EXHIBIT 4.9
PACIFIC ENERGY RESOURCES LTD.
000 Xxxx Xxxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxxxxxxx 00000
SUBSCRIPTION AGREEMENT FOR SUBSCRIPTION RECEIPTS
(NON-U.S. RESIDENTS)
TO: Pacific Energy Resources Ltd. (the "Corporation")
AND TO: D & D Securities Company
AND TO: Octagon Capital Corporation (individually, the "Agent" or together,
the "Agents")
The undersigned (the "Subscriber") hereby irrevocably subscribes for and agrees
to purchase from the Corporation subscription receipts of the Corporation (the
"Subscription Receipts") in the number set forth below at a subscription price
equal to CAD$1.30 per Subscription Receipt (the "Subscription Price"). Each
Subscription Receipt will entitle the holder thereof to acquire, for no
additional consideration, one unit (a "Unit"), 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$1.70 per Warrant Share for a period of
three years from the date of issue of the Subscription Receipts. The Subscriber
agrees to be bound by the attached terms and conditions of subscription (the
"Terms and Conditions") and agrees that the Agents, the Corporation and their
agents and attorneys may rely upon the representations, warranties and covenants
contained therein and in each of the Subscriber Certificates (as hereinafter
defined). This subscription, plus the Terms and Conditions and each of the
completed and executed Subscriber Certificates are collectively referred to as
the "Subscription Agreement" or the "Agreement".
THE RELEASE OF FUNDS UNDER THIS OFFERING IS SUBJECT TO ESCROW RELEASE CONDITIONS
SET OUT IN SECTION 5 HEREOF AND MORE FULLY DETAILED IN THE INFORMATION DOCUMENT.
UPON CONFIRMATION BY PRESS RELEASE THAT THE AERA CLOSING (AS HEREINAFTER
DEFINED) HAS OCCURRED NO LATER THAN THE AERA CLOSING DEADLINE (AS HEREINAFTER
DEFINED), EACH SUBSCRIPTION RECEIPT WILL BE AUTOMATICALLY CONVERTED INTO ONE
UNIT. IF THE AERA CLOSING DOES NOT OCCUR BY THE AERA CLOSING DEADLINE, THE
AGGREGATE SUBSCRIPTION PRICE PLUS INTEREST WILL BE RETURNED FORTHWITH TO THE
SUBSCRIBER.
SUBSCRIPTION AND SUBSCRIBER INFORMATION
PLEASE PRINT ALL INFORMATION (OTHER THAN SIGNATURES), AS APPLICABLE,
IN THE SPACE PROVIDED BELOW
_____________________________________________
(Name of Subscriber - please print) NUMBER OF SUBSCRIPTION RECEIPTS:____________
By:__________________________________________
(Authorized Signature)
AGGREGATE SUBSCRIPTION PRICE:_______________
_____________________________________________
(Official Capacity or Title - please print)
_____________________________________________ IF THE SUBSCRIBER IS SIGNING AS AGENT FOR A
(Please print name of individual whose signature PRINCIPAL AND IS NOT PURCHASING AS TRUSTEE OR
appears above if different than the name of the AGENT FOR ACCOUNTS FULLY MANAGED BY IT, COMPLETE
subscriber printed above.) THE FOLLOWING AND ENSURE THAT THE APPLICABLE
EXHIBIT(S) ARE COMPLETED ON BEHALF OF SUCH
_____________________________________________ PRINCIPAL:
(Subscriber's Address)
_____________________________________________
_____________________________________________ (Name of Principal)
(Subscriber's Address)
_____________________________________________
_____________________________________________ (Principal's Address)
(Telephone Number) (E-Mail Address)
_____________________________________________
_____________________________________________ (Social Insurance Number, Federal Corporate
(Social Insurance Number, Federal Corporate Tax Tax Account Number or Partnership Identification
Account Number or Partnership Identification Number)
Number)
THIS IS THE FIRST PAGE OF AN AGREEMENT COMPRISED OF 18 PAGES (NOT INCLUDING EXHIBITS 1 - 5).
