Contract
THIS
PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT RELATES TO AN OFFERING OF SECURITIES
IN
AN OFFSHORE TRANSACTION TO PERSONS WHO ARE NOT U.S. PERSONS (AS DEFINED HEREIN)
PURSUANT TO REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT").
NONE
OF THE SECURITIES TO WHICH THIS PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT (THE
"SUBSCRIPTION AGREEMENT") RELATES HAVE BEEN REGISTERED UNDER THE 1933 ACT OR
ANY
U.S. STATE SECURITIES LAWS AND, UNLESS SO REGISTERED, NONE MAY BE OFFERED OR
SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS
DEFINED HEREIN) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER
THE 1933 ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933
ACT
OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO,
THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN EACH CASE ONLY IN
ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING
TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE
WITH THE 1933 ACT.
CONFIDENTIAL
(Purchasers
Resident Outside of the United States)
THIS
CONFIDENTIAL PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT (the “Agreement”)
is made
this ___ day of November, 2006, by and between
EXPRESS SYSTEMS CORPORATION
(the
"Company"),
a
Nevada corporation with an address at 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxx,
XX
00000 U.S.A., and each purchaser identified on the signature pages to this
Agreement (each a “Purchaser”
and
collectively, the “Purchasers”).
Purchase
of Shares
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1.
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Subscription
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1.1 The
undersigned Purchasers (each a “Purchaser”)
hereby
irrevocably subscribe for and agree to purchase from the Company, on the basis
of the representations and warranties and subject to the terms and conditions
set forth herein, the number of shares (the “Shares”),
in
exchange for their shares of DWM Petroleum AG (the “DWM
Shares”)
as set
forth opposite their name and the signature of the Purchaser on a counterpart
signature page to this Agreement (such subscription and agreement to purchase
being the
"Subscription").
1.2 The
Shares will consist of common shares, par value $0.001 in the capital of the
Company
1.3 Subject
to the terms hereof, the Subscription will be effective upon its acceptance
by
the Company. The Purchaser acknowledges that the offering of the Shares (the
"Offering")
contemplated hereby is part of an agreement whereby the Company will exchange
80,000,000 of its Shares for a minimum of 95% of the shares of DWM Petroleum
AG.
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2.
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Payment
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2.1 Each
Purchaser acknowledges and agrees that, subject to applicable law, its
commitment to purchase Shares hereunder is and shall be irrevocable upon
delivery of the DWM Shares and an executed counterpart original of this
Subscription Agreement to the Company or its agents. The DWM Shares must
accompany or precede this Subscription Agreement.
The DWM
Shares shall be sent to:
X/X
XXX
Xxxxxxxxx XX, x/x Xxxxxxxxxx.0, Xxxxxxxx 000 XX-0000 Xxxx
2.2 Each
Purchaser acknowledges and agrees that this Subscription Agreement, the DWM
Shares and any other documents delivered in connection herewith will be held
by
the Company. In the event that this Subscription Agreement is not accepted
by
the Company for whatever reason, which the Company expressly reserves the right
to do, within 30 days of the delivery of an executed Subscription Agreement
by
the Purchaser, this Subscription Agreement, the DWM Shares and any other
documents delivered in connection herewith will be returned to the Purchaser
at
the address of the Purchaser as set forth in this Subscription Agreement.
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3.
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Deliveries
at or Prior to Closing
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3.1 Prior
to
acceptance of this Subscription Agreement by the Company, each Purchaser must
complete, sign and return to the Company an executed original of this
Subscription Agreement and send the DWM Shares to the Company.
3.2 Each
Purchaser shall complete, sign and return to the Company as soon as possible,
on
request by the Company, any documents, questionnaires, notices and undertakings
as may be required by regulatory authorities or by applicable law.
