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EXHIBIT 10.71
PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
THIS AGREEMENT made as of June 25, 1998
BETWEEN:
TRANS NEW ZEALAND OIL COMPANY, a body corporate subsisting
under the laws of Nevada, with a place of business at Xxxxx
0000, 0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0 (the "Company")
OF THE FIRST PART
AND:
SOURCE ROCK HOLDINGS LTD., a body corporate subsisting under
the laws of New Zealand, with a place of business at 000
Xxxxxx Xxxx, Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxxx (the
"Purchaser")
OF THE SECOND PART
WHEREAS:
A. The Company wishes to issue and sell 1,000,000 shares for
US$0.25 per share;
B. The Company is not a reporting company under the Securities
Exchange Act of 1934 ("Exchange Act");
C. The Purchaser is an affiliate of the Company as interpreted
under the Securities Act of 1933 ("Securities Act"); and
D. The Company has agreed to issue to the Purchaser 1,000,000
shares for US$0.25 per share on the terms and conditions of
this Agreement;
WITNESSES that the parties mutually covenant and agree as
follows:
ARTICLE 1 DEFINITIONS AND INTERPRETATION
1.01 In this Agreement, including the recitals and schedules
to this Agreement, unless the context otherwise requires:
Closing means the procedure for the issue of Shares on the
Closing Date.
Closing Date means June 25, 1998, the date on which the Company
will issue, and the Purchaser will pay for, the Shares.
Exchange means the OTC Bulletin Board.
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Securities Act means the Securities Act of 1933, as amended from
time to time.
Shares means 1,000,000 common shares of the Company as
constituted on June 25, 1998.
Subscription Funds means the funds paid by the Purchaser to the
Company for the Shares purchased pursuant to this Agreement.
Captions and Section Numbers
1.02 The captions, section numbers and article numbers
appearing in this Agreement are inserted for convenience of
reference only and will in no way define, limit, constrict or
describe the scope or intent of this Agreement nor in any way
affect this Agreement.
Governing Law
1.03 This Agreement and all matters arising under this
Agreement will be governed by, construed and enforced in
accordance with the laws of Nevada and any proceeding commenced
or maintained in connection with this Agreement will be so
commenced and maintained in the court of appropriate jurisdiction
in the City of Reno to which jurisdiction the parties irrevocably
attorn.
Number and Gender
1.04 In this Agreement, wherever the context requires, words
importing the singular number will include the plural and vice
versa, words importing the masculine gender will include the
feminine and neuter genders and words importing persons will
include firms and corporations and vice versa.
Section References
1.05 Unless otherwise stated, a reference in this Agreement
to a numbered or lettered article, section, paragraph or clause
refers to the article, section, paragraph or clause bearing that
number or letter in this Agreement.
Severability of Clauses
1.06 If any covenant or other provision of this Agreement is
invalid, illegal or incapable of being enforced by reason of any
rule of law or public policy such covenant or other provision
will be severed; all other terms and conditions of this Agreement
will, nevertheless, remain in full force and effect and no
covenant or provision will be deemed dependent upon any other
covenant or provision unless so expressed herein.
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ARTICLE 2 SUBSCRIPTION FOR SHARES
Subscription
2.01 The Purchaser subscribes for, and agrees to pay on the
Closing Date for, the Shares at the subscription price of US$0.25
per Share on the terms and other conditions of this Agreement.
Acceptance
2.02 The Company accepts the Purchaser's subscription and
agrees to allot and issue to the Purchaser on the Closing Date
the Shares on the terms and other conditions of this Agreement
and to cause a certificate or certificates representing the
Shares to be issued to the Purchaser.
Certificate Legend
2.03 The certificate or certificates representing the Shares
will be endorsed with a legend as follows:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT"), THE
NEVADA STATE SECURITIES ACT OR ANY OTHER APPLICABLE
SECURITES ACT AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED
EXCEPT (1) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND SUCH STATE SECURITIES LAWS, OR (2) AT THE
OPTION OF THE COMPANY, UPON DELIVERY TO THE COMPANY OF AN
OPINION OF COUNSEL FOR THE TRANSFEROR, REASONABLY
SATISFACTORY TO COUNSEL FOR THE COMPANY, THAT SUCH
REGISTRATION IS NOT REQUIRED.
