Contract
THIS
PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT (THE "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 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.
PRIVATE
PLACEMENT SUBSCRIPTION
FOR
NON U.S. SUBSCRIBERS
00 Xxxxxx
Xxxxxx Xxxxxx
0000 00xx
Xxxxxx, Xxxxx 000
Xxxxxx –
XX 00000, XXX
Tel:
000.000.0000 - Fax: 000.000.0000
PRIVATE
PLACEMENT
INSTRUCTIONS
TO SUBSCRIBER:
|
1.
|
COMPLETE the information
on page 2 of this Subscription
Agreement.
|
|
2.
|
FAX a copy of page 2 of
this Subscription Agreement to American Power Corp., attention Board of
Directors at (000) 000-0000.
|
|
3.
|
COURIER the originally
executed copy of the entire Subscription Agreement to AMERICAN POWER CORP,
c/o counsel to the Company, to
|
JPF
Securities Law, LLC
00000
Xxxxxx Xxxx, 0xx Xxxxx
Xxxxxxxxx,
XX 00000, XXX
Attention:
Xx. Xxxxx Xxxxxxxxxxxx
PRIVATE
PLACEMENT
The
Subscriber hereby irrevocably subscribes for, and on Closing will purchase from
the Company, the following securities at a price of US$0.50 per
Share:
|
800,000
Shares
|
The
Subscriber directs the Company to issue, register and deliver the certificates
representing the Shares as follows:
|
REGISTRATION
INSTRUCTIONS:
|
DELIVERY
INSTRUCTIONS:
|
|
Black Sands Holdings,
Inc.
Name
to appear on certificate
--
Tax
ID / Corporate ID #
Trust Company
Xxxxxx
Xxxxxxx
Xxxxxxxx
Xxxx
Xxxxxxxx Xxxxxx, Xxxxxx Xxxxxxxx Xxxxxxx XX
00000
|
Euro Helvetica Trust Co.
S.A.
Name
and account reference, if applicable
World Trade
Center
Contact
name
1215 Geneva IS,
Switzerland
Address
T41 22
7990800
Telephone
number
|
|
EXECUTED
by the Subscriber this _______ day of__________, _____. By executing this
Agreement, the Subscriber certifies that the Subscriber and any beneficial
purchaser for whom the Subscriber is acting is resident in the
jurisdiction shown as the “Address of the Subscriber”. The address of the
Subscriber will be accepted by the Company as a representative as to the
address of residency for the Subscriber.
|
|
|
WITNESS:
|
EXECUTION BY
SUBSCRIBER:
|
|
/s/ Xxxx
Xxxxxxx
Signature
of witness
Xxxx
Xxxxxxx
Name
of witness
WTC 1, 0000 Xxxxxx, Xxxxxxxxxxx
Address
of witness
|
X
Signature
of individual (if Subscriber is an
individual)
X/s/ Xxxxx
Xxxxxxx
Authorized
signatory (if Subscriber is not an
individual)
Black Sands Holdings, Inc.
Name
of Subscriber (please
print)
X. Xxxxxxx
Name
of authorized signatory (please
print)
|
|
ACCEPTED
this 30 day of June, 2010.
Per:
/s/ Xxxxxxxx
Xxxxxxxx
Authorized
signatory
|
Xxxxxxxx
Islands
Address
of Subscriber (residence)
T41 22
7990800
Telephone
number and e-mail address
|
By
signing this acceptance, the Company agrees to be bound by all representations,
warranties, covenants and agreements on pages 3-11 hereof.
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.
THIS
PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT (THE "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 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.
PRIVATE
PLACEMENT SUBSCRIPTION
(Non U.S.
Subscribers Only)
|
TO:
|
AMERICAN POWER CORP.
(the “Company”)
|
Purchase of
Shares
|
1.
|
SUBSCRIPTION
|
1.1 The above
signed (the "Subscriber") hereby irrevocably subscribes for and agrees to
purchase the number of common shares of the Company's common stock (the
"Shares") as set out on page 2 of this Subscription Agreement at a price of
US$0.50 per Share (such subscription and agreement to purchase being the
"Subscription"), for the total subscription price as set out on page 2 of this
Subscription Agreement (the "Subscription Proceeds"), which Subscription
Proceeds are tendered herewith, on the basis of the representations and
warranties and subject to the terms and conditions set forth
herein.
1.2 The
Company hereby agrees to sell, on the basis of the representations and
warranties and subject to the terms and conditions set forth herein, to the
Subscriber the Shares. Subject to the terms hereof, the Subscription
Agreement will be effective upon its acceptance by the Company. This
offering is not subject to any minimum or maximum offering.
