired securities under Section 2.18 [Investment fund reinvestment]
of NI 45-106, |
|
¨ |
(j) |
an investment fund that distributes
or has distributed securities under a prospectus in a jurisdiction of Canada for which the regulator or, in Québec, the securities
regulatory authority, has issued a receipt, |
|
¨ |
(k) |
a trust company or trust corporation
registered or authorized to carry on business under the Trust and Loan Companies Act (Canada) or under comparable legislation
in a jurisdiction of Canada or a foreign jurisdiction, acting on behalf of a fully managed account managed by the trust company or
trust corporation, as the case may be, |
|
¨ |
(l) |
a person acting on behalf of
a fully managed account managed by that person, if that person is registered or authorized to carry on business as an adviser or
the equivalent under the securities legislation of a jurisdiction of Canada or a foreign jurisdiction, |
|
¨ |
(m) |
a registered charity under the
Income Tax Act (Canada) that, in regard to the trade, has obtained advice from an eligibility adviser or an adviser registered
under the securities legislation of the jurisdiction of the registered charity to give advice on the securities being traded, |
|
¨ |
(n) |
an entity organized in a foreign
jurisdiction that is analogous to an entity referred to in paragraph (a) in form and function, or |
|
¨ |
(o) |
a person in respect of which
all of the owners of interests, direct, indirect or beneficial, except the voting securities required by law to be owned by directors,
are persons that are accredited investors; |
II. SUBSCRIBERS
PURCHASING UNDER THE MINIMUM AMOUNT INVESTMENT
(a) |
the Subscriber is
not an individual as that term is defined in applicable Canadian securities laws, |
(b) |
the Subscriber is purchasing
the Common Shares as principal for its own account and not for the benefit of any other person, |
(c) |
the Common Shares have an acquisition
cost to the Subscriber of not less than $150,000, payable in cash at the Closing, and |
(d) |
the Subscriber was not created
and is not being used solely to purchase or hold securities in reliance on the prospectus exemption provided under Section 2.10 of
NI 45-106, it pre-existed the Offering and has a bona fide purpose other than investment in the Common Shares. |
DEFINITIONS
For the purposes of this Questionnaire and Appendix
"A" attached to this Questionnaire:
(a) "control
person" means
|
(i) |
a person who holds a sufficient number of the voting rights attached to all outstanding voting securities
of an Issuer to affect materially the control of the Issuer, or |
|
(ii) |
each person in a combination of persons, acting in concert by virtue of an agreement, arrangement,
commitment or understanding, which holds in total a sufficient number of the voting rights attached to all outstanding voting securities
of an Issuer to affect materially the control of the Issuer, |
and, if a person or combination of persons
holds more than 20% of the voting rights attached to all outstanding voting securities of an Issuer, the person or combination of persons
is deemed, in the absence of evidence to the contrary, to hold a sufficient number of the voting rights to affect materially the control
of the Issuer;
(b) "director"
means
|
(i) |
a member of the board of directors of a company or an individual who performs similar functions for
a company, and |
|
(ii) |
with respect to a person that is not a company, an individual who performs functions similar to those
of a director of a company; |
(c) "eligibility
adviser" means
|
(i) |
a person that is registered as an investment dealer and authorized to give advice with respect to
the type of security being distributed, and |
|
(ii) |
in Saskatchewan or Manitoba, also means a lawyer who is a practicing member in good standing with
a law society of a jurisdiction of Canada or a public accountant who is a member in good standing of an institute or association
of chartered accountants, certified general accountants or certified management accountants in a jurisdiction of Canada provided
that the lawyer or public accountant must not: |
|
(A) |
have a professional, business or personal relationship with the Issuer, or any of its directors,
executive officers, founders or control persons, and |
|
(B) |
have acted for or been retained personally or otherwise as an employee, executive officer, director,
associate or partner of a person that has acted for or been retained by the Issuer or any of its directors, executive officers, founders
or control persons within the previous 12 months; |
(d) "executive
officer" means, for an Issuer, an individual who is
|
(i) |
a chair, vice-chair or president, |
|
(ii) |
a vice-president in charge of a principal business unit, division or function including sales, finance
or production, or |
|
(iii) |
performing a policy-making function in respect of the Issuer; |
(e) "financial
assets" means
|
(iii) |
a contract of insurance, a deposit or an evidence of a deposit that is not a security for the purposes
of securities legislation; |
|
(f) |
"foreign jurisdiction" means a country other than Canada or a political subdivision
of a country other than Canada; |
(g) "founder"
means, in respect of an Issuer, a person who,
|
(i) |
acting alone, in conjunction, or in concert with one or more persons, directly or indirectly, takes
the initiative in founding, organizing or substantially reorganizing the business of the Issuer, and |
|
(ii) |
at the time of the distribution or trade is actively involved in the business of the Issuer; |
|
(h) |
"fully managed account" means an account of a client for which a person makes the
investment decisions if that person has full discretion to trade in securities for the account without requiring the client's express
consent to a transaction; |
|
(i) |
"individual" means a natural person, but does not include |
|
(i) |
a partnership, unincorporated association, unincorporated syndicate, unincorporated organization
or trust, or |
|
(ii) |
a natural person in the person's capacity as a trustee, executor, administrator or personal or other
legal representative; |
|
(j) |
"investment fund" means a mutual fund or a non-redeemable investment fund, and,
for greater certainty in British Columbia, includes an employee venture capital corporation and a venture capital corporation as
such terms are defined in National Instrument 81-106 Investment Fund Continuous Disclosure; |
|
(k) |
"jurisdiction" or "jurisdiction of Canada" means a province or territory
of Canada except when used in the term foreign jurisdiction; |
|
(l) |
"non-redeemable investment fund" means an Issuer: |
(i) whose
primary purpose is to invest money provided by its securityholders,
(ii) that
does not invest
|
(A) |
for the purpose of exercising or seeking to exercise control of an Issuer, other than an Issuer that
is a mutual fund or a non-redeemable investment fund, or |
|
(B) |
for the purpose of being actively involved in the management of any Issuer in which it invests, other
than an Issuer that is a mutual fund or a non-redeemable investment fund, and |
(iii) that
is not a mutual fund;
(m) "person"
includes
|
(iii) |
a partnership, trust, fund and an association, syndicate, organization or other organized group of
persons, whether incorporated or not, and |
|
(iv) |
an individual or other person in that person's capacity as a trustee, executor, administrator or
personal or other legal representative; |
(n) "related
liabilities" means
|
(i) |
liabilities incurred or assumed for the purpose of financing the acquisition or ownership of financial
assets, or |
|
(ii) |
liabilities that are secured by financial assets; and |
(o) "spouse"
means, an individual who,
|
(i) |
is married to another individual and is not living separate and apart within the meaning of the Divorce
Act (Canada), from the other individual, |
|
(ii) |
is living with another individual in a marriage-like relationship, including a marriage-like relationship
between individuals of the same gender, or |
|
(iii) |
in Alberta, is an individual referred to in paragraph (i) or (ii), or is an adult interdependent
partner within the meaning of the Adult Interdependent Relationships Act (Alberta). |
Guidance On Accredited Investor Exemptions
for Individuals
An individual accredited investor is an individual:
|
(a) |
who, either alone or with a spouse, beneficially owns financial assets (please see the guidance below
regarding what financial assets are) having an aggregate realizable value that. before taxes but net of any related liabilities (please
see the guidance below regarding what related liabilities are), exceeds $1,000,000; |
|
(b) |
whose net income before taxes exceeded $200,000 in each of the 2 most recent calendar years or whose
net income before taxes combined with that of a spouse exceeded $300,000 in each of the 2 most recent calendar years and who, in
either case, reasonably expects to exceed that net income level in the current calendar year; |
|
(c) |
who, either alone or with a spouse, has net assets (please see the guidance below regarding calculating
net assets) of at least $5,000,000; and |
|
(d) |
who beneficially owns financial assets (please see the guidance below regarding what financial assets
are) having an aggregate realizable value that, before taxes but net of any related liabilities (please see the guidance below regarding
what related liabilities are), exceeds $5,000,000. |
The monetary thresholds above are intended to
create bright-line standards. Subscribers who do not satisfy these monetary thresholds do not qualify as accredited investors.
Spouses
Sections (a), (b) and (c) above are designed
to treat spouses as a single investing unit, so that either spouse qualifies as an accredited investor if the combined financial assets
of both spouses exceed $1,000,000, the combined net income of both spouses exceeds $300,000, or the combined net assets of both spouses
exceed $5,000,000. Section (d) above does not treat spouses as a single investing unit.
