SUBSCRIPTION AGREEMENT
INSTRUCTIONS: To properly complete this Subscription Agreement:
(1) All subscribers must complete all boxes on the signature page and sign the
signature page.
(2) All Canadian subscribers that are "accredited investors" must complete and
sign Exhibit B.
(3) All completed documents should be returned to CanWest Petroleum
Corporation, c/o ▇. ▇▇▇▇▇▇ ▇▇▇, Suite ▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ 2B3, fax number: (▇▇▇) ▇▇▇-▇▇▇▇. Wire
transfers may be made to CanWest per the wire transfer instructions
described below.
THIS SUBSCRIPTION AGREEMENT (this "Agreement"), dated as of the date of
the Company's acceptance set forth on the signature page hereto, by and among
CanWest Petroleum Corporation, a Colorado corporation (the "Company"), and the
subscriber identified on the signature page hereto (the "Subscriber" and
collectively with other subscribers to this Offering, the "Subscribers").
WHEREAS, the Company and the Subscribers are executing and delivering this
Agreement in reliance upon an exemption from Canadian prospectus and
registration requirements set forth in National Instrument 45-106 ("NI 45-106")
promulgated by the Canadian Securities Administrators and upon an exemption from
securities registration afforded by the provisions of Section 4(2), Section 4(6)
and/or Regulation D ("Regulation D") as well as Regulation S ("Regulation S").
Both Regulation D and Regulation S were promulgated by the United States
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "1933 Act").
WHEREAS, the parties desire that, upon the terms and subject to the
conditions contained herein, the Company shall issue and sell to the
Subscribers, as provided herein, and the Subscribers, in the aggregate, shall
purchase up to 12,000,000 units issued by the Company (the "Units"). The price
per Unit is US$1.50 (the "Purchase Price"). Each Unit consists of one share
("Share") of the Company's common stock, $.001 par value (the "Common Stock")
plus a warrant ("Warrant") to purchase shares of Common Stock (the "Warrant
Shares"). Each two Warrants will entitle the holder to purchase one Warrant
Share at a price of US$2.00 per Warrant Share for two years. The form of Warrant
is attached hereto as Exhibit A. The Shares, the Warrants and the Warrant Shares
are collectively referred to herein as the "Securities".) The minimum
subscription per Subscriber is US$100,000. The offer, purchase and sale of the
Securities pursuant to the terms of this Agreement are referred to as the
"Offering." The Subscriber acknowledges that this subscription is subject to
rejection or allotment by the Company in whole or in part. If this subscription
is rejected or allotted in whole or in part, the Subscriber acknowledges that
the unused portion of the Subscriber's aggregate Purchase Price will be promptly
returned to the Subscriber without interest or deduction.
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WHEREAS, the aggregate proceeds of the sale of the Securities contemplated
hereby shall be deposited directly into the Company's operating account.
Subscribers must wire funds to:
Intermediary Bank: Wachovia Bank, N.A. - New York
Account # 2000192009878
Swift Code: ▇▇▇▇▇▇▇▇▇▇▇
ABA Number: ▇▇▇▇▇▇▇▇▇
Beneficiary Bank: Bank of Montreal
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇
Beneficiary: CanWest Petroleum Corporation
Account No.: 00044661643
NOW, THEREFORE, in consideration of the mutual covenants and other agreements
contained in this Agreement, the Company and the Subscribers hereby agree as
follows:
1. Closing. All proceeds received from Subscribers will be deposited
in the Company's operating account. Within ten business days after the later of:
(i) receipt of this Agreement fully executed by the Subscriber (including
Exhibit B for Canadian Subscribers); and (ii) confirmation that funds have
cleared or a wire transfer is received and such funds are immediately available;
the Company will deliver the Shares and Warrants (the "Closing(s)" or "Closing
Date(s)") to the Subscribers; provided, however, that the Company reserves the
right, in its sole discretion, to reject any subscription in whole or in part.
