Contract
THIS
SUBSCRIPTION AGREEMENT IS EXECUTED IN RELIANCE UPON (1) THE EXEMPTION PROVIDED
BY SECTION 4(2) AND REGULATION D, RULE 506 FOR TRANSACTIONS NOT INVOLVING A
PUBLIC OFFERING UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”) OR (2) THE EXEMPTION TO AN OFFERING OF SECURITIES IN AN
OFFSHORE TRANSACTION TO PERSONS WHO ARE NOT U.S. PERSONS (AS DEFINED HEREIN)
PURSUANT TO RULE 903 OF REGULATION S PROMULGATED UNDER THE SECURITIES ACT.
THIS
OFFERING IS BEING MADE ONLY TO ACCREDITED INVESTORS. NONE OF THE SECURITIES
TO
WHICH THIS SUBSCRIPTION AGREEMENT RELATES HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED,
NONE MAY BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, EXCEPT IN ACCORDANCE WITH
THE PROVISIONS OF REGULATION D OR REGULATION S UNDER THE SECURITIES ACT,
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE
REGISTRATION REQUIREMENTS OF THE SECURITIES 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 SECURITIES ACT.
_________________________
_________________________
THIS
AMENDED AND RESTATED SUBSCRIPTION AGREEMENT (this
“Subscription Agreement”) has been executed by the undersigned in connection
with the private placement of a minimum of $1,000,000 and up to a maximum of
$12,000,000 of shares of common stock (the “Common Stock”), issued by Zulu
Energy Corp., a corporation organized under the laws of the State of Colorado
(hereinafter referred to as the “Company”) at a purchase price of $1.00 per
share (“Per Share Purchase Price”) (the “Offering”). In consideration for each
share of Common Stock subscribed for, the Purchaser shall receive a warrant
to
purchase the number of shares of Common Stock equal to the number of shares
of
Common Stock subscribed for under this Subscription Agreement at an exercise
price of $1.50 per share (the “Warrant”, and together with the Common Stock, the
“Securities”). Each Warrant shall be valid for three (3) years from the date of
issuance. The Securities being subscribed for pursuant to this Subscription
Agreement have not been registered under the Securities Act. The offer of the
Securities and, if this Subscription Agreement is accepted by the Company,
the
sale of Securities, is being made in reliance upon Section 4(2) of the
Securities Act or Rule 903 of Regulation S promulgated under the Securities
Act
All dollar amounts in this Subscription Agreement are expressed in U.S. Dollars.
The Offering will terminate on April 29, 2008 (or such other date that the
Company may select), but not later than May 15, 2008.
The
undersigned Purchaser:
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NAME:
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ADDRESS:
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1
if
applicable, a [Corporate][Partnership][Trust] organized under the laws of
________________, (hereinafter
referred to as the “Purchaser”) hereby represents and warrants to, and agrees
with the Company as follows:
ARTICLE
1
SUBSCRIPTION
Subscription
1.1 The
undersigned Purchaser, as principal, hereby subscribes to purchase
___________________ shares
of
Common Stock, at an aggregate purchase price of $_________________________
(the
“Subscription Funds”).
Minimum
Subscription
1.2 A
minimum
of $100,000 of Common Stock must be purchased by the Purchaser.
Method
of Payment
1.3 The
Purchaser shall pay the Subscription Funds by delivering good funds in United
States Dollars by way of wire transfer of funds to the Company utilizing the
below wire transfer instructions. The Company’s wire transfer instructions
are:
| Wire to: | Colorado Business Bank |
| 000 00xx Xx. | |
| Xxxxxx, XX 00000 | |
| Routing No: | 000000000 |
| Account Name: | Zulu Energy Corp |
| Account No: |
0000000
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Upon
receipt of the Subscription Funds, and the acceptance by the Company of this
Subscription, the Company shall take up the Subscription Funds (the “Closing
Date”) and issue to the Purchaser such number of shares of Common Stock equal to
the Subscription Funds divided by the Per Share Purchase Price and a Warrant
to
purchase a number of shares of Common Stock equal to the number of shares of
Common Stock issued pursuant to Article 6 hereof. In the event that the Company
does not accept the subscription contemplated by this Subscription Agreement
and
issue and deliver the Securities subscribed for to the Purchaser, the Company
shall forthwith return the whole amount of the Subscription Funds to the
Purchaser. The Purchaser acknowledges that the subscription for the Securities
hereunder may be rejected in whole or in part by the Company in its sole
discretion.