If the combined net income of both spouses does
not exceed $300,000, but the net income of one of the spouses exceeds $200,000, only the spouse whose net income exceeds $200,000 qualifies
as an accredited investor.
Financial Assets and Related Liabilities
For the purposes of sections (a) and (d) above,
"financial assets" means: (1) cash, (2) securities, or (3) a contract of insurance, a deposit or an evidence of a deposit
that is not a security for the purposes of securities legislation. These financial assets are generally liquid or relatively easy to
liquidate. The value of a subscriber's personal residence is not included in a calculation of financial assets.
The calculation of financial assets must exclude
"related liabilities", meaning: (1) liabilities incurred or assumed for the purpose of financing the acquisition or
ownership of financial assets, or (2) liabilities that are secured by financial assets.
As a general matter, it should not be difficult
to determine whether financial assets are beneficially owned by an individual, an individual's spouse, or both, in any particular instance.
However, in the case where financial assets are held in a trust or in another type of investment vehicle for the benefit of an individual,
there may be questions as to whether the individual beneficially owns the financial assets. The following factors are indicative of beneficial
ownership of financial assets:
|
· |
physical or constructive possession of evidence of ownership of the financial asset; |
|
· |
entitlement to receipt of any income generated by the financial asset; |
|
· |
risk of loss of the value of the financial asset; and |
|
· |
the ability to dispose of the financial asset or otherwise deal with it as the individual sees fit. |
For example, securities held in a self-directed
RRSP for the sole benefit of an individual are beneficially owned by that individual.
In general, financial assets in a spousal RRSP
can be included for the purposes of the $1,000,000 financial asset test in section (a) above because section (a) takes into account financial
assets owned beneficially by a spouse. However, financial assets in a spousal RRSP cannot be included for purposes of the $5,000,000
financial asset test in section (d) above.
Financial assets held in a group RRSP under which
the individual does not have the ability to acquire the financial assets and deal with them directly do not meet the beneficial ownership
requirements in either sections (a) or (d) above.
Net Assets
For the purposes of section (c) above, "net
assets" means all of a subscriber's total assets minus all of the subscriber's total liabilities. Accordingly, for the purposes
of the net asset test, the calculation of total assets includes the value of a subscriber's personal residence, and the calculation of
total liabilities includes the amount of any liability (such as a mortgage) in respect of the subscriber's personal residence.
To calculate a subscriber's net assets under
the net asset test, subtract the subscriber's total liabilities from the subscriber's total assets. The value attributed to assets should
reasonably reflect their estimated fair value. Income tax is considered a liability if the obligation to pay it is outstanding at the
time of the distribution of the security to the subscriber by the Issuer.
Guidance On Accredited Investor Exemptions
for Corporations, Trusts and Other Entities
Accredited investors that are corporations, trusts
or other entities include:
|
(a) |
a corporation, trust or other entity, other than an investment fund, that has net assets (please
see the guidance below regarding calculating net assets) of at least $5,000,000 as shown on its most recently prepared financial
statements in accordance with applicable generally accepted accounting principles and that has not been created or used solely to
purchase or hold securities as an accredited investor; |
|
(b) |
a corporation, trust or other entity in respect of which all of the owners of interests, direct,
indirect or beneficial, except the voting securities required by law to be owned by directors, are persons that are accredited investors;
and |
|
(c) |
a trust established by an accredited investor for the benefit of the accredited investor's family
members of which a majority of the trustees are accredited investors and all of the beneficiaries are the accredited investor's spouse,
a former spouse of the accredited investor or a parent, grandparent, brother, sister, child or grandchild of that accredited investor,
of that accredited investor's spouse or of that accredited investor's former spouse. |
Net Assets
For the purposes of section (a) above, "net
assets" means all of the subscriber's total assets minus all of the subscriber's total liabilities. The minimum net asset threshold
of $5,000,000 specified in section (a) above must be shown on the entity's most recently prepared financial statements. The financial
statements must be prepared in accordance with applicable generally accepted accounting principles.
The
Subscriber agrees that the above representations and warranties will be true and correct both as of the execution of this Questionnaire
and as of the Closing and acknowledges that they will survive the completion of the issue of the Common Shares.
The
Subscriber acknowledges that the foregoing representations and warranties are made by the Subscriber with the intent that they be relied
upon in determining the suitability of the Subscriber to acquire the Common Shares and that this Questionnaire is incorporated
into and forms part of the Agreement and the undersigned undertakes to immediately notify the Issuer of any change in any statement or
other information relating to the Subscriber set forth herein which takes place prior to the closing time of the purchase and sale of
any of the Common Shares.
The Subscriber undertakes to immediately notify
the Issuer of any change in any statement or other information relating to the Subscriber set forth in the Agreement or in this Questionnaire
which takes place prior to the Closing.
By completing this Questionnaire, the Subscriber
authorizes the indirect collection of this information by each applicable regulatory authority or regulator and acknowledges that such
information is made available to the public under applicable laws.
DATED as of ________day of ______________, 2024.
|
|
|
Print Name of Subscriber (or person signing as |
|
agent of the Subscriber) |
|
|
|
By: |
|
|
|
Signature |
|
|
|
|
|
Print Name
of Subscriber (or person signing as |
|
agent of the Subscriber) |
APPENDIX "A"
TO EXHIBIT A
TO CANADIAN INVESTOR
QUESTIONNAIRE
Form 45-106F9
WARNING!
This investment
is risky. Don't invest unless you can afford to lose all the money you pay for this investment.
|
SECTION
1 TO BE COMPLETED BY THE ISSUER OR SELLING SECURITY HOLDER |
1.
About your investment |
Type
of securities: Common Shares at a price of US$30.00 per Common Share. |
Issuer:
McEwen Copper Inc. (the "Issuer") |
Purchased
from: The Issuer. |
SECTIONS
2 TO 4 TO BE COMPLETED BY THE PURCHASER |
2.
Risk acknowledgement |
This
investment is risky. Initial that you understand that: |
Your
initials |
Risk
of loss – You could lose your entire investment of $_______________. [Instruction: Insert the total dollar amount of
the investment.] |
|
Liquidity
risk – You may not be able to sell your investment quickly – or at all. |
|
Lack
of information – You may receive little or no information about your investment. |
|
Lack
of advice – You will not receive advice from the salesperson about whether this investment is suitable for you unless the
salesperson is registered. The salesperson is the person who meets with, or provides information to, you about making this investment.
To check whether the salesperson is registered, go to www.aretheyregistered.ca. |
|
3.
Accredited investor status |
You
must meet at least one of the following criteria to be able to make this investment. Initial the statement that applies to you. (You
may initial more than one statement.) The person identified in section 6 is responsible for ensuring that you meet the definition
of accredited investor. That person, or the salesperson identified in section 5, can help you if you have questions about whether
you meet these criteria. |
Your
initials |
·
Your net income
before taxes was more than $200,000 in each of the 2 most recent calendar years, and you expect it to be more than $200,000 in the
current calendar year. (You can find your net income before taxes on your personal income tax return.) |
|
·
Your net income
before taxes combined with your spouse's was more than $300,000 in each of the 2 most recent calendar years, and you expect your
combined net income before taxes to be more than $300,000 in the current calendar year. |
|
· Either
alone or with your spouse, you own more than $1 million in cash and securities, after subtracting any debt related to the cash and
securities. |
|
·
Either alone
or with your spouse, you have net assets worth more than $5 million. (Your net assets are your total assets (including real estate)
minus your total debt.) |
|
4.
Your name and signature |
By
signing this form, you confirm that you have read this form and you understand the risks of making this investment as identified
in this form. |
First
and last name (please print): |
Signature: |
Date: |
SECTION
5 TO BE COMPLETED BY THE ISSUER |
5.
For more information about this investment |
McEwen Copper Inc.
150 King Street West, S. 2800
Toronto, ON M5H 1J9
Attention: Carmen
Diges
Email: cdiges@mcewenmining.com |
For
more information about prospectus exemptions, contact your local securities regulator. You can find contact information at www.securities-administrators.ca. |
Form
instructions: |
1. |
This form does not mandate the use of a specific font size
or style but the font must be legible |
2. |
The information in sections 1, 5 and 6 must be completed
before the purchaser completes and signs the form. |
3. |
The purchaser must sign this form. Each of the purchaser
and the Issuer or selling security holder must receive a copy of this form signed by the purchaser. The Issuer or selling security holder
is required to keep a copy of this form for 8 years after the distribution. |
exhibit
"B"
TERM SHEET
McEwen
Copper Inc.