REGISTER THE SUBSCRIPTION RECEIPTS AS SET DELIVER THE SUBSCRIPTION RECEIPTS AS SET
FORTH BELOW: FORTH BELOW:
_____________________________________________ _____________________________________________
(Name) (Name)
_____________________________________________ _____________________________________________
(Account reference, if applicable) (Account reference, if applicable)
_____________________________________________ _____________________________________________
(Address) (Contact Name)
_____________________________________________ _____________________________________________
(Address) (Address)
_____________________________________________
(Address)
TYPE OF OWNERSHIP (CHECK ONE)
SUBSCRIBERS 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):
NUMBER OR AMOUNT
-------------------------------------------
INDIRECT OWNERSHIP
TYPE OF SECURITIES PRESENTLY OWNED DIRECT OWNERSHIP (INCLUDING CONTROL
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 and the
Corporation represents and warrants to the Subscriber that the representations
and warranties made by the Corporation to the Agents in the Agency Agreement (as
defined herein) are true and correct in all material respects as of the AERA
Closing (save and except as waived by the Agents) and that the Subscriber is
entitled to rely thereon and on the terms, conditions and covenants contained in
the Agency Agreement as if the Subscriber were a party thereto.
_________________________, 2007
------------------------
PACIFIC ENERGY RESOURCES LTD. Subscription No:
By:_________________________________ ------------------------
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
TERMS AND CONDITIONS OF SUBSCRIPTION FOR SUBSCRIPTION RECEIPTS
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) "Act" means Securities Act of 1933, as amended (the "1933 Act"), and
the rules and regulations promulgated thereunder;
(b) "AERA" means AERA Energy LLC;
(c) "AERA Closing" means the date on which all conditions to completion
of the closing under the Escrow Agreements have been satisfied;
(d) "AERA Closing Deadline" means not later than March 31, 2007 (unless
a later date is agreed to by the parties to the Escrow Agreements);
(e) "AERA Purchase and Sale Agreement" means the Purchase and Sale
Agreement between AERA and the Corporation which includes the
acquisition of certain offshore oil and gas fields including the
Eureka Platform located in Federal Waters in the San Xxxxx area,
California;
(f) "Agency Agreement" has the meaning ascribed to it in paragraph 5.4;
(g) "Agents" mean D & D Securities Company, as lead Agent, and Octagon
Capital Corporation, as co-Agent;
(h) "Closing" means the completion of the issue and sale of the
Subscription Receipts to the Subscriber hereunder;
(i) "Common Share" means a share of common stock in the capital of the
Corporation;
(j) "Corporation" means Pacific Energy Resources Ltd.;
(k) "Disclosure Document" has the meaning ascribed to it in paragraph
4.1(n);
(l) "Escrow Agent" means U.S. Bank National Association;
(m) "Escrow Agreements" means the escrow agreements by and among (as to
the first Escrow Agreement) the Corporation, Xxxxxxx Sachs & Co., X.