3.3 At
the
Closing, the Company shall deliver to each Purchaser the following:
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(a)
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a
counterpart original of this Subscription Agreement, duly executed
by an
authorized signatory of the
Company;
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(b)
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a
copy of a treasury order directed to the attention of the Company’s
transfer agent (the “Transfer
Agent”)
directing the Transfer Agent to issue to the Purchaser the number
of
shares subscribed for by the Purchaser pursuant to this Subscription
Agreement;
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4.
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Closing
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4.1 Completion
of the transactions contemplated in this Subscription Agreement (the
"Closing")
shall
occur on or before December 31, 2006, or on such other date as may be determined
by the Company (the "Closing
Date").
4.2 The
Company may, at its discretion, elect to close the Offering in one or more
closings, in which event the Company may agree with one or more of the
Purchasers (including the Purchaser hereunder) to complete delivery of the
Securities to such Purchaser(s) against payment therefor at any time on or
prior
to the Closing Date.
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5.
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Conditions
to Closing
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5.1 Upon
acceptance of this Subscription Agreement, the obligations of the Company to
Close on the Closing Date are subject to the following conditions:
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(a)
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that
all of the representations and warranties of the Purchaser made in
this
Subscription Agreement are accurate in all material respects when
made and
on the Closing Date;
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(b)
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that
all of the obligations, covenants and agreements of the Purchaser
required
to be performed at or prior to the Closing Date shall have been
performed;
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(c)
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that
the Company shall have received the DWM
Shares;
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5.2 The
obligations of the Purchaser hereunder to Close on the Closing Date are subject
to the following conditions:
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(a)
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that
all of the representations and warranties of the Company made in
this
Subscription Agreement are accurate in all material respects when
made and
on the Closing Date; and
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(b)
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that
all of the obligations, covenants and agreements of the Company required
to be performed at or prior to the Closing Date shall have been
performed.
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6.
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Acknowledgements
of Purchaser
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6.1 Each
Purchaser acknowledges and agrees that:
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(a)
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the
Company is reporting company in the United States of
America;
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(b)
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none
of the Securities have been registered under the 1933 Act, or under
any
state 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 U.S. Persons, as that term is defined
in
Regulation S under the 1933 Act ("Regulation
S"),
except in accordance with the provisions of 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 in accordance with
applicable state and federal securities laws;
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(c)
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the
Purchaser acknowledges that the Company has not undertaken, and will
have
no obligation, to register any of the Securities under the 1933
Act;
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(d)
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the
decision to execute this Subscription Agreement and acquire the Securities
hereunder has not been based upon any oral or written representation
as to
fact or otherwise made by or on behalf of the Company, and such decision
is based entirely upon a review of the information contained in this
Subscription Agreement (the receipt of which is hereby acknowledged)
and
such other information as the Purchaser may have heretofore requested
of,
and received from, the Company;
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(e)
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neither
the SEC nor any other securities commission or similar regulatory
authority has reviewed or passed on the merits of the
Shares;
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(f)
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there
is no government or other insurance covering any of the
Securities;
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(g)
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there
are risks associated with an investment in the
Securities;
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(h)
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the
Purchaser has not acquired the Shares as a result of, and will not
itself
engage in, any "directed selling efforts" (as defined in Regulation
S
under the 0000 Xxx) in the United States in respect of the Shares
which
would include any activities undertaken for the purpose of, or that
could
reasonably be expected to have the effect of, conditioning the market
in
the United States for the resale of any of the Securities; provided,