Terms
and Conditions of Non-Brokered Private Placement Offering
(All amounts shown in United States Currency)
Issuer: |
McEwen
Copper Inc. (the "Company"), a private Alberta company, 47.7% owned indirectly by McEwen Mining Inc. (MUX: NYSE,
TSX). The Company holds a 100% interest in the development-stage Los Azules
copper project in San Juan, Argentina,
and the Elder Creek copper exploration property in Nevada, USA. |
Offering: |
Private
placement (the “Offering”) of up to 2,333,333 common shares of the Company (the “Shares”). |
Price: |
US$30.00
per common share (the "Share
Price").
US$2,000,000 minimum
subscription amount (such minimum shall not apply to existing shareholders of the Company). Lead orders of US$14,000,000 by McEwen
Mining and US$5,000,000 by
Evanachan Limited (Rob McEwen). |
Size
of Offering: |
Up
to US$70,000,000. |
Transaction
details: |
The
Company shall issue and the qualified accredited investors shall subscribe for 2,333,333 common shares from treasury (the "Shares")
at a price of US$30.00 per Share, or approximately US$70,000,000
in total (the "Subscription Price"), provided that the transaction
shall be implemented pursuant to the Private Placement Subscription Agreement (the "Subscription
Agreement"). |
Use
of Proceeds: |
The
net proceeds of the Offering will be used to advance work on a bankable feasibility study for the Los Azules copper project, which
is scheduled for publication by the end of the first quarter (Q1) of 2025 and for general corporate purposes. |
Pre-Emptive
Rights: |
The
transaction is subject to the Company's shareholders' pre-emptive rights to participate in the proposed issuance in accordance with
Section 5.1 of the unanimous shareholder agreement of the Company dated August 20, 2021 (the "Shareholder
Agreement"). |
Offering
Jurisdictions: |
The
issuance of the Shares shall take place by the issuance of treasury shares and/or
by way of a non-brokered private sale to qualified investors in all the provinces of Canada, excluding Quebec,
to Qualified Institutional Buyers (as such term is defined in the United
States Securities Act of 1933) in the United
States and otherwise in those jurisdictions where an offering can lawfully be
made without subjecting the Company to prospectus or registration or continuous disclosure requirements in such jurisdictions. Subscribers
must be "accredited investors"
(as defined in National Instrument 45-106 - Prospectus Exemptions ("NI
45-106"). |
Hold
Period: |
The
Company is not a reporting issuer in any province or territory of Canada. As such, the Shares will not be transferable under
the laws of Canada, except pursuant to applicable statutory exemptions, until the date that is four months and a day after the date
the Company becomes a reporting issuer in any province or territory of Canada (subject to any control person distribution restrictions)
in accordance with National Instrument 45-102 – Resale of Securities. |
Conditions to be
met on Closing: |
The
Offering shall be conditional upon each purchaser of Shares entering into a shareholder agreement in a form to be determined. |
Expenses;
Non- Reliance: |
Each
of the parties shall bear all of its own costs and expenses incurred in connection with the transaction, including all legal and
accounting fees and expenses. Any actions taken by any party in reliance on these Terms and Conditions shall be at such party’s
sole risk and expense. |
Closing
Date: |
The
Offering may close in tranches, with
the first tranche expected to close on or about July 12th, 2024. |
Governing
Law: |
This
term sheet and the letter to which it is attached shall be governed by and construed in accordance with the laws of the Province
of Ontario. Both parties submit to the jurisdiction of the courts of said province in relation to all matters arising out of this
term sheet or such letter. |
Exhibit 99.2
McEWEN COPPER INC.
(the "Issuer")
PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
(COMMON SHARES)
INSTRUCTIONS TO SUBSCRIBER
| 1. | You must complete all the information in the
boxes on page ii and sign where indicated with an "X". |
| 2. | You
must complete and sign Exhibit "A" - "U.S. Investor Questionnaire"
that starts on page
A-1. The purpose of this form is to determine whether you meet the standards for participation
in a private placement under applicable U.S. securities laws. In order for the Issuer to
satisfy its obligations under applicable U.S. securities laws, you may be required to provide
additional evidence to verify the information you have provided in Exhibit "A"
- "U.S. Investor Questionnaire" that starts on page A-1. |
| 3. | Please make sure that your subscription includes: |
| (a) | a signed copy of this Subscription Agreement. |
| (b) | payment by certified check, money order,
bank draft, wire transfer or other acceptable means in the amount of the Subscription Amount
payable to " McEwen Copper Inc." |
Subscription Procedure:
|
|
|
Completed
Subscription Agreement and payment to be delivered to:
|
|
|
|
McEwen Copper Inc. |
|
150 King Street West, S. 2800 |
|
Toronto, ON M5H 1J9 |
|
|
|
Attention: |
Carmen Diges |
|
Email: |
cdiges@mcewenmining.com |
|
|
Wire
Transfer Instructions: |
|
|
|
|
If paying by wire
transfer, wire funds as follows:
|
|
|
|
Beneficiary
Name: McEwen Copper Inc. |
|
Beneficiary
Address: STE 2800, 150 KING ST W TORONTO, ON M5H 1J9 |
|
Beneficiary
Account Number: 000024065686 |
|
Beneficiary
Bank and Address: ROYAL BANK OF CANADA 200 BAY ST TORONTO, ON M5J 2J5 |
|
SWIFT: ROYCCAT2 |
|
Bank Number:
003 |
|
Transit
Number: 00002 |
|
Intermediary
Bank and Address: JP MORGAN CHASE BANK NEW YORK, NEW YORK |
|
SWIFT CODE:
CHASUS33 |
|
ABA NUMBER:
021000021 |
|
SORT CODE
//CC000300002 |
|
|
|
Reference: McEwen Copper Inc. – subscription proceeds |
|
|
|
|
McEWEN COPPER INC.
PRIVATE
PLACEMENT SUBSCRIPTION AGREEMENT
The
undersigned (the "Subscriber") hereby irrevocably subscribes for and agrees to purchase from McEwen Copper Inc. (the
"Issuer") the number of common shares in the capital of the Issuer (each, a "Common Share")
on the terms set out in the Investor Term Sheet set out in Exhibit "B" that starts on page B-1. The Subscriber agrees
to be bound by the terms and conditions set forth in the attached "Terms and Conditions of Subscription for Common Shares"
(the "Terms and Conditions").
Subscriber
Information |
|
Common
Shares to be Purchased |
|
|
|
|
|
Number of Common Shares: |
|
|
|
|
X $30/Share |
|
|
|
|
|
|
(Name of Subscriber) |
|
|
|
|
|
|
|
|
|
|
|
Subscription
Amount: US$ |
|
|
X |
|
|
(the “Subscription Amount”) |
|
|
(Signature
of Authorized Signatory – if the Subscriber is not an Individual) |
|
|
|
|
|
|
|
|
|
|
|
|
If
the Subscriber is subscribing as an agent on behalf of a beneficial purchaser (check the appropriate box): |
(Name
and Title of Authorized Signatory – if the Subscriber is not an Individual) |
|
|
|
|
|
|
|
¨ the
Subscriber is a trust company or trust corporation or a registered adviser acting on behalf of a fully managed account and deemed
under applicable securities laws to be purchasing as principal, or |
(Subscriber’s Address, including postal or zip code) |
|
|
|
|
|
|
|
¨ the
following information is true and correct and, as applicable, Exhibit “A” hereto has been completed for each beneficial
purchaser: |
(Telephone Number) |
|
|
|
|
|
|
|
|
|
|
|
(Email Address) |
|
|
(Name of Beneficial Purchaser) |
|
|
|
|
|
|
|
|
|
|
|
(Address of Beneficial Purchaser) |
|
|
|
|
|
|
|
|
|
|
|
(Beneficial Purchaser’s Telephone Number) |
|
|
|
|
|
|
|
|
|
|
|
(Beneficial Purchaser’s EMail Address)
|
|
Register
the Common Shares as set forth below: |
|
Deliver
the Common Shares as set forth below: |
|
|
|
|
|
|
|
|
(Name to Appear on Share Certificate) |
|
|
(Attention - Name) |
|
|
|
|
|
|
|
|
|
(Account Reference, if applicable) |
|
|
(Account Reference, if applicable) |
|
|
|
|
|
|
|
|
|
(Address, including postal or zip code) |
|
|
(Street Address, including postal or zip code – no PO Boxes permitted) |
|
|
|
|
|
|
|
|
|
|
|
(Telephone Number) |
|
ACCEPTANCE
The Issuer hereby accepts the Subscription (as
defined herein) on the terms and conditions contained in this private placement subscription agreement (this "Agreement")
as of the _____ day of ________________, 2024.