Xxxx & Company, Silver Point Capital, L.P., Laurus Master Fund,
Ltd., Erato Corp., the Agent and U.S. Bank National Association, and
by and among (as to the second Escrow Agreement) PERL, X. Xxxx &
Company, Silver Point Capital, L.P., AERA, SWEPI LP and U.S. Bank
National Association;
(n) "Escrow Release Date" means the date on or following the Aera
Closing but prior to the Aera Closing Deadline that all proceeds,
documents and securities are released by the Escrow Agent pursuant
to the terms of the Escrow Agreements;
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(o) "Exchange" means the Toronto Stock Exchange;
(p) "Information Document" means the information document of the
Corporation dated November 10, 2006 and delivered to subscribers,
prepared in accordance with applicable law;
(q) "MMS" means the Minerals Management Service of the United States
Department of the Interior;
(r) "Offering" means this private placement;
(s) "Registration Rights Agreement" means the registration rights
agreement attached hereto as Exhibit "C";
(t) "Registration Statement" has the meaning ascribed to it in paragraph
6.1;
(u) "Regulation D" means Regulation D of the 1933 Act;
(v) "Regulation S" means Regulation S of the 1933 Act;
(w) "SEC" means the United States Securities and Exchange Commission;
(x) "Securities" means collectively, the Subscription Receipts, the
Units, Common Shares and Warrants comprising the Units and the
Warrant Shares;
(y) "Subscriber" means the purchaser of Subscription Receipts hereunder;
(z) "Subscriber Certificates" means the Canadian accredited investor
certificate attached hereto as Exhibit "A" and the U.S. accredited
investor certificate attached hereto as Exhibit "B", collectively;
(aa) "Subscription Receipts" means the subscription receipts of the
Corporation offered hereby, each Subscription Receipt entitling the
holder thereof to acquire, for no additional consideration, one (1)
Unit;
(bb) "Subscription Receipt Agent" means the subscription receipt agent
under the Subscription Receipt Indenture;
(cc) "Subscription Receipt Indenture" means the subscription receipt
indenture to be executed by the Corporation, D&D Securities Company
and Computershare Investor Services Inc.;
(dd) "Unit" means the units of the Corporation, each Unit consisting of
one (1) Common Share and one-half (1/2) Warrant;
(ee) "U.S. Person" has the meaning attributed to it in Regulation S;
(ff) "Warrants" means the Common Share purchase warrants of the
Corporation comprising part of the Units; and
(gg) "Warrant Shares" means the Common Shares issuable upon exercise of
the Warrants.
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1.2 All capitalized terms in this Agreement not defined above have the
meanings ascribed to them in this Agreement.
2. PURCHASE AND SALE OF SUBSCRIPTION RECEIPTS
2.1 The Subscription Receipts 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.
2.2 Each Subscription Receipt shall entitle the holder thereof to acquire, for
no additional consideration and without further action required by the
holder thereof, one Unit on the Escrow Release Date;
2.3 Fractional Warrants will not be issued upon conversion of the Subscription
Receipts. Instead, the number of Warrants issued to any one Subscription
Receiptholder will be rounded down to the nearest whole number of Warrants
issuable to such Subscription Receiptholder upon conversion of all
Subscription Receipts held by such Subscription Receiptholder.
2.4 Neither the issue of the Subscription Receipts nor the issue of the Common
Shares and the Warrants upon conversion of the Subscription Receipts will
restrict or prevent the Corporation from obtaining any other financing, or
from issuing additional securities from time to time.
2.5 The Corporation shall have the right to reject this Subscription Agreement
if it reasonably believes for any reason that a Subscriber is not an
"accredited investor" within the meaning of Rule 501 of Regulation D
promulgated by the SEC as presently in effect, and, if a Subscriber is a
Canadian resident, that the Subscriber is not an "accredited investor"
within the meaning of applicable Canadian securities laws, or for any
other reason in its sole and absolute discretion acting reasonably.
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
Subscription Receipts, and at Closing the Subscription Receipts will
be duly and validly created, authorized and issued, and all Common
Shares and Warrants issuable upon conversion of the Subscription
Receipts and all Warrant Shares issuable upon exercise of the
Warrants will be duly and validly authorized, allotted and reserved
for issuance upon conversion of the Subscription Receipts and
exercise of the Warrants, respectively, and will, upon conversion of
the Subscription Receipts and due exercise of the Warrants, as the
case may be, be issued as fully paid and non-assessable Common
Shares;
(b) this Subscription Agreement, the Registration Rights Agreement, the
AERA Purchase and Sale Agreement and the Escrow Agreements, 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;
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(c) the execution and delivery of, and the performance of the terms of
this Subscription Agreement by the Corporation, including the issue
of the Subscription Receipts, the issue of the Common Shares and
Warrants upon conversion of the Subscription Receipts 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;
(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; and
(e) the Information Document contains full, true and plain disclosure
regarding the acquisition of certain offshore oil and gas fields
including the Eureka Platform located in Federal Waters in the San
Xxxxx area, California pursuant to the terms of the AERA Purchase
and Sale Agreement, all material facts and risks related thereto,
contains no untrue statement of a material fact and does not omit to
state a material fact that is required to be stated or that is
necessary to make a statement not misleading in light of the
circumstances in which it is made.
4. REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGEMENTS OF THE SUBSCRIBER
4.1 The Subscriber represents and warrants, as at the date of this Agreement
and at the AERA Closing, that:
(a) the Subscriber is purchasing the Subscription Receipts and the
securities issuable thereunder as principal for Subscriber's own
account or for accounts fully-managed by it, or for long-term
investment, and not with a view to, or for sale in connection with,
the distribution thereof. Subscriber has no present intention of
selling, granting any participation in, or otherwise distributing
the Securities. The Subscription Receipts and/or the securities
issuable thereunder will not be resold without registration under
the Act and qualification under the securities laws of all
applicable states, unless such sale would be exempt therefrom;
(b) the Subscriber is an "accredited investor" under Rule 501(a) of
Regulation D promulgated under the 1933 Act, and
(i) if a Canadian resident, the Subscriber is also an "accredited
investor" as that term is defined in National Instrument
45-106 PROSPECTUS AND REGISTRATION EXEMPTIONS; or
(ii) if a non-Canadian and non-U.S. resident, the Subscriber ,in
purchasing Subscription Receipts pursuant to this Subscription
Agreement, complies with the securities laws in its
jurisdiction of residence and the Subscriber makes to the
Corporation and the Agent the additional representations,
warranties and covenants set out in Schedule "D" attached to
this Subscription Agreement;
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(c) the Subscriber has received, completed and returned to the
Corporation the Subscriber Certificates relating to the Subscriber's
general ability to bear the risks of an investment in the
Corporation and the Subscriber's suitability as an investor in a
private offering, and hereby affirms the correctness of the
Subscriber's answers in each of such Subscriber Certificates;
(d) the Subscriber (i) has adequate means of providing for his or her
current needs and possible personal contingencies, and has no need
for liquidity of his or her investment in the Corporation; (ii) can
bear the economic risk of losing his or her entire investment
herein; (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, and that:
(i) the Subscriber may be restricted from using most of the civil
remedies available under applicable securities legislation;
(ii) the Subscriber may not receive information that would
otherwise be required to be provided under applicable Canadian
securities legislation and the Corporation is relieved from
certain obligations that would otherwise be required to be
given if a prospectus were provided under applicable Canadian
securities legislation in connection with the Offering; and
(iii) the issue and sale of the Subscription Receipts and the issue
of the underlying Common Shares, Warrants and Warrant Shares
on the conversion thereof to the Subscriber is subject to such
sale and issue being exempt from the requirements of
applicable Canadian securities laws as to the filing of a
prospectus;
(f) no prospectus or offering memorandum within the meaning of
applicable Canadian securities laws has been delivered to the
Subscriber in connection with the Offering, other than the
Information Document;
(g) the Subscriber's purchase of the Subscription Receipts has not been
made through or as a result of, and the distribution of the
Subscription Receipts 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 Subscription Receipts;
(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;
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(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 Subscription Receipts 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 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 venture;
(k) while the Common Shares and Warrant Shares will be listed on the
Exchange, there is no trading market for the Subscription Receipts
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 Subscriber of all
or any part of the Subscription Receipts subscribed for herein;
(n) the Subscriber has reviewed the Information Document and the
documents (the "Disclosure Documents") regarding the Corporation
available on SEDAR (xxx.xxxxx.xxx) and the Exchange's web site
(xxx.xxx.xxx) carefully, is fully familiar with and understands the
contents thereof, and has received no other written communication;
(o) the Subscriber confirms that all documents, records and books
pertaining to the Corporation and to the investment requested by the
Subscriber have been made available to the Subscriber and that the
Subscriber has been given an opportunity to make further inquiries
of the Corporation and its representatives in order to verify the
accuracy of the information contained in the Disclosure Documents
and 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:
(i) the person executing this Subscription Agreement has the
necessary power and authority to do so; and
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(ii) the Subscriber was not organized for the specific purpose of
acquiring the Subscription Receipts;