Such Closings shall be held at the discretion of the Company as funds are
received, at reasonable intervals while the Offering is being conducted. Subject
to the satisfaction or waiver of the terms and conditions of this Agreement and
the acceptance by the Company of subscriptions, on the Closing Dates, each
Subscriber shall purchase and the Company shall sell to each Subscriber Units
for the consideration set forth on the signature page hereto. The minimum
subscription amount for each Subscriber is US$100,000, unless the Company
decides, in its sole discretion, to accept a subscription for a lesser amount.
2. Use of Proceeds. A substantial amount of the net proceeds of this
Offering may be used by the Company to purchase additional equity interests in
OilSands Quest, Inc. ("OQI") at a price of Cdn$6.00 per OQI unit. Each OQI unit
consists of one common share of OQI and one-half of an OQI share purchase
warrant. Each OQI share purchase warrant is exercisable for nine months at a
price per share of Cdn$10.00. OQI is a majority owned subsidiary of the Company.
Any net proceeds remaining after the purchase of such OQI units will be used by
the Company for general working capital.
3. Subscriber's Representations and Warranties. The Subscriber
hereby represents and warrants to and agrees with the Company that:
(a) Organization and Standing of the Subscriber. If the
Subscriber is an entity, such Subscriber is a corporation, partnership or other
entity duly incorporated or organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or organization. If the
Subscriber is an individual, it is of the full age of majority and is legally
competent to execute this Subscription Agreement and take all action pursuant
hereto.
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(b) Authorization and Power. The Subscriber has the requisite
power and authority to enter into and perform this Agreement and to purchase the
Shares and Warrants being sold to it hereunder. The execution, delivery and
performance of this Agreement by such Subscriber and the consummation by it of
the transactions contemplated hereby and thereby have been duly authorized by
all necessary corporate or partnership action, and no further consent or
authorization of such Subscriber or its Board of Directors, stockholders,
partners, members, as the case may be, is required. This Agreement has been duly
authorized, executed and delivered by the Subscriber and constitutes, or shall
constitute when executed and delivered, a valid and binding obligation of the
Subscriber enforceable against the Subscriber in accordance with the terms
thereof. The entering into of this Agreement and the transactions contemplated
hereby will not result in a violation of any of the terms or provisions of any
law applicable to the Subscriber, or if the Subscriber is not a natural person,
any of the Subscriber's constating documents, or any agreement to which the
Subscriber is a party or by which it is bound.
(c) Fees and Commissions. The Subscriber represents that there
are no parties entitled to receive fees, commissions, or similar payments in
connection with the Offering except as described on Schedule 3(c).
(d) Information on Company. The Subscriber has been furnished
with or has had access at the ▇▇▇▇▇ Website of the Commission to the Company's
Form 10-KSB for the year ended April 30, 2005 as filed with the Commission,
together with all subsequently filed Forms 10-QSB, 8-K, and other filings made
with the Commission available at the ▇▇▇▇▇ website (hereinafter referred to
collectively as the "Reports"). The Subscriber has had an opportunity to ask
questions and receive answers from representatives of the Company. The
Subscriber has not received or been provided with, nor has it requested, nor
does it have any need to receive, any offering memorandum, any prospectus, sales
or advertising literature, or any other document (other than Reports) describing
or purporting to describe the business and affairs of the Company which has been
prepared for delivery to, and review by, prospective purchasers in order to
assist it in making an investment decision in respect of the Securities.
(e) Information on Subscriber. The Subscriber is, and will be
at the time of the exercise of the Warrants, a Non- U.S. Person as defined in
Regulation S or an "accredited investor", as such term is defined in Regulation
D promulgated by the Commission under the 1933 Act, and resident in, or
otherwise subect to applicable securities laws of, the jurisdiction identified
as the Subscriber's address on the signature page of this Agreement, is
experienced in investments and business matters, has made investments of a
speculative nature and has purchased securities of United States publicly-owned
companies in private placements in the past and, with its representatives, has
such knowledge and experience in financial, tax and other business matters as to
enable the Subscriber to utilize the information made available by the Company
to evaluate the merits and risks of and to make an informed investment decision
with respect to the proposed purchase, which represents a speculative
investment. The Subscriber has the authority and is duly and legally qualified
to purchase and own the Securities. The Subscriber is able to bear the risk of
such investment for an indefinite period and to afford a complete loss thereof.