McEWEN
COPPER INC. |
|
|
|
|
Per: |
|
|
|
Authorized
Signatory |
|
TERMS AND CONDITIONS OF
SUBSCRIPTION FOR COMMON SHARES
1.1 On
the basis of the representations and warranties, and subject to the terms and conditions, set forth in this Agreement, the Subscriber
hereby irrevocably subscribes for and agrees to purchase the Common Shares for the Subscription Amount shown on page ii of this
Agreement (such subscription and agreement to purchase the Common Shares being the "Subscription") by way of a private placement
offering (the "Offering"), and the Issuer agrees to sell the Common Shares to the Subscriber, effective upon the Closing Date.
2.1 The
Subscription Amount must accompany this Subscription and be paid by a certified check, money order or bank draft or by wire transfer
to the Issuer pursuant to the wire instructions provided by the Issuer in the Instructions to Subscriber on page i. The Subscriber
authorizes the Issuer to treat the Subscription Amount as an interest free loan until the closing of the Offering (the "Closing").
2.2 The
Subscriber acknowledges and agrees that this Agreement, the Subscription Amount and any other documents delivered in connection herewith
will be held by or on behalf of the Issuer. In the event that this Agreement is not accepted by the Issuer for whatever reason, which
the Issuer expressly reserves the right to do, the Issuer will return the Subscription Amount (without interest thereon) to the Subscriber
at the address of the Subscriber as set forth on page ii of this Agreement, or as otherwise directed by the Subscriber, in writing,
to the Issuer, prior to the return of the Subscription Amount by the Issuer.
| 3. | Documents
Required from Subscriber |
3.1 The
Subscriber must complete, sign and return to the Issuer the following documents:
| (b) | the
U.S. Investor Questionnaire (the "Questionnaire") attached as Exhibit "A"
that starts on page A-1, along with any additional evidence that may be requested
by the Issuer to verify the information provided in the Questionnaire; and |
| (c) | such other supporting documentation that
the Issuer may request to establish the Subscriber's eligibility to participate in the Offering. |
The Subscriber acknowledges and agrees that the
Issuer will not consider the Subscription for acceptance unless the Subscriber has provided all of such documents to the Issuer.
3.2 As
soon as practicable upon any request by the Issuer, the Subscriber will complete, sign and return to the Issuer any additional
documents, questionnaires, notices and undertakings the Issuer may reasonably require or otherwise, may be required by any regulatory
authorities or applicable laws.
4.1 The
closing date (the "Closing Date") shall be on such date as may be determined by the Issuer in its sole discretion.
The Issuer may, at its discretion, elect to close the Offering in one or more closings, in which event the Issuer may agree with one
or more purchasers (including the Subscriber) to complete delivery of the Common Shares to such purchaser(s) against payment therefor
at any time on or prior to the Closing Date.
4.2 The
Closing is conditional upon and subject to:
| (a) | the Issuer having obtained any necessary
approvals and consents for the Offering; |
| (b) | the
Issuer having obtained and provided to the Subscriber waivers for the purposes of the transactions
contemplated herein from the shareholders of the Issuer in respect of the pre-emptive rights
set out in the unanimous shareholder agreement of the Issuer dated August 20, 2021 (the
“Shareholder Agreement”), or the Issuer having provided notice
to the shareholders of the Issuer under the pre-emptive rights provisions of the Shareholder
Agreement and the relevant exercise period having expired, or the Issuer having provided
notice in writing to the Subscriber outlining in reasonable detail the extent to which the
shareholders of the Issuer have exercised such pre-emptive rights, as applicable; and |
| (c) | the
offer and sale of the Common Shares being exempt from the registration requirements
under the U.S. Securities Act of 1933, as amended (the “1933 Act”),
the laws of any U.S. state or other applicable jurisdiction. |
4.3 The
Subscriber acknowledges that the original share certificates representing the Common Shares ("Certificates") will be
held by the Issuer in the Issuer's minute book. The Issuer will deliver electronic copies of the Certificates to the Subscriber within
seven business days of the Closing Date, provided that the Subscriber has satisfied the requirements of Section 3.1 hereof and the
Issuer has accepted this Agreement.
| 5. | Acknowledgements
and Agreements of the Subscriber |
5.1 The
Subscriber acknowledges and agrees that:
| (a) | no registration statement has been filed
by the Issuer with any securities commission or any other regulatory authority in connection
with the issuance of the Common Shares; |
| (b) | the Subscriber has not received, nor has
the Subscriber requested nor had any need to receive, or been provided with a prospectus,
offering memorandum or any document purporting to describe the business and affairs of the
Issuer which has been prepared for review by prospective purchasers to assist in making an
investment decision in respect of the Common Shares and that the Subscriber's decision, or,
if applicable, the decision of others for whom the undersigned is contracting hereunder,
to enter into this Agreement and to purchase the Common Shares from the Issuer is based entirely
upon this Agreement and publicly available information concerning the Issuer and not upon
any other verbal or written representation as to fact or otherwise made by or on behalf of
the Issuer; |
| (c) | the Issuer's constating documents contain
restrictions on the transfer of the Common Shares, which provide that no Common Shares may
be transferred without the prior approval of the board of directors of the Issuer; |
| (d) | the
Issuer is not a "reporting issuer" as that term is defined in applicable Canadian
securities laws, does not file periodic reports with the U.S. Securities and Exchange Commission,
nor will it become a reporting issuer in any jurisdiction in Canada or elsewhere upon completion
of the Offering and, as a result unless the Issuer becomes a reporting issuer at a later
date, the Issuer will not be subject to the continuous disclosure requirements of any securities
laws, including any requirement relating to the production and filing of audited financial
statements or other financial information. |
| (e) | the issuance of the Common Shares will
be made pursuant to exemptions from the registration and prospectus delivery requirements
of applicable securities laws and therefore: |
| (i) | the Subscriber may not receive information
about the Issuer that would otherwise be required to be provided to it under applicable securities
laws, |
| (ii) | the Issuer is relieved from certain obligations
that would otherwise apply under applicable securities laws, |
| (iii) | no
securities commission or similar regulatory authority has reviewed or passed on the merits
of the Common Shares, |
| (iv) | there is no government or other insurance
covering the Common Shares, and |
| (v) | there are risks associated with the purchase
of the Common Shares, including that the Subscriber may lose the Subscriber's entire investment; |
| (f) | an
investment in the Issuer is highly speculative and only investors who can afford the loss
of their entire investment should consider investing in the Issuer and the Common
Shares; |
| (g) | any
subscription monies paid by the Subscriber for the Common Shares is being raised as
"seed" or "risk" capital for the Issuer, which is in a speculative stage,
and there is no market for the Common Shares whatsoever; |
| (h) | none of the Common Shares have been or
will be registered under the 1933 Act, or under any securities or "blue sky" laws
of any state of the United States, and, unless so registered, may not be offered or sold
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 any other applicable federal, state, provincial
and foreign securities laws; |
| (i) | the Issuer has not undertaken, and will
have no obligation, to register any of the Common Shares under the 1933 Act or any other
securities laws; |
| (j) | the Issuer will refuse to register the
transfer of any of the Common Shares not made pursuant to an effective registration statement
under the 1933 Act or pursuant to an available exemption from the registration requirements
of the 1933 Act, and in each case will only register such transfer in accordance with applicable
laws; |
| (k) | it will hold harmless the Issuer from
any loss or damage it may suffer as a result of the Subscriber's failure to correctly complete
this Agreement or the Questionnaire; |
| (l) | it and its advisor(s) have had a
reasonable opportunity to ask questions of, and receive answers from, the Issuer in connection
with the distribution of the Common Shares hereunder, and to obtain additional information,
to the extent possessed or obtainable by the Issuer without unreasonable effort or expense; |
| (m) | the
books and records of the Issuer were available upon reasonable notice for inspection, subject
to certain confidentiality restrictions, by the Subscriber during reasonable business hours
at the Issuer's principal place of business, and all documents, records and books in connection
with the distribution of the Common Shares hereunder have been made available by the
Issuer for inspection by the Subscriber, its legal counsel and/or its advisor(s) if
requested by the Subscriber; |
| (n) | any
resale, assignment, transfer, hypothecation or pledge of any of the Common Shares by the
Subscriber will be subject to: (i) resale restrictions contained in the securities laws
applicable to the Issuer, the Subscriber and any proposed transferee; and (ii) the Issuer's
constating documents and it is the responsibility of the Subscriber to find out what those
restrictions are and to comply with such restrictions before selling any of the Common Shares; |
| (o) | it
consents to the placement of a legend or legends on the Certificates and any other document
evidencing any of the Common Shares setting forth the restrictions on transferability and
sale thereof contained in this Agreement, including the following: |
"THE SECURITIES REPRESENTED
BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER CONTAINED IN THE CONSTATING DOCUMENTS OR UNANIMOUS SHAREHOLDER AGREEMENT
OF THE COMPANY.