however, that the Purchaser may sell or otherwise dispose of the
Shares
pursuant to registration thereof under the 1933 Act and any applicable
state and federal securities laws or under an exemption from such
registration requirements;
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(i)
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the
Purchaser and the Purchaser's advisor(s), if applicable, have had
a
reasonable opportunity to ask questions of and receive answers from
the
Company in connection with the distribution of the Securities hereunder,
and to obtain additional information, to the extent possessed or
obtainable without unreasonable effort or expense, necessary to verify
the
accuracy of the information about the
Company;
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(j)
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the
Purchaser will indemnify and hold harmless the Company 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, but not limited to, 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 Purchaser
contained
herein or in any document furnished by the Purchaser to the Company
in
connection herewith being untrue in any material respect or any breach
or
failure by the Purchaser to comply with any covenant or agreement
made by
the Purchaser to the Company in connection
therewith;
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(k)
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none
of the Securities are listed on any stock exchange or automated dealer
quotation system and no representation has been made to the Purchaser
that
any of the Securities will become listed on any stock exchange or
automated dealer quotation system, except that currently one or more
market makers make a market for the Company's common shares on the
OTC-BB;
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(l)
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the
Company will refuse to register any transfer of the Shares not made
in
accordance with the provisions of Regulation S, 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
accordance with applicable state and federal securities
laws;
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(m)
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the
statutory and regulatory basis for the exemption claimed for the
offer of
the Shares, although in technical compliance with Regulation S, would
not
be available if the offering is part of a plan or scheme to evade
the
registration provisions of the 1933 Act or any applicable state and
federal securities laws;
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(n)
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the
Purchaser is acquiring the Securities pursuant to an exemption from
the
registration and prospectus requirements of all applicable securities
legislation in all jurisdictions relevant to this Subscription, and,
as a
consequence, the Purchaser will not be entitled to use most of the
civil
remedies available under applicable securities legislation and the
Purchaser will not receive information that would otherwise be required
to
be provided to the Purchaser pursuant to applicable securities
legislation;
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(o)
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each
Purchaser has been advised to consult its own legal, tax and other
advisors with respect to the merits and risks of an investment in
the
Shares and with respect to applicable resale restrictions, and it
is
solely responsible (and the Company is not in any way responsible)
for
compliance with:
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(i)
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any
applicable laws of the jurisdiction in which the Purchaser is resident
in
connection with the distribution of the Shares hereunder,
and
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(ii)
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applicable
resale restrictions; and
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(p)
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this
Subscription Agreement is not enforceable by the Purchaser unless
it has
been accepted by the Company, and the Purchaser acknowledges and
agrees
that the Company reserves the right to reject any subscription for
any
reason.
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7.
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Representations,
Warranties and Covenants of the
Purchaser
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7.1 Each
Purchaser severally and not jointly hereby represents and warrants to, and
covenants with, the Company (which representations, warranties and covenants
shall survive the Closing) that:
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(a)
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it
has the legal capacity and competence to enter into and execute this
Subscription Agreement and to take all actions required hereby and,
if the
Purchaser is a corporation, 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 Subscription Agreement
on its
behalf;
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(b)
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the
entering into of this Subscription Agreement and the transactions
contemplated hereby do not result in the violation of any of the
terms and
provisions of any law or regulation applicable to the Purchaser or
of any
agreement, written or oral, to which the Purchaser may be a party
or by
which the Purchaser is or may be
bound;
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(c)
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the
Purchaser has duly executed and delivered this Subscription Agreement
and
it constitutes a valid and binding agreement of the Purchaser enforceable
against the Purchaser in accordance with its
terms;
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(d)
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the
Purchaser is not acquiring the Shares for the account or benefit
of,
directly or indirectly, any U.S.
