EXHIBIT 4.23
PACIFIC ENERGY RESOURCES LTD.
000 Xxxx Xxxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxxxxxxx 00000
SUBSCRIPTION AGREEMENT FOR UNITS
(NON-U.S./NON-CANADIAN RESIDENTS)
TO: Pacific Energy Resources Ltd. (the "Corporation")
The undersigned (the "Subscriber") hereby irrevocably subscribes for and agrees
to purchase from the Corporation units ("Units") of the Corporation in the
number set forth below at a subscription price equal to CAD$2.20 per Unit (the
"Subscription Price"), with each Unit consisting of one (1) share of common
stock of the Corporation (a "Common Share") and one-half (1/2) Common Share
purchase warrant of the Corporation ("Warrants"). Each one (1) whole Warrant
shall entitle the holder to acquire one (1) Common Share (a "Warrant Share") at
a price equal to CAD$2.65 per Warrant Share for a period of 18 months from the
date of issue of the Warrants. The Units will separate at Closing. The
Subscriber agrees to be bound by the attached terms and conditions of
subscription (the "Terms and Conditions") and agrees that the Corporation and
its agents and attorneys may rely upon the representations, warranties and
covenants contained therein and in the Subscriber Certificate (as hereinafter
defined). This subscription, plus the Terms and Conditions and the completed and
executed Subscriber Certificate are collectively referred to as the
"Subscription Agreement" or the "Agreement."
SUBSCRIPTION AND SUBSCRIBER INFORMATION
PLEASE PRINT ALL INFORMATION (OTHER THAN SIGNATURES), AS APPLICABLE,
IN THE SPACE PROVIDED BELOW
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______________________________________ NUMBER OF UNITS:_____________________
(Name of Subscriber - please print) ---------------------------------------
By:___________________________________ ---------------------------------------
(Authorized Signature) AGGREGATE SUBSCRIPTION PRICE:________
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______________________________________
(Official Capacity or Title - please ---------------------------------------
print) IF THE SUBSCRIBER IS SIGNING AS AGENT
FOR A PRINCIPAL AND IS NOT PURCHASING
______________________________________ AS TRUSTEE OR AGENT FOR ACCOUNTS FULLY
(Please print name of individual whose MANAGED BY IT, COMPLETE THE FOLLOWING
signature appears above if different AND ENSURE THAT THE APPLICABLE
than the name of the subscriber EXHIBIT(S) ARE COMPLETED ON BEHALF OF
printed above.) SUCH PRINCIPAL:
______________________________________ ______________________________________
(Subscriber's Address) (Name of Principal)
______________________________________ ______________________________________
(Subscriber's Address) (Principal's Address)
______________________________________ ______________________________________
(Telephone Number) (E-Mail Address)
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THIS IS THE FIRST PAGE OF AN AGREEMENT COMPOSED OF 14 PAGES
(NOT INCLUDING EXHIBITS A-E).
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REGISTER THE UNITS AS SET FORTH BELOW: DELIVER THE UNITS AS SET FORTH BELOW:
______________________________________ ______________________________________
(Name) (Name)
______________________________________ ______________________________________
(Account reference, if applicable) (Account reference, if applicable)
______________________________________ ______________________________________
(Address) (Contact Name)
______________________________________ ______________________________________
(Address) (Address)
______________________________________
(Address)
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TYPE OF OWNERSHIP (CHECK ONE)
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SUBSCRIBER'S PRESENT HOLDINGS:
The Subscriber represents that securities of the Corporation presently owned
(beneficially, directly or indirectly) by the Subscriber are as follows (PLEASE
INDICATE "NIL" IF YOU DO NOT CURRENTLY OWN ANY SECURITIES OF THE CORPORATION):
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NUMBER OR AMOUNT
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INDIRECT OWNERSHIP
(INCLUDING CONTROL
TYPE OF SECURITIES PRESENTLY OWNED DIRECT OWNERSHIP OR DIRECTION)
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ACCEPTANCE: The Corporation hereby accepts the subscription as set forth above
on the terms and conditions contained in this Subscription Agreement.
October ______, 2007
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PACIFIC ENERGY RESOURCES LTD. Subscription No:
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By:____________________________________
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
TERMS AND CONDITIONS OF SUBSCRIPTION FOR UNITS
DEFINITIONS
1.1 In this Agreement, which includes the cover page and all of the
appendices, the following words have the following meanings unless
otherwise indicated:
(a) "1933 Act" means Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder;
(b) "Closing" means the completion of the issue and sale of the Units to
the Subscriber hereunder;
(c) "Common Share" has the meaning ascribed to it on the cover page of
this Agreement;
(d) "Corporation" means Pacific Energy Resources Ltd.;
(e) "Disclosure Documents" has the meaning ascribed to it in paragraph
4.1(n);
(f) "Exchange" means the Toronto Stock Exchange;
(g) "Offering" means this private placement;
(h) "Registration Rights Agreement" means the registration rights
agreement attached hereto as Exhibit "B";
(i) "Regulation S" means Regulation S of the 1933 Act;
(j) "SEC" means the United States Securities and Exchange Commission;
(k) "Securities" means collectively, the Units, the Common Shares, the
Warrants and the Warrant Shares;
(l) "Subscriber" has the meaning ascribed to it on the cover page of
this Agreement;
(m) "Subscriber Certificate" means the additional representations,
warranties and covenants for non-Canadian subscribers (other than
U.S. subscribers) attached hereto as Exhibit "C";
(n) "Unit" has the meaning ascribed to it on the cover page of this
Agreement;
(o) "U.S. Person" has the meaning attributed to it in Regulation S,
which meaning is reproduced in Exhibit "A" attached hereto;
(p) "Warrants" has the meaning ascribed to it on the cover page of this
Agreement; and
(q) "Warrant Shares" has the meaning ascribed to it on the cover page of
this Agreement.
1.2 All capitalized terms in this Agreement not defined above have the
meanings ascribed to them in this Agreement.