THE
SHARES THAT ARE REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT
BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNTIL A REGISTRATION STATEMENT WITH RESPECT THERETO IS DECLARED EFFECTIVE
UNDER SUCH ACT, OR THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE COMPANY THAT AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
SUCH ACT IS AVAILABLE.";
| (p) | it has been advised to consult its own
legal, tax and other advisors with respect to the Offering and the risks of an investment
in the Common Shares and with respect to applicable resale restrictions, and it is solely
responsible (and the Issuer 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 Common Shares
hereunder, and |
| (ii) | any applicable resale restrictions; |
| (q) | there
may be material tax consequences to the Subscriber of an acquisition or disposition of the
Common Shares and the Issuer gives no opinion and makes no representation to the Subscriber
with respect to the tax consequences to the Subscriber under federal, state, provincial,
local or foreign tax laws that may apply to the Subscriber's acquisition or disposition of
any of the Common Shares; |
| (r) | it is subscribing for the Common Shares
for investment purposes and for Subscriber’s own account, with the intention of holding
the Common Shares, with no present intention of dividing or allowing others to participate
in this investment or of reselling or otherwise participating, directly or indirectly, in
a distribution of the Common Shares; |
| (s) | there is no market for any of the Common
Shares and no market for any of the Common Shares may ever exist; and |
| (t) | this Agreement is not enforceable by the
Subscriber unless it has been accepted by the Issuer and the Issuer reserves the right to
reject this Subscription for any reason. |
| 6. | Representations
and Warranties of the Subscriber |
6.1 The
Subscriber hereby represents and warrants to the Issuer (which representations and warranties will survive the Closing) that:
| (a) | the Subscriber is resident in the jurisdiction
set out on page ii of this Agreement; |
| (b) | if the Subscriber is resident outside
of the U.S. or Canada: |
| (i) | the
Subscriber is knowledgeable of, or has been independently advised as to, the applicable securities
laws having application in the jurisdiction in which the Subscriber is resident (the "International
Jurisdiction") which would apply to the offer and sale of the Common Shares, |
| (ii) | the
Subscriber is acquiring the Common Shares pursuant to exemptions from prospectus or
equivalent requirements under applicable securities laws or, if such is not applicable, the
Subscriber is permitted to acquire the Common Shares under the applicable laws of the International
Jurisdiction without the need to rely on any exemptions, |
| (iii) | the applicable laws of the authorities
in the International Jurisdiction do not require the Issuer to make any filings or seek any
approvals of any kind from any securities regulator in the International Jurisdiction in
connection with the offer, issue, sale or resale of any of the Common Shares, |
| (iv) | the
acquisition of the Common Shares 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 Issuer in the International Jurisdiction, and |
| (v) | the Subscriber will, if requested by the
Issuer, deliver to the Issuer 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 Issuer, acting reasonably; |
| (c) | the Subscriber has the legal capacity
and competence to enter into and execute this Agreement and to take all actions required
pursuant hereto and, if the Subscriber is a corporate entity, 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 Agreement on behalf of the Subscriber; |
| (d) | the entering into of this 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
Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or
by which the Subscriber is or may be bound; |
| (e) | 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; |
| (f) | the
Subscriber has received and carefully read this Agreement; |
| (g) | the
Subscriber acknowledges receipt of a copy of the unanimous shareholder agreement of the Issuer
and acknowledges that it is a condition of becoming a shareholder of the Issuer that the
Subscriber must become a party to such unanimous shareholder agreement; |
| (h) | the
Subscriber is aware that an investment in the Issuer is speculative and involves certain
risks, including the possible loss of the entire investment; |
| (i) | the
Subscriber has made an independent examination and investigation of an investment in the
Common Shares and the Issuer and agrees that the Issuer will not be responsible in
any way for the Subscriber's decision to invest in the Common Shares and the Issuer; |
| (j) | the Subscriber is not an underwriter of,
or dealer in, any of the Common Shares, nor is the Subscriber participating, pursuant to
a contractual agreement or otherwise, in the distribution of the Common Shares; |
| (k) | the Subscriber is not aware of any advertisement
of any of the Common Shares and is not acquiring the Common 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; |
| (l) | no person has made to the Subscriber any
written or oral representations: |
| (i) | that any person will resell or repurchase
any of the Common Shares, |
| (ii) | that any person will refund the purchase
price of any of the Common Shares, or |
| (iii) | as to the future price or value of any
of the Common Shares; and |
| (m) | other
than as provided in the term sheet attached as Exhibit “B” to this Agreement,
there is no person acting or purporting to act in connection with the Offering who is entitled
to any brokerage or finder's fee payable by the Issuer. If any person establishes a claim
that any fee or other compensation is payable by the Issuer in connection with this subscription
for the Common Shares, the Subscriber or any beneficial purchaser for whom the undersigned
is acting covenants to indemnify and hold harmless the Issuer with respect thereto and with
respect to all costs reasonably incurred in the defence thereof. |
| 7. | Representations
and Warranties will be Relied Upon |
7.1 The
Subscriber acknowledges that its representations and warranties contained herein and in the Questionnaire are made by it with the intention
that such representations and warranties will be relied upon by the Issuer in determining the Subscriber's eligibility to purchase the
Common Shares under applicable laws, or (if applicable) the eligibility of others on whose behalf the Subscriber is contracting
hereunder to purchase the Common Shares under applicable laws. The Subscriber further agrees that, as at the Closing, it will be representing
and warranting that its representations and warranties contained herein and in the Questionnaire are true and correct as at the Closing
with the same force and effect as if they had been made by the Subscriber on the Closing, and that they will survive the purchase by
the Subscriber of the Common Shares and will continue in full force and effect notwithstanding any subsequent disposition by the Subscriber
of the Common Shares.
| 8. | REPRESENTATIONS
AND WARRANTIES OF THE ISSUER |
8.1 The
Issuer hereby represents and warrants to the Subscriber (which representations and warranties will survive the Closing) that:
| (a) | the Issuer is validly subsisting under
the laws of its jurisdiction of incorporation, licensed, registered or qualified as an extra-provincial
or foreign corporation in all jurisdictions where the character of its properties owned or
leased or the nature of the activities conducted by it make such licensing, registration
or qualification necessary and shall carry on its business in the ordinary course and in
compliance in all material respects with all applicable laws, rules and regulations
of each such jurisdiction; |
| (b) | on the Closing Date, the Issuer will have
taken all corporate steps and proceedings necessary to approve the transactions contemplated
under this Subscription Agreement, including its execution and delivery; |
| (c) | the Issuer has not received notice from
any applicable regulatory authority that it is in default of any securities laws material
to the Subscriber; |
| (d) | at the time of closing on the Closing
Date, the Common Shares will be duly and validly created, authorized and issued; will be
validly issued as fully paid as non-assessable Common Shares in the capital of the Issuer; |
| (e) | the issuance and sale of the Common Shares
by the Issuer does not and will not constitute a breach of or default under the constating
documents of the Issuer or any law, regulation, order or ruling applicable to the Issuer
or any agreement, contract or indenture to which the Issuer is a party or by which it is
bound; |
| (f) | for
the purposes of the transactions contemplated herein, the Issuer has obtained waivers from
the shareholders of the Issuer in respect of the pre-emptive rights set out in the Shareholder
Agreement, or the Issuer has provided notice to the shareholders of the Issuer under the
pre-emptive rights provisions of the Shareholder Agreement and the relevant exercise period
has expired, or the Issuer has provided notice in writing to the Subscriber outlining
in reasonable detail the extent to which the shareholders of the Issuer have exercised such
pre-emptive rights, as applicable; and |
| (g) | this Subscription Agreement, when signed
by the Issuer, constitutes a binding and enforceable obligation of the Issuer, enforceable
in accordance with its terms. |
9.1 The
Subscriber hereby waives, to the fullest extent permitted by law, any rights of withdrawal, rescission or compensation for damages to
which the Subscriber may be entitled in connection with the distribution of any of the Common Shares.