Person;
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(e)
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the
Purchaser is not a U.S. Person;
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(f)
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the
Purchaser is resident in the jurisdiction set out under the heading
"Name
and Address of Purchaser" on the signature page of this Subscription
Agreement;
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(g)
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the
sale of the Shares to the Purchaser as contemplated in this Subscription
Agreement complies with or is exempt from the applicable securities
legislation of the jurisdiction of residence of the
Purchaser;
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(h)
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the
Purchaser is outside the United States when receiving and executing
this
Subscription Agreement and is acquiring the Shares as principal for
the
Purchaser's own account, for investment purposes only, and not with
a view
to, or for, resale, distribution or fractionalisation thereof, in
whole or
in part, and no other person has a direct or indirect beneficial
interest
in such Shares;
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(i)
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the
Purchaser is not an underwriter of, or dealer in, the common shares
of the
Company, nor is the Purchaser participating, pursuant to a contractual
agreement or otherwise, in the distribution of the
Shares;
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(j)
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the
Purchaser (i) is able to fend for itself in the Subscription; (ii)
has
such knowledge and experience in business matters as to be capable
of
evaluating the merits and risks of its prospective investment in
the
Shares; and (iii) has the ability to bear the economic risks of its
prospective investment and can afford the complete loss of such
investment;
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(k)
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the
Purchaser acknowledges that the Purchaser has not acquired the Shares
as a
result of, and will not itself engage in, any "directed selling efforts"
(as defined in Regulation S) in the United States in respect of the
Shares
which would include any activities undertaken for the purpose of,
or that
could reasonably be expected to have the effect of, conditioning
the
market in the United States for the resale of the Shares; provided,
however, that the Purchaser may sell or otherwise dispose of the
Shares
pursuant to registration of the Shares pursuant to the 1933 Act and
any
applicable state and federal securities laws or under an exemption
from
such registration requirements and as otherwise provided
herein;
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(l)
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the
Purchaser is not aware of any advertisement of any of the Securities
and
is not acquiring the 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; and
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(m)
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no
person has made to the Purchaser any written or oral
representations:
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(i)
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that
any person will resell or repurchase any of the
Securities;
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(ii)
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that
any person will refund the purchase price of any of the
Securities;
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(iii)
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as
to the future price or value of any of the Securities;
or
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(iv)
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that
any of the Securities will be listed and posted for trading on any
stock
exchange or automated dealer quotation system or that application
has been
made to list and post any of the Securities of the Company on any
stock
exchange or automated dealer quotation
system.
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8.
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Representations
and Warranties of the
Company
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8.1 The
Company acknowledges and agrees that each Purchaser is entitled to rely upon
the
representations and warranties of the Company contained in this Agreement and
further acknowledges that each Purchaser will be relying upon such
representations and warranties in purchasing the Shares.
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(a)
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The
Company is duly incorporated, validly existing and in good standing
under
the laws of the State of Nevada.
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(b)
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The
Company has the requisite power and authority to own and use its
properties and assets and to carry on its business as currently
conducted.
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(c)
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The
Company is not in violation or default of any of the provisions of
its
articles of incorporation or bylaws. The Company is duly qualified
to
conduct its business and is in good standing as a foreign corporation
or
other entity in each jurisdiction in which the nature of the business
conducted or property owned by it makes such qualification necessary,
except where the failure to be so qualified or in good standing,
as the
case may be, could not reasonably be expected to result in (i) a
material
adverse effect on the legality, validity or enforceability of this
Subscription Agreement, (ii) a material adverse effect on the results
of
operations, assets, business or financial condition of the Company,
taken
as a whole, or (iii) a material adverse effect on the Company’s ability to
perform in any material respect on a timely basis its obligations
under
this Subscription Agreement (any of (i), (ii) or (iii) being hereafter
referred to as a “Material
Adverse Effect”),
and no proceeding has been instituted in any such jurisdiction revoking,
limiting or curtailing or seeking to revoke, limit or curtail such
power
and authority or qualification.
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(d)
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The
Company has the requisite corporate power and authority to enter
into and
to consummate the transactions contemplated by this Subscription
Agreement
and to carry out its obligations hereunder. The execution and delivery
of
each of this Subscription Agreement by the Company and the consummation
by
it of the transactions contemplated hereby have been duly authorized
by
all necessary action on the part of the Company and no further corporate
authorization is required by the Company in connection
therewith.
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(e)
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Upon
delivery, this Subscription Agreement will have been duly executed
by the
Company and will constitute the valid and binding obligation of the
Company enforceable against the Company in accordance with its terms
except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting
enforcement of creditors’ rights generally and (ii) as limited by laws
relating to the availability of specific performance, injunctive
relief or
other equitable remedies.
