EXHIBIT 10.2
FORM OF SUBSCRIPTION DATED AS OF APRIL 28, 2005 BETWEEN
WESCORP ENERGY INC. AND THE PURCHASER NAMED THEREIN
SUBSCRIPTION AGREEMENT
(FOR PURCHASERS RESIDENT IN ALBERTA)
TO: WESCORP ENERGY INC.
AND TO: XXXXX & COMPANY, BARRISTERS AND SOLICITORS
2600, 00000 - 000 Xxxxxx
Xxxxxxxx, XX X0X 0X0
ATTENTION: XXXXXXX X. XXXXXXXXX
PURCHASE OF UNITS OF WESCORP ENERGY INC.
Subject to the terms and conditions contained in this subscription agreement,
including the terms and conditions set forth in Schedule "A" hereto, we, the
undersigned, hereby irrevocably subscribe for and agree to purchase that number
of units (the "UNITS") of Wescorp Energy Inc. (the "CORPORATION") in the amount
set forth below at a price of US$0.87 per Unit (the "OFFERING PRICE").
---------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------
(NAME OF SUBSCRIBER - PLEASE PRINT) -----------------------------------------------------
NUMBER OF UNITS PURCHASED
BY:
-------------------------------------------------------
(AUTHORIZED SIGNATURE)
----------------------------------------------------
AGGREGATE SUBSCRIPTION PRICE
----------------------------------------------------------
(OFFICIAL CAPACITY OR TITLE - PLEASE PRINT)
---------------------------------------------------------- -----------------------------------------------------
(PLEASE PINT NAME OF INDIVIDUAL WHOSE SIGNATURE APPEARS NUMBER OF SECURITIES OF THE CORPORATION HELD PRIOR TO
ABOVE IF DIFFERENT THAN THE NAME OF THE SUBSCRIBER PRINTED PURCHASE OF THE UNITS
ABOVE.)
REGISTER PURCHASED SECURITIES AS SET FORTH BELOW: DELIVER THE PURCHASE SECURITIES AS SET FORTH BELOW:
---------------------------------------------------------- -----------------------------------------------------
(NAME) (NAME)
----------------------------------------------------------
(ACCOUNT REFERENCE, IF APPLICABLE) -----------------------------------------------------
(ACCOUNT REFERENCE, IF APPLICABLE)
----------------------------------------------------------
(SUBSCRIBER'S ADDRESS)
-----------------------------------------------------
---------------------------------------------------------- (CONTACT NAME)
----------------------------------------------------------
(TELEPHONE NUMBER) -----------------------------------------------------
(ADDRESS)
----------------------------------------------------------
(FAX NUMBER)
-----------------------------------------------------
---------------------------------------------------------- (TELEPHONE NUMBER)
(EMAIL ADDRESS)
---------------------------------------------------------------------------------------------------------------------
ALL DOLLAR AMOUNTS REFERRED TO IN THIS AGREEMENT ARE IN US DOLLARS.
THESE SECURITIES ARE RESTRICTED SECURITIES AS THAT TERM IS DEFINED IN RULE 000
XXXXX XXX XXXXXX XXXXXX SECURITIES ACT OF 1933 OF 1933 (THE "U.S. SECURITIES
ACT"). AS RESTRICTED SECURITIES, THEY MAY BE RESOLD ONLY IN ACCORDANCE WITH RULE
144 OR REGULATION S UNDER THE U.S. SECURITIES ACT OR PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE U.S. SECURITIES ACT OR AN EXEMPTION FROM THE
U.S. SECURITIES ACT. HEDGING TRANSACTIONS INVOLVING THESE SECURITIES MAY NOT BE
CONDUCTED UNLESS IN COMPLIANCE WITH THE U.S. SECURITIES ACT.
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND
EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE. THIS SUBSCRIPTION
AGREEMENT DOES NOT CONSTITUTE AN OFFER TO SELL NOR A SOLICITATION OF AN OFFER TO
BUY THE SECURITIES IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION WOULD
BE UNLAWFUL. THE SECURITIES MAY NOT BE RESOLD OR TRANSFERRED EXCEPT AS PERMITTED
PURSUANT TO REGISTRATION UNDER THE U.S. SECURITIES ACT OR AN EXEMPTION FROM IT.