1.3 Unless
otherwise provided, all dollar amounts referred to in this Subscription
Agreement are in lawful money of the United States of America.
|
2.
|
PAYMENT
|
2.1 The
Subscription Proceeds must accompany this Subscription Agreement. If the funds
are delivered to the Company's lawyers, those lawyers are authorized to
immediately deliver the funds to the Company without further authorization from
the Subscriber
2.2 In the
event that this Subscription Agreement is not accepted by the Company for
whatever reason within 60 days of the delivery of an executed Subscription
Agreement by the Subscriber, this Subscription Agreement, the Subscription
Proceeds and any other documents delivered in connection herewith will be
returned to the Subscriber at the address of the Subscriber as set forth in this
Subscription Agreement without interest or deduction.
2.3 Where the
Subscription Proceeds are paid to the Company, the Company may treat the
Subscription Proceeds as a non-interest bearing loan and may use the
Subscription Proceeds prior to this Subscription Agreement being accepted by the
Company.
2.4 The
Subscriber must complete, sign and return to the Company an executed copy of
this Subscription Agreement.
2.5 The
Subscriber 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, and applicable
law.
|
3.
|
CLOSING
|
3.1 Closing
of the purchase and sale of the Shares shall occur on or before June 30, 2010,
or on such other date as may be determined by the Company in its sole discretion
(the "Closing Date"). The Subscriber acknowledges that Shares may be
issued to other subscribers under this offering (the "Offering") before or after
the Closing Date. 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 subscribers (including the Subscriber hereunder) to complete
delivery of the Shares to such subscriber(s) against payment therefore at any
time on or prior to the Closing Date.
|
4.
|
ACKNOWLEDGEMENTS OF
SUBSCRIBER
|
4.1 The
Subscriber acknowledges and agrees that:
|
(a)
|
none
of the Shares have been registered under the Securities Act of 1933, as
amended (the "1933 Act"), or under any state securities or "blue sky" laws
of any state of the United States, and are being offered only in a
transaction not involving any public offering within the meaning of the
1933 Act, and, unless so registered, may not be offered or sold in the
United States or to U.S. Persons (as defined herein), except pursuant to
an effective registration statement under the 1933 Act, or pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the 1933 Act, and in each case only in accordance with
applicable state and provincial securities
laws;
|
|
(b)
|
the
Company will refuse to register any transfer of any 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, or in a transaction not subject to, the
registration requirements of the 1933
Act;
|
|
(c)
|
the
decision to execute this Subscription Agreement and purchase the Shares
agreed to be purchased 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 solely upon a review of information
regarding the Company provided by the Company to the Subscriber (the
"Company Information");
|
|
(d)
|
the
Subscriber and the Subscriber's advisor(s) have had a reasonable
opportunity to review the Company Information and to ask questions of and
receive answers from the Company regarding the Offering, and to obtain
additional information, to the extent possessed or obtainable without
unreasonable effort or expense, necessary to verify the accuracy of the
information contained in the Company Information, or any other document
provided to the Subscriber;
|
|
(e)
|
the
books and records of the Company were available upon reasonable notice for
inspection, subject to certain confidentiality restrictions, by the
Subscriber during reasonable business hours at its principal place of
business and that all documents, records and books pertaining to this
Offering have been made available for inspection by the Subscriber, the
Subscriber's attorney and/or
advisor(s);
|
|
(f)
|
by
execution hereof the Subscriber has waived the need for the Company to
communicate its acceptance of the purchase of the Shares pursuant to this
Subscription Agreement;
|
|
(g)
|
the
Company is entitled to rely on the representations and warranties and the
statements and answers of the Subscriber contained in this Subscription
Agreement and the Subscriber will hold harmless the Company from any loss
or damage it may suffer as a result of the Subscriber's failure to
correctly complete this Subscription
Agreement;
|
|
(h)
|
the
Subscriber will indemnify and hold harmless the Company and, where
applicable, its respective 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 acknowledgment,
representation or warranty of the Subscriber contained herein or in any
other document furnished by the Subscriber to the Company in connection