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(f)
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The
execution and delivery of this Subscription Agreement and the performance
by the Company of the obligations imposed on it in this Subscription
Agreement, including the issuance and sale of the Shares, do not
and will
not (i) conflict with or violate any provision of the Company’s
certificate or articles of incorporation, bylaws or other organizational
or charter documents, or (ii) conflict with, or constitute a default
(or
an event that with notice or lapse of time or both would become a
default)
under, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time
or
both) of, any material agreement, credit facility, debt or other
instrument (evidencing a Company debt or otherwise) or other agreement
to
which the Company is a party or by which any material property or
material
asset of the Company, or (iii) conflict with or result in a violation
of
any law, rule, regulation, order, judgment, injunction, decree or
other
restriction of any court or governmental authority to which the Company
is
subject, or by which any material property or material asset of the
Company is bound, except, in each case, as could not reasonably be
expected to result in a Material Adverse
Effect.
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(g)
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The
Company is not required to obtain any consent, waiver, authorization
or
order of, give any notice to, or make any filing or registration
with, any
court or other federal, state, local or other governmental authority
or
other person in connection with the execution, delivery and performance
by
the Company of this Subscription Agreement, other than (i) filing
with the
SEC the Registration Statement (and any documents related thereto)
on or
before the Filing Date, and (ii) promptly responding to any comments
that
the SEC might have with respect to the Registration
Statement.
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(h)
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The
Shares are duly authorized and, when issued and paid for in accordance
with this Subscription Agreement, will be validly issued as fully
paid and
non-assessable, free and clear of all liens and encumbrances other
than
restrictions provided for in this Subscription Agreement and applicable
law. The Company has reserved from its duly authorized capital stock
the
maximum number of shares of Common Stock issuable pursuant to this
Agreement.
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(i)
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The
Company is/or will be authorized to issue 200,000,000 shares of common
stock, each with a par value of $0.001. As at the date of this
Subscription Agreement, and without adjustment for issuance of any
of the
Shares, there are 20,110,400 common shares of the Company issued
and
outstanding.
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(j)
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No
Person has any right of first refusal, preemptive right, right of
participation, or any similar right to participate in the transactions
contemplated by this Subscription
Agreement.
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(k)
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Except
for share purchase options held by employees, consultants, officers
or
directors of the Company or as a result of this Subscription Agreement,
there are no outstanding warrants, scrip rights to subscribe to,
calls or
commitments of any character whatsoever relating to, or securities,
rights
or obligations convertible into or exchangeable for, or giving any
person
any right to subscribe for or acquire, any common stock of the Company,
or
contracts, commitments, understandings or arrangements by which the
Company is or may become bound to issue additional shares of its
common
stock, or securities or rights convertible or exchangeable into shares
of
common stock.
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(l)
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The
issue and sale of the Securities will not obligate the Company to
issue
shares of its common stock or other securities to any person (other
than
the Purchasers and their designees) and will not result in a right
of any
holder of the Company’s securities to adjust the exercise, conversion,
exchange or reset price under such
securities.
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(m)
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There
are no stockholders agreements, voting agreements or similar agreements
with respect to the Company’s common stock to which the Company is a party
or, to the knowledge of the Company and without independent inquiry,
between or among any of the Company’s
stockholders.
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(n)
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There
is no action, suit, notice of violation, proceeding or investigation
pending against the Company or its property before or by any court,
arbitrator, governmental or administrative agency or regulatory authority
(federal, state, county or foreign) which (i) adversely affects or
challenges the legality, validity or enforceability of this Subscription
Agreement or the Securities or (ii) would, if there were an unfavorable
decision, have or reasonably be expected to result in a Material
Adverse
Effect.
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(o)
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Except
for the Placement Agent, no brokerage or finder’s fees or commissions are
or will be payable by the Company to any broker, financial advisor
or
consultant, finder, placement agent, investment banker, bank or other
person with respect to the transactions contemplated by this Agreement.
The Purchasers shall have no direct obligation with respect to any
fees or
with respect to any claims made by or on behalf of other persons
for fees
of a type contemplated in this Section that may be due in connection
with
the transactions contemplated by this Subscription
Agreement.