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2. PURCHASE AND SALE OF UNITS
2.1 The Subscriber acknowledges that:
(a) the Securities will be registered in accordance with the
registration instructions provided on the face page of this
Agreement, and if no registration instructions are provided, will be
registered in the name of the Subscriber;
(b) fractional Common Shares and Warrants will not be issued to the
Subscriber. Instead, the number of Common Shares and Warrants issued
to any one Subscriber will be rounded down to the nearest whole
number of Common Shares and Warrants issuable to such Subscriber at
the Closing;
(c) the issue of the Common Shares and the Warrants will not restrict or
prevent the Corporation from obtaining any other financing, or from
issuing additional securities from time to time; and
(d) the Corporation shall have the right to reject this Subscription
Agreement for any reason in its sole and absolute discretion.
Acceptance is evidenced only by execution of this Subscription
Agreement by the Corporation in the space provided above.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS BY THE CORPORATION
3.1 The Corporation hereby represents and warrants to the Subscriber (and
acknowledges that the Subscriber is relying thereon) that:
(a) the Corporation has the full corporate right, power and authority to
execute and deliver this Subscription Agreement and to issue the
Securities, and at Closing the Common Shares, the Warrants, and the
Warrant Shares issuable upon exercise of the Warrants, will be duly
authorized, and the Common Shares when issued, and the Warrant
Shares when issued upon the exercise of the Warrants, as the case
may be, will be issued as fully paid and non-assessable Common
Shares;
(b) this Subscription Agreement and the Registration Rights Agreement
each constitute a binding obligation of the Corporation enforceable
in accordance with its terms except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of
creditors' rights generally and as limited by laws relating to the
availability of specific performance, injunctive relief or other
equitable remedies;
(c) the execution and delivery of, and the performance of the terms of
this Subscription Agreement by the Corporation, including the issue
of the Common Shares and the Warrants, and the issue of the Warrant
Shares upon exercise of the Warrants as the case may be, does not
and will not constitute a breach of or default under the constating
documents of the Corporation or any law, regulation, order or ruling
applicable to the Corporation or any agreement, contract or
indenture to which the Corporation is a party or by which it is
bound; and
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(d) the Corporation is a duly incorporated and validly subsisting
corporation under the laws of its jurisdiction of incorporation and
has full corporate power and authority to perform each of its
obligations as herein contemplated.
4. REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENTS OF THE SUBSCRIBER
4.1 The Subscriber represents and warrants, as at the date of this Agreement
and at the Closing, that:
(a) the Subscriber is purchasing the Securities as principal for the
Subscriber's own account or for accounts fully-managed by it, for
long-term investment, and not with a view to, or for sale in
connection with, the distribution thereof. The Subscriber has no
present intention of selling, granting any participation in, or
otherwise distributing the Securities. The Securities will not be
resold without registration under the 1933 Act and qualification
under the securities laws of all applicable states and other
jurisdictions, unless such sale would be exempt therefrom;
(b) the Subscriber is purchasing the Securities pursuant to this
Subscription Agreement, in compliance with the securities laws in
its jurisdiction of residence and the Subscriber makes to the
Corporation the additional representations, warranties and covenants
set out in Exhibit "C" attached to this Subscription Agreement;
(c) the Subscriber has received, completed and returned to the
Corporation the Subscriber Certificate relating to the eligibility
to participate as an investor in a private offering, and hereby
affirms the correctness of the Subscriber's answers in the
Subscriber Certificate;
(d) the Subscriber (i) has adequate means of providing for his or her
current needs and possible personal contingencies, and has no need
for and may never have liquidity of his or her investment in the
Corporation; (ii) can bear the economic risk of losing his or her
entire investment herein and may lose the entire investment, which
is highly speculative and very risky; (iii) has such knowledge and
experience in financial and business matters that he or she is
capable of evaluating the relative risks and merits of this
investment; and (iv) has an overall commitment to investments which
are not readily marketable that is not disproportionate to his or
her net worth and the investment subscribed for herein will not
cause such overall commitment to become excessive;
(e) the Subscriber is aware that no prospectus has been prepared or
filed by the Corporation with any securities commission or similar
authority in connection with the Offering;
(f) no prospectus or offering memorandum has been delivered to the
Subscriber in connection with the Offering;
(g) the Subscriber's purchase of the Securities has not been made
through or as a result of, and the distribution of the Securities is
not being accompanied by and the Subscriber is not aware of, any
advertisement of the Securities in printed media of general and
regular paid circulation, radio, television or telecommunications,
including electronic display (such as the Internet), or any other
advertisement or general solicitation with respect to the
Securities;
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(h) no person has made to the Subscriber any written or oral
representation:
(i) that any person will resell or repurchase any of the
Securities;
(ii) that any person will refund the purchase price of the
Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for
trading on a stock exchange or that application has been made
to list and post any of the Securities for trading on a stock
exchange, other than the Exchange;
(i) none of the Securities are being purchased by the Subscriber with
knowledge of any material fact about the Corporation that has not
been generally disclosed;
(j) it never has been represented, guaranteed or warranted to the
Subscriber by the Corporation, its agents, or employees or any other
person, expressly or by implication, any of the following:
(i) the approximate or exact length of time that Subscriber will
be required to remain as owner of the Securities;
(ii) the profit or return, if any, to be realized as a result of
the Corporation's venture; or
(iii) that the past performance or experience on the part of the
Corporation or any affiliate, its agents, or employees or of
any other person, will in any way indicate the predictable
results of the ownership of the Securities or the overall
Corporation's venture;
(k) while the Common Shares and Warrant Shares will be listed on the
Exchange, there is no trading market for the Units or the Warrants,
and no such market is expected to develop;
(l) the Subscriber, if an individual, is at least twenty-one (21) years
of age;
(m) the Subscriber has no reason to anticipate any change in the
Subscriber's personal circumstances, financial or otherwise, which
may cause or require any sale or distribution by the Subscriber of
all or any part of the Securities subscribed for herein;