THESE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES
COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE
NOT REVIEWED, CONFIRMED OR DETERMINED THE ACCURACY OR ADEQUACY OF THIS DOCUMENT.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
ACCEPTANCE: The Corporation hereby accepts the above subscription this 28th day
of April, 2005.
WESCORP ENERGY INC.
Per:
-----------------------------------------
SCHEDULE "A"
TERMS AND CONDITIONS OF SUBSCRIPTION FOR
UNITS OF WESCORP ENERGY INC.
1. DESCRIPTION OF UNITS
Each Unit purchased hereunder is comprised of One (1) common share of
the Corporation (the "Common Share(s)") and One (1) Common Share
purchase warrant (the "Warrant(s)") each of which may be exercised at
any time up to December 31, 2006 as follows:
(a) if exercised on or before December 31, 2005 the holder of each
Warrant shall be entitled to purchase one (1) Common Share for
each Warrant held for $US1.00 per Common Share; and
(b) thereafter until December 31, 2006 the holder of each Warrant
shall be entitled to purchase one (1) Common Share for each
Warrant held for US$2.00 per Common Share.
The Common Shares and Warrants shall be referred to herein collectively
as the "Purchased Securities".
2. ACKNOWLEDGEMENTS RE: HOLD PERIODS AND RESALE RESTRICTIONS
We understand and acknowledge the following:
(a) the Purchased Securities comprising the Units and the Common
Shares issuable upon the exercise of the Warrants (the
"Warrant Shares") are subject to statutory hold periods and
resale restrictions both in Canada and the United States;
(b) we have been advised to consult our own legal advisers in
connection with any applicable statutory hold periods and
resale restrictions both in Canada and in the United States,
relating to the Purchased Securities and Warrant Shares and no
representation has been made by the Corporation or its
representatives respecting the applicable statutory hold
period or resale restrictions;
(c) we are solely responsible (and the Corporation is not in any
way responsible) for compliance with applicable hold periods
and resale restrictions, including without limitation the
filing of any documentation and, if applicable, the payment of
any fees with any applicable securities regulatory authority,
and that we, and (if applicable) others on whose behalf we are
contracting hereunder, are aware that we, and (if applicable)
such others, may not be able to resell the Purchased
Securities or Warrant Shares except in accordance with limited
exceptions under applicable securities legislation and
regulatory policy and we and, if applicable, others on whose
behalf we are contracting hereunder, will not sell, resell or
otherwise transfer the Purchased Securities and Warrant Shares
except in compliance with applicable laws; and
(d) we, on our own behalf and (if applicable) on behalf of others
for whom we are contracting hereunder, specifically agree that
we will not offer, sell, pledge or otherwise transfer the
Purchased Securities or the Warrant Shares except: (i) to the
Corporation; (ii) outside the United States in compliance with
Rules 903 or 904 of Regulation S under the "U.S. Securities
Act" and in compliance with applicable state, local and
provincial laws and regulations; or (iii) inside the United
States in a transaction, (A) made in compliance with an
exemption from registration under the U.S. Securities Act
provided by Rule 144 or Rule 144A thereunder, if available,
and any applicable state securities laws of the United States
or (B) in a transaction exempt from registration requirements
under the U.S. Securities Act and any applicable state
securities laws of
A-1
the United States; we understand that the Purchased Securities
and the Warrant Shares will bear a legend to the foregoing
effect and that prior to any transfer pursuant to the
foregoing clauses (ii) and (iii), the Corporation may require
that the seller furnish the Corporation and the Corporation's
transfer agent with an opinion of counsel of recognized
standing, in substance and form satisfactory to the
Corporation, that such transfer is exempt from registration
under the U.S. Securities Act and any applicable state
securities laws; we understand and acknowledge that the
certificates for the Purchased Securities or the Warrant
Shares any certificates issued in replacement thereof or
exchange therefore, shall have endorsed thereon a legend
reflecting such restrictions on transfer; we understand and
acknowledge that the Corporation is not obligated to file and
has no present intention of filing with the United States
Securities and Exchange Commission or with any state
securities administrator or commission any registration
statement in respect of resales of the Purchased Securities or
the Warrant Shares in the United States; and further, we
covenant that all offering materials and documents used in
connection with offers and sales of the Purchased Securities
and Warrant Shares before the expiration of the Restricted
Period (defined below in paragraph 9(c) must state that: (i)
the securities have now been registered under the U.S.