2
ARTICLE
2
REPRESENTATIONS
AND WARRANTIES OF THE PURCHASER
Representations
and Warranties
2.1 The
Purchaser represents and warrants in all material respects to the Company,
with
the intent that the Company will rely thereon in accepting the subscription
pursuant to this Subscription Agreement, that either:
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Accredited
Investor.
The Purchaser is an “accredited investor” as that term is defined in
Regulation D promulgated under the Securities Act by virtue of being
(initial all applicable responses)
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A
small business investment company licensed by the U.S. Small Business
Administration under the Small
Business Investment Company Act of 1958,
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A
business development company as defined in the Investment
Company Act of 1940,
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—
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A
national or state-chartered commercial bank, whether acting in
an
individual
or fiduciary capacity,
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—
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An
insurance company as defined in Section 2(13) of the Securities
Act,
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—
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An
investment company registered under the Investment
Company Act of 1940,
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An
employee benefit plan within the meaning of Title I of the
Employee Retirement Income Security Act of 1974,
where the investment decision is made by a plan fiduciary, as defined
in
Section 3(21) of such Act, which is either a bank, insurance company,
or
registered investment advisor, or an employee benefit plan which
has total
assets in excess of $5,000,000,
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—
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A
private business development company as defined in Section 202(a)(22)
of
the Investment
Advisors Act of 1940,
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An
organization described in Section 501(c)(3) of the Internal
Revenue Code,
a
corporation or a partnership with total assets in excess of
$5,000,000,
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A
natural person (as opposed to a corporation, partnership, trust or
other
legal entity) whose net worth, or joint net worth together with his/her
spouse, exceeds $1,000,000,
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Any
trust, with total assets in excess of $5,000,000, not formed for
the
specific purpose of acquiring the securities offered, whose purchase
is
directed by a sophisticated person as described in Section 506(b)(2)(ii)
of Regulation D,
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A
natural person (as opposed to a corporation, partnership, trust or
other
legal entity) whose individual income was in excess of $200,000 in
each of
the two most recent years (or whose joint income with such person's
spouse
was at least $300,000 during such years) and who reasonably expects
an
income in excess of such amount in the current year, or
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A
corporation, partnership, trust or other legal entity (as opposed
to a
natural person) and
all
of
such entity's equity owners fall into one or more of the categories
enumerated above;
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(b) Non-U.S.
Person.
If the
Purchaser is not a U.S. Person (a “Reg S Person”) as defined in Section 902(k)
of Regulation S promulgated under the Securities Act, such Purchaser hereby
represents that the representations contained in paragraphs (1) through (7)
of
this Section 2.1(b) are true and correct with respect to such Purchaser.
(1)(i)
the
issuance and sale to such Reg S Person of the Securities is intended to be
exempt from the registration requirements of the Securities Act, pursuant to
the
provisions of Regulation S; (ii) it is not a “U.S. Person,” as such term is
defined in Regulation S and herein, and is not acquiring the Securities for
the
account or benefit of any U.S. Person; and (iii) the offer and sale of the
Securities has not taken place, and is not taking place, within the United
States of America or its territories or possessions. Such Reg S Person
acknowledges that the offer and sale of the Securities has taken place, and
is
taking place in an “offshore transaction,” as such term is defined in Regulation
S.