(n) the Subscriber has reviewed the documents regarding the Corporation
available on SEDAR (xxx.xxxxx.xxx) and the Exchange's web site
(xxx.xxx.xxx) (collectively, the "Disclosure Documents") carefully,
so as to be fully familiar with and understand the contents thereof,
and is responsible for conducting its own due diligence under the
Offering in order to determine whether to proceed with a
subscription under the Offering;
(o) the Subscriber has had the opportunity to review all facts
concerning the Corporation which the Subscriber deems pertinent;
(p) the Subscriber, if a partnership, corporation, trust, or other
entity, declares:
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(i) the person executing this Subscription Agreement has the
necessary power and authority to do so; and
(ii) the Subscriber was not organized for the specific purpose of
acquiring the Securities;
(q) the exhibits to this Agreement will be completed truthfully and with
reasonable diligence;
(r) as to the source of subscription funds,
(i) to the best of the Subscriber's knowledge, none of the
subscription funds used for the purchase of the Subscriber's
Securities (A) have been or will be derived from or related to
any activity that is deemed criminal under the laws of the
United States, Canada or any other jurisdiction; or (B) are
being tendered on behalf of a person or entity who has not
been identified to the Subscriber; and
(ii) the Subscriber will promptly notify the Corporation if the
Subscriber discovers that any of the representations in
subparagraph (q)(i) above ceases to be true, and to provide
the Corporation with appropriate information in connection
therewith;
(s) the Subscriber understands that the foregoing representations and
warranties are to be relied upon by the Corporation as a basis for
exemption of the sale of the Securities under applicable Canadian
securities laws (if any) and the 1933 Act, and for other purposes;
(t) the Subscriber has had an opportunity prior to entering into this
Agreement to ask questions of and receive answers from the
Corporation concerning the terms and conditions of the Offering and
to obtain additional information that the Corporation possesses or
can acquire without unreasonable effort or expense necessary to
verify the accuracy of information furnished by the Corporation to
the Subscriber that the Subscriber considers necessary or
appropriate for deciding whether to purchase the Securities;
(u) the Subscriber, if an individual, has the legal capacity to enter
into and execute this Agreement and to take all actions required
pursuant to this Agreement;
(v) the offer was not made to the Subscriber when the Subscriber was in
the United States and, at the time the Subscriber's buy order was
made, the Subscriber was outside the United States;
(w) the Corporation's U.S. counsel, Xxxxx & Xxxxxx, LLP, and its
Canadian counsel, Xxxxxx Xxxxxx, are acting solely for the
Corporation, in connection with the Offering and the Subscriber may
not rely upon either such counsel in any respect;
(x) the Subscriber is neither a U.S. Person nor a Canadian resident;
(y) the Subscriber is not and will not be purchasing the Securities for
the account or benefit of any U.S. Person or Canadian resident;
(z) the entering into of this Agreement and the transactions
contemplated hereby will not result in the violation of any of the
terms and provisions of any law applicable to, or 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;
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(aa) this Agreement has been duly executed and delivered by the
Subscriber and constitutes a legal, valid and binding agreement of
the Subscriber enforceable against the Subscriber;
(bb) the Subscriber warrants that the information herein provided to the
Corporation by the Subscriber is true and correct as of the date
hereof, and the Subscriber agrees to advise the Corporation, prior
to its acceptance of this Subscription, of any material change in
any such information; and
(cc) the Subscriber agrees that the representations and warranties of the
Subscriber set forth in this Section 4 shall survive the acceptance
of this subscription, in the event the subscription is accepted.
4.2 The Subscriber understands and acknowledges that:
(a) (on its own behalf and, if applicable, on behalf of each person on
whose behalf the Subscriber is contracting) that the Securities
subscribed for by it hereunder form part of a larger issuance and
sale by the Corporation of up to CAD$75 million in Units;
(b) no federal or state agency has made any finding or determination as
to the fairness of the offering of the Securities for investment or
any recommendation or endorsement of the Offering and no securities
commission or similar regulatory authority has reviewed or passed on
the merits of the Securities;
(c) the Securities have not been registered under the 1933 Act or
qualified under any state securities laws in reliance on exemptions
from registration and may not be offered or sold in the United
States unless registered under the 1933 Act and the securities laws
of all applicable states of the United States or an exemption from
such registration requirements is available;
(d) the Common Shares and Warrant Shares will bear incidental
registration rights in accordance with the terms of the Registration
Rights Agreement;
(e) there are restrictions on the Subscriber's ability to resell the
Securities and it is the responsibility of the Subscriber to find
out what those restrictions are and to comply with them before
reselling any of the Securities;
(f) the offer and sale of the Securities, and the issuance of the Common
Shares, the Warrants, and the Warrant Shares upon exercise of the
Warrants, as the case may be, is being made in reliance upon
Regulation S. Regulation S requires that, for a one (1) year
"distribution compliance period" (as defined in Regulation S), no
offer or sale of any of the Securities issued in reliance on
Regulation S may be made to a U.S. Person or for the account or
benefit of a U.S. Person. Specifically, the offer or sale of any of
the Securities issued in reliance on Regulation S, if made prior to
the expiration of the one-year "distribution compliance period,"
must be made pursuant to the following conditions:
(i) The purchaser of the Securities certifies that it is not a
U.S. Person and is not acquiring the Securities for the
account or benefit of any U.S. Person or is a U.S. Person who
purchased the Securities in a transaction that did not require
registration under the 1933 Act;
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(ii) The purchaser of the Securities agrees to resell such
securities only in accordance with the provisions of
Regulation S, Rule 144, pursuant to registration under the
1933 Act, or pursuant to an available exemption from
registration; and agrees not to engage in hedging transactions
with regard to such Securities unless in compliance with the
1933 Act;
(iii) The certificate(s) representing the Common Shares, the
Warrants, and the Warrant Shares upon exercise of the
Warrants, as the case may be, contain(s) a legend to the
effect that transfer is prohibited except in accordance with
the provisions of Regulation S, pursuant to registration under
the 1933 Act, or pursuant to an available exemption from
registration; and that hedging transactions involving the
Securities may not be conducted unless in compliance with the
1933 Act; such legend is set forth in Section 7 hereof;
The Securities may be resold only in compliance with Regulation S or
pursuant to an effective registration statement under the 1933 Act
or an exemption from the registration requirements of the 1933 Act.