| 10. | Pooling
or Escrow of COMMON Shares and Power of Attorney |
10.1 The
Subscriber acknowledges that the Issuer is not currently a reporting issuer in any jurisdiction. If the Issuer completes an initial public
offering that results in the Common Shares or other securities in the capital of the Issuer becoming listed on a stock exchange in Canada
or the United States of America, or the Issuer completes a reverse takeover, statutory merger or amalgamation, arrangement, share exchange,
business combination or other similar transaction which results in a class of shares of the issuer resulting from such transaction being
listed (the "Resulting Issuer") on a stock exchange in Canada or the United States of America and the shareholders of
the Issuer receiving such listed securities of the Resulting Issuer and/or cash in exchange for their Common Shares (in each case, a
"Liquidity Event"), the Common Shares may be required to be pooled or escrowed, either at the request of the Issuer's
selling agent or underwriter in connection with the Liquidity Event, or pursuant to the rules of any stock exchange, securities
commission or other securities regulatory authority having jurisdiction, and the Subscriber agrees to sign any such pooling or escrow
agreement and abide by any such restrictions as may be so imposed.
10.2 In
furtherance of the covenant in Section 10.1, the Subscriber hereby irrevocably appoints the Chief Executive Officer or the President
of the Issuer, as exists at the applicable time (in any case, the "President"), as the Subscriber's attorney-in-fact,
and authorizes the President as the Subscriber's attorney-in-fact, with full power and authority in the Subscriber's place and stead,
to approve and sign any pooling or escrow agreement, or any other document, on behalf of the Subscriber as the Issuer advises may be
required to provide for pooling or escrow of the Common Shares, or the approval and completion of any Liquidity Event, as the case may
be, in the event of a Liquidity Event or other transaction pursuant to which the Issuer may become listed, directly or indirectly, on
any stock exchange. This power of attorney is irrevocable, is coupled with an interest and has been given for valuable consideration,
the receipt and adequacy of which are acknowledged by the Subscriber. This power of attorney and other rights and privileges granted
hereunder will survive any legal or mental incapacity, dissolution, bankruptcy or death of the Subscriber. This power of attorney extends
to the heirs, executors, administrators, other legal representatives and successors, transferees and assigns of the Subscriber. Any person
dealing with the Issuer may conclusively presume and rely upon the fact that any document, instrument or agreement executed by the President
pursuant to this power of attorney is authorized and binding on the Subscriber, without further inquiry. The Subscriber (on its own behalf
and, if applicable, on behalf of each beneficial purchaser on whose behalf it is contracting) agrees to be bound by any representations
or actions made or taken by the President pursuant to this power of attorney, and waives any and all defences that may be available to
contest, negate or disaffirm any action of the President taken in good faith under this power of attorney.
| 11. | Collection
of Personal Information |
11.1 The
Subscriber acknowledges and consents to the fact that the Issuer is collecting the Subscriber's personal information for the purpose
of fulfilling this Agreement and completing the Offering. The Subscriber acknowledges that its personal information (and, if applicable,
the personal information of any person on whose behalf the Subscriber is contracting hereunder) may be included in record books in connection
with the Offering and may be disclosed by the Issuer to: (i) stock exchanges or securities regulatory authorities; (ii) the
Issuer's registrar and transfer agent; (iii) Canadian or U.S. tax authorities; (iv) the U.S. Financial Crimes Enforcement
Network and authorities pursuant, among other legislation, to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act
(Canada) ; and (v) any other parties involved in the Offering, including the Issuer's Counsel. By executing this Agreement,
the Subscriber is deemed to be consenting to the foregoing collection, use and disclosure of the Subscriber's personal information (and,
if applicable, the personal information of any other person on whose behalf the Subscriber is contracting hereunder) for the foregoing
purposes and to the retention of such personal information for as long as permitted or required by applicable laws. Notwithstanding that
the Subscriber may be purchasing the Common Shares as agent on behalf of an undisclosed principal, the Subscriber agrees to provide,
on request, particulars as to the nature and identity of such undisclosed principal, and any interest that such undisclosed principal
has in the Issuer, all as may be required by the Issuer in order to comply with the foregoing. Furthermore, the Subscriber is hereby
notified that:
| (a) | the Issuer may deliver to any securities
commission having jurisdiction over the Issuer, the Subscriber or this Subscription, including
any Canadian provincial securities commissions, the United States Securities and Exchange
Commission and/or any state securities commissions (collectively, the "Commissions"),
certain personal information pertaining to the Subscriber, including the Subscriber's full
name, residential address and telephone number, the number of securities of the Issuer owned
by the Subscriber, the number of Common Shares purchased by the Subscriber, the total Subscription
Amount paid, the prospectus exemption relied on by the Issuer and the date of distribution
of the Common Shares; |
| (b) | such information is being collected indirectly
by the Commissions under the authority granted to them in applicable securities laws; and |
| (c) | such information is being collected for
the purposes of the administration and enforcement of applicable securities laws. |
12.1 The
Subscriber acknowledges and agrees that all costs and expenses incurred by the Subscriber (including any fees and disbursements of any
legal counsel or tax or financial advisors retained by the Subscriber) relating to the purchase of the Common Shares will be paid by
the Subscriber.
| 13. | Delivery
of Subscription Agreement |
13.1 The
Issuer and the Issuer's Counsel will be entitled to rely on delivery by DocuSign or other means of electronic communication of an executed
copy of this Agreement, and acceptance by the Issuer of such copy will be equally effective to create a valid and binding agreement between
the Subscriber and the Issuer in accordance with the terms hereof. If less than a complete copy of this Agreement is delivered to the
Issuer or the Issuer's Counsel prior to or at Closing, the Issuer and the Issuer's Counsel are entitled to assume that the Subscriber
accepts and agrees to all of the terms and conditions of the pages not delivered prior to or at Closing as written herein, unaltered.
13.2 The
Subscriber hereby authorizes the Issuer to correct any minor errors in, or complete any minor information missing from, any part of this
Agreement and any other acknowledgements, provisions, forms, certificates or documents executed by the Subscriber and delivered to the
Issuer or the Issuer's Counsel in connection with the Subscription.
| 14. | Beneficial
Subscribers |
14.1 Whether
or not explicitly stated in this Agreement, any acknowledgement, representation, warranty, covenant or agreement made by the Subscriber
in this Agreement, including the exhibits and appendices hereto, will be treated as if made by the disclosed principal, if any.
15.1 This
Agreement and all matters related hereto or arising herefrom are governed by the laws of the Province of Ontario and the federal laws
of Canada applicable therein. The Subscriber, in its personal or corporate capacity and, if applicable, on behalf of each beneficial
or undisclosed purchaser for whom it is acting, irrevocably attorns to the exclusive jurisdiction of the courts of the Province of Ontario
in all matters related to, or arising from, this Agreement.
16.1 This
Agreement, including the representations, warranties and covenants contained herein, will survive and continue in full force and effect
and be binding upon the Issuer and the Subscriber, notwithstanding the completion of the purchase of the Common Shares by the Subscriber.
17.1 This
Agreement is not transferable or assignable.
18.1 The
invalidity or unenforceability of any particular provision of this Agreement will not affect or limit the validity or enforceability
of the remaining provisions of this Agreement.
19.1 Except
as expressly provided in this Agreement and in the Questionnaire and any other documents contemplated or provided for herein, this Agreement
contains the entire agreement between the Issuer and the Subscriber with respect to the sale of the Common Shares and there are no other
terms, conditions, representations or warranties, whether expressed, implied, oral or written, by statute or common law, by or of the
Issuer or any other person.
20.1 All
notices and other communications hereunder will be in writing and will be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication, including DocuSign, electronic mail or other means of electronic communication capable of producing
a printed copy. Notices to the Subscriber will be directed to the address of the Subscriber set forth on page ii of this
Agreement and notices to the Issuer will be directed to the address of the Issuer set forth on the first page of this Agreement.
| 21. | Counterparts
and Electronic Means |
21.1 This
Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, will constitute an original and
all of which together will constitute one instrument. Delivery of an executed copy of this Agreement by DocuSign 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 Closing Date.