(2) Such
Reg
S Person acknowledges and agrees that, pursuant to the provisions of Regulation
S, the Securities cannot be sold, assigned, transferred, conveyed, pledged
or
otherwise disposed of to any U.S. Person or within the United States of America
or its territories or possessions for a period of one year (except as otherwise
provided by Regulation S) from and after the Closing Date, unless such shares
are registered for sale in the United States pursuant to an effective
registration statement under the Securities Act or another exemption from such
registration is available. Such Reg S Person acknowledges that it has not
engaged in any hedging transactions with regard to the Securities.
(3) Such
Reg
S Person consents to the placement of a legend on any certificate, note or
other
document evidencing the Securities and understands that the Company shall be
required to refuse to register any transfer of Securities not made in accordance
with applicable U.S. securities laws.
(4) Such
Reg
S Person is not a “distributor” of securities, as that term is defined in
Regulation S, nor a dealer in securities.
(5) Such
Reg
S Person understands that the Securities have not been registered under the
Securities Act, or the securities laws of any state and are subject to
substantial restrictions on resale or transfer. The Securities are “restricted
securities” within the meaning of Regulation S and Rule 144, promulgated under
the Securities Act.
(6) Such
Reg
S Person acknowledges that the Securities may only be sold offshore in
compliance with Regulation S or pursuant to an effective registration statement
under the Securities Act or another exemption from such registration, if
available. In connection with any resale of the Securities pursuant to
Regulation S, the Company will not register a transfer not made in accordance
with Regulation S, pursuant to an effective registration statement under the
Securities Act or in accordance with another exemption from the Securities
Act.
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(7) Such
Reg
S Person makes the representations, declarations and warranties as contained
in
this Section 2.1(b) with the intent that the same shall be relied upon by the
Company in determining its suitability as a purchaser of such
Securities.
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Experience.
The Purchaser is sufficiently experienced in financial and business
matters to be capable of evaluating the merits and risks of its
investments, and to make an informed decision relating thereto, and
to
protect its own interests in connection with the purchase of the
Securities;
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| (d) |
Own
Account.
The Purchaser is purchasing the shares of Common Stock as principal
for
its own account. The Purchaser is purchasing the Securities for investment
purposes only and not with an intent or view towards further sale
or
distribution (as such term is used in Section 2(11) of the Securities
Act)
thereof, and has not pre-arranged any sale with any other
purchaser;
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| (e) |
Exemption.
The Purchaser understands that the offer and sale of the Securities
are
not being registered under the Securities Act based on the exemption
from
registration provided by either (i) in the case of U.S. person, Rule
506
promulgated under Section 4(2) of the Securities Act or (ii) in the
case
of a Reg S Person, Rule 903 of Regulation S promulgated the Securities
Act
and that the Company is relying on such exemption.
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| (f) |
Importance
of Representations.
The Purchaser understands that the Securities are being offered and
sold
to it in reliance on an exemption from the registration requirements
of
the Securities Act, and that the Company is relying upon the truth
and
accuracy of the representations, warranties, agreements, acknowledgments
and understandings of the Purchaser set forth herein in order to
determine
the applicability of such safe harbor and the suitability of the
Purchaser
to acquire the Securities;
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| (g) |
No
Registration.
The Common Stock, the Warrant and the shares of Common Stock underlying
the Warrant have not been registered under the Securities Act and
may not
be transferred, sold, assigned, hypothecated or otherwise disposed
of
unless such transaction is the subject of a registration statement
filed
with and declared effective by the Securities and Exchange Commission
(the
“SEC”) or unless an exemption from the registration requirements under
the
Securities Act, such as Rule 144, is available. The Purchaser represents
and warrants and hereby agrees that all offers and sales of the Securities
shall be made only pursuant to such registration or to such exemption
from
registration;
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| (h) |
Risk.
The Purchaser acknowledges that the purchase of the Securities involves
a
high degree of risk, is aware of the risks and further acknowledges
that
it can bear the economic risk of the Securities, including the total
loss
of its investment;
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| (i) |
Current
Information.
The Purchaser has been furnished with or has acquired copies of all
requested information concerning the
Company;
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| (j) |
Independent
Investigation.