Securities Act and may not be offered or sold in the United
States or to a U.S. person unless such securities are
registered under the U.S. Securities Act or an exemption from
the registration requirements of the U.S. Securities Act is
available, and that (ii) hedging transactions involving the
securities may not be conducted unless they comply with the
U.S. Securities Act.
3. DELIVERY AND PAYMENT
We agree that we shall accept the Units subscribed for hereunder in
repayment of the debt in the amount of US$1,924,681.18 currently owed
to us by the Corporation, and we specifically acknowledge and agree
that upon the issuance of the Units as provided for hereunder, the full
amount of the foregoing debt will be fully satisfied.
We agree that the following must be delivered to the Corporation c/o
Bryan & Company, Barristers and Solicitors, 0000 Xxxxxxxx Xxxxx, 00000
- 000 Xxxxxx, Xxxxxxxx, Xxxxxxx X0X 0X0, Attention: Xxxxxxx X.
Xxxxxxxxx, or by fax at (000) 000-0000, not later than 10:00 a.m.
(Edmonton time) on or before the Closing Date:
(a) one completed and duly signed copy of this subscription
agreement together with, as applicable, the relevant exemption
certification completed in the forms attached hereto as
Schedule "B";
(b) such other documents as may be required pursuant to terms of
this subscription agreement; and
(c) all other documentation as may be required by applicable
securities legislation.
4. CLOSING
Delivery of and payment for the Units (the "Closing") will be completed
at the offices of Xxxxx & Company, 0000 Xxxxxxxx Xxxxx, 00000 - 000
Xxxxxx, Xxxxxxxx, Xxxxxxx X0X 0X0, at 10:00 a.m. (Edmonton time) (the
"Time of Closing") on February 15, 2005 or such earlier or later date
or time as may be determined by the Corporation (the "Closing Date").
This subscription is subject to acceptance by the Corporation, as
described below. Unless other arrangements have been made with the
Corporation, certificates endorsed by the Corporation representing that
the Purchased Securities will be available for delivery to us in
Edmonton, Alberta, at the Time of Closing against payment of the
Aggregate Purchase Price for the Units. If we choose not to attend the
Closing to receive the certificates, then the Corporation will deliver
such certificates to us at the address set out for delivery on page 2
of this subscription agreement promptly after the Closing.
A-2
5. ACCEPTANCE OF SUBSCRIPTION
This subscription may be accepted in whole or in part and the right is
reserved to the Corporation to allot to any subscriber less than the
amount of the Units subscribed for. Confirmation of acceptance or
rejection of this subscription will be forwarded to us promptly after
the acceptance or rejection of this subscription by the Corporation. If
this subscription is rejected in whole, we understand that any
certified cheques or bank drafts delivered by us to the Corporation
representing the purchase price for the Units will be promptly returned
to us without interest. If this subscription is accepted only in part,
we understand that a cheque representing the portion of the purchase
price for that portion of our subscription for the Units which is not
accepted will be promptly delivered to us, without interest.
6. ACKNOWLEDGEMENTS RE: PROSPECTUS EXEMPTIONS, ETC.
We acknowledge and agree that the sale of the Units to us, or (if
applicable) to such others, is conditional upon, among other things:
(a) such sale being exempt from the prospectus filing requirements
and the requirements for the delivery of an offering
memorandum (as defined in any applicable Canadian securities
legislation) of all applicable securities legislation relating
to such sale or upon the issuance of such rulings, orders,
consents or approvals as may be required to permit such sale
without the requirement of filing a prospectus or delivering
an offering memorandum; and
(b) the Corporation obtaining any necessary regulatory approvals.