22.1 The
exhibits and appendices attached hereto form part of this Agreement.
The
Subscriber will indemnify and hold harmless the Issuer and, where applicable, its directors, officers, employees, agents, advisors
and shareholders, from and against any and all loss, liability, claim, damage and expense whatsoever (including 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
in this Agreement, the Questionnaire, or in any document furnished by the Subscriber to the Issuer 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 Issuer in connection therewith.
Exhibit "A"
U.S. INVESTOR QUESTIONNAIRE
Capitalized
terms used in this U.S. Investor Questionnaire (this "Questionnaire") and not specifically defined have the meaning
ascribed to them in the Private Placement Subscription Agreement (the "Agreement") between the undersigned (or, if the
undersigned is purchasing the Common Shares as agent on behalf of a disclosed beneficial purchaser, such beneficial purchaser)
(in any case, the "Subscriber") and McEwen Copper Inc. (the "Issuer") to which this Exhibit "A"
is attached.
In
connection with the purchase by the Subscriber of the Common Shares, the Subscriber hereby represents, warrants and certifies
to the Issuer that the Subscriber:
| (i) | is
acquiring the Common Shares for investment purposes and for its own account, and pursuant
to one or more exemptions from the registration requirements under applicable U.S. federal
and state law; |
| (ii) | is
resident in the jurisdiction set out as at the "Subscriber's Address" set out on
page ii of the Agreement; and |
| (iii) | has
not been provided with any offering memorandum in connection with the purchase of the Common
Shares. |
In
connection with the acquisition of the Common Shares, the Subscriber hereby represents, warrants and certifies to, and covenants
and agrees with, the Issuer that the Subscriber meets one or more of the following criteria:
I. SUBSCRIBERS
PURCHASING UNDER THE "ACCREDITED INVESTOR" EXEMPTION
The Subscriber is an "accredited investor"
as such term is defined in Regulation D promulgated under the 1933 Act, by virtue of satisfying the indicated criterion below (YOU
MUST PLACE A CHECK-MARK ON THE APPROPRIATE LINE(S))
¨ |
(1) |
I
certify that I am an accredited investor because I have an individual net worth1, or my spouse or spousal equivalent and
I have a combined net worth, in excess of $1,000,000. |
¨ |
(2) |
I certify
that I am an accredited investor because I had individual income (exclusive of any income attributable to my spouse or spousal equivalent)
of more than $200,000 in each of the past two years, or joint income with my spouse or spousal equivalent of more than $300,000 in
each of those years, and I reasonably expect to reach the same income level in the current year.2 |
¨ |
(3) |
I certify
that I am a natural person who holds, in good standing, one of the following professional licenses: the General Securities Representative
license (Series 7), the Private Securities Offerings Representative license (Series 82), or the Investment Adviser Representative
license (Series 65). |
¨ |
(4) |
I certify
that I am a “family client,” as defined in Rule 202(a)(11)(G)-1 under the Investment Advisers Act of 1940, as amended
(the “Advisers Act”), of a family office (meeting the requirements of a family office as identified below
in Section 3 of this Questionnaire), and whose prospective investment in Issuer is directed by a Family Officer Director
(as defined below). |
¨ |
(5) |
The
Subscriber hereby certifies that it is an accredited investor because it is a bank as defined in 1933 Act §3(a)(2) or a savings
and loan association or other institution as defined in 1933 Act §3(a)(5)(A), acting in its individual or fiduciary capacity. |
| 1 | For
purposes of this Questionnaire, (i) “net worth” means the excess of total assets
at fair market value, including home furnishings and automobiles, over total liabilities;
(ii) Subscriber may not count the value of Subscriber’s primary residence in net worth,
and if the amount of debt on Subscriber’s primary residence exceeds its value, Subscriber
must count the excess against net worth; and (iii) Subscriber does not need to count as a
liability debt secured by the Subscriber’s primary residence up to the value of the
residence, unless the amount of such debt exceeds the amount that was outstanding 60 days
prior, other than debt resulting from the acquisition of the primary residence. |
| 2 | For
purposes of this Questionnaire, “individual income” means adjusted gross income,
as reported for Federal income tax purposes, less any income attributable to a spouse or
to property owned by a spouse, increased by the following amounts (but not including any
amounts attributable to a spouse or to property owned by a spouse): (i) the amount of any
tax-exempt interest income under Section 103 of the Internal Revenue Code of 1986, as amended
(the “Code”); (ii) the amount of losses claimed as a limited partner
in a limited partnership as reported on Schedule E of Form 1040; (iii) the amount of any
deduction, including the allowance for depletion, under Section 611 et seq. of the
Code; (iv) amounts contributed to an Individual Retirement Account (as defined in the Code)
or Keogh retirement plan; (v) alimony paid; and (vi) any elective contributions to a cash
or deferred arrangement under Code §401(k). For purposes of this Subscription Agreement,
“joint income” means adjusted gross income, as reported for Federal income tax
purposes, including any income attributable to a spouse or to property owned by a spouse,
increased by the foregoing items (i) through (vi), (including any amounts attributable to
a spouse or to property owned by a spouse). |
¨ |
(6) |
The
Subscriber hereby certifies that it is an accredited investor because it is a broker-dealer registered pursuant to Section 15 of
the Securities Exchange Act of 1934 (“1934 Act”). |
¨ |
(7) |
The
Subscriber hereby certifies that it is an accredited investor because it is an insurance company as defined in 1933 Act §2(13). |
¨ |
(8) |
The
Subscriber hereby certifies that it is an accredited investor because it is an investment company registered under the Investment
Company Act of 1940 (the “1940 Act”) or a business development company as defined in 1940 Act §2(a)(48). |
¨ |
(9) |
The
Subscriber hereby certifies that it is an accredited investor because it is 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. |
¨ |
(10) |
The
Subscriber hereby certifies that it is an accredited investor because it is a plan established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, and such
plan has total assets in excess of $5 million. |
¨ |
(11) |
The
Subscriber hereby certifies that it is an accredited investor because it is a self-directed plan in which investment decisions are
made solely by persons that are accredited investors. |
¨ |
(12) |
The
Subscriber hereby certifies that it is an accredited investor because it is a private business development company as defined in
Section 202(a)(22) of the Advisers Act. |
¨ |
(13) |
The
Subscriber hereby certifies that it is an accredited investor because it is (i) an organization described in Code §501(c)(3),
a corporation, a limited liability company, a Massachusetts or similar business trust, or a partnership, (ii) was not formed for
the specific purpose of acquiring the Common Shares, and (iii) has total assets in excess of $5,000,000. |
¨ |
(14) |
The
Subscriber hereby certifies that it is an accredited investor because it is a trust with total assets in excess of $5,000,000, not
formed for the specific purpose of acquiring the Common Shares, whose purchase is directed by a sophisticated person. As
used in the foregoing sentence, a “sophisticated person” is one who has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of the prospective investment. |
¨ |
(15) |
The
Subscriber hereby certifies that it is an accredited investor because all of its equity owners are accredited investors. |
¨ |
(16) |
The
Subscriber hereby certifies that it is an investment adviser registered pursuant to Section 203 of the Advisers Act or registered
pursuant to the laws of a state. |
¨ |
(17) |
The
Subscriber hereby certifies that it is an investment adviser relying on the exemption from registering with the SEC under Section
203(l) or (m) of the Advisers Act. |
¨ |
(18) |
The
Subscriber hereby certifies that it is a “Rural Business Investment Company” as defined in Section 384A of the Consolidated
Farm and Rural Development Act. |
¨ |
(19) |
The
Subscriber hereby certifies that it is an entity of a type not specifically identified listed in this Questionnaire, that is not
formed for the specific purpose of acquiring the Common Shares and owns “investments” in excess of $5 million. For
purposes of this clause, "investments" is defined in Rule 2a51-1 adopted under the 1940 Act. |
¨ |
(20) |
The
Subscriber hereby certifies that it is a “family office”, as defined in Rule 202(a)(11)(G)-1 under the Advisers Act,
that: (i) has assets under management in excess of $5 million; (ii) is not formed for the specific purpose of acquiring the Common
Shares; and (iii) has a person directing the prospective investment who has such knowledge and experience in financial and business
matters so that the family office is capable of evaluating the merits and risks of the prospective investment in the Common Shares
(a “Family Office Director”). |
The
Subscriber agrees that the above representations and warranties will be true and correct both as of the execution of this Questionnaire
and as of the Closing and acknowledges that they will survive the completion of the issue of the Common Shares.