The information set forth on the signature page hereto regarding the Subscriber
is accurate. The Subscriber is not required to be registered as a broker-dealer
under Section 15 of the Securities Exchange Act of 1934, as amended (the "1934
Act") and the Subscriber is not a broker-dealer. The Subscriber acknowledges
that the income tax considerations applicable to the Subscriber will vary
depending on a number of factors including the Subscriber's jurisdiction of
residence and it has been encouraged to obtain independent legal, income tax and
investment advice with respect to its subscription for the Securities.
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(f) Purchase of Shares and Warrants. On the Closing Date, the
Subscriber will purchase the Shares and Warrants as principal for its own
account for investment only and not with a view toward, or for resale in
connection with, the public sale or any distribution thereof. If a Canadian
resident, the Subscriber is an "accredited investor", as such term is defined in
NI 45-106, it was not created or used solely to purchase or hold securities as
an "accredited investor" as described in paragraph (m) of the definition of
"accredited investor" in NI 45-106 and has concurrently executed and delivered a
Representation Letter in the form attached as Exhibit B to this Subscription
Agreement and has initialed in Appendix "A" thereto indicating that the
Subscriber satisfies (and will satisfy at the Closing Time) one of the
categories of "accredited investor" set forth in such definition.
(g) Acknowledgements of Subscriber. The Subscriber understands
and agrees that:
i. The offer and sale of the Shares and Warrants is
directed solely to persons who are not U.S. persons as defined in
Regulation S or who meet the definition of "accredited investor" set forth
in rule 501(a) of Regulation D.
ii. The Securities are not currently registered under
the 1933 Act nor the securities laws of any state or other jurisdiction
and are "restricted securities" as defined in Rule 144 under the 1933 Act.
iii. The Securities are offered in an offshore
transaction as defined in Regulation S, or are otherwise being acquired in
reliance on an exemption from the registration provisions of the 1933 Act
(based in part on the accuracy of the representations and warranties of
Subscriber contained herein).
iv. The Securities may not be offered or sold in the
United States or to any U.S. person unless the securities are registered
under the 1933 Act (and any applicable state securities laws) or an
exemption from such registration requirements is available.
v. Hedging transactions involving the Securities may not
be conducted unless in compliance with the 1933 Act.
vi. The delivery of this document does not constitute an
offer or solicitation with respect to the Securities in any jurisdiction
in which such offer or solicitation would be unlawful.The Subscriber has
been independently advised as to restrictions with respect to trading in
the Securities imposed by applicable securities laws in Canada, confirms
that no representation (written or oral) has been made to it by or on
behalf of the Company with respect thereto, acknowledges that it is aware
of the characteristics of the Securities, the risks relating to an
investment therein and of the fact that it may not be able to resell the
Securities except in accordance with limited exemptions under applicable
securities laws and regulatory policy in Canada until expiry of the
applicable restricted period and compliance with the other requirements of
applicable law in Canada; and it agrees that any certificates representing
Securities will bear a legend indicating that the resale of such
Securities is restricted and any other applicable legends or notations
described in this Subscription Agreement. The Company is not currently a
reporting issuer in any Canadian jurisdiction and therefore the applicable
restricted period restricting resale of the Securities in Canada may
extend indefinitely. The Company has advised the Subscriber that the
Company is relying on an exemption from the requirements to provide the
Subscriber with a prospectus and to sell securities through a person or
company registered to sell securities under applicable securities laws in
Canada and, as a consequence of acquiring securities pursuant to this
exemption, certain protections, rights and remedies provided by applicable
securities laws in Canada, including statutory rights of rescission or
damages, will not be available to the Subscriber. If required by
applicable securities legislation, regulations, rules, policies or orders
or by any securities commission, stock exchange or other regulatory
authority, the Subscriber will execute, deliver, file and otherwise assist
the Company in filing, such reports, undertakings and other documents with
respect to the issue of the Securities (including a Representation Letter
in the form attached as Exhibit B).
vii. The Subscriber acknowledges that the Company will
pay a finders fee or commission as described on Schedule 3(c).