(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
Subscription Receipts (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 above
subparagraph (r)(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 Subscription Receipts under applicable
Canadian securities laws 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 other information furnished by the
Corporation to Subscriber and considers necessary or appropriate for
deciding whether to purchase the Subscription Receipts;
(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 to the Agents, 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, and
the Agents' counsel, Stikeman, Xxxxxx, Xxxxxx & Xxxxxxx LLP, is
acting solely for the Agents, in connection with the Offering and
the Subscriber may not rely upon either such counsel in any respect;
(x) the Subscriber is not a U.S. Person;
(y) the Subscriber is not and will not be purchasing Securities for the
account or benefit of any U.S. Person;
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(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;
(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 Subscription
Receipts subscribed for by it hereunder form part of a larger
issuance and sale by the Corporation of up to US$85 million in
Subscription Receipts (of which (i) US$63,874,985.55 from the sale
of Subscription Receipts and/or units was placed into escrow
pursuant to the Escrow Agreements on November 30, 2006; (ii)
US$9,478,893.87 from the sale of Subscription Receipts was placed
into escrow on December 28, 2006; and (iii) US$900,000 from the sale
of units was paid to the Corporation on December 28, 2006), which,
upon conversion of the Subscription Receipts or otherwise will
result in approximately 74,290,000 common shares and approximately
37,145,000 warrants being issued by the Corporation, and funds will
be available for use subject to the terms of the Escrow Agreements;
in addition, on November 30, 2006, a debt facility in the amount of
US$65 million was established to fund the closing of the
transactions under the AERA Purchase and Sale Agreement and the
Corporation issued 25,451,364 warrants to the lender(s) under the
draw-down of the debt facility;
(b) no federal or state agency has made any finding or determination as
to the fairness of the offering of Subscription Receipts for
investment or any recommendation or endorsement of the Offering and
no Canadian securities commission or similar regulatory authority
has reviewed or passed on the merits of the Securities;
(c) the Subscriber acknowledges being told that the Corporation is
relying on an exemption from the requirements to provide the
Subscriber with a prospectus and to sell the Securities through a
person registered to sell securities under applicable Canadian
securities laws and, as a consequence of acquiring the Securities
pursuant to this exemption, certain protections, rights and remedies
provided by applicable Canadian securities legislation, including
statutory rights of rescission or damages, will not be available to
the Subscriber;
(d) 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;
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(e) the Corporation will undertake to file a Registration Statement in
accordance with the terms of Section 6 hereof;
(f) there are U.S. 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
selling any of the Securities;
(g) the offer and sale of the Subscription Receipts has been made, and
the issuance of the Common Shares and Warrants upon conversion of
the Subscription Receipts prior to the effectiveness of a
registration statement and Warrant Shares issued prior to the
effectiveness of a registration statement to be filed with regard to
such issuance will be made, in reliance upon Regulation S and
Regulation D. Regulation S requires that, for a one (1) year
"distribution compliance period" (as defined in Regulation S), no
offer or sale of a Security 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 a Security 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 Securities in a transaction that did not require
registration under the 1933 Act;
(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 Securities 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;
Regulation S also requires that each Warrant bear a legend stating
that the Warrant and the securities to be issued upon its exercise
have not been registered under the 1933 Act and that the Warrant may
not be exercised by or on behalf of any U.S. Person unless
registered under the 1933 Act or an exemption from such registration
is available. Each person exercising a Warrant must provide the
Corporation with either (i) written certification that it is not a
U.S. Person and that the Warrant is not being exercised on behalf of
a U.S. Person, or (ii) a written opinion of counsel satisfactory to
the Corporation that the Warrant and the issuance of securities upon
exercise thereof has been registered under the 1933 Act and any
securities laws of all applicable states of the United States, or
are exempt from such registration requirements.