We also acknowledge and agree, that:
(a) we have not received, requested or been provided with, nor
have any need to receive, a prospectus, offering memorandum
(as defined in any applicable Canadian securities legislation)
or similar disclosure document relating to the offering of the
Units and/or the business and affairs of the Corporation and
that the decision to enter into this subscription agreement
and purchase of the Units has not been based upon any verbal
or written representation as to fact or otherwise made by or
on behalf of the Corporation or any officer, director,
employee or agent of the Corporation and that such decision is
based entirely upon information set out in this subscription
agreement and currently available public information
concerning the Corporation;
(b) there has not been any advertisement of the offering of the
Units in printed public media, radio, television or
telecommunications, including electronic display such as the
Internet or any seminar or meeting whose attendees have been
invited by general solicitation or general advertising;
(c) no agency, governmental authority, regulatory body, stock
exchange or other entity has made any finding or determination
as to the merit for investment of, nor have any such agencies
or governmental authorities made any recommendation or
endorsement with respect to the Purchased Securities or the
Warrant Shares;
(d) no prospectus has been filed by the Corporation with a
securities commission or other securities regulatory authority
in any province of Canada or any other jurisdiction in
connection with the issuance of the Purchased Securities or
the Warrant Shares and such issuances are exempt from the
prospectus requirements otherwise applicable under the
provisions of Canadian securities laws and, as a result, in
connection with our purchase of the Purchased Securities or
the Warrant Shares hereunder:
(i) we are restricted from using most of the civil remedies
available under Canadian securities laws;
A-3
(ii) we will not receive information that would otherwise be
required to be provided to us under applicable
securities laws or contained in a prospectus prepared
in accordance with applicable securities laws; and
(iii) the Corporation is relieved from certain obligations
that would otherwise apply under such applicable
securities laws;
(e) the Units are being offered for sale only on a "private
placement" basis; and
(f) Xxxxx & Company is acting as counsel to the Corporation
pursuant to the offering and is not acting as counsel to the
purchasers of the Units.
We acknowledge that the Corporation may be required to provide
applicable securities regulatory authorities with a list setting forth
the identities of the beneficial purchasers of the Units and we consent
to the disclosure of any such information relating to our subscription
hereunder as required for the Corporation to properly comply with all
regulatory and legislative requirements.
We understand and acknowledge that: (i) none of the Purchased
Securities or the Warrant Shares have been or will be registered under
the United States SECURITIES ACT OF 1933, as amended (the "U.S.
Securities Act") nor any applicable state securities laws and may not
be offered or sold or re-offered or resold, directly or indirectly, in
the United States or to any U.S. person (as defined in Regulation S
under the U.S. Securities Act, a "U.S. Person"), unless such securities
have been registered under the U.S. Securities Act and any applicable
state securities laws, or are otherwise exempt from such registration;
and (ii) certificates representing the Common Shares issuable upon the
conversion of the Purchased Securities and the Warrant Shares and shall
bear a legend to such effect.
7. CONDITIONS ON CLOSING
We acknowledge and agree that, as the offering of the Units will not be
qualified by a prospectus, the offering is subject to the condition
that we execute and return to the Corporation, as applicable, all
relevant documentation required by this subscription agreement,
applicable securities legislation, regulations, rules and policies and
applicable stock exchange rules.
We agree to: (i) provide the Corporation with such information and
documents, including certificates, statutory declarations and
undertakings, as the Corporation may reasonably require from time to
time to comply with any filing or other requirements under applicable
securities legislation, regulations, rules and policies and applicable
stock exchange rules; and (ii) comply with the provisions of any
applicable securities legislation, regulations, rules and policies and
applicable stock exchange rules concerning any resale of the Purchased
Securities or the Warrant Shares.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS
We represent, warrant and covenant to and with the Corporation (and
acknowledge that the Corporation is relying thereon) as follows:
(a) JURISDICTION OF RESIDENCE - we, and any person on whose behalf
we are contracting, are resident or otherwise subject to the
applicable securities legislation in the jurisdiction set out