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9.
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Representations
and Warranties will be Relied Upon by the
Company
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9.1 Each
Purchaser, severally but not jointly, acknowledges that the representations
and
warranties contained herein are made by it with the intention that they may
be
relied upon by the Company and its legal counsel in determining such Purchaser's
eligibility to purchase the Shares for which it is subscribing under applicable
U.S. securities legislation, or (if applicable) the eligibility of others on
whose behalf it is contracting hereunder to purchase the Shares under applicable
securities legislation. Each Purchaser further agrees that by accepting delivery
of the certificates representing the Securities on the Closing Date, it will
be
representing and warranting that the representations and warranties contained
herein are true and correct as at the Closing Date with the same force and
effect as if they had been made by the Purchaser at the Closing Date and that
they will survive the purchase by the Purchaser of Shares and will continue
in
full force and effect notwithstanding any subsequent disposition by the
Purchaser of such Shares.
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10.
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Legending
of Subject Securities
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10.1 The
Purchaser hereby acknowledges that upon the issuance thereof, and until such
time as the same is no longer required under the applicable securities laws
and
regulations, the certificates representing any of the Securities will bear
a
legend in substantially the following form:
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"THESE
SECURITIES WERE ISSUED IN AN OFFSHORE TRANSACTION TO PERSONS WHO
ARE NOT
U.S. PERSONS (AS DEFINED HEREIN) PURSUANT TO REGULATION S UNDER THE
UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"). ACCORDINGLY,
NONE OF THE SECURITIES TO WHICH THIS CERTIFICATE RELATES HAVE BEEN
REGISTERED UNDER THE 1933 ACT, OR ANY U.S. STATE SECURITIES LAWS,
AND,
UNLESS SO REGISTERED, NONE MAY BE OFFERED OR SOLD IN THE UNITED STATES
OR,
DIRECTLY OR INDIRECTLY, TO U.S. PERSONS (AS DEFINED HEREIN) EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT 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
APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS
INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE
WITH
THE 0000 XXX."
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10.2 The
Purchaser hereby acknowledges and agrees to the Company making a notation on
its
records or giving instructions to the registrar and transfer agent of the
Company in order to implement the restrictions on transfer set forth and
described in this Subscription Agreement.
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11.
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Indemnification.
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11.1 The
Company shall indemnify and hold harmless each Purchaser, the officers,
directors, agents and employees of each of them, each person who controls any
such Purchaser (within the meaning of Section 15 of the 1933 Act or Section
20
of the Exchange Act) and the officers, directors, agents and employees of each
such controlling person, to the fullest extent permitted by applicable law,
from
and against any and all losses, claims, damages, liabilities, costs (including,
without limitation, reasonable attorneys' fees) and expenses (collectively,
“Losses”),
as are
incurred, arise out of or that relate to any untrue or alleged untrue statement
of a material fact contained in the Registration Statement or any prospectus
included in the Registration Statement or in any amendment or supplement
thereto, or arising out of or relating to any omission or alleged omission
of a
material fact required to be stated therein or necessary to make the statements
therein (in the case of any prospectus or supplement thereto, in light of the
circumstances under which they were made) not misleading, except to the extent,
but only to the extent, that (i) such untrue statements or omissions are based
upon information furnished in writing to the Company by any Purchaser, or (ii)
the Losses to such Purchaser occur after the Company has notified such Purchaser
in writing of the suspension of the effectiveness of the Registration Statement
or any prospectus. The Company shall notify the Purchasers promptly of the
institution, threat or assertion of any proceeding of which the Company is
aware
that the Company has reason to believe could result in Losses.
