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XXXXX OIL COMPANY, INC.
SUBSCRIPTION AGREEMENT AND INVESTMENT REPRESENTATION
THE SECURITIES BEING SUBSCRIBED TO HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR
UNDER APPLICABLE STATE SECURITIES LAWS DUE TO THE APPLICATION
OF REGULATIONS PROMULGATED BY THE U.S. SECURITIES AND EXCHANGE
COMMISSION UNDER THE PROVISIONS OF THE SECURITIES ACT OF 1933,
AS AMENDED.
FURTHER, THE SECURITIES BEING SUBSCRIBED TO MAY NOT BE
TRANSFERRED EXCEPT PURSUANT TO TRANSACTIONS EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED, AND APPLICABLE STATE SECURITIES LAWS, OR COMPLIANCE
THEREWITH.
Name of Subscriber: FAI Overseas Investments Pty. Ltd.
Number of Shares: 1,475,000
Total Amount Paid: $US 2,065,000
Consideration Given: $1.40
To: THE BOARD OF DIRECTORS
XXXXX OIL COMPANY, INC.
SALT LAKE CITY, UTAH
Gentlemen:
1. CONSIDERATION FOR PURCHASE. The undersigned (the
"Purchaser") hereby elects to purchase that number of shares of
the common stock of Xxxxx Oil Company, Inc., a Utah, U.S.A.,
corporation (the "Stock" and the "Company", respectively), noted
immediately above at the indicated purchase price.
2. UNDERSTANDINGS OF THE PURCHASER. The Purchaser
acknowledges, understands and agrees that:
(a) The Company reserves the right to reject all or any
part of this or any other subscription in its sole discretion.
(b) Upon termination of this offering, the Purchaser will
be promptly notified by the Company whether this subscription has
been accepted either in whole or in part, and if not accepted in
whole, agrees to accept the return of a proportionate part of the
funds tendered to the Company therewith as a refund or a return,
and in either case without interest.
(c) The Stock shall not be deemed issued to, or owned by,
the Purchaser until the Company shall issue in the name of the
Purchaser a stock certificate evidencing ownership of such
shares; further, the Company may withhold delivery of the
Purchaser's stock certificate if it is reasonably likely, in the
judgment of the Company's management, that the shares may be
required to be escrowed by any federal or state regulatory
agency.
(d) The certificate evidencing the Stock will bear a legend
restricting its transfer for a period of forty (40) days;
further, the Stock is subject to the restrictions on transfer
described in the foregoing sentence; and further, the Stock, if
this subscription is accepted, either in whole or in part, will
be issued in that name set forth under the signature line below.
(e) The Stock has not been registered under the Securities
Act of 1933, as amended, or any applicable state law
(collectively the "Securities Act"); further, the Stock may not
be sold, offered for sale, transferred, pledged, hypothecated or
otherwise disposed of except in compliance with the Securities
Act; further, the Company has no obligation, and does not intend,
to cause any of the Stock sold in this offering to be registered
under the Securities Act, or to comply with any exemption under
the Securities Act that would permit a sale or sales of the
Stock; further, the legal consequences of the foregoing mean that
the Purchaser must bear the economic risk of the investment in
the Stock for an indefinite period of time; further, if the
Purchaser desires to sell or transfer all or any part of the
Stock, the Company may require the Purchaser's counsel to provide
a legal opinion that transfer may be made without registration
under the Securities Act (the cost of such opinion to be that of
the Purchaser); further, other restrictions discussed elsewhere
herein may be applicable; and further, the Purchaser is subject
to the restriction on transfer described herein and the Company
will issue stop transfer orders with the Company's transfer
agents to enforce such restrictions.
(f) No federal or state agency has made any findings or
determination as to the fairness of an investment in the Company,
or made or given any recommendation or endorsement of this
investment.
(g) There is presently only a limited market for the resale
of the Stock and no market may exist in the future for any sale
or sales.
(h) The Company will probably need additional financing in
the near future, the availability of which is not secured;
further, the Stock is a speculative investment that involves a
substantial risk which may result in the loss of this entire
investment.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The
Purchaser hereby represents and warrants to the Company as
follows:
(a) My commitment to investments that are not readily
marketable is not disproportionate to my net worth, and my
investment in the Stock will not cause such overall commitment to
become excessive.
(b) I have the financial ability to bear the economic risks
of my investment in the Stock, have adequate means of providing
for my current needs and personal contingencies, and have no need
for liquidity in this investment.
(c) I have evaluated the risks of investing in the Stock
and have such knowledge in financial and business matters in
general and in particular with respect to this type of investment
that I am capable of evaluating the merits and risks of an
investment in the Stock.
