Exhibit 4.5
AMERICAN INTERNATIONAL PETROELUM CORPORATION
REGULATION S SUBSCRIPTION AGREEMENT
THE SECURITIES BEING OFFERED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
AND MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES OR TO
U.S. PERSONS UNLESS THE SECURITIES ARE REGISTERED UNDER THE
ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE ACT IS AVAILABLE.
REGULATION S SUBSCRIPTION AGREEMENT
THIS AGREEMENT has been executed by the undersigned, In Trust for
___________________________, whose address ______________________________, (the
"Subscriber"), in connection with the purchase of up to 300,000 shares (the
"Shares") of common stock, $.08 par value (the "Common Stock") of AMERICAN
INTERNATIONAL PETROLEUM CORPORATION (the "Company") located at 000 Xxxxxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, a corporation organized under the
laws of Nevada, United States of America.
WHEREAS, the Company proposes to issue 300,000 Shares pursuant to
Regulation S, ("Regulation S") promulgated under the Securities Act of the 1933,
as amended (the "Act") as consideration for a $150,000 partial prospect fee (the
"Fee") effective on the acceptance of this subscription by the Company, and
WHEREAS, the Shares will be offered and issued pursuant to an exemption
from registration provided by Regulation S, and
WHEREAS, upon original issuance thereof, and until such time as the
same is no longer required under the applicable requirements of the Act, the
Share Certificates shall bear the following legend:
THE SECURITY EVIDENCED HEREBY WAS ORIGINALLY ISSUED
PURSUANT TO REGULATION S ("REGULATION S") UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER
SECTION 5 OF THE SECURITIES ACT, AND THE SECURITY EVIDENCED
HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED IN
REGULATION S) IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM AND IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
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NOW THEREFORE, the Subscriber agrees with the Company as follows:
1. Subscription. Subject to its terms and conditions and further
subject to acceptance of this Agreement by the Company, the Subscriber agrees to
purchase from the Company 300,000 Shares for an aggregate purchase price of U.S.
$150,000, in an offering of up to 300,000 Shares ending at the close of business
on January 27, 1997 (the "Payment Date").
2. Delivery and Payment. Delivery of and payment for the Shares
shall be made at such time and place as the Company and the Subscriber shall
agree.
Shares shall be registered in the Subscriber's name and issued not
later than three full business days after the acceptance of this Agreement by
the Company. Shares shall be registered in the Subscriber's name and not in
nominee or other names.
3. Representations and Warranties of the Subscriber. The Subscriber
hereby represents and warrants to the Company as follows:
(a) The Subscriber acknowledges that he has received a
copy of the Company's Annual Report on Form 10-K for
the year ended December 31, 1995, the Company's Form
10-Q for the quarterly period ended September 30,
1996, all Form 8-Ks filed subsequent to September 30,
1996, and a Proxy Statement of the Company dated June
12, 1996 and is acquainted with the business and
financial conditio n of the Company. The Subscriber
further acknowledges that he has had an opportunity
to ask questions of and receive answers from the
Company's executive officers concerning the Company
and the terms and conditions of this investment and
all such questions have been answered to the full
satisfaction of the Subscriber. The Subscriber
hereby further represents and warrants that it is
aware that there are substantial risks incident to an
investment in the Company and that no Federal or
State agency has passed upon the Shares or made any
finding or determination as to the fairness of an
investment in the Company.
(b) The Subscriber has the full right, power and
authority to enter into this Agreement and to carry
out and consummate the transactions contemplated
herein. This Agreement constitutes the legal, valid
and binding obligation of the Subscriber enforceable
in accordance with its terms.
(c) The Subscriber is acquiring Shares for its own
account and risk and not as part of any plan or
scheme to evade the registration requirements of the
Act, and no other person has or will have at the
Payment Date any interest in or participation in the
Subscriber's Shares or any right, option, security
interest, pledge or other interest in or to such
Shares. The Subscriber understands and agrees that
it must bear the economic risk of its investment in
the Shares for an indefinite period of time. The
Shares have not been registered under the Act. The
Shares may not be offered or sold, directly or
indirectly, in the United States or to any natural
person who is a resident of the United States or to
any U.S. person, as defined in Regulation S, or for
the account or benefit of any U.S. person unless
registered or exempt from registration under the Act
and any applicable state securities or blue sky laws
(the "State Acts"). The Subscriber also understands
that the Company is under no obligation to register
any Shares on behalf of the Subscriber or to assist
it in complying with any exemption from
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registration.
(d) The Subscriber is not a U.S. person, and is not
acquiring the Shares, directly or indirectly, for the
account or benefit of any U.S. person in violation of
Regulation S pursuant to which regulation the Shares
are being sold.
(e) The Subscriber agrees to dispose of or encumber its
Shares only if (i) such Shares are duly registered
under the Act and all applicable State Acts, or (ii)
an exemption from registration under the Act,
including any exemption from the registration
requirements of the Act pursuant to Regulation S, and
all applicable State Acts, is available.