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viii. The Subscriber acknowledges that it has consented
to and requested that all documents evidencing or relating in any way to
the sale of the Securities be drawn up in the English language only. Le
soussigne reconnait par les presentes avoir consenti et exige que tous les
documents faisant foi ou se repportant de quelque maniere a la vente de
ces actions soient rediges en anglais seulement.
ix. This Subscription Agreement and Exhibit B hereto
require the Subscriber to provide certain personal information to the
Company. Such information is being collected by the Company for the
purposes of completing the issuance of the Securities, which includes,
without limitation, determining the Subscriber's eligibility to purchase
the Securities under applicable securities legislation, preparing and
registering any certificates representing Securities to be issued to the
Subscriber and completing filings required by any stock exchange or
securities regulatory authority. The Subscriber's personal information may
be disclosed by the Company to: (a) stock exchanges or securities
regulatory authorities, (b) the Company's registrar and transfer agent,
and (c) any of the other parties involved in the offering, including legal
counsel to the Company. By executing this Subscription Agreement, the
Subscriber consents to the foregoing collection, use and disclosure of the
Subscriber's personal information. The Subscriber also consents to the
filing of copies or originals of the Subscriber's representation letter
set out in Exhibit B as may be required to be filed with any stock
exchange or securities regulatory authority in connection with the
transactions contemplated hereby. In connection with the transactions
contemplated by this Subscription Agreement, (A) the Company will deliver
to the Ontario Securities Commission and other applicable securities
regulatory authorities information respecting the Subscriber's name
address and telephone number, the number and type of Securities purchased,
the total purchase price, the date of acquisition of the Securities by the
Subscriber and the prospectus and registration exemptions relied upon by
the Company regarding the issuance of the Securities to the Subscriber,
(B) the information described in (A) is being collected indirectly by the
Ontario Securities Commission and other applicable securities regulatory
authorities under the authority granted to it in securities legislation
and for the purposes of the administration and enforcement of the
securities legislation of Ontario and other applicable jurisdictions, and
(C) if the Subscriber has questions or comments regarding the indirect
collection of personal information by the Ontario Securities Commission it
should contact:
Administrative Assistant to the Director of Corporate Finance
Ontario Securities Commission
Suite 1903, Box ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
Toronto, Ontario M5H 3S8 Telephone (▇▇▇) ▇▇▇-▇▇▇▇.
(h) Legends on Certificates. The Shares, Warrants and the Warrant
Shares shall bear the following or similar legends:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
OFFERED AND SOLD IN AN "OFFSHORE TRANSACTION" IN RELIANCE UPON
REGULATION S AS PROMULGATED BY THE SECURITIES AND EXCHANGE
COMMISSION. ACCORDINGLY, THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE TRANSFERRED
OTHER THAN IN ACCORDANCE WITH REGULATION S, PURSUANT TO
REGISTRATION UNDER THE SECURITIES ACT, OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE
SATISFACTION OF THE COMPANY. THE SECURITIES REPRESENTED BY
THIS CERTIFICATE CANNOT BE THE SUBJECT OF HEDGING TRANSACTIONS
UNLESS SUCH TRANSACTIONS ARE CONDUCTED IN COMPLIANCE WITH THE
SECURITIES ACT."
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"Unless permitted under securities legislation, the holder of
these securities must not trade the securities before the date
that is four months and a day after the later of (i) [insert
the date the securities represented by the certificate are
issued], and (ii) the date the Company became a reporting
issuer in any province or territory of Canada."
(i) Communication of Offer. The offer to sell the Securities
was directly communicated to the Subscriber by the Company. At no time was the
Subscriber presented with or solicited by any leaflet, newspaper or magazine
article, radio or television advertisement, or any other form of general
advertising or solicited or invited to attend a promotional meeting otherwise
than in connection and concurrently with such communicated offer.
(j) Authority; Enforceability. This Agreement and other
agreements delivered together with this Agreement or in connection herewith have
been duly authorized, executed and delivered by the Subscriber and are valid and
binding agreements enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
generally and to general principles of equity; and Subscriber has full corporate
power and authority necessary to enter into this Agreement and such other
agreements and to perform its obligations hereunder and under all other
agreements entered into by the Subscriber relating hereto.