Rule 904 of Regulation S provides that a resale of an outstanding
security may be made pursuant thereto if the offer and sale of the
security are made in an "offshore transaction" and if no directed
selling efforts are made in the United States with regard to the
securities to be sold by the seller, an affiliate of the seller, or
any person acting on their behalf. An offer or sale of securities is
made in an "offshore transaction" if the offer is not made to a
person in the United States and either (i) at the time the buy order
is originated, the buyer is outside the United States, or the seller
and any person acting on its behalf have good reason to believe that
the buyer is outside the United States and (ii) the transaction is
executed in, on or through the facilities of a designated offshore
securities market and neither the seller nor any person acting on
its behalf knows that the transaction has been prearranged with a
buyer in the United States. Offers and sales of securities
specifically targeted at identifiable groups of United States
citizens abroad shall, in no event, be deemed to be made in an
offshore transaction. Rule 904 of Regulation S imposes additional
limitations on resales by dealers and persons receiving selling
concessions and affiliates of the issuer.
If the Securities are being sold under Rule 904 of Regulation S of
the 1933 Act, and applicable state securities laws, any legend may
be removed by (i) providing a certification to the Corporation to
the effect set out in attached Exhibit "D" (or in such other form as
the Corporation may prescribe from time to time); (ii) causing a
broker, dealer or any other person receiving a selling concession,
fee or other remuneration in connection with such resale to provide
a certification to the Corporation to the effect set out in attached
Exhibit "E" (or in such other form as the Corporation may prescribe
from time to time); (iii) obtaining the Corporation's signed
acknowledgment that, at the time of the resale, there is no
"substantial U.S. market interest" (as defined under Regulation S of
the 0000 Xxx) and (iv) obtaining a legal opinion of the
Corporation's counsel that such legend is no longer required under
applicable requirements of the 1933 Act or state securities laws.
The Corporation may instruct its transfer agent not to record a
transfer without first being notified by the Corporation that it is
satisfied that such transfer is exempt from or not subject to
registration under the 1933 Act or state securities laws.
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Under Rule 905 of Regulation S, because the Corporation is a U.S.
corporation, the Securities will be deemed to be "restricted
securities" (as defined in Rule 144 of the 0000 Xxx) and as such may
be resold or otherwise transferred only in accordance with
Regulation S or pursuant to a registration under the 1933 Act or an
exemption from the registration requirements of the 1933 Act; the
Securities will continue to be deemed to be restricted securities,
notwithstanding that they are acquired by another purchaser in a
resale transaction made pursuant to Rule 901 or Rule 904 of
Regulation S. Subject to listing approval of the Exchange, the
trading symbol for the Common Shares and the Warrant Shares shall
bear a designation separate from the currently listed "PFE" and
"PFE.S" designations and the CUSIP number for the Common Shares and
the Warrant Shares issued upon the exercise of the Warrants will be
a different CUSIP number than the CUSIP number for outstanding
common shares that currently trade under the "PFE" and "PFE.S"
designations, to indicate that they are restricted securities.
Restricted securities may have significantly less liquidity than
unrestricted securities that do not bear such separate designation
and are not fungible securities with "PFE" and "PFE.S" listed shares
and, if listed, may be limited to trading in a market restricted to
the Common Shares or Warrant Shares issued under the Offering. There
is no assurance that the Common Shares or Warrant Shares will be
listed.
Rule 144 under the 1933 Act permits limited public resales of
securities acquired in non-public offerings, subject to the
satisfaction of certain conditions. Under Rule 144 the conditions
include, among other things: the availability of certain current
public information about the issuer, the resale occurring not fewer
than one (1) year or two (2) years, as applicable, after the party
has purchased and paid for the securities to be sold, the sale being
through a broker in an unsolicited "broker's transaction" and the
amount of securities being sold during any three-month period not
exceeding specified volume limitations. The Corporation may not be
satisfying the current public information requirement of Rule 144 at
the time the Subscriber wishes to sell any of the Securities, or
other conditions under Rule 144 which are required of the
Corporation.
(g) the Subscriber acknowledges being told that the Securities may not
be sold or otherwise disposed of in Canada for a period of four
months from the date of distribution of the Securities and may be
subject to additional resale restrictions if such sale or other
disposition would be a "control distribution", as that term is
defined in Multilateral Instrument 45-102 RESALE OF SECURITIES;
(h) the Subscriber acknowledges and agrees with the Corporation that the
Corporation shall refuse to register any transfer of the Securities
not made pursuant to registration under the 1933 Act, or pursuant to
an available exemption from registration under the 1933 Act
(including Regulation S) or, if applicable, pursuant to an available
prospectus exemption under Canadian securities laws;
(i) the Subscriber acknowledges that there are risks associated with the
purchase of the Securities and that the Subscriber is aware that
there is no government or other insurance covering the Securities;
(j) the Corporation may be required to provide applicable securities
regulatory authorities with a list setting forth the identities of
the beneficial purchasers of the Securities and the Subscriber
acknowledges and agrees that it will provide, on request,
particulars as to the identity of such beneficial purchasers as may
be required by the Corporation in order to comply with the
foregoing;
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(k) if required by applicable securities laws or the Corporation, the
Subscriber will execute, deliver and file, or assist the Corporation
in filing, such reports, undertakings and other documents with
respect to the issue and/or sale of the Securities as may be
required by any securities commission, stock exchange or other
regulatory authority;
(l) by providing personal information to the Corporation, the Subscriber
and each person for whom it is contracting hereunder, is consenting
to the Corporation's collection, use and disclosure of that
information for the purposes of the subscription of the Securities
and the offering in general, for corporate governance purposes and
to contact the Subscriber as an investor. The Subscriber, and each
person for whom it is contracting hereunder, acknowledges that, from
time to time, the Corporation may be required to disclose such
personal information and, by providing such personal information to
the Corporation, the Subscriber and each person for whom it is
contracting hereunder, hereby expressly consents to such disclosure,
and the Subscriber and each person for whom it is contracting agrees
and acknowledges that the Corporation may use and disclose personal
information as follows:
(i) for internal use with respect to managing the relationships
between and contractual obligations of the Corporation and the
Subscriber and each person for whom it is contracting;
(ii) for use and disclosure for income tax related purposes,
including without limitation, where required by law,
disclosure to the Internal Revenue Service;
(iii) disclosure to securities regulatory authorities and other
regulatory bodies with jurisdiction with respect to reports of
trades and similar regulatory filings;
(iv) disclosure to a governmental or other authority to which the
disclosure is required by court order or subpoena compelling
such disclosure and where there is no reasonable alternative
to such disclosure;
(v) disclosure to professional advisers of the Corporation in
connection with the performance of their professional
services;
(vi) disclosure to any person where such disclosure is necessary
for legitimate business reasons and is made with the prior
written consent of the Subscriber and each person for whom it
is contracting;
(vii) disclosure to a court determining the rights of the parties
under this Agreement; or
(viii) for use and disclosure as otherwise required or permitted by
law;
(m) the Subscriber acknowledges that the initial US$50 million of the
proceeds of the Offering will be used to repay a portion of the debt
associated with the acquisition of the offshore producing Alaskan
assets of Forest Oil Corporation, with any balance of funds to be
used for general working capital and business purposes; and
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5. ISSUANCE OF UNITS
5.1 The Subscriber agrees to deliver to the Corporation, as soon as possible
and, in any event, not later than 1:00 p.m. (Pacific time) on October 15,
2007 (or such later date and time as the Corporation in its sole
discretion may allow): (a) this duly completed and executed Subscription
Agreement; (b) a duly executed Registration Rights Agreement attached
hereto as Exhibit "B", together with a duly completed selling security
holder questionnaire attached thereto as an exhibit; (c) a duly executed
Certificate of Additional Representations, Warranties and Covenants for
Non-Canadian Subscribers (Other Than U.S. Subscribers) attached hereto as
Exhibit "C"; (e) such other documents as may be required under applicable
securities laws; and (d) a certified cheque or bank draft payable to the
Corporation for the aggregate subscription price or payment of the same
amount in such other manner as is acceptable to the Corporation.