(d) I have been given the opportunity to ask questions of
and receive answers from the Company concerning the terms and
conditions of this investment, and to obtain additional
information necessary to verify the accuracy of the information I
desired in order to evaluate my investment, and in evaluating the
suitability of an investment in the Stock I have not relied upon
any representations or other information (whether oral or
written) other than that furnished to me by the Company or its
representatives.
(e) I have had the opportunity to discuss with my
professional legal, tax and financial advisors the suitability of
an investment in the Stock for my particular tax and financial
situation and all information that I have provided to the Company
concerning myself and my financial position is correct and
complete as at the date set forth below, and if there should be
any material change in such information prior to my admission as
a shareholder of the Company, I will immediately provide such
information to the Company.
(f) The residence set forth below is my true and correct
residence, and I have no present intention of becoming a resident
or domiciliary of any other state or jurisdiction.
(g) In making the decision to purchase the Stock, I have
relied solely upon independent investigations made by me or on my
behalf.
(h) I am acquiring the Stock solely for my own personal
account, for investment purposes only, and am not purchasing the
Stock with a view to, or for, the resale, distribution,
subdivision or fractionalization thereof.
(i) I am neither a member of, nor am I affiliated with or
employed by a member of, the National Association of Securities
Dealers, Inc., nor am I employed by or affiliated with a broker-
dealer registered with Securities and Exchange Commission nor
with any similar agency of any state.
The foregoing representations, warranties, agreements,
undertakings and acknowledgments are made by me with the intent
that they be relied upon in determining my suitability as a
Purchaser of the Stock. In addition, I agree to notify the
Company immediately of any change in any representation,
warranty, or other information. If more than one person is
signing this
Agreement, each representation, warranty and undertaking herein
shall be a joint and several representation, warranty and
undertaking of each such person. If the Purchaser is a
partnership, corporation, trust or other entity, the Purchaser
further represents and warrants that (i) there has been enclosed
with this Agreement, appropriate evidence of the authority of the
individual executing this Agreement to act on behalf of the
Purchaser, and (ii) the entity was not specifically formed to
acquire the Stock. If the Purchaser is a partnership, the
Purchaser further represents that the funds utilized to make this
investment were not derived from additional capital contributions
by the partners of such partnership.
4. FURTHER REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
TO THE COMPANY.
(a) The offer leading to the within sale and the sale
evidenced hereby were made in an "offshore transaction" for
purposes of Regulation S. An "offshore transaction" as defined
under Regulation S is any offer or sale of securities if: the
offer is not made to a person in the United States; and either
(A) at the time the buy order is originated, the Purchaser is
outside the United States, or the Company and any person acting
on its behalf reasonably believe that the Purchaser is outside
the United States; or (B) the transaction is executed in, on or
through the facilities of a "designated offshore securities
market", and neither the Company nor any person acting on its
behalf knows that the transaction has been pre-arranged with the
Purchaser in the United States. A "designated offshore
securities market" is defined under Regulation S to be the
Eurobond market as regulated by the Association of International
Bond Dealers; the Amsterdam Stock Exchange; the Australian Stock
Exchange Limited; the Bourse de Bruxelles, the Frankfurt Stock
Exchange; The Stock Exchange of Hong Kong Limited; The
International Stock Exchange of the United Kingdom and the
Republic of Ireland, Ltd; the Johannesburg Stock Exchange; the
Bourse de Luxembourg; the Xxxxx Xxxxxx di Milan; the Montreal
Stock Exchange; the Bourse de Paris; the Stockholm Stock
Exchange; the Tokyo Stock Exchange; the Toronto Stock Exchange;
the Vancouver Stock Exchange; and the Zurich Stock Exchange. In
regards to this representation and warranty, and notwithstanding
the above, offers and sales of securities of persons excluded
from the definition of "U.S. person" are offshore transactions.
A "U.S. person" for purposes of Regulation S is: (i) any natural
person resident in the United States; (ii) any partnership or
corporation organized or incorporated under the laws of the
United States; (iii) any estate of which any executor or
administrator is a U.S. person; (iv) any trust of which any
trustee is a U.S. person; (v) any agency or branch of a foreign
entity located in the United States; (vi) any non-discretionary
or similar account (other than an estate or trust) held by a
dealer or other fiduciary organized, incorporated, or (if an
individual) resident in the United States; (vii) any
discretionary or similar account (other than an estate or trust)
held by a dealer or other fiduciary organized, incorporated or
(if an individual) resident in the United States; and (viii) any
partnership or corporation if: (A) organized and incorporated
under the laws of any foreign jurisdiction; and (B) formed by a
U.S. person principally for the purpose of investing in
securities not registered under the Securities Act, unless it is
organized or incorporated, and owned, by accredited investors who
are not natural persons, estates or trusts.