Securities Considerations
2.04 Purchaser acknowledges that the Shares are issued
pursuant to the exemption from the registration requirements
contained in Regulation S of the Securities Act and that:
(a) the Shares have not been registered under the Securities
Act or any state securities laws, and are being offered in
reliance on certain exemptions contained in the Securities
Act and such state securities laws;
(b) the Shares will not be sold or transferred except
pursuant to:
(i) an effective registration statement under the
Securities Act and any applicable state securities
laws;
(ii) Rule 144 promulgated under the Securities Act; or
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(iii) an opinion of counsel satisfactory to the Company
to the effect that such registration is not required;
and
(c) no federal or state agency has made any finding or
determination as to the fairness of the investment, or any
recommendation or endorsement of the Shares.
ARTICLE 3 REPRESENTATIONS, WARRANTIES AND COVENANTS
Representations, Warranties and Covenants of the Company
3.01 The Company represents and warrants to, and covenants
with, the Purchaser that:
(a) the Company is a body corporate subsisting under the
laws of Nevada, validly exists and is in good standing with
respect to all applicable law, and is duly registered to
carry on business in all jurisdictions in which it carries
on business;
(b) the Shares for which certificates are delivered to the
Purchaser pursuant to this Agreement will, at the time of
such delivery, be duly authorized, validly issued, fully
paid and non-assessable;
(c) the authorized capital of the Company is 100,000,000
common shares without par value and the Company will allot
and conditionally reserve for issuance sufficient number of
common shares to issue the Shares;
(d) the Company is not, and makes no representation that it
will become, a reporting corporation under the Securities
and Exchange Act of 1934; and
(e) the execution and delivery of this Agreement has been
duly authorized by all necessary corporate proceedings and
the completion of the transactions contemplated in this
Agreement does not conflict with or result in the breach or
acceleration of any indebtedness under, or constitute
default under, the constating documents of the Company or
any indenture, mortgage, agreement, lease, license or other
instrument to which the Company is a party or by which it is
bound, or any judgment or order of any Court or
administrative body by which the Company is bound; and
3.02 The representations, warranties, covenants and
agreements of the Company contained in this Agreement will be
true at and as of the Closing as though such representations,
warranties, covenants and agreements were made at and as of the
Closing and except for the waiver of any condition by the
Purchaser, the representations, warranties, covenants and
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agreements of the Company will survive the Closing and
notwithstanding the closing of the issuance of the Shares under
this Agreement, will continue in full force and effect.
Representations, Warranties and Covenants of the Purchaser
3.03 The Purchaser represents and warrants to and covenants
with the Company that:
(a) the Purchaser is a resident of New Zealand located
outside the United States and is aware that the Shares are
being issued pursuant to the exemption from registration
contained in Regulation S of the Securities Act;
(b) the Purchaser is purchasing the Shares for investment
purposes as principal for its own account and not for the
benefit of any other person;
(c) the Purchaser has the legal capacity and competence to
execute this Agreement and that all necessary approvals by
directors and shareholders of the Purchaser have been, or
will in the ordinary course be, given to authorize the
execution and delivery of this Agreement by the Purchaser;
(d) the Purchaser is not purchasing the Shares as a result
of having any material information about the Company's
affairs which has not been generally disclosed as at the
date of the announcement of the purchase;
(e) the Purchaser acknowledges that any interest accruing on
Subscription Funds will accrue to the sole benefit of the
Company and may be applied by the Company for general
corporate purposes; and
(f) the Purchaser is an affiliate of the Company as
interpreted under the Securities Act;
(g) the Purchaser understands that the Shares have not been
registered under the Securities Act or the securities laws
of any states, and that Purchaser has no right to require
such registration;
(h) the Purchaser has such knowledge and experience in
financial and business matters that it is capable of seeking
out and evaluating the information relevant to evaluating
the Company, the proposed activities thereof, and the merits
and risks of the prospective investment, and to make an
informed investment decision in connection therewith;
(i) the Purchaser realizes that, since the Shares are
restricted and cannot be readily sold, that the Purchaser
may not be able to sell or dispose of any of the Shares and,
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therefore, that Purchaser must not purchase the Shares
unless Purchaser has liquid assets sufficient to assure that
such purchase will cause no undue financial difficulties;
(j) the Purchaser is aware of the provisions of Rule 144
promulgated under the Securities Act ("Rule 144") which permit
limited resale of shares purchased in a private placement
subject to the satisfaction of certain conditions, including,
among other things, the existence of a public market for the
Shares or conversion stock, the availability of certain
current public information about the Company, the resale
occurring not less than one year after a party has purchased
and paid for the security to be sold, the sale being effected
through a "broker's transaction" or in transactions directly
with a "market maker" and the number of shares being sold
during any three-month period not exceeding specified
limitations;
(k) the Purchaser understands that all information which
Purchaser has provided to the Company concerning the
Purchaser, the Purchaser's financial position and knowledge
of financial and business matters is correct and complete as
of this Agreement and, if there should be any material
change in such information before the acceptance of this
subscription, the Purchaser promptly notify the Company;
(l) the Purchaser is an "accredited investor" within the
meaning of Rule 501(a) of Regulation D promulgated by the
Securities and Exchange Commission;
(m) the Purchaser has been provided with all materials and
information requested, to the extent possessed or obtainable
by the Company without unreasonable effort and expense,
including any information requested to verify information
furnished and has been provided the opportunity to ask
questions of, and receive answers from, the Company and the
officers, employees, and representatives of the Company
concerning the terms and conditions of this offering; and
(n) no party has made any representations to the Purchaser
as to the profitability, if any, of the Company, nor has the
Purchaser relied on any statements made by any persons
concerning the value of the investment in the Shares or the
risks associated therewith and the Purchaser has made such
inquiries as deemed necessary to make an informed decision,
independent of any representations by any persons connected
in any way with the Company.