The
Subscriber acknowledges that the foregoing representations and warranties are made by the Subscriber with the intent that they be relied
upon in determining the suitability of the Subscriber to acquire the Common Shares and that this Questionnaire is incorporated
into and forms part of the Agreement and the undersigned undertakes to immediately notify the Issuer of any change in any statement or
other information relating to the Subscriber set forth herein which takes place prior to the closing time of the purchase and sale of
any of the Common Shares.
The Subscriber undertakes to immediately notify
the Issuer of any change in any statement or other information relating to the Subscriber set forth in the Agreement or in this Questionnaire
which takes place prior to the Closing.
By completing this Questionnaire, the Subscriber
authorizes the indirect collection of this information by each applicable regulatory authority or regulator and acknowledges that such
information is made available to the public under applicable laws.
DATED
as of________ day of _________________,2024.
| |
| Print Name of Subscriber (or
person signing as |
| agent of the Subscriber) |
| |
| |
| By: |
|
| |
Signature |
| |
| |
| Print
Name of Subscriber (or person signing as |
| agent of the Subscriber) |
EXHIBIT "B"
TERM SHEET
McEwen
Copper Inc.
Terms
and Conditions of Non-Brokered Private Placement Offering
(All amounts shown in United States Currency)
Issuer: |
McEwen
Copper Inc. (the "Company"), a private Alberta company, 47.7% owned indirectly by McEwen Mining Inc. (MUX: NYSE,
TSX). The Company holds a 100% interest in the development-stage Los Azules
copper project in San Juan, Argentina,
and the Elder Creek copper exploration property in Nevada, USA. |
Offering: |
Private
placement (the “Offering”) of up to 2,333,333 common shares of the Company (the “Shares”). |
Price: |
US$30.00
per common share (the "Share
Price").
US$2,000,000 minimum
subscription amount (such minimum shall not apply to existing shareholders of the Company). Lead orders of US$14,000,000 by McEwen
Mining and US$5,000,000 by
Evanachan Limited (Rob McEwen). |
Size
of Offering: |
Up
to US$70,000,000. |
Transaction
details: |
The
Company shall issue and the qualified accredited investors shall subscribe for 2,333,333 common shares from treasury (the "Shares")
at a price of US$30.00 per Share, or approximately US$70,000,000
in total (the "Subscription Price"), provided that the transaction
shall be implemented pursuant to the Private Placement Subscription Agreement (the "Subscription
Agreement"). |
Use
of Proceeds: |
The
net proceeds of the Offering will be used to advance work on a bankable feasibility study for the Los Azules copper project, which
is scheduled for publication by the end of the first quarter (Q1) of 2025 and general corporate purposes. |
Pre-Emptive
Rights: |
The
transaction is subject to the Company's shareholders' pre-emptive rights to participate in the proposed issuance in accordance with
Section 5.1 of the unanimous shareholder agreement of the Company dated August 20, 2021 (the "Shareholder
Agreement"). |
Offering
Jurisdictions: |
The
issuance of the Shares shall take place by the issuance of treasury shares and/or
by way of a non-brokered private sale to qualified investors in all the provinces of Canada, excluding Quebec,
to Qualified Institutional Buyers (as such term is defined in the United
States Securities Act of 1933) in the United
States and otherwise in those jurisdictions where an offering can lawfully be
made without subjecting the Company to prospectus or registration or continuous disclosure requirements in such jurisdictions. Subscribers
must be "accredited investors"
(as defined in National Instrument 45-106 - Prospectus Exemptions ("NI
45-106"). |
Hold
Period: |
The
Company is not a reporting issuer in any province or territory of Canada. As such, the Shares will not be transferable under
the laws of Canada, except pursuant to applicable statutory exemptions, until the date that is four months and a day after the date
the Company becomes a reporting issuer in any province or territory of Canada (subject to any control person distribution restrictions)
in accordance with National Instrument 45-102 – Resale of Securities. |
Conditions
to be
met on Closing: |
The
Offering shall be conditional upon each purchaser of Shares entering into a shareholder agreement in a form to be determined. |
Expenses;
Non- Reliance: |
Each
of the parties shall bear all of its own costs and expenses incurred in connection with the transaction, including all legal and
accounting fees and expenses. Any actions taken by any party in reliance on these Terms and Conditions shall be at such party’s
sole risk and expense. |
Closing
Date: |
The
Offering may close in tranches, with
the first tranche expected to close on or about July 12th, 2024. |
Governing
Law: |
This
term sheet and the letter to which it is attached shall be governed by and construed in accordance with the laws of the Province
of Ontario. Both parties submit to the jurisdiction of the courts of said province in relation to all matters arising out of this
term sheet or such letter. |
v3.24.2
X |
- DefinitionBoolean flag that is true when the XBRL content amends previously-filed or accepted submission.
+ References
+ Details
Name: |
dei_AmendmentFlag |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionFor the EDGAR submission types of Form 8-K: the date of the report, the date of the earliest event reported; for the EDGAR submission types of Form N-1A: the filing date; for all other submission types: the end of the reporting or transition period. The format of the date is YYYY-MM-DD.
+ References
+ Details
Name: |
dei_DocumentPeriodEndDate |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:dateItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe type of document being provided (such as 10-K, 10-Q, 485BPOS, etc). The document type is limited to the same value as the supporting SEC submission type, or the word 'Other'.
+ References
+ Details
Name: |
dei_DocumentType |
Namespace Prefix: |
dei_ |
Data Type: |
dei:submissionTypeItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionAddress Line 1 such as Attn, Building Name, Street Name
+ References
+ Details
Name: |
dei_EntityAddressAddressLine1 |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionAddress Line 2 such as Street or Suite number
+ References
+ Details
Name: |
dei_EntityAddressAddressLine2 |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- Definition
+ References
+ Details
Name: |
dei_EntityAddressCityOrTown |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionISO 3166-1 alpha-2 country code.
+ References
+ Details
Name: |
dei_EntityAddressCountry |
Namespace Prefix: |
dei_ |
Data Type: |
dei:countryCodeItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionCode for the postal or zip code
+ References
+ Details
Name: |
dei_EntityAddressPostalZipCode |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionName of the state or province.
+ References
+ Details
Name: |
dei_EntityAddressStateOrProvince |
Namespace Prefix: |
dei_ |
Data Type: |
dei:stateOrProvinceItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionA unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityCentralIndexKey |
Namespace Prefix: |
dei_ |
Data Type: |
dei:centralIndexKeyItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionIndicate if registrant meets the emerging growth company criteria.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityEmergingGrowthCompany |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionCommission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
+ References
+ Details
Name: |
dei_EntityFileNumber |
Namespace Prefix: |
dei_ |
Data Type: |
dei:fileNumberItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTwo-character EDGAR code representing the state or country of incorporation.
+ References
+ Details
Name: |
dei_EntityIncorporationStateCountryCode |
Namespace Prefix: |
dei_ |
Data Type: |
dei:edgarStateCountryItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityRegistrantName |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityTaxIdentificationNumber |
Namespace Prefix: |
dei_ |
Data Type: |
dei:employerIdItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionLocal phone number for entity.
+ References
+ Details
Name: |
dei_LocalPhoneNumber |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 13e -Subsection 4c
+ Details
Name: |
dei_PreCommencementIssuerTenderOffer |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 14d -Subsection 2b
+ Details
Name: |
dei_PreCommencementTenderOffer |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTitle of a 12(b) registered security.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b
+ Details
Name: |
dei_Security12bTitle |
Namespace Prefix: |
dei_ |
Data Type: |
dei:securityTitleItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionName of the Exchange on which a security is registered.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection d1-1
+ Details
Name: |
dei_SecurityExchangeName |
Namespace Prefix: |
dei_ |
Data Type: |
dei:edgarExchangeCodeItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Section 14a -Number 240 -Subsection 12
+ Details
Name: |
dei_SolicitingMaterial |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTrading symbol of an instrument as listed on an exchange.
+ References
+ Details
Name: |
dei_TradingSymbol |
Namespace Prefix: |
dei_ |
Data Type: |
dei:tradingSymbolItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Securities Act -Number 230 -Section 425
+ Details
Name: |
dei_WrittenCommunications |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
McEwen Mining (NYSE:MUX)
Gráfico Histórico do Ativo
De Jul 2024 até Ago 2024
McEwen Mining (NYSE:MUX)
Gráfico Histórico do Ativo
De Ago 2023 até Ago 2024