herewith, being untrue in any material respect or any breach or failure by
the Subscriber to comply with any covenant or agreement made by the
Subscriber to the Company in connection
therewith;
|
|
(i)
|
the
issuance and sale of the Shares to the Subscriber will not be completed if
it would be unlawful or if, in the discretion of the Company acting
reasonably, it is not in the best interests of the
Company;
|
|
(j)
|
the
Subscriber has been advised to consult the Subscriber’s own legal, tax and
other advisors with respect to the merits and risks of an investment in
the Shares and with respect to the applicable resale restrictions, and it
is solely responsible (and the Company is not in any way responsible) for
compliance with:
|
|
(i)
|
any
applicable laws of the jurisdiction in which the Subscriber is resident in
connection with the distribution of the Shares hereunder,
and
|
|
(ii)
|
applicable
resale restrictions;
|
|
(k)
|
the
Subscriber 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 any 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 Shares; provided,
however, that the Subscriber may sell or otherwise dispose of any of the
Shares pursuant to registration of any of the Shares pursuant to the 1933
Act and any applicable state securities laws or under an exemption from
such registration requirements and as otherwise provided
herein;
|
|
(l)
|
the
Subscriber is outside the United States when receiving and executing this
Subscription Agreement and is acquiring the Shares as principal for its
own account, for investment purposes only, and not with a view to, or for,
resale, distribution or fractionalization thereof, in whole or in part,
and no other person has a direct or indirect beneficial interest in such
Shares;
|
|
(m)
|
none
of the Shares may be offered or sold to a U.S. Person or for the account
or benefit of a U.S. Person (other than a distributor) prior to the end of
the expiration of a period of one year after the date of original issuance
of the Shares;
|
|
(n)
|
the
statutory and regulatory basis for the exemption claimed for the offer and
sale 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;
|
|
(o)
|
none
of the Shares are listed on any stock exchange or automated dealer
quotation system and no representation has been made to the Subscriber
that any of the Shares will become listed on any stock exchange or
automated dealer quotation system;
|
|
(p)
|
neither
the SEC nor any other securities commission or similar regulatory
authority has reviewed or passed on the merits of any of the
Shares;
|
|
(q)
|
no
documents in connection with this Offering have been reviewed by the SEC
or any state securities
administrators;
|
|
(r)
|
there
is no government or other insurance covering any of the Shares;
and
|
|
(s)
|
this
Subscription Agreement is not enforceable by the Subscriber unless it has
been accepted by the Company, and the Subscriber acknowledges and agrees
that the Company reserves the right to reject any subscription for any
reason.
|
|
5.
|
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE
SUBSCRIBER
|
5.1 The
Subscriber hereby represents and warrants to and covenants with the Company
(which representations, warranties and covenants shall survive the Closing Date)
that:
|
(a)
|
the
Subscriber is not a U.S. Person (as defined
herein);
|
|
(b)
|
the
Subscriber is not acquiring the Shares for the account or benefit of,
directly or indirectly, any U.S. Person (as defined
herein);
|
|
(c)
|
the
Subscriber is resident in the jurisdiction set out on page 2 of this
Subscription Agreement;
|
|
(d)
|
the
Subscriber:
|
|
(i)
|
is
knowledgeable of, or has been independently advised as to, the applicable
securities laws of the securities regulators having application in the
jurisdiction in which the Subscriber is resident (the “International
Jurisdiction”) which would apply to the acquisition of the
Shares,
|
|
(ii)
|
is
purchasing the Shares pursuant to exemptions from prospectus or equivalent
requirements under applicable securities laws or, if such is not
applicable, the Subscriber is permitted to purchase the Shares under the
applicable securities laws of the securities regulators in the
International Jurisdiction without the need to rely on any
exemptions,
|
|
(iii)
|
acknowledges
that the applicable securities laws of the authorities in the
International Jurisdiction do not require the Company to make any filings
or seek any approvals of any kind whatsoever from any securities regulator
of any kind whatsoever in the International Jurisdiction in connection
with the issue and sale or resale of any of the Shares,
and
|
|
(iv)
|
represents
and warrants that the acquisition of the Shares by the Subscriber does not
trigger:
|
|
A.
|
any
obligation to prepare and file a prospectus or similar document, or any
other report with respect to such purchase in the International
Jurisdiction, or
|
|
B.