3.05 The representations, warranties, covenants and
agreements of the Purchaser contained in this Agreement will be
true at and as of the Closing as though such representations,
warranties, covenants and agreements were made at and as of the
Closing and except for the waiver of any condition by the
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Company, the representations, warranties, covenants and
agreements of the Purchaser will survive the Closing and
notwithstanding the closing of the issuance of the Shares under
this Agreement, will continue in full force and effect.
ARTICLE 4 CLOSING
4.01 Closing will occur at the principal business office of the
Company at 10:00 a.m. on the Closing Date.
4.2 At the Closing, the issuance of the Shares will be completed
by the tabling and delivery:
(a) by the Company of:
(i) a share certificate representing the Shares;
(ii) a certificate of a duly authorized officer of the
Company to the effect that the issuance and delivery of
the certificates representing the Shares have been so
issued and delivered in accordance with the terms and
conditions of this Agreement and applicable law;
(b) by the Purchaser of:
(i) a certified cheque or bank draft drawn in United
States dollars and payable to the Company for the
Subscription Funds.
ARTICLE 5 GENERAL PROVISIONS
Time
5.01 Time is of the essence of the performance of every
obligation under this Agreement, and no failure or lack of
diligence by any party in proclaiming or seeking redress for any
violation of, or insisting on strict performance of, any
provision of this Agreement will prevent a subsequent violation
of that provision, or of any other provision, from giving rise to
any remedy that would be available if it were an original
violation of that provision or another provision.
5.02 This Agreement will be binding upon and enure to the
benefit of the respective heirs, executors, administrators and
other legal representatives and, to the extent permitted
hereunder, the respective successors and assigns, of the parties.
Notices
5.03 Unless otherwise provided herein, any notice, payment
or other communication to a party under this Agreement may be
made, given or served by delivery or telecopy and addressed as
follows:
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(a) if to the Company:
Trans New Zealand Oil Company
Suite 1200, 1090 West Xxxxxx Street
Vancouver, B. C. V6E 2N7
Attention: Xx. Xxxxxx Xxxxxxxx, President
Telecopy: 000-000-0000
(b) if to the Purchaser:
Source Rock Holdings Ltd.
000 Xxxxx Xxxx, Xxxxx
Xxxxxxxxxx, Xxx Xxxxxxx
Attention: Dr. Xxxxx Xxxxxxx
Telecopy: 000-000-000-0000
5.04 Any notice, payment or other communication so delivered
or telecopied will be deemed to have been given or served at the
time of delivery of transmission by telecopy
5.05 A party may by notice change its address for service.
Entire Agreement
5.06 This Agreement constitutes the entire agreement between
the parties and supercedes all previous agreements or
understandings between the parties in any way relating to its
subject matter and the Company has made not representations,
inducements, warranties or promises concerning this Agreement or
the matters referred to herein which are not embodied in this
Agreement.
Binding Agreement
5.07 This Agreement will enure to the benefit of and will be
binding upon the parties hereto and their respective heirs,
executors, administrators, personal representatives and
successors.
IN WITNESS WHERE OF this Agreement has been executed by the
Company and the Purchaser as at the date first set forth above.
TRANS NEW ZEALAND OIL COMPANY
By: /s/ Xxxxxx Xxxxxxxx, President
By: /s/ Xxxx Xxxxxxxxx, Secretary
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EXECUTED AS AN AGREEMENT
Signed for Source Rock Holdings Limited
by its duly authorised representative
/s/ X.X. Xxxxxxx
Signature of representative
Office Held: President
Name of Representative: X. X. Xxxxxxx