(k) Restricted Securities. Subscriber understands that the
Securities have not been registered under the 1933 Act and such Subscriber will
not sell, offer to sell, assign, pledge, hypothecate or otherwise transfer any
of the Securities unless pursuant to an effective registration statement under
the 1933 Act, or unless an exemption from registration is available.
(l) No Governmental Review. Each Subscriber understands that
no United States federal or state agency, Canadian federal, provincial or
territorial agency or any other governmental or state agency has passed on or
made recommendations or endorsement of the Securities or the suitability of the
investment in the Securities, nor have such authorities passed upon or endorsed
the merits of the offering of the Securities.
(m) The funds representing the aggregate Purchase Price which
will be advanced by the Subscriber hereunder will not represent proceeds of
crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorist
Financing Act (Canada) and the Subscriber acknowledges that the Company may in
the future be required by law to disclose the Subscriber's name and other
information relating to this Subscription Agreement and the Subscriber's
subscription hereunder, on a confidential basis, pursuant to the Proceeds of
Crime (Money Laundering) and Terrorist Financing Act (Canada) and to the best of
the Subscriber's knowledge (i) none of the subscription funds to be provided by
the Subscriber (A) have been or will be derived from or related to any activity
that is deemed criminal under the law of Canada, the United States of America,
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) it shall promptly
notify the Company if the Subscriber discovers that any of such representations
ceases to be true, and to provide the Company with appropriate information in
connection therewith.
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(n) Correctness of Representations. Each Subscriber represents
as to such Subscriber that the foregoing representations and warranties are true
and correct as of the date hereof and, unless a Subscriber otherwise notifies
the Company prior to the Closing Date shall be true and correct as of the
Closing Date.
(o) Survival. The foregoing representations and warranties
shall survive the Closing Date for a period of three years.
4. Company Representations and Warranties. The Company represents
and warrants to and agrees with each Subscriber that:
(a) Due Incorporation. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Colorado.
(b) Authorization and Power. This Agreement has been duly
authorized, executed and delivered by the Company and is a valid and binding
agreement enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights generally and
to general principles of equity. The Company has full corporate power and
authority necessary to enter into this Agreement and to perform its obligations
hereunder.
(c) The Securities. The Securities upon issuance:
(i) are, or will be, free and clear of any security
interests, liens, claims or other encumbrances, subject to restrictions upon
transfer under the 1933 Act and any applicable state securities laws; and
(ii) have been, or will be, duly and validly
authorized and on the date of issuance of the Shares and upon exercise of the
Warrants, the Shares and Warrant Shares will be duly and validly issued, fully
paid and nonassessable.
(d) No General Solicitation. Neither the Company, nor any of its
Affiliates, nor to its knowledge, any person acting on its or their behalf, has
engaged in any form of general solicitation or general advertising (within the
meaning of Regulation D under the 1933 Act) in connection with the offer or sale
of the Securities.
(e) Fees and Commissions. The Company represents that there are no
parties entitled to receive fees, commissions, or similar payments in connection
with the Offering except as described on Schedule 3(c).
(f) Correctness of Representations. The Company represents that the
foregoing representations and warranties are true and correct as of the date
hereof in all material respects, and, unless the Company otherwise notifies the
Subscribers prior to the Closing Date, shall be true and correct in all material
respects as of the Closing Date.
(g) Survival. The foregoing representations and warranties shall
survive the Closing Date for a period of three years.
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5. Registration Rights & Filing for Senior Listing.