11.2 Each
Purchaser shall, severally and not jointly, indemnify and hold harmless the
Company, its directors, officers, agents and employees, each person who controls
the Company (within the meaning of Section 15 of the 1933 Act and Section 20
of
the Exchange Act), and the directors, officers, agents or employees of such
controlling persons, to the fullest extent permitted by applicable law, from
and
against all Losses, as incurred, to the extent arising out of or based upon:
(x)
such Purchaser's failure to comply with the prospectus delivery requirements
of
the Securities Act or (y) any untrue or alleged untrue statement of a material
fact contained in any Registration Statement, any prospectus used by such
Purchaser to sell Shares, or any form of prospectus contained in the
Registration Statement or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or relating to any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading (i) to the extent, but only to the extent,
that such untrue statement or omission is contained in any information furnished
to the Company by such Purchaser or (ii) to the extent that (1) such untrue
statements or omissions are based solely upon information regarding such
Purchaser furnished in writing to the Company by such Purchaser, or to the
extent that such information relates to such Purchaser or such Purchaser's
proposed method of distribution of the Shares, or (2) the Losses to the Company
occur after the Company has notified such Purchaser in writing of the suspension
of the effectiveness of the Registration Statement or any
prospectus.
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11.3 If
any
proceeding shall be brought or asserted against any person entitled to indemnity
hereunder (an “Indemnified
Party”),
such
Indemnified Party shall promptly notify the person from whom indemnity is sought
(the “Indemnifying
Party”)
in
writing, and the Indemnifying Party shall have the right to assume the defense
thereof, including the employment of counsel reasonably satisfactory to the
Indemnified Party and the payment of all fees and expenses incurred in
connection with defense thereof; provided, that the failure of any Indemnified
Party to give such notice shall not relieve the Indemnifying Party of its
obligations or liabilities pursuant to this Subscription Agreement, except
(and
only) to the extent that it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal or further review)
that such failure shall have prejudiced the Indemnifying Party. An Indemnified
Party shall have the right to employ separate counsel in any such proceeding
and
to participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party or Parties unless: (1) the
Indemnifying Party has agreed in writing to pay such fees and expenses; (2)
the
Indemnifying Party shall have failed promptly to assume the defense of such
Proceeding and to employ counsel reasonably satisfactory to such Indemnified
Party in any such proceeding; or (3) the named parties to any such proceeding
(including any impleaded parties) include both such Indemnified Party and the
Indemnifying Party, and a material conflict of interest is likely to exist
if
the same counsel were to represent such Indemnified Party and the Indemnifying
Party (in which case, if such Indemnified Party notifies the Indemnifying Party
in writing that it elects to employ separate counsel reasonably satisfactory
to
the Indemnifying Party at the expense of the Indemnifying Party, the
Indemnifying Party shall not have the right to assume the defense thereof and
the reasonable fees and expenses of one separate counsel shall be at the expense
of the Indemnifying Party). The Indemnifying Party shall not be liable for
any
settlement of any such Proceeding effected without its written consent, which
consent shall not be unreasonably withheld. No Indemnifying Party shall, without
the prior written consent of the Indemnified Party, which consent shall not
be
unreasonably withheld, effect any settlement of any pending proceeding in
respect of which any Indemnified Party is a party, unless such settlement
includes an unconditional release of such Indemnified Party from all liability
on claims that are the subject matter of such proceeding.
11.4 If
a
claim for indemnification under Section 11.1
or
11.2
is
unavailable to an Indemnified Party (by reason of public policy or otherwise),
then each Indemnifying Party, in lieu of indemnifying such Indemnified Party,
shall contribute to the amount paid or payable by such Indemnified Party as
a
result of such Losses, in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party and Indemnified Party in connection
with the actions, statements or omissions that resulted in such Losses as well
as any other relevant equitable considerations. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission
of a
material fact, has been taken or made by, or relates to information supplied
by,
such Indemnifying Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include, subject to the limitations set forth
in this Agreement, any reasonable attorneys’ or other reasonable fees or
expenses incurred by such party in connection with any proceeding to the extent
such party would have been indemnified for such fees or expenses if the
indemnification provided for in this Section was available to such party in
accordance with its terms.