under "Subscriber's Address" on page 1 of this subscription
agreement, and the purchase by and sale to us (and any person
on whose behalf we are contracting), of the Units has occurred
only in such jurisdiction. The address set out under
"Subscriber's Address" on page 1 was not created and is not
used solely for the purpose of acquiring the Units and we, and
any person on whose behalf we are contracting, were solicited
to purchase in such jurisdiction and are acquiring the Units
for our own account, or for the account of a person over which
we exercise sole investment discretion, and as to which the we
have the authority to make the statements set forth in this
subscription
A-4
agreement. We, and any person on whose behalf we are
contracting, have not been formed solely for the purpose of
entering into the transactions contemplated by this
subscription agreement;
(b) PROSPECTUS EXEMPT PURCHASER (Canadian Purchasers) - we make
the representations, warranties and covenants set out below
and in Schedules "B" to this subscription agreement, as
applicable, with the Corporation and we may avail ourselves of
one or more of the categories of prospectus exemptions
contemplated therein (PLEASE CHECK ONE OF THE BOXES BELOW AND
COMPLETE THE APPROPRIATE CERTIFICATE IN SCHEDULES "B" ATTACHED
HERETO, AS IS APPROPRIATE):
[ ] ACCREDITED INVESTOR AND FAMILY, FRIENDS AND BUSINESS
ASSOCIATES EXEMPTIONS (ALBERTA) We are resident in Alberta
and are purchasing as principal, or either:
(i) An "accredited investor" within the meaning set
out in Multilateral Instrument 45-103, by virtue
of falling within one of the categories of
"accredited investor" set forth in Appendix 1 to
Schedule "B" attached hereto (PLEASE COMPLETE THE
CERTIFICATE SET OUT IN SCHEDULE "B" ATTACHED
HERETO); or
[ ] (ii) An individual which falls within the family,
friend or business associate definition as set out
in Multilateral Instrument 45-103, by virtue of
falling within one of the categories as set forth
in Appendix 2 to Schedule "B" attached hereto
(PLEASE COMPLETE THE CERTIFICATE SET OUT IN
SCHEDULE "B" ATTACHED HERETO); or
(c) OFFSHORE TRANSACTION - we represent and warrant to the
Corporation that (i) we are not a "U.S. person" as that term
is defined in Rule 902(c) of Regulation S; (ii) at the time of
execution of this agreement, we were outside the United States
and no offer of the Units was made to us within the United
States; (iii) we purchased the Units for our own account and
not on behalf of any U.S. person, and the sale of the Units
has not been prearranged with any buyer in the United States;
and (iv) we are not a distributor as defined in Regulation S.
We will not, before the expiration of one year from the
Closing (the "Restricted Period"), offer or sell the Units to
U.S. persons or for the account or benefit of U.S. persons and
will offer and sell the Purchased Securities or the Warrant
Shares only in compliance with the provisions of Regulation S
or a valid and effective registration statement covering the
Units of the Common Shares.
(d) LEGEND - upon the original issuance thereof, and until such
time as the same is no longer required under applicable
requirements of the U.S. Securities Act, applicable state
securities laws, or Canadian securities laws the certificates
representing the Purchased Securities or the Warrant Shares
and all certificates issued in exchange therefor or in
substitution thereof, shall bear a legend in substantially the
form set forth below:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "U.S. SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND
MAY BE OFFERED, SOLD, PLEDGED, TRANSFERRED OR OTHERWISE
DISPOSED OF ONLY (A) TO THE CORPORATION; (B) PURSUANT TO A
REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT; (C)
IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE
904 OF REGULATION S UNDER THE U.S. SECURITIES ACT AND IN
COMPLIANCE WITH ANY APPLICABLE SECURITIES LAWS; (D) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144 OR (E) PURSUANT TO ANY OTHER AVAILABLE
A-5
EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE U.S.
SECURITIES ACT."
"UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF
THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE THE DATE THAT
IS FOUR (4) MONTHS AND ONE (1) DAY AFTER THE LATTER OF [(I)THE
DISTRIBUTION DATE]; AND (II) THE DATE THE ISSUER BECAME A
REPORTING ISSUER IN THE PROVINCE OR TERRITORY."
provided, that if the Purchased Securities or the Warrant
Shares are being sold outside the United States in compliance
with the requirements of Rule 904 of Regulation S under the
U.S. Securities Act, the seller shall provide the Corporation
with a declaration in the form attached hereto as Schedule
"C";
(e) INVESTMENT INTENT - we are acquiring the Units for our own
account (or a trust account if the subscriber is a trustee)
and not as a nominee. We understand that the purchase of the
Units involves a high degree of risk and that we must bear the
economic risk of this investment indefinitely unless sale of
the Units is registered pursuant to the U.S. Securities Act,
or an exemption from registration for their sale is available.