(a) Mandatory Registration & Penalties. The Company shall prepare
and file with the Commission, no later than 60 days after the final Closing Date
of this Offering (the "Filing Date"), a registration statement covering the
resale of the following securities under the 1933 Act (the "Registration
Statement"): (i) the Shares; plus (ii) the Warrant Shares; plus (iii) any
Initial Penalty Shares and Periodic Penalty Shares (both as defined below). The
shares described in (i) thru (iii) are collectively referred to as the
Registrable Securities. In the event that the Company does not file the
Registration Statement by the Filing Date, the Company shall pay to the
Subscriber a penalty of 2% of the Registrable Securities (the "Initial Penalty
Shares"), for each month or part thereof beyond the Filing Date that the Company
has failed to file the Registration Statement. The Initial Penalty Shares may be
paid in cash or shares of Common Stock, at Subscriber's option, with the cash
calculated at the rate of $1.75 per share. Notwithstanding the foregoing, the
amounts payable by the Company pursuant to this provision shall not be payable
to the extent any delay in the effectiveness of the Registration Statement
occurs because of an act of, or a failure to act, or a failure to act timely by
the Subscriber or its counsel.
(b) Additional Penalties. After the initial filing of the
Registration Statement, if the Company fails to respond to any comments issued
by the Commission within two weeks of receipt of such comments (the "Response
Date"), then the Company shall pay to the Subscriber a penalty of 2% of the
Registrable Securities (the "Periodic Penalty Shares"), for each additional two
week period beyond the Response Date that the Company fails to respond to such
comments. The Periodic Penalty Shares may be paid in cash or shares of Common
Stock, at Subscriber's option, with the cash calculated at the rate of $1.75 per
share. Notwithstanding the foregoing, the amounts payable by the Company
pursuant to this provision shall not be payable to the extent any delay in the
responding to comments occurs because of an act of, or a failure to act, or a
failure to act timely by the Subscriber or its counsel.
(c) Registration Procedures & Senior Listing Application. The
Company shall use its best efforts to:
(i) Prepare and file with the Commission the Registration
Statement, cause the Registration Statement to become effective under the 1933
Act as soon as practicable after the filing thereof, and keep the Registration
Statement effective under the 1933 Act until the date on which all Subscribers
can sell the Registrable Securities pursuant to Rule 144 of the Securities Act
without restriction under Rule 144(e) thereof.
(ii) Prepare and file with the Commission such amendments
(including post-effective amendments) and supplements to the Registration
Statement and the prospectus used in connection with the Registration Statement
as may be necessary to keep the Registration Statement effective under the 1933
Act at all times until the date on which all Subscribers can sell the
Registrable Securities pursuant to Rule 144 of the 1933 Act without restriction
under Rule 144(e) thereof, and to comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by the
Registration Statement.
(iii) File an application for listing the Common Stock on a
national securities exchange; provided, however, that the Company is only
required to file such application if it meets the eligibility requirements for
listing on such an exchange.
(iv) Become a reporting issuer in the Province of Alberta by,
concurrently with, or promptly following the filing of the Registration
Statement, either (A) applying to the Alberta Securities Commission for an order
declaring the Company to be a reporting issuer for the purposes of the
Securities Act (Alberta), or (B) filing a prospectus with the Alberta Securities
Commission and using its best efforts to obtain a receipt therefor concurrently
with, or promptly following, the effectiveness of the Registration Statement.
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6. Indemnification and Contribution.
(a) In the event of a registration of any Registrable
Securities under the 1933 Act pursuant to Section 11, the Company will, to the
extent permitted by law, indemnify and hold harmless the Seller, each officer of
the Seller, each director of the Seller, each underwriter of such Registrable
Securities thereunder and each other person, if any, who controls such Seller or
underwriter within the meaning of the 1933 Act, against any losses, claims,
damages or liabilities, joint or several, to which the Seller, or such
underwriter or controlling person may become subject under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such Registrable Securities was registered under the 1933 Act
pursuant to Section 11, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances when made, and will subject to the provisions of
Section 6 reimburse the Seller, each such underwriter and each such controlling
person for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company shall not be liable to the Seller to
the extent that any such damages arise out of or are based upon an untrue
statement or omission made in any preliminary prospectus if (i) the Seller
failed to send or deliver a copy of the final prospectus delivered by the
Company to the Seller with or prior to the delivery of written confirmation of
the sale by the Seller to the person asserting the claim from which such damages
arise, (ii) the final prospectus would have corrected such untrue statement or
alleged untrue statement or such omission or alleged omission, or (iii) to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission so made in conformity with information furnished by any such Seller, or
any such controlling person.