5.2 The Subscriber expressly waives and releases the Corporation from, to the
fullest extent permitted by law, all rights of withdrawal to which it
might otherwise be entitled pursuant to the provisions of securities laws
of the jurisdiction in which the Subscriber is resident.
6. REGISTRATION STATEMENT
6.1 The Common Shares and the Warrant Shares will bear incidental registration
rights in accordance with the terms of the Registration Rights Agreement.
7. LEGENDS
7.1 The certificates representing the Common Shares, the Warrants, and the
Warrant Shares upon exercise of the Warrants as the case may be, will bear
a legend denoting the restrictions on transfer. The Subscriber agrees to
sell, assign or transfer the Securities only in accordance with such
restrictions.
The legend for certificates for the Common Shares, the Warrants, and the
Warrant Shares issued upon exercise of the Warrants as the case may be,
will be in substantially the following form:
(i) "UNLESS PERMITTED UNDER SECURITIES LEGISLATIONS, THE HOLDER OF
THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [THE DATE
THAT IS FOUR MONTHS AND ONE DAY FOLLOWING THE CLOSING]."
and
(ii) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE LISTED ON
THE TORONTO STOCK EXCHANGE ("TSX"). HOWEVER, PRIOR TO [THE
DATE THAT IS FOUR MONTHS AND ONE DAY FOLLOWING THE CLOSING].
THE SAID SECURITIES CANNOT BE TRADED THROUGH THE FACILITIES OF
TSX SINCE THEY ARE NOT FREELY TRANSFERABLE AND CONSEQUENTLY
ANY CERTIFICATE REPRESENTING SUCH SECURITIES IS NOT "GOOD
DELIVERY" IN SETTLEMENT OF TRANSACTIONS ON TSX."
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and
(iii) THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ISSUED PURSUANT TO REGULATION S PROMULGATED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). AS SUCH, THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE "RESTRICTED
SECURITIES" AND MAY NOT BE SOLD, OFFERED FOR SALE,
TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED OR DISPOSED OF OTHER THAN (I) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SHARES REPRESENTED
BY THIS CERTIFICATE UNDER THE ACT, (II) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
UNDER THE ACT, (III) PURSUANT TO RULE 144 UNDER THE ACT, OR
(IV) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT. THE HOLDER HEREOF AGREES
THAT (A) ANY HEDGING TRANSACTION WITH RESPECT TO THE
SECURITIES REPRESENTED BY THIS CERTIFICATE WILL BE CONDUCTED
IN COMPLIANCE WITH THE ACT AND (B) IT WILL DELIVER, OR CAUSE
TO BE DELIVERED, TO EACH PERSON TO WHOM THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE THE
RESPECTIVE MEANINGS ASSIGNED TO THEM IN REGULATION S UNDER THE
ACT.
8. RELIANCE UPON REPRESENTATIONS, WARRANTIES AND COVENANTS
8.1 The Subscriber acknowledges that the representations and warranties and
covenants and acknowledgments contained in this Agreement are made with
the intent that they may be relied upon by the Corporation in determining
the Subscriber's eligibility to purchase the Securities and the Subscriber
hereby agrees to indemnify the Corporation against all losses, claims,
costs, expenses and damages or liabilities which it may suffer or incur
caused or arising from its reliance thereon. The Subscriber further agrees
that by accepting the Securities the Subscriber shall be representing and
warranting that the foregoing representations and warranties are true as
at the date of Closing and as at the dates of exercise of the Warrants,
with the same force and effect as if they had been made by the Subscriber
on each such date, and that they shall survive the purchase by the
Subscriber of the Securities and shall continue in full force and effect
notwithstanding any subsequent disposition by the Subscriber of any of the
Securities.
9. MISCELLANEOUS
9.1 The Corporation shall be entitled to rely on delivery by facsimile machine
of an executed copy of this subscription, and acceptance by the
Corporation of such facsimile copy shall be equally effective to create a
valid and binding agreement between the Subscriber and the Corporation in
accordance with the terms hereof.
13
9.2 Without limitation, this Agreement and the transactions contemplated
hereby are conditional upon and subject to the Corporation receiving
Exchange approval of this Agreement and the transactions contemplated
hereby.
9.3 This Agreement is not assignable or transferable by the parties hereto
without the express written consent of the other party hereto.