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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 E (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 F (or in such other form as the Corporation may prescribe
from time to time); (iii) obtaining the Corporation's signed
acknowledgement 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.
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 approval of the Exchange, the trading
symbol for the Common Shares and any Warrant Shares shall bear an
"S" designation and the CUSIP number for the Common Shares and any
Warrant Shares will be a different CUSIP number than the CUSIP
number for currently outstanding common shares to indicate that they
are restricted securities. Restricted securities may have
significantly less liquidity than unrestricted securities that do
not bear such "S" designation.
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
11
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.
(h) 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 Subscription Receipts
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;
(i) 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;
(j) 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;
(k) the Corporation may be required to provide applicable securities
regulatory authorities with a list setting forth the identities of
the beneficial purchasers of the Subscription Receipts 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;
(l) 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 Subscription Receipts as may
be required by any securities commission, stock exchange or other
regulatory authority;
(m) 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 Subscription
Receipts 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;
12
(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;
(n) if the Subscriber is resident in or otherwise subject to the
securities laws applicable in the Province of Ontario, the
information provided by the Subscriber on the face page of this
Subscription Agreement identifying the name, address and telephone
number of the Subscriber, the number of Subscription Receipts being
purchased hereunder and the total purchase price as well as the date
of Closing and the exemption that the Corporation is relying on in
selling the Subscription Receipts to the Subscriber will be
disclosed to the Ontario Securities Commission, and such information
is being indirectly collected by the Ontario Securities Commission
under the authority granted to it under securities legislation. This
information is being collected for the purposes of the
administration and enforcement of the securities legislation of the
Province of Ontario. Each Subscriber hereby authorizes the indirect
collection of such information by the Ontario Securities Commission.
In the event the Subscriber has any questions with respect to the
indirect collection of such information by the Ontario Securities
Commission, the Subscriber should contact the Ontario Securities
Commission, Administrative Assistant to the Director of Corporate
Finance at (000) 000-0000 or in person or writing at Xxxxx 0000, Xxx
00, 00 Xxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx X0X 0X0; and
(o) the Agents and/or their directors, officers, employees, agents and
representatives assume no responsibility or liability of any nature
whatsoever for the accuracy or adequacy of the Information Document
or any such publicly available information concerning the
Corporation or as to whether all information concerning the
Corporation that is required to be disclosed or filed by the
Corporation under applicable securities laws has been so disclosed
or filed.
5. ESCROW AND ISSUANCE OF SUBSCRIPTION RECEIPTS
5.1 The Subscriber agrees to deliver to the Agents, as soon as possible and,
in any event, not later than 2:00 p.m. (Pacific Standard time) on January
15, 2007: (a) this duly completed and executed Subscription Agreement; (b)
a duly executed Canadian Accredited Investor Certificate attached hereto
as Exhibit "A", if applicable; (c) a duly executed U.S. Accredited
Investor Certificate attached hereto as Exhibit "B" (required from ALL
13
Subscribers); (d) a duly executed Registration Rights Agreement attached
hereto as Exhibit "C" (required from ALL Subscribers), together with a
duly completed selling security holder questionnaire attached thereto as
an exhibit; (e) a duly executed Certificate of Additional Representations,
Warranties and Covenants for Non-Canadian Subscribers (Other Than U.S.
Subscribers) attached hereto as Exhibit "D", if applicable, (f) such other
documents as may be required under applicable securities laws; and (g) a
certified cheque or bank draft payable to the Agent for the aggregate
subscription price or payment of the same amount in such other manner as
is acceptable to the Agent.
5.2 All of the Subscriber's funds shall be placed into an interest-bearing
escrow account with Computershare Trust Company of Canada. At Closing,
certificates for the Subscription Receipts will be delivered to each
Subscriber. Pursuant to the terms of the Subscription Receipt Indenture,
on the Escrow Release Date, the Subscription Receipts will automatically
be converted into Units and the Corporation will cause the Subscription
Receipt Agent to deliver the Common Shares and Warrants comprising the
Units issued upon conversion