(b) In the event of a registration of any of the Registrable
Securities under the 1933 Act pursuant to Section 11, each Seller severally but
not jointly will, to the extent permitted by law, indemnify and hold harmless
the Company, and each person, if any, who controls the Company within the
meaning of the 1933 Act, each officer of the Company who signs the registration
statement, each director of the Company, each underwriter and each person who
controls any underwriter within the meaning of the 1933 Act, against all losses,
claims, damages or liabilities, joint or several, to which the Company or such
officer, director, underwriter or controlling person may become subject under
the 1933 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the registration statement under which such Registrable Securities were
registered under the 1933 Act pursuant to Section 11, any preliminary prospectus
or final prospectus contained therein, or any amendment or supplement thereof,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Company and each such
officer, director, underwriter and controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, provided, however,
that the Seller will be liable hereunder in any such case if and only to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information pertaining to
such Seller, as such, furnished to the Company by such Seller.
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(c) Promptly after receipt by an indemnified party hereunder
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to such indemnified party other than under this Section 6 and shall only relieve
it from any liability which it may have to such indemnified party under this
Section6, except and only if and to the extent the indemnifying party is
prejudiced by such omission. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate in
and, to the extent it shall wish, to assume and undertake the defense thereof
with counsel satisfactory to such indemnified party, and, after notice from the
indemnifying party to such indemnified party of its election so to assume and
undertake the defense thereof, the indemnifying party shall not be liable to
such indemnified party under this Section 6(c) for any legal expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation and of liaison with counsel
so selected, provided, however, that, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be reasonable
defenses available to it which are different from or additional to those
available to the indemnifying party or if the interests of the indemnified party
reasonably may be deemed to conflict with the interests of the indemnifying
party, the indemnified parties, as a group, shall have the right to select one
separate counsel and to assume such legal defenses and otherwise to participate
in the defense of such action, with the reasonable expenses and fees of such
separate counsel and other expenses related to such participation to be
reimbursed by the indemnifying party as incurred.
(d) In order to provide for just and equitable contribution in
the event of joint liability under the 1933 Act in any case in which either (i)
a Seller, or any controlling person of a Seller, makes a claim for
indemnification pursuant to this Section 6 but it is judicially determined (by
the entry of a final judgment or decree by a court of competent jurisdiction and
the expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case notwithstanding the fact
that this Section 6 provides for indemnification in such case, or (ii)
contribution under the 1933 Act may be required on the part of the Seller or
controlling person of the Seller in circumstances for which indemnification is
not provided under this Section6; then, and in each such case, the Company and
the Seller will contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from others) in
such proportion so that the Seller is responsible only for the portion
represented by the percentage that the public offering price of its securities
offered by the registration statement bears to the public offering price of all
securities offered by such registration statement, provided, however, that, in
any such case, (y) the Seller will not be required to contribute any amount in
excess of the public offering price of all such securities sold by it pursuant
to such registration statement; and (z) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11 of the 1933 Act) will be
entitled to contribution from any person or entity who was not guilty of such
fraudulent misrepresentation.
7. Miscellaneous.
(a) Notices. All notices, demands, requests, consents,
approvals, and other communications required or permitted hereunder shall be in
writing and, unless otherwise specified herein, shall be (i) personally served,
(ii) deposited in the mail, registered or certified, return receipt requested,
postage prepaid, (iii) delivered by reputable air courier service with charges
prepaid, or (iv) transmitted by hand delivery, telegram, or facsimile, addressed
as set forth below or to such other address as such party shall have specified
most recently by written notice. Any notice or other communication required or
permitted to be given hereunder shall be deemed effective (a) upon hand delivery
or delivery by facsimile, with accurate confirmation generated by the
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transmitting facsimile machine, at the address or number designated below (if
delivered on a business day during normal business hours where such notice is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received) or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The addresses for
such communications shall be: (i) if to the Company, to: Canwest Petroleum
Corporation, ▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇,
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ , CEO, telecopier number: (▇▇▇) ▇▇▇-▇▇▇▇, with an
additional copy only to: ▇▇▇▇▇▇ ▇▇▇, Suite ▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, telecopier number: (▇▇▇) ▇▇▇-▇▇▇▇, and (ii) if
to the Subscriber, to: the one or more addresses and telecopier numbers
indicated on the signature pages hereto.