9.4 Time is of the essence of this Agreement.
9.5 Except as expressly provided in this Agreement and in the agreements,
instruments and other documents contemplated or provided for herein, this
Agreement contains the entire agreement between the parties with respect
to the Securities and there are no other terms, conditions,
representations or warranties whether expressed, implied, oral or written,
by statute, by common law, by the Corporation or by anyone else.
9.6 The parties to this Agreement may amend this Agreement only in writing.
9.7 This Agreement inures to the benefit of and is binding upon the parties to
this Agreement and their successors and permitted assigns.
9.8 A party to this Agreement will give all notices to or other written
communications with the other party to this Agreement concerning this
Agreement by hand or by registered mail or overnight courier addressed to
the address given above.
9.9 This Agreement will be governed by and construed in accordance with the
laws of the State of California, without regard to choice of law
principles.
9.10 This Agreement, including without limitation the representations,
warranties and covenants contained herein and in the Subscriber
Certificate, shall survive and continue in full force and effect and be
binding upon the Corporation and the Subscriber, notwithstanding the
completion of the purchase of the Securities by the Subscriber pursuant
hereto, the completion of the Offering and any subsequent disposition by
the Subscriber of the Securities.
9.11 Without limitation, each Subscriber's obligations hereunder are
conditional upon and subject to the delivery by the Corporation's counsel
to each Subscriber a legal opinion to the effect that the Securities are
eligible for resale under Rule 904 and 905 of Regulation S after the
expiration of the holding period prescribed by Canadian laws but subject
to the requirements set forth in Section 4.2(g) hereunder.
14
EXHIBIT "A"
DEFINITION OF "U.S. PERSON"
---------------------------
The term "U.S. person" is defined in Rule 902(k) of Regulation S, which
definition shall apply for purposes of this Agreement, as follows:
(1) "U.S. Person" means:
(i) Any natural person resident in the United States;
(ii) Any partnership or corporation organized or incorporated under the
laws of the United States;
(iii) Any estate of which any executor or administrator is a U.S. person;
(iv) Any trust of which any trustee is a U.S. person;
(v) Any agency or branch of a foreign entity located in the United
States;
(vi) Any non-discretionary account or similar account (other than an
estate or trust) held by a dealer or other fiduciary for the benefit
or account of a U.S. person;
(vii) Any discretionary account or similar account (other than an estate
or trust) held by a dealer or other fiduciary organized,
incorporated, or (if an individual) resident in the United States;
and
(viii) Any partnership or corporation if:
(a) Organized or incorporated under the laws of any foreign
jurisdiction; and
(b) Formed by a U.S. person principally for the purpose of
investing in securities not registered under the Securities
Act, unless it is organized or incorporated, and owned, by
accredited investors (as defined in Rule 501(a) of the 0000
Xxx) who are not natural persons, estates or trusts.
(2) The following are not "U.S. persons":
(i) Any discretionary account or similar account (other than an estate
or trust) held for the benefit or account of a non-U.S. person by a
dealer or other professional fiduciary organized, incorporated, or
(if an individual) resident in the United States;
(ii) Any estate of which any professional fiduciary acting as executor or
administrator is a U.S. person if:
(a) An executor or administrator of the estate who is not a U.S.
person has sole or shared investment discretion with respect
to the assets of the estate; and
(b) The estate is governed by foreign law;
(iii) Any trust of which any professional fiduciary acting as trustee is a
U.S. person, if a trustee who is not a U.S. person has sole or
shared investment discretion with respect to the trust assets, and
no beneficiary of the trust (and no settlor if the trust is
revocable) is a U.S. person;
(iv) An employee benefit plan established and administered in accordance
with the law of a country other than the United States and customary
practices and documentation of such country;
(v) Any agency or branch of a U.S. person located outside the United
States if:
(a) The agency or branch operates for valid business reasons; and
(b) The agency or branch is engaged in the business of insurance
or banking and is the subject to substantive insurance or
banking regulation, respectively, in the jurisdiction where
located; and
(vi) The International Monetary Fund, the International Bank for
Reconstruction and Development, the Inter-American Development Bank,
the Asian Development Bank, the African Development Bank, the United
Nations, and their agencies, affiliates and pension plans, and any
other similar international organizations, their agencies,
affiliates and pension plans.
EXHIBIT "C"
CERTIFICATE
ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS
FOR NON-CANADIAN SUBSCRIBERS
(OTHER THAN U.S. SUBSCRIBERS)
Capitalized terms used herein have the meaning ascribed thereto in the
subscription agreement (the "Subscription Agreement") of which this Exhibit "C"
forms a part.