The Purchaser, in making the decision to purchase the Securities
subscribed for, has relied upon independent investigations made by
it and
its purchaser representatives, if any, and the Purchaser and such
representatives, if any, have prior to any sale to it, been given
access
and the opportunity to examine all material contracts and documents
relating to this offering and an opportunity to ask questions of,
and to
receive answers from, the Company or any person acting on its behalf
concerning the terms and conditions of this offering. The Purchaser
represents that it is has reviewed and is familiar with the disclosure
contained in the Company’s filings made with the U.S. Securities and
Exchange Commission (“SEC”) including without limitation the Form 10-KSB
filed by the Company with the SEC on April 15, 2008. The Purchaser
and its
advisors, if any, have been furnished with access to all materials
relating to the business, finances and operation of the Company and
materials relating to the offer and sale of the Securities which
have been
requested. The Purchaser and its advisors, if any, have received
complete
and satisfactory answers to any such
inquiries;
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| (k) |
No
Recommendation or Endorsement.
The Purchaser understands that no federal, state or provincial agency
has
passed on or made any recommendation or endorsement of the
Securities;
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| (l) |
The
Purchaser.
If the Purchaser is a partnership, corporation or trust, the person
executing this Subscription Agreement on its behalf represents and
warrants that
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(i)
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he
or she has made due inquiry to determine the truthfulness of the
representations and warranties made pursuant to this Subscription
Agreement, and
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(ii)
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he
or she is duly authorized (and if the undersigned is a trust, by
the trust
agreement) to make this investment and to enter into and execute
this
Subscription Agreement on behalf of such
entity;
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| (m) |
Non-Affiliate
Status.
The Purchaser is not an affiliate of the Company nor is any affiliate
of
the Purchaser an affiliate of the Company;
and
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No
Advertisement or General Solicitation.
The sale of the Securities has not been advertised through any article,
notice or other communication published in any newspaper, magazine,
or
similar media or broadcast over television or radio; or through any
seminar or meeting whose attendees have been invited by any general
solicitation or general
advertising.
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Subscription
Funds.
The funds representing the Subscription Funds that will be provided
to the
Company by the Purchaser hereunder will not present proceeds of crime
for
the purposes of United States anti-terrorist legislation and the
Purchaser
acknowledges that the Company may in the future be required by law
to
disclose the Purchaser’s name and other information related to this
Subscription Agreement and the Purchaser’s subscription hereunder pursuant
to such legislation. To the best of the Purchaser’s knowledge (a) none of
the Subscription Funds to be provided by the Purchaser (i) has been
or
will be derived from or related to any activity that is deemed criminal
under the law of the United States of America, or any other jurisdiction,
or (ii) is being tendered on behalf of a person or entity who has
not been
identified to the Purchaser, and (b) it shall promptly notify the
Company
if the Purchaser discovers that any such representations ceases to
be
true, and to provide the Company with appropriate information in
connection therewith.
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Non-Merger
and Survival
2.2 The
representations and warranties of the Purchaser contained herein will be true
at
the date of execution of this Subscription Agreement by the Purchaser and as
of
the Closing Date in all material respects as though such representations and
warranties were made as of such times and shall survive the Closing Date and
the
delivery of the Certificates.
Indemnity
2.3 The
Purchaser
agrees to indemnify and save harmless the Company from and against any and
all
claims, demands, actions, suits, proceedings, assessments, judgments, damages,
costs, losses and expenses, including any payment made in good faith in
settlement of any claim (subject to the right of the Purchaser to defend any
such claim), resulting from the breach of any representation or warranty of
such
party under this Subscription.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
3.1 The
Company, upon taking up and accepting this Subscription, represents and warrants
in all material respects to the Purchaser, with the intent that the Purchaser
will rely thereon in making this Subscription Agreement, that:
| (a) |
Legality.