(f) This Agreement has not been executed or delivered by
the Subscriber in the United States, and neither the
Subscriber nor any person acting on behalf of the
Subscriber engaged directly or indirectly in any
negotiations with respect to this Agreement in the
United States or was located in the United States at
the time of the buy order or offer to purchase the
securities.
(g) Neither the Subscriber, nor any officer, director or
5% or more shareholder thereof, has been:
(i) Convicted within the preceding ten years of
any felony or misdemeanor in connection with
the offer, purchase or sale of any security
or commodity involving the making of a false
filing with the Commission.
(ii) Subject to any order, judgment or decree of
any court of competent jurisdiction
temporarily or preliminary enjoining or
restraining, or subject to any order,
judgment or decree of any court of competent
jurisdiction, entered within the preceding
five years, permanently enjoining or
restraining the investor from engaging in or
continuing any conduct or practice in
connection with the purchase or sale of any
security or commodity or involving the
making or a false filing with the Commission
or any state, or arising out of the conduct
of the business of any underwriter, broker,
dealer, municipal securities dealer or
investment advisor.
(iii) Subject to an order of the Commission entered
pursuant to Section 15(b), 15B(a) or 15B(c)
of the Securities Exchange Act of l934, as
amended (the "Exchange Act"); or subject to
an order or the Commission entered pursuant
to Section 203(e) or (f) of the Investment
Advisers Act of l940.
(iv) Suspended or expelled from membership in, or
suspended or barred from association with a
member of, an exchange registered as a
national securities exchange pursuant to
Section 6 of the Exchange Act, an association
registered as a national securities
association under Section 15A of the Exchange
Act or a Canadian securities exchange or
association for any act or omission to act
constituting conduct inconsistent with just
and equitable principles of trade.
(v) Filed a registration statement which is the
subject of a registration stop order entered
pursuant to the Act or
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any State Act within the preceding five
years.
(vi) Subject to any state's administrative
enforcement order or judgment which
prohibits, denies or revokes the use of any
exemption from registration in connection
with the offer, purchase or sale of
securities.
(h) The offer leading to the sale evidenced hereby was
made in an "offshore transaction", for purposes of
Regulation S. Subscriber is familiar with the
provision of Regulation S.
(i) Neither the Subscriber nor any affiliate of the
Subscriber or any person acting on their behalf, has
made or is aware of any "directed selling efforts" in
the United States, which is 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.
(j) The Subscriber understands that the Company is the
issuer of the securities which are the subject of
this Agreement. The Subscriber shall not, during the
40-day restricted period set forth under Rule
903(c)(2) of Regulation S, act as a distributor,
either directly or through any affiliate, nor shall
he sell, transfer, hypothecate or otherwise convey
the securities offered hereby or any interest
therein, other than to a non U.S. person, or in any
other manner offer or sell securities of the Company
in violation of Regulation S or the Act. Such 40-day
restricted period shall not begin until the closing
of the Offering at the end of business on the Payment
Date and, otherwise, as provided in Regulation S.
(k) If the Subscriber is a corporation or trust or other
entity, the officer or trustee or other person
executing this Agreement represents and warrants that
he is authorized to so sign and that the entity is
authorized by the governing documents of the entity,
to make this investment;
(l) The Subscriber understands that the offer and sale of
the Shares is being made only by means of this
Agreement. In deciding to subscribe for the Shares,
the Subscriber has not considered any information
other than that contained in this Agreement and all
documents provided to the Subscriber by the Company.
The Subscriber acknowledges that each of such
documents contain on the cover thereof a legend as to
the absence of registration of the Shares under the
Act and the restrictions arising under the Act. The
Subscriber acknowledges and agrees that the purchase
of the Shares involves a high degree of risk and that
the Subscriber may sustain, and has the financial
ability to sustain, the loss of its entire
investment.
4. Representations and Warranties of the Company. The Company
represents and warrants to the Subscriber, that:
(a) This Agreement has been duly authorized by the Company.
(b) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Nevada. The Company has the corporate power and authority necessary to enter
into and perform its obligations under this Agreement, and to issue, sell and
deliver the Shares.
(c) There is no statute, rule, regulation or order that has
been enacted, adopted or issued by any governmental agency or that has been
proposed by any governmental body which might prevent the issuance of the
Shares. No
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injunction, restraining order or order of any nature by a federal or state court
of competent jurisdiction has been issued that would prevent the issuance of the
Shares.
(d) No form of general solicitation or general advertising was
used by the Company or any of its representatives in connection with the offer
and sale of the Shares, including, but not limited to, articles, notices or
other communications published in any newspaper, magazine, or similar medium or
broadcast over television or radio, and no seminar or meeting whose attendees
have been invited by any general advertising was used by the Company or any of
its representatives in connection with the offer and sale of the Shares.
(e) Reporting Company Status. The Company is a "Reporting
Company" as ]defined by Rule 902 of Regulation S. The Company is in full
compliance, to the extent applicable, with applicable reporting obligations
under either Section 12(b), 12(g) or 15(d) of the Securities and Exchange Act of
1934, as amended.