The Subscriber on its own behalf and (if applicable) on behalf of others for
whom it is acting hereunder, further represents, warrants and covenants to and
with the Corporation and is counsel (and acknowledges that the Corporation and
its counsel are relying thereon) that it is a resident of, or otherwise subject
to, the securities legislation of a jurisdiction other than Canada or the United
States, and:
(a) the Subscriber is:
(i) a purchaser that is recognized by the securities regulators in
the jurisdiction in which it is resident or otherwise subject
to the securities laws of such jurisdiction as an exempt
purchaser and (subject to (b)(i) below) is purchasing the
Securities as principal for its own account, and not for the
benefit of any other person, corporation, firm or other
organization has a beneficial interest in the Securities being
purchased, or purchasing the Securities as agent or trustee
for the principal disclosed on the cover page of this
Subscription Agreement and each disclosed principal for whom
the Subscriber is acting is purchasing as principal for its
own account, and not a view to resale or distribution; or
(ii) a purchaser which is purchasing the Securities pursuant to an
exemption from any prospectus or securities registration
requirements (particulars of which are enclosed herewith)
available to the Corporation and the Subscriber under
applicable securities laws of their jurisdiction of residence
or to which the Subscriber is otherwise subject to, and the
Subscriber shall deliver to the Corporation such further
particulars of the exemption and their qualification
thereunder as the Corporation may reasonably request;
(b) if the Subscriber is resident in or otherwise subject to applicable
securities laws of the United Kingdom:
(i) the Subscriber is a person in the United Kingdom: (A) who is a
`qualified investor' for the purpose of section 86(7) of the
FINANCIAL SERVICES AND MARKETS ACT 2000 ("FSMA") and is
purchasing the Securities as principal for its own account and
not for the benefit of others, other than on behalf of (A)
discretionary client(s) in circumstances where section 86 (2)
FSMA applies; and (B) is such a person as is referred to in
Article 19 (investment professionals) or 49 (high net worth
companies etc) of the FINANCIAL SERVICES AND MARKETS ACT 2000
(Financial Promotion) order 2005; and (C) and has complied
with and undertakes to comply with all applicable provisions
of the FSMA and other applicable securities laws with respect
to anything done by it in relation to the Securities in, from
or otherwise involving the United Kingdom; and
(ii) the Subscriber confirms that, to the extent applicable to it,
it is aware of, has complied and will comply with its
obligations in connection with the CRIMINAL JUSTICE XXX 0000,
the PROCEEDS OF CRIME ACT 2002 and Part VIII of the FSMA, it
has identified its clients in accordance with the MONEY
LAUNDERING REGULATIONS 2003 (the "Regulations") and has
complied fully with its obligations pursuant to the
Regulations and will, as a condition precedent of any
acceptance of this subscription, provide all such information
and documents as may be required in relation to it (or any
person on whose behalf it is acting as agent) that may be
required by the Corporation or any agent or person acting for
it in order to discharge any obligations under the
Regulations;
(c) the purchase of the Securities by the Subscriber does not contravene
any of the applicable securities laws in such jurisdiction and does
not trigger: (i) any obligations of the Corporation to prepare and
file a prospectus, an offering memorandum or similar document; or
(ii) any obligations of the Corporation to make any filings with or
seek any approvals of any kind from any regulatory body in such
jurisdiction or any other ongoing reporting requirements with
respect to such purchase or otherwise; or (iii) any registration or
other obligation on the part of the Corporation; and
(d) the Subscriber is knowledgeable of, and has been independently
advised as to, the securities laws of such jurisdiction as
applicable to this Subscription Agreement.
Dated at ________________this______day of October, 2007.
________________________________________
Jurisdiction of residence
________________________________________
Print name of Subscriber, or person
signing as agent on behalf of Subscriber
________________________________________
Signature
________________________________________
Print name of Signatory (if different
from Subscriber or agent, as applicable)
________________________________________
Title
EXHIBIT "D"
RULE 904 OFFSHORE RESALE
SELLER CERTIFICATION
[DATE]
The undersigned (the "Seller"), is the beneficial owner of ___________ shares
Common Stock (the "Shares") of Pacific Energy Resources Ltd. (the
"Corporation"), which Shares are represented by stock certificate number ______.
The undersigned desires to resell the Shares in, on or through the facilities of
the Toronto Stock Exchange (the "Resale") in accordance with Rule 904 of
Regulation S ("Regulation S") under the United States Securities Act of 1933, as
amended (the "Securities Act").
The undersigned desires to effectuate the Resale, and as a condition thereto,
hereby certifies to the Corporation, [name of law firm], and the custodian, if
applicable, who has custody of the Shares (the "Custodian"), as follows:
1. The Seller is the beneficial owner of the Shares, having acquired and
fully paid for the Shares by purchase of the Shares on [date].
2. The Seller has notified the Corporation's transfer agent (the "Transfer
Agent") in writing of his, her or its desire to resell the Shares in, on
or through the facilities of the Toronto Stock Exchange.
3. The Seller has delivered or caused to be delivered the certificates
covering Shares to the Transfer Agent.
4. The Seller certifies that (a) the Resale of the Shares was not and is not
being made to a person in the United States; and (b) the transaction was
or will be executed in, or through the facilities of the Toronto Stock
Exchange, and neither the Seller nor any person acting on his, her or its
behalf knows that the transaction has been pre-arranged with a buyer in
the United States.
5. None of the Seller, the Seller's affiliates, or any person acting on his,
her or its behalf has engaged or will engage in any "directed selling
efforts", as defined in Rule 902 of Regulation S of the Securities Act.
"Directed selling efforts" include activities that are intended and could
reasonably be expected to condition the market in the United States with
respect to the Resale of the Shares.
6. The Seller certifies that he, she or it is not, and was not at the time of
the Resale, an "affiliate" of, or a person "affiliated" with, the
Corporation (except solely by virtue of being an officer or director of
the Corporation). An "affiliate" of, or person "affiliated" with, a
specified person includes a person or entity that directly, or indirectly
through one or more intermediaries, controls or is controlled by, or is
under common control with, the person or entity specified.
7. If the Seller is an affiliate of the Corporation solely by virtue of being
an officer or director of the Corporation, he, she or it certifies that no
selling concession, fee, or other remuneration has been or shall be paid
in connection with the Resale of the Shares other than the usual and
customary broker's commission that would be received by a person executing
such transaction as agent.
8. The Seller certifies that neither he, she or it nor any person acting on
his, her or its behalf knows that the purchaser of the Shares is or will
be a "dealer" or is or will be a person receiving a selling concession,
fee or other remuneration in respect of the Resale of the Shares. A
"dealer" shall mean any person who engages either for all or part of his,
her or its time, directly or indirectly, as agents, broker, or principal,
in the business of offering, buying, selling, or otherwise dealing or
trading in securities issued by another person.
9. The Seller acknowledges and understands that the Shares may not be offered
to U.S. persons or resold in the United States without registration or
pursuant to an exemption under the Securities Act.
10. The Seller certifies that the Shares shall not be offered or sold in or
through the facilities of any United States stock exchange without
registration or pursuant to an exemption under the Securities Act.
11. The Resale is not a transaction, or part of a series of transaction which,
although in technical compliance with Regulation S, is part of a plan or
scheme to evade the registration provisions of the Securities Act.
12. The Resale is bona fide and not for the purpose of "washing off" the
resale restrictions imposed because the securities are restricted
securities (as such term is defined in Rule 144(a)(3) under the Securities
Act).
13. The Seller agrees to immediately notify the Corporation of any facts or
circumstances that may hereafter come to the undersigned's attention which
would render any of the above statements to be inaccurate.