(b) Entire Agreement; Assignment. This Agreement and other
documents delivered in connection herewith represent the entire agreement
between the parties hereto with respect to the subject matter hereof and may be
amended only by a writing executed by both parties. Neither the Company nor the
Subscriber have relied on any representations not contained or referred to in
this Agreement and the documents delivered herewith. No right or obligation of
the Company shall be assigned without prior notice to and the written consent of
the Subscriber.
(c) Counterparts/Execution. This Agreement may be executed in
any number of counterparts and by the different signatories hereto on separate
counterparts, each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute but one and the same instrument. This
Agreement may be executed by facsimile signature and delivered by facsimile
transmission.
(d) Law Governing this Agreement. This Agreement shall be
governed by and construed in accordance with the laws of the State of Colorado
without regard to conflicts of laws principles that would result in the
application of the substantive laws of another jurisdiction. Any action brought
by either party against the other concerning the transactions contemplated by
this Agreement shall be brought only in the state courts of Colorado or in the
federal courts located in the state of Colorado. The parties and the individuals
executing this Agreement and other agreements referred to herein or delivered in
connection herewith on behalf of the Company agree to submit to the jurisdiction
of such courts and waive trial by jury. The prevailing party shall be entitled
to recover from the other party its reasonable attorney's fees and costs. In the
event that any provision of this Agreement or any other agreement delivered in
connection herewith is invalid or unenforceable under any applicable statute or
rule of law, then such provision shall be deemed inoperative to the extent that
it may conflict therewith and shall be deemed modified to conform with such
statute or rule of law. Any such provision which may prove invalid or
unenforceable under any law shall not affect the validity or enforceability of
any other provision of any agreement.
(e) Independent Nature of Subscribers. The Company
acknowledges that the obligations of the Subscriber under this Agreement are
several and not joint with the obligations of any other Subscriber, and no
Subscriber shall be responsible in any way for the performance of the
obligations of any other Subscriber under this Agreement or in connection with
the Offering.
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SIGNATURE PAGE TO SUBSCRIPTION AGREEMENT
Please acknowledge your acceptance of the foregoing Subscription Agreement
by signing and returning a copy to the Company. Upon the Company's acceptance,
it shall become a binding agreement between Subscriber and the Company. The
Company may, in its sole discretion, reject any subscription.
SUBSCRIBER INFORMATION
(Please print legibly)
Investment Amount: US$________ (Minimum Investment Per Subscriber is
US$100,000.)
Full Name of Subscriber:________________________________________________________
If the subscriber is a fully managed account, please complete the "Name of
Subscriber" above in the following format: "Account ___ by [insert name of
adviser, trust company or trust corporation]".
Exact Name in which Shares and Warrants are to be issued:_______________________
________________________________________________________________________________
________________________________________________________________________________
Signing Principal's Title (if an entity): ________________________________
Subscriber's Street Address: _____________________________________________
__________________________________________________________________________
Subscriber's P.O. Box/Mailing Address: ___________________________________
__________________________________________________________________________
Telephone #: _________________________________________
Fax #: _______________________________________________
Tax Identification #: ________________________________
Email address: _______________________________________
SUBSCRIBER'S SIGNATURE
________________________________________________
Title (if an entity): __________________________
COMPANY ACCEPTANCE
Accepted this ______ day of ___________, 200__
CANWEST PETROLEUM CORPORATION
a Colorado corporation
By:
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: CEO
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LIST OF EXHIBITS AND SCHEDULES
Exhibit A Form of Warrant
Exhibit B Form of Representation Letter (for Canadian Subscribers)
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SCHEDULE 3C
FEES AND COMMISSIONS
The Company may pay a finders fee in connection with this Offering. The finders
fee may be as much as: (i) 6% cash on gross proceeds; plus (ii) 6% warrants on
total Units sold, with each warrant exercisable to purchase one share of common
stock at an exercise price of US$1.75 per share.
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