We understand that, in the view of the United States
Securities and Exchange Commission, the statutory basis for
the exemption claimed for this transaction would not be
present if the offering of the Units, although in technical
compliance with Regulation S, is part of a plan or scheme to
evade the registration provisions of the U.S. Securities Act.
We are acquiring the Units for investment purposes and have no
present intention to sell the Purchased Securities and Warrant
Shares in the United States, to a U.S. Person or for the
account or benefit of a U.S. Person. We covenant that neither
we, nor our affiliates, nor any person acting on our or their
behalf has the intention of entering or will enter during the
Restricted Period, into any put option, short position or
other similar instrument or position or any other hedging
transactions or arrangements with respect to the Company's
common stock, and neither we, nor any of our affiliates, nor
any person acting on our or their behalf will use at any time
Purchased Securities and Warrant Shares acquired pursuant to
this agreement to settle any put option, short position or
other similar instrument or position or any other hedging
transaction or arrangement that may have been entered into
before the execution of this agreement or during the
Restricted Period.
(f) GENERAL SOLICITATION IN THE U.S. - we, on our own behalf and
(if applicable) on behalf of others for whom we are
contracting hereunder, acknowledge that we have not purchased
the Units as a result of any general solicitation or general
advertising, as such terms are used in Regulation D under the
U.S. Securities Act, including without limitation,
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;
(g) NO SALE IN VIOLATION OF THE SECURITIES LAWS - we covenant that
we will not knowingly sell, transfer or otherwise dispose of
the Purchased Securities and Warrant Shares in violation of
the U.S. Securities Act, the Securities Exchange Act of 1934,
as amended (the "Exchange Act") or the rules and regulations
of the Securities and Exchange Commission. We will only offer
and sell the Purchased Securities and Warrant Shares pursuant
to an effective registration statement under the U.S.
Securities Act or an exemption from the registration
provisions of the U.S. Securities Act or outside the United
States in accordance with applicable securities laws.
(h) RESALE RESTRICTIONS - we have been independently advised as
to, and are aware of the restrictions with respect to trading
in the Purchased Securities and Warrant Shares pursuant to the
applicable securities laws and any applicable stock exchanges;
(i) DUE EXECUTION AND DELIVERY - we are responsible for obtaining
such legal advice as we consider necessary in connection with
the execution, delivery and performance by us of this
agreement and
A-6
the transactions contemplated herein and we represent and
warrant that such execution, delivery and performance shall
not contravene any applicable laws of the jurisdiction in
which we are resident;
(j) INDEPENDENT TAX ADVICE - we are solely responsible for
obtaining such advice concerning the tax consequences of our
investment in the Units and we are not relying on the
Corporation for advice concerning such tax consequences;
(k) CAPACITY - if we and, if applicable, any person on whose
behalf we are contracting (i) are an individual, we have
attained the age of majority and are legally competent to
execute this subscription agreement and to perform all actions
required pursuant hereto; or (ii) are a corporation,
partnership, unincorporated association or other entity, we,
as the case may be, have the legal capacity and competence to
enter into and be bound by this subscription agreement and we
further certify that all necessary approvals of directors,
shareholders or otherwise have been given and obtained;
(l) AUTHORITY - the entering into of this subscription agreement
and the completion of the transactions contemplated herein
will not result in the violation of any of the terms and
provisions of any law applicable to, or the constating
documents of, us or any purchaser on whose behalf we are
contracting or of any agreement, written or oral, to which we
are or such other purchaser is a party or by which we or such
other purchaser are bound;
(m) ENFORCEABILITY - this subscription agreement has been duly and
validly authorized, executed and delivered by us and, upon
acceptance by the Corporation this subscription agreement will
constitute a legal, valid and binding contract of ours,
enforceable against us, in accordance with its terms;
(n) NO REPRESENTATION RE: RESALE, REFUND, FUTURE PRICE OR LISTING
- no person has made any written or oral representation to us:
(i) that any person will resell or repurchase the Purchased
Securities or the Warrant Shares;
(ii) that any person will refund the purchase price of the
Purchased Securities or the Warrant Shares other than
as may be provided in this subscription agreement or
the Warrants; or
(iii) relating to the future price or value of the Purchased
Securities or the Warrant Shares.