Tax Id. No.:
______________________________________ ______________________________________
Signature Advisor (if applicable):
______________________________________ ______________________________________
Name of Seller Custodian:
______________________________________ ______________________________________
Name and Title of Signatory (if Account No.:
applicable) ______________________________________
Address:
______________________________________
______________________________________
Dated:
IMPORTANT - READ CAREFULLY SIGNATURE GUARANTEED BY:
The signature(s) to this Certification
must correspond with the name(s) as
written upon the face of this Sign here_____________________________
certificate(s) or bond(s) in every
particular without alteration or
enlargement or any change whatever.
Signature guarantee should be made by
a member or member organization of the ______________________________________
New York Stock Exchange, members of (PERSON(S) EXECUTING THE POWER
other Exchanges having signatures on SIGN(S) HERE)
file with transfer agent or by a
commercial bank or trust company
having its principal office or
correspondent in the City of New York
EXHIBIT "E"
RULE 904 OFFSHORE RESALE
BROKER CERTIFICATION
[DATE]
The undersigned is the authorized broker appointed by ___________ (the "Seller")
to handle the offshore resale of _________ shares of Common Stock (the
"Shares"), of Pacific Energy Resources Ltd. (the "Corporation"), beneficially
owned by the Seller and represented by stock certificate number _____. The
Seller has instructed the undersigned to resell the Shares in, on or through the
facilities of the Toronto Stock Exchange (the "Resale") in accordance with Rule
904 of Regulation S ("Regulation S") under the United States Securities Act of
1933, as amended (the "Securities Act").
The Seller has advised the undersigned of the following:
o The Seller is the beneficial owner of the Shares, having acquired and
fully paid for the Shares by purchase of the Shares on [date].
o The Seller wishes to sell the Shares in, on or through the facilities of
the Toronto Stock Exchange in accordance with Rule 904 of Regulation S.
The undersigned desires to effectuate the Resale in, on or through the
facilities of the Toronto Stock Exchange, and as a condition thereto, hereby
certifies to the Corporation, [name of law firm], and the custodian, if
applicable, who has custody of the Shares (the "Custodian"), as follows:
1. The Seller has submitted written instructions to the undersigned to sell
the Shares on Seller's behalf in, on or through the facilities of the
Toronto Stock Exchange.
2. The undersigned has notified _______________, the Corporation's transfer
agent (the "Transfer Agent") in writing of its desire to resell the Shares
in, on or through the facilities of the Toronto Stock Exchange.
3. The undersigned has delivered or caused to be delivered the Shares to the
Transfer Agent.
4. The undersigned certifies that (a) the Resale of the Shares was not and is
not being made to a person in the United States; and (b) the transaction
was or will be executed in, or through the facilities of the Toronto Stock
Exchange, and neither the undersigned nor any person acting on its behalf
knows that the transaction has been pre-arranged with a buyer in the
United States.
5. The undersigned, or an affiliate of the undersigned is, a member of the
Toronto Stock Exchange.
6. Neither the undersigned, the undersigned's affiliates, nor any person
acting on its behalf has engaged or will engage in any "directed selling
efforts", as defined in Rule 902 of Regulation S of the Securities Act.
"Directed selling efforts" include activities that are intended and could
reasonably be expected to condition the market in the United States with
respect to the Resale of the Shares.
7. The undersigned certifies that it is not, and at the time of the Resale
was not, an "affiliate" of, or a person "affiliated" with, the
Corporation, except the undersigned may be an officer or director of the
Corporation who is an affiliate solely by virtue of holding such position.
An "affiliate" of, or person "affiliated" with, a specified person
includes a person or entity that directly, or indirectly through one or
more intermediaries, controls or is controlled by, or is under common
control with, the person or entity specified.
8. The undersigned certifies that if the Seller is an affiliate of the
Corporation solely by virtue of being an officer or director of the
Corporation, no selling concession, fee, or other remuneration has been or
shall be paid in connection with the Resale of the Shares other than the
usual and customary broker's commission that would be received by a person
executing such transaction as agent.
9. The undersigned certifies that neither it nor any person acting on its
behalf knows that the purchaser of the Shares is a "dealer" or is a person
receiving a selling concession, fee or other remuneration in respect of
the Resale of the Shares. A "dealer" shall mean any person who engages
either for all or part of his, her or its time, directly or indirectly, as
agent, broker, or principal, in the business of offering, buying, selling,
or otherwise dealing or trading in securities issued by another person.
10. The undersigned acknowledges and understands that the Shares may not be
offered to U.S. persons or resold in the United States without
registration or pursuant to an exemption under the Securities Act.
11. The undersigned certifies that the Shares shall not be offered or sold
in or through the facilities of any United States stock exchange or
otherwise without registration under the Securities Act or pursuant to
an exemption under the Securities Act.
12. The Resale is not a transaction, or part of a series of transaction
which, although in technical compliance with Regulation S, is part of a
plan or scheme to evade the registration provisions of the Securities
Act.
13. The Resale is bona fide and not for the purpose of "washing off" the
resale restrictions imposed because the securities are restricted
securities (as such term is defined in Rule 144(a)(3) under the
Securities Act).
14. The undersigned agrees to immediately notify the Corporation of any
facts or circumstances that may hereafter come to the undersigned's
attention which would render any of the above statements to be
inaccurate.
[NAME OF BROKER]
Tax Id. No.:
By:__________________________________ ______________________________________
Advisor (if applicable):
Name:
______________________________________ ______________________________________
Title: Custodian:
______________________________________ ______________________________________
Address: Account No.:
______________________________________ ______________________________________
______________________________________ ______________________________________
Dated:________________________________
IMPORTANT - READ CAREFULLY SIGNATURE GUARANTEED BY:
The signature(s) to this Certification
must correspond with the name(s) as
written upon the face of this Sign here_____________________________
certificate(s) or bond(s) in every
particular without alteration or
enlargement or any change whatever.
Signature guarantee should be made by ______________________________________
a member or member organization of the (PERSON(S) EXECUTING THE POWER
New York Stock Exchange, members of SIGN(S) HERE)
other Exchanges having signatures on
file with transfer agent or by a
commercial bank or trust company
having its principal office or
correspondent in the City of New York