|
any
continuous disclosure reporting obligation of the Company in the
International Jurisdiction, and
|
the
Subscriber will, if requested by the Company, deliver to the Company a
certificate or opinion of local counsel from the International Jurisdiction
which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv)
above to the satisfaction of the Company, acting reasonably;
|
(e)
|
the
Subscriber is acquiring the Shares as principal for investment only and
not with a view to, or for, resale, distribution or fractionalization
thereof, in whole or in part, and, in particular, it has no intention to
distribute either directly or indirectly any of the Shares in the United
States or to U.S. Persons (as defined
herein);
|
|
(f)
|
the
Subscriber is outside the United States when receiving and executing this
Subscription Agreement;
|
|
(g)
|
the
Subscriber understands and agrees not to engage in any hedging
transactions involving any of the Shares unless such transactions are in
compliance with the provisions of the 1933 Act and in each case only in
accordance with applicable state securities
laws;
|
|
(h)
|
the
Subscriber acknowledges that it 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 any 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 Shares; provided, however, that the Subscriber may sell or
otherwise dispose of any of the Shares pursuant to registration of any of
the Shares pursuant to the 1933 Act and any applicable state securities
laws or under an exemption from such registration requirements and as
otherwise provided herein;
|
|
(i)
|
the
Subscriber has the legal capacity and competence to enter into and execute
this Subscription Agreement and to take all actions required pursuant
hereto and, if the Subscriber 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 behalf of the
Subscriber;
|
|
(j)
|
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 applicable to, or, if applicable, the constating
documents of, the Subscriber, or of any agreement, written or oral, to
which the Subscriber may be a party or by which the Subscriber is or may
be bound;
|
|
(k)
|
the
Subscriber has duly executed and delivered this Subscription Agreement and
it constitutes a valid and binding agreement of the Subscriber enforceable
against the Subscriber;
|
|
(l)
|
the
Subscriber has received and carefully read this Subscription
Agreement;
|
|
(m)
|
the
Subscriber (i) has adequate net worth and means of providing for its
current financial needs and possible personal contingencies, (ii) has no
need for liquidity in this investment, and (iii) is able to bear the
economic risks of an investment in the Shares for an indefinite period of
time, and can afford the complete loss of such
investment;
|
|
(n)
|
the
Subscriber has the requisite knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of
the investment in the Shares and the Company, and the Subscriber is
providing evidence of knowledge and experience in these matters through
the information requested herein;
|
|
(o)
|
the
Subscriber understands and agrees that the Company and others will rely
upon the truth and accuracy of the acknowledgements, representations,
warranties, covenants and agreements contained in this Subscription
Agreement, and agrees that if any of such acknowledgements,
representations and agreements are no longer accurate or have been
breached, the Subscriber shall promptly notify the
Company;
|
|
(p)
|
the
Subscriber is aware that an investment in the Company is speculative and
involves certain risks, including the possible loss of the
investment;
|
|
(q)
|
the
Subscriber is purchasing the Shares for its own account for investment
purposes only and not for the account of any other person and not for
distribution, assignment or resale to others, and no other person has a
direct or indirect beneficial interest is such Shares, and the Subscriber
has not subdivided his interest in the Shares with any other
person;
|
|
(r)
|
the
Subscriber is not an underwriter of, or dealer in, the shares of the
Company's common stock, nor is the Subscriber participating, pursuant to a
contractual agreement or otherwise, in the distribution of the
Shares;
|
|
(s)
|
the
Subscriber has made an independent examination and investigation of an
investment in the Shares and the Company and has depended on the advice of
its legal and financial advisors and agrees that the Company will not be
responsible in anyway whatsoever for the Subscriber's decision to invest
in the Shares and the Company;
|
|
(t)
|
if
the Subscriber is acquiring the Shares as a fiduciary or agent for one or
more investor accounts, the Subscriber has sole investment discretion with
respect to each such account, and the Subscriber has full power to make
the foregoing acknowledgements, representations and agreements on behalf
of such account;
|
|
(u)
|
the
Subscriber is not aware of any advertisement of any of the Shares 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;
|
|
(v)
|
no
person has made to the Subscriber any written or oral
representations:
|
|
(i)
|
that
any person will resell or repurchase any of the
Shares,
|
|
(ii)
|
that
any person will refund the purchase price of any of the
Shares,
|
|
(iii)
|
as
to the future price or value of any of the Shares,
or
|
|
(iv)
|
that
any of the Shares 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 Shares of the Company on any stock
exchange or automated dealer quotation system;
and
|
|
(w)
|
the
Subscriber acknowledges and agrees that the Company shall not consider the
Subscriber's Subscription for acceptance unless the undersigned provides
to the Company, along with an executed copy of this Subscription Agreement
and such other supporting documentation that the Company or its legal
counsel may request to establish the Subscriber's qualification as a
qualified investor.
|
5.2 In this
Subscription Agreement, the term "U.S. Person" shall have the meaning ascribed
thereto in Regulation S promulgated under the 1933 Act and for the purpose
of the Subscription Agreement includes any person in the United
States.
|
6.
|
ACKNOWLEDGEMENT AND
WAIVER
|
6.1 The
Subscriber has acknowledged that the decision to purchase the Shares was solely
made on the Company Information. The Subscriber hereby waives, to the
fullest extent permitted by law, any rights of withdrawal, rescission or
compensation for damages to which the Subscriber might be entitled in connection
with the distribution of any of the Shares.