5. Reliance on Representations. The Subscriber understands that the
Company is relying on the Subscriber's representations concering the
Subscriber's compliance with the rules governing offers and sales made outside
the United States pursuant to Regulation S.
6. Conditions of the Subscriber's Obligations. The Subscriber's
obligation to purchase the Shares subject to the satisfaction of each and every
one of the following conditions as of the Payment Date:
(a) No order asserting that the transactions contemplated by
this Agreement are subject to the registration requirements of the Act shall
have been issued, and no proceedings for that purpose shall have been commenced
or shall be pending or, to the knowledge of the Company, be contemplated. No
stop order suspending the sale of the Shares shall have been issued, and no
proceedings for that purpose shall have been commenced or shall be pending or,
to the knowledge of the Company, be contemplated.
(b) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency that would prevent the issuance of the Shares. No
injunction, restraining order or order of any nature by a federal or state court
of competent jurisdiction shall have been issued that would prevent the issuance
of the Shares.
7. Conditions of the Company's Obligations. The Company's obligations
to sell the Shares under this Agreement on the Payment Date, is subject to the
satisfaction of each and every one of the following conditions as of the Payment
Date:
(a) All of the representations and warranties of the
Subscriber contained in this Agreement shall be true and correct on the Payment
Date with the same force and effect as if made on and as of the Payment Date.
The Subscriber shall have performed or complied with all agreements and
satisfied all conditions on its part to be performed, complied with or satisfied
at or prior to the Payment Date.
(b) No order asserting that the transactions contemplated by
this Agreement are subject to the registration requirements of the Act shall
have been issued, and no proceedings for that purpose shall have been commenced
or shall be pending or, to the knowledge of the Company, be contemplated. No
stop order suspending the sale of the Shares shall have been issued, and no
proceedings for that purpose shall have been commenced or shall be pending or,
to the knowledge of the Company, be contemplated.
(c) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency that would prevent the issuance of the Shares. No
injunction, restraining order or order of any nature by a federal or state court
of competent jurisdiction shall have been issued that would prevent the issuance
of the Shares.
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8. Subsequent Transfers of the Securities. The Subscriber further
agrees that, in connection with the resale of the Shares it will offer to sell
the Shares only after 41 days from the date of the closing of the last purchase
under the Offering, and only to, and will solicit offers to buy the Shares only
from, persons who in purchasing such Shares will have represented and agreed
that (1) they are purchasing the Shares for their own account, (2) all
requirements of Regulation S have been satisfied, (3) if sold outside the United
States, the sale shall be to a foreign person in a transaction meeting the
requirements of Rule 904 of Regulation S under the Act, and (4) the holder will,
and each subsequent holder is required to, notify any purchaser from it of the
security evidenced thereby of the resale restrictions set forth in Regulation S.
9. Notice. Notices given pursuant to any provision of this Agreement
shall be addressed as follows: (i) if to the Company, to American International
Petroleum Corporation, 000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxx X. Xxxxxxxxxxx, with a copy to Snow Xxxxxx Xxxxxx P.C., 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (ii) if to the Subscriber at the address
set forth at the signature page of this Agreement, or in any case to such other
address as the person to be notified may have requested in writing.
10. Miscellaneous. Except as otherwise provided, this Agreement has
been and is made solely for the benefit of the Company and shall be binding upon
the Subscriber and its successors and assigns, all as and to the extent provided
in this Agreement, and no other persons shall acquire or have any right under or
by virtue of this Agreement. Subscriber shall not assign this Agreement. A
facsimile transmission of this signed Agreement shall be legal and binding on
all parties hereto. This Agreement may be signed in various counterparts, which
together shall constitute one and the same instrument.
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES, AND EACH PARTY HEREBY AGREES THAT ALL PERFORMANCE DUE WITH RESPECT
TO TRANSACTIONS UNDERTAKEN PURSUANT TO THIS AGREEMENT SHALL BE DEEMED TO BE DUE
OR TO HAVE OCCURRED IN NEW YORK. THE EXCLUSIVE VENUE AND PLACE OF JURISDICATION
FOR ANY LITIGATION ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR THE NEW YORK
STATE SUPREME COURT LOCATED IN THE COUNTY OF NEW YORK. THE PARTIES HERETO WAIVE
TRIAL BY JURY OF ANY DISPUTES BETWEEN THEM.
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IN WITNESS WHEREOF, the parties have executed this Agreement, the 27th
day of January , 1997.
Number of Shares
subscribed for: 300,000
_____________________________
Name of Subscriber
By: ______________________
Name:
Title:
Address:
Country in which this Agreement is executed by Subscriber:
Telephone Number:
Telecopier Number:
Social Security No. or Tax I.D. No. (if applicable): N/A
AMERICAN INTERNATIONAL
PETROLEUM CORPORATION
By: _____________________________
Xxxxx X. Xxxxxxxxxxx
Vice President
ACCEPTED this 27th day of January , 1997
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