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11.5 The
indemnity and contribution agreements contained in this Section are in addition
to any liability that the Indemnifying Parties may have to the Indemnified
Parties.
|
12.
|
Costs
|
12.1 The
Purchaser acknowledges and agrees that all costs and expenses incurred by the
Purchaser (including any fees and disbursements of any special counsel retained
by the Purchaser) relating to the purchase of the Shares shall be borne by
the
Purchaser.
|
13.
|
Governing
Law
|
13.1 This
Subscription Agreement is governed by the laws of the State of Nevada and the
federal laws of the United States applicable therein. The Purchaser, in its
personal or corporate capacity and, if applicable, on behalf of each beneficial
purchaser for whom it is acting, irrevocably attorns to the jurisdiction of
the
courts of the State of Nevada.
|
14.
|
Independent
Nature of Purchaser’s Obligations and
Rights
|
14.1 The
obligations of each Purchaser under this Subscription Agreement are several
and
not joint with the obligations of any other Purchaser, and no Purchaser shall
be
responsible in any way for the performance of the obligations of any other
Purchaser. Nothing contained herein, and no action taken by any Purchaser
pursuant thereto, shall be deemed to constitute the Purchasers as a partnership,
an association, a joint venture or any other kind of entity, or create a
presumption that the Purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by this
Subscription Agreement. Each Purchaser shall be entitled to independently
protect and enforce its rights, including without limitation, the rights arising
out of this Subscription Agreement, and it shall not be necessary for any other
Purchaser to be joined as an additional party in any proceeding for such
purpose. Each Purchaser has been represented by its own separate legal counsel
in their review and negotiation of this Subscription Agreement or it has
knowingly waived its right to do so and has proceeded without benefit of
counsel.
|
15.
|
Survival
|
15.1 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 parties hereto notwithstanding the
completion of the purchase of the Shares by the Purchaser pursuant
hereto.
|
16.
|
Assignment
|
16.1 This
Subscription Agreement is not transferable or assignable.
|
17.
|
Severability
|
17.1 The
invalidity or unenforceability of any particular provision of this Subscription
Agreement shall not affect or limit the validity or enforceability of the
remaining provisions of this Subscription Agreement.
|
18.
|
Entire
Agreement
|
18.1 Except
as
expressly provided in this Subscription Agreement and in the agreements,
instruments and other documents contemplated or provided for herein, this
Subscription Agreement contains the entire agreement between the parties with
respect to the sale of the Shares and there are no other terms, conditions,
representations or warranties, whether expressed, implied, oral or written,
by
statute or common law, by the Company or by anyone else.
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10 -
|
19.
|
Notices
|
19.1 All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form
of
telecommunication. Notices to the Purchaser shall be directed to the address
on
the signature page of this Subscription Agreement and notices to the Company
shall be directed to it at Express Systems Corporation, 000 Xxxx Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000, XXX, Attention: President.
|
20.
|
Counterparts
and Electronic Means
|
20.1 This
Subscription Agreement may be executed in any number of counterparts, each
of
which, when so executed and delivered, shall constitute an original and all
of
which together shall constitute one instrument. Delivery of an executed copy
of
this Subscription Agreement by electronic facsimile transmission or other means
of electronic communication capable of producing a printed copy will be deemed
to be execution and delivery of this Subscription Agreement as of the date
hereinafter set forth.
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11 -
IN
WITNESS WHEREOF
the
Purchaser has duly executed this Subscription Agreement as of the date of
acceptance by the Company.
| (Number of Shares of DWM Petroleum AG) | (Name of Purchaser - Please type or print) | |
| (Number of Shares of Express Systems Corporation) | (Signature and, if applicable, Office) | |
| (Address of Purchaser) | ||
| (City, State or Province, Postal Code of Purchaser) | ||
| (Country of Purchaser) |
A
C C E P T A N C E
The
above-mentioned Subscription Agreement in respect of the Shares is hereby
accepted by Express Systems Corporation.
DATED
at
_______________________,
the
____________ day
of
__________________,
2006.
EXPRESS
SYSTEMS CORPORATION
Per:
____________________________
Authorized
Signatory
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