The Company has the requisite corporate power and authority to take
up and
accept this Subscription Agreement and to issue, sell and deliver
the
Securities; this Subscription Agreement and the issuance, sale and
delivery of the Securities hereunder and the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate
action by the Company; this Subscription Agreement and the Common
Stock
have been duly and validly executed and delivered by and on behalf
of the
Company, and are valid and binding agreements of the Company, enforceable
in accordance with their respective terms, except as enforceability
may be
limited by general equitable principles, bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium, or other laws
affecting
creditors’ rights generally;
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| (b) |
Proper
Organization.
The Company is a corporation duly organized, validly existing and
in good
standing under the laws of its jurisdiction of incorporation and
is duly
qualified as a foreign corporation in all jurisdictions where the
failure
to be so qualified would have a materially adverse effect on its
business,
taken as whole;
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No
Legal Proceedings.
There is no action, suit or proceeding before or by any court or
any
governmental agency or body, domestic or foreign, now pending or
to the
knowledge of the Company, threatened, against or affecting the Company,
or
any of its properties or assets, which might result in any material
adverse change in the condition (financial or otherwise) or in the
earnings, business affairs of business prospects of the Company,
or which
might materially and adversely affect the properties or assets
thereof;
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| (d) |
Non-Default.
Except as disclosed in the Form 10-KSB filed by the Company with
the SEC
on April 15, 2008 (the “Form 10-KSB”) including the financials statements
and notes thereto concerning the Stock Purchase Agreement, dated
December
19, 2007, between the Company and Xxxxxx Holdings Corp. (the “Xxxxxx Stock
Purchase Agreement”), the Company is not in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust or other material
instrument or agreement to which it is a party or by which it or
its
property may be bound;
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| (e) |
No
Misleading Statements.
The information provided by the Company to the Purchaser does not
contain
any untrue statement of a material fact or omit to state any material
fact;
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| (f) |
Absence
of Non-Disclosed Facts.
There is no fact known to the Company (other than general economic
conditions known to the public generally) that has not been disclosed
in
writing to the Purchaser that (i) could reasonably be expected to
have a
material adverse effect on the condition (financial or otherwise)
or in
the earnings, business affairs, business prospects, properties or
assets
of the Company; or (ii) could reasonably be expected to materially
and
adversely affect the ability of the Company to perform its obligations
pursuant to this Subscription;
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Non-Contravention.
The acceptance of this Subscription Agreement and the consummation
of the
issuance of the Securities and the transactions contemplated by this
Subscription Agreement do not and will not conflict with or result
in a
breach by the Company of any of the terms or provisions of, or constitute
a default under the Articles of Incorporation, as amended, or By-laws
of
the Company, or any indenture, mortgage, deed of trust, or other
material
agreement or instrument to which the Company is a party or by which
it or
any of its properties or assets are bound, or any existing applicable
decrees, judgment or order of any court, federal, state or provincial
regulatory body, administrative agency or other domestic governmental
body
having jurisdiction over the Company or any of its properties or
assets.
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| (h) |
Sales
Commission.
The Company may pay a sales commission or other fee of up to 10%
of the
gross proceeds of the sale of the Common Stock in cash and issue
such
number of Warrants equal to 10% of the aggregate amount of shares
of
Common Stock subscribed for (includes shares of Common Stock issuable
upon
exercise of the Warrants) in conjunction with this
Offering.
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Survival
3.2 The
representations and warranties of the Company shall survive the Closing Date
and
the delivery of the Certificates.
Indemnity
3.3 The
Company agrees to indemnify and save harmless the Purchaser from and against
any
and all claims, demands, actions, suits, proceedings, assessments, judgments,
damages, costs, losses and expenses, including any payment made in good faith
in
settlement of any claim (subject to the right of the Company to defend any
such
claim), resulting from the breach of any representation, warranty or covenant
of
such party under this Subscription.
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ARTICLE
4
COVENANTS
OF THE COMPANY
Covenants
of the Company
4.1 The
Company covenants and agrees with the Purchaser that:
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Filings.
The Company shall make all necessary filings in connection with the
sale
of the Securities as required by the laws and regulations of all
appropriate jurisdictions and securities
exchanges;
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| (b) |
Opinion.
The Company will, upon written request by the Purchaser, take such
steps
as are necessary to cause its counsel to issue an opinion to the
Company’s
transfer agent allowing the Purchaser to offer and sell the Common
Shares
in reliance on the provisions of Rule 144 provided that the holding
period
and other requirements of such Rule 144 are met. The costs of obtaining
such an opinion shall be borne by the
Company.
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| (c) |
Use
of Proceeds.
The Company intends to use the proceeds of the Offering after deduction
for fees and expenses incurred in conjunction with the Offering for
general corporate matters including, but not limited to, (i) the
payment
of $1.5 million to Xxxxxx Holdings Corp. pursuant to the Xxxxxx Stock
Purchase Agreement (as disclosed in the Form 10-KSB), and (ii) exploration
operations on its leased properties in the Republic of Botswana.
The
Company expects to use a majority of the proceeds from the Offering
for
its exploration efforts in the Republic of Botswana and expects to
expend
all or substantially all of the proceeds of the Offering within the
next
few months.
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Survival
4.2 The
covenants set forth in this Article shall survive the Closing for the benefit
of
the Purchaser.
ARTICLE
5
ISSUANCE
OF COMMON STOCK
On
or
prior to the Closing Date, the Company will prepare and issue the Common Stock
registered in such name or names as specified by the Purchaser. Such
Certificate(s) shall bear a legend in substantially one of the following
forms:
For
U.S.
Persons:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THESE
SECURITIES HAVE BEEN ISSUED PURSUANT TO THE SECTION 4(2) EXEMPTION TO THE
REGISTRATION PROVISIONS UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE
SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN
THE
ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL, IN A FORM
REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER
SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT.
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For
Non-U.S. Persons:
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
1933
ACT.
ARTICLE
6
CLOSING
Closing
shall be effected through the delivery of the Subscription Funds and a duly
executed Subscription Agreement, Registration Rights Agreement and
Confidentiality Agreement to the Company and the delivery of certificates
evidencing the Common Stock and the Warrant to the Purchaser (or the Purchaser’s
Representative) by the Company, together with a copy of this Subscription
Agreement, the Registration Rights Agreement and Confidentiality Agreement
dated
as of an even date herewith, duly executed.
ARTICLE
7
INDEMNIFICATION
7.1 Indemnification
of the Company.
Purchaser
agrees to indemnify and hold harmless the Company against and in respect of
any
and all loss, liability, claim, damage, deficiency, and all actions, suits,
proceedings, demands, assessments, judgments, costs and expenses whatsoever
(including, but not limited to, attorneys' fees reasonably incurred in
investigating, preparing, or defending against any litigation commenced or
threatened or any claim whatsoever through all appeals) arising out of or based
upon any false representation or warranty or breach or failure by Purchaser
to
comply with any covenant, representation or other provision made by it herein
or
in any other document furnished by it in connection with this
subscription.
7.2 Indemnification
of the Purchasers.
Company
agrees to indemnify and hold harmless the Purchasers against and in respect
of
any and all loss, liability, claim, damage, deficiency, and all actions, suits,
proceedings, demands, assessments, judgments, costs and expenses whatsoever
(including, but not limited to, attorneys' fees reasonably incurred in
investigating, preparing, or defending against any litigation commenced or
threatened or any claim whatsoever through all appeals) arising out of or based
upon any false representation or warranty or breach or failure by Company to
comply with any covenant, representation or other provision made by it herein
or
in any other document furnished by it in connection with this
subscription.
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ARTICLE
8
RIGHT
TO PARTICIPATE IN SUBSEQUENT FINANCING
8.1 Right
to Participate.
In the
event the Company sells any of its equity securities and receives gross proceeds
of $5,000,000 or more within one hundred twenty days of the closing of this
Offering (the “Subsequent Financing”), the Purchaser shall have the right for
thirty days following notice by the Company to the Purchaser of the Subsequent
Financing to participate in and receive the same terms as the investors in
the
Subsequent Financing by (i) allocating the Subscription Funds provided to the
Company pursuant to this Subscription Agreement to the purchase price or
purchase consideration, as applicable, for the securities offered in the
Subsequent Financing, (ii) surrendering the stock certificates representing
the
shares of Common Stock and the Warrant subscribed for pursuant to this
Subscription Agreement, and (iii) entering into the operative documents prepared
in conjunction with the Subsequent Financing.
8.2 Termination
of Interest in the Securities.
In the
event the Purchaser elects to participate in the Subsequent Financing, pursuant
to Section 8.1 above, Purchaser’s interest in the Securities purchased in
this Offering shall terminate.
ARTICLE
9
GENERAL
PROVISIONS
Governing
Law
9.1 This
Subscription Agreement shall be governed by and construed under the law of
the
State of Colorado without regard to its choice of law provision. Any disputes
arising out of, in connection with, or with respect to this Subscription, the
subject matter hereof, the performance or non-performance of any obligation
hereunder, or any of the transactions contemplated hereby shall be adjudicated
in a court of competent civil jurisdiction sitting in Denver, Colorado and
nowhere else.
Successors
and Assigns
9.2 This
Subscription Agreement shall inure to the benefit of and be binding on the
respective successors and assigns of the parties hereto.
Execution
by Counterparts and Facsimile
9.3 This
Subscription Agreement may be executed in counterparts and by facsimile, each
of
which when executed by any party will be deemed to be an original and all of
which counterparts will together constitute one and the same
Subscription.
11
Independent
Legal Advice
9.4 The
parties hereto acknowledge that they have each received independent legal advice
with respect to the terms of this Subscription Agreement and the transactions
contemplated herein or have knowingly and willingly elected not to do so.
Entire
Agreement
9.5 This
Subscription Agreement supersedes all other prior oral or written agreements
between the Purchaser and the Company with respect to the matters discussed
herein including, but not limited to, any prior proposed subscription for Series
A Convertible Preferred Stock, and this Subscription Agreement, the Registration
Rights Agreement, and the Warrant contain the entire understanding of parties
with respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Company nor the Purchaser
makes any representation, warranty, covenant or undertaking with respect to
such
matter.
[Remainder
of page intentionally left blank]
12
SIGNATURE
PAGE FOR INDIVIDUAL PURCHASER
IN
WITNESS WHEREOF,
the
undersigned represents that the foregoing statements are true and that he,
she
or they have executed this Subscription Agreement on this ___________
day
of
_______________,
2008.
| Printed Name | Signature | |
| Printed Name | Signature |
Agreed
to
this ________ day
of
_____________,2008:
| By: | |
| Title: |
This
is
page 12 to the Subscription Agreement dated as of the above date between Zulu
Energy Corp. and the above Purchaser.
SIGNATURE
PAGE FOR ENTITIES
IN
WITNESS WHEROF,
the
undersigned represents that the foregoing statements are true and that it caused
this Subscription Agreement to be duly executed on its behalf on
this ___________day
of_______________ 2008.
| Printed Name of Purchaser |
| By: | ||
|
(Signature
of Authorized
Person)
|
| (Printed Name and Title) |
Agreed
to
this _________ day
of
____________,
2008.
This
is
page 13 to the Subscription Agreement dated as of the above date between Zulu
Energy Corp. and the above Purchaser.
Full
Name and Address of Purchaser for Registration Purposes:
| NAME: | |
| ADDRESS: | |
| TAX ID NUMBER: |
| XXX.XX.: |
| FAX NO.: |
| CONTACT NAME: |
Delivery
Instructions (if different from Registration Name):
| NAME: | |
| ADDRESS: | |
| TAX ID NUMBER: |
| XXX.XX.: |
| FAX NO.: |
| CONTACT NAME: |
| SPECIAL INSTRUCTIONS: |
This
is
page 14 to the Subscription Agreement dated as of the above date between Zulu
Energy Corp. and the above Purchaser.