(b) Neither the Company nor the Purchaser, nor any
affiliate or either, nor any person acting on their behalf, has
made any "directed selling efforts" in the United States, as
defined in Regulation S to be: any activity undertaken for the
purpose of, or that could reasonably be expected to have the
effect of, conditioning the market in the United States for any
of the securities being purchased hereby.
(c) The Purchaser understands that the Company is the
issuer of the securities which are the subject of this agreement,
and then, for purposes of Regulation S, a "distributor" is any
underwriter, dealer or other person who participates, pursuant to
a contractual arrangement, in the distribution of securities
offered or sold in reliance on Regulation S and that an
"affiliate" is any partner, officer, director or any person
directly or indirectly controlling, controlled by, or under
common control with the person in question. In this regard, the
Purchaser shall not, during the 40-day period set forth under
Rule 903(c)(2), act as a distributor, either directly or through
any affiliate, nor shall he sell, transfer, hypotheses or
otherwise convey the Stock or interest therein, other than to a
non-U.S. person.
(d) No one, including the Purchaser, is receiving any fee
or other remuneration from the Company or otherwise in respect of
the transaction evidenced hereby.
5. REPRESENTATION AND WARRANTY OF THE COMPANY TO THE
PURCHASER. The Company hereby represents and warrants to the
Purchaser that it is a "reporting issuer" for purposes of
Regulation S.
6. INDEMNITY BY PURCHASER. The Purchaser understands and
acknowledges that the Company is relying upon the
representations, warranties and agreements made by the Purchaser
to and with the Company herein, and thus, hereby agrees to
indemnify the Company, its officers and directors, agents,
attorneys and employees, and agrees to hold each of them harmless
from and against any and all loss, damage, liability, or expense,
including reasonable attorneys' fees, that it or any of them may
suffer, sustain or incur by reason of or in connection with any
misrepresentation or breach of warranty or agreement made by the
Purchaser under this Agreement, or in connection with the sale or
distribution by the Purchaser of the Stock in violation of the
Securities Act or any other applicable law.
7. MISCELLANEOUS PROVISIONS.
(a) Further Awareness. At any time and from time to time
after the date of this Agreement, each party shall execute such
additional agreements and take such other and further action as
may be reasonably requested by any other party to confirm or
perfect title to any property transferred hereunder or otherwise
to carry out the purpose and intent of this Agreement.
(b) Waiver. Any failure on the part of any party hereunder
to comply with any of their obligations, agreements or conditions
hereunder may be waived in writing by the party to whom such
compliance is owed; however, waiver on one occasion does not
operate to effectuate a waiver on any other occasion.
(c) Brokers. Each party represents to every other party
that no broker or finder has acted for it in connection with this
agreement. Each party agrees to indemnity, save, defend and hold
the other party harmless from and against any fee, loss or
expense arising out of claims by brokers or finders employed or
alleged to have been employed by it. Further, the employing
party of any such broker or finder shall obtain the release of
any and all claims which they may have or which may accrue
against the non-employing prices.
(d) Entire Agreement. This Agreement constitutes the
entire agreement between the parties and supersedes and cancels
any other agreement, representation or communication, whether
oral or written, between the parties hereto relating to the
transactions evidenced hereby or the subject matter hereof:
(e) Headings. The article and paragraph headings in this
Agreement are inserted for convenience only and shall not affect
in any way the meaning or interpretation of this Agreement.
(f) Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State
of Utah.
(g) Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall
be deemed to be an original, but all of which together shall
constitute one and the same instrument.
(h) No Oral Modifications. This Agreement may be amended
only and solely in writing, and only after the mutual agreement
of the parties affected thereby.
(i) Survival of Representations, Warranties and Covenants.
The representations, warranties, covenants and agreements
contained herein shall serve the date and execution of this
Agreement.
(j) Irrevocable Nature of Agreement. This Agreement is
irrevocable for a period of ninety (90) days following the date
set forth below.
FAI Overseas Investments Pty. Ltd. [FAI Overseas Investments Pty. Ltd.
corporate
Name of Subscriber (please print) seal affixed here]
/s/ corporate stamp 28/02/97
Signature of Subscriber Date
Xxxxx 00, 000 XxxXxxxxx Xx.
Xxxxxx Address
P. O. Box or Suite Number
Sydney N.S.W. 2000
City State Zip
Social Security or Tax Identification Number