(o) INVESTMENT EXPERIENCE - we have knowledge and experience with
respect to investments of this type enabling us, to evaluate
the merits and risks thereof and the capacity to obtain
competent independent business, legal and tax advice regarding
this investment;
(p) INVESTMENT INTENT - we are subscribing for the Units as
principal for our own account and not for the benefit of any
other person (within the meaning of applicable securities
legislation) and not with a view to resale or distribution of
all or any of the Purchased Securities or the Warrant Shares,
or in the case of a subscription for the Units, or the
Warrants by us acting as trustee or agent (including, for
greater certainty, a portfolio manager or comparable adviser)
for a principal, the we are duly authorized to execute and
deliver this subscription agreement and all other necessary
documentation in connection with such subscription on behalf
of each such beneficial person, each of whom is subscribing as
principal for its own account, not for the benefit of any
other person and not with a view to the resale or distribution
of the Purchased Securities or the Warrant Shares;
(q) SHARE OWNERSHIP - we own that number and type of securities of
the Corporation set forth on page 1 of this subscription
agreement; and
A-7
We acknowledge that the foregoing representations and warranties are
made by us with the intent that they may be relied upon in
determining our eligibility and the eligibility of any person on
whose behalf we are contracting, to purchase the Units under relevant
securities legislation and we hereby agree, on our own behalf and on
behalf of any person on whose behalf we are contracting, to indemnify
the Corporation against all losses, claims, costs, expenses and
damages and other liabilities which it may suffer or incur as the
result of or arising from the reliance by the Corporation on any such
representation or warranty. We further agree that by accepting the
Purchased Securities and the Warrant Shares on the Closing Date we
shall be representing and warranting that the foregoing
representations and warranties are true as at the Closing Date, with
the same force and effect as if they had been made by us on such date
and that they will survive the purchase by us of the Units and will
continue in full force and effect notwithstanding any subsequent
disposition by the us of the Purchased Securities or the Warrant
Shares.
9. COMMISSIONS
We acknowledge that the Corporation may pay cash commission, in
accordance with all regulatory requirements, to agents for obtaining
subscriptions in connection with the offering. The Corporation has not
retained an agent for this offering.
10. SURVIVAL
This subscription agreement, including without limitation the
representations, warranties and covenants contained herein, shall
survive and continue in full force and effect and be binding upon the
Corporation and the undersigned for a period of three years from the
Closing Date.
11. GOVERNING LAW
This agreement shall be governed by and construed in accordance with
the laws of the Province of Alberta and the federal laws of Canada
applicable therein. We, hereby irrevocably attorn to the jurisdiction
of the courts of the Province of Alberta with respect to any matters
arising out of this agreement.
12. COSTS
All costs and expenses incurred by us (including any fees and
disbursements of any counsel retained by us) relating to the purchase
by us of the Purchased Securities or the Warrant Shares shall be borne
by us.
13. ASSIGNMENT
This agreement is not transferable or assignable, in whole or in part,
by us or (if applicable) by others on whose behalf we are contracting
hereunder.
14. ENUREMENT
This agreement will be binding upon and enure to the benefit of the
parties hereto and their respective successors and assigns.
16 ENTIRE AGREEMENT AND HEADINGS
This agreement (including the schedules hereto) contains the entire
agreement of the parties hereto relating to the subject matter hereof
and there are no representations, covenants or other agreements
relating to the subject matter hereof except as stated or referred to
herein. This agreement may be amended or modified in any respect by
written instrument only. The headings contained herein are for
convenience only and shall not effect the meanings or interpretation
hereof.
A-8
17. TIME OF ESSENCE
Time shall be of the essence of this agreement.
18. COUNTERPARTS AND FACSIMILE DELIVERIES
This agreement may be executed in one or more counterparts, each of
which counterparts when executed shall constitute an original and all
of which counterparts so executed shall constitute one and the same
instrument. The Corporation shall be entitled to rely on delivery of a
facsimile copy of this agreement, including the completed schedules
attached hereto, and acceptance by the Corporation of any such
facsimile copy shall be legally effective to create a valid and binding
agreement between the parties hereto in accordance with the terms
hereof. Notwithstanding the foregoing, the undersigned shall deliver to
the Corporation at the address specified in Section 3 hereof, an
originally executed copy of this agreement, including the schedules
attached hereto, within two business days of the Closing Date.
A-9