|
7.
|
REPRESENTATIONS AND
WARRANTIES WILL BE RELIED UPON BY THE
COMPANY
|
7.1 The
Subscriber acknowledges that the acknowledgements, 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 the Subscriber's
eligibility to purchase the Shares under applicable securities legislation, or
(if applicable) the eligibility of others on whose behalf it is contracting
hereunder to purchase the Shares under applicable securities
legislation. The Subscriber further agrees that by accepting delivery
of the certificates representing the Shares, it will be representing and
warranting that the acknowledgements representations and warranties contained
herein are true and correct as of the date hereof and will continue in full
force and effect notwithstanding any subsequent disposition by the Subscriber of
such Shares.
|
8.
|
RESALE
RESTRICTIONS
|
8.1 The
Subscriber acknowledges that any resale of the Shares will be subject to resale
restrictions contained in the securities legislation applicable to the
Subscriber or proposed transferee. The Subscriber acknowledges that
none of the Shares have been registered under the 1933 Act or the securities
laws of any state of the United States. None of the Shares may be
offered or sold in the United States unless registered in accordance with
federal securities laws and all applicable state securities laws or exemptions
from such registration requirements are available.
|
9.
|
LEGENDING AND
REGISTRATION OF SUBJECT
SECURITIES
|
9.1 The
Subscriber 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 Shares will bear a legend
in substantially the following form:
THE
SECURITIES REPRESENTED HEREBY HAVE BEEN OFFERED IN AN OFFSHORE TRANSACTION TO A
PERSON WHO IS NOT A U.S. PERSON (AS DEFINED HEREIN) PURSUANT TO REGULATION S
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933
ACT").
NONE OF
THE SECURITIES REPRESENTED HEREBY HAVE BEEN REGISTERED UNDER THE 1933 ACT, OR
ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR
SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES (AS DEFINED HEREIN) OR TO
U.S. PERSONS 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 COMPLIANCE
WITH THE 1933 ACT. "UNITED STATES" AND "U.S. PERSON" ARE AS DEFINED
BY REGULATION S UNDER THE 1933 ACT.
9.2 The
Subscriber 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.
|
10.
|
COLLECTION OF PERSONAL
INFORMATION
|
10.1 The
Subscriber acknowledges and consents to the fact that the Company is collecting
the Subscriber's personal information for the purpose of fulfilling this
Subscription Agreement and completing the Offering. The Subscriber's
personal information (and, if applicable, the personal information of those on
whose behalf the Subscriber is contracting hereunder) may be disclosed by the
Company to (a) stock exchanges or securities regulatory authorities, (b) the
Company's registrar and transfer agent and (c) any of the other parties involved
in the Offering, including legal counsel, and may be included in record books in
connection with the Offering. By executing this Subscription
Agreement, the Subscriber is deemed to be consenting to the foregoing
collection, use and disclosure of the Subscriber's personal information (and, if
applicable, the personal information of those on whose behalf the Subscriber is
contracting hereunder) and to the retention of such personal information for as
long as permitted or required by law or business
practice. Notwithstanding that the Subscriber may be purchasing
Shares as agent on behalf of an undisclosed principal, the Subscriber agrees to
provide, on request, particulars as to the identity of such undisclosed
principal as may be required by the Company in order to comply with the
foregoing.
|
11.
|
COSTS
|
11.1 The
Subscriber acknowledges and agrees that all costs and expenses incurred by the
Subscriber (including any fees and disbursements of any special counsel retained
by the Subscriber) relating to the purchase of the Shares shall be borne by the
Subscriber.
|
12.
|
GOVERNING
LAW
|
12.1 This
Subscription Agreement is governed by the laws of the State of Nevada and the
federal laws of the United States applicable thereto. The Subscriber,
in its personal or corporate capacity and, if applicable, on behalf of each
beneficial purchaser for whom it is acting, irrevocably attorns to the exclusive
jurisdiction of the Courts of the State of Nevada.
|
13.
|
SURVIVAL
|
13.1 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 Subscriber pursuant
hereto.
|
14.
|
ASSIGNMENT
|
14.1 This
Subscription Agreement is not transferable or assignable.
|
15.
|
SEVERABILITY
|
15.1 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.
|
16.
|
ENTIRE
AGREEMENT
|
16.1 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.
|
17.
|
NOTICES
|
17.1 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 Subscriber shall be directed to the
address on page 2 and notices to the Company shall be directed to it at the
first page of this Subscription Agreement.
|
18.
|
COUNTERPARTS AND
ELECTRONIC MEANS
|
18.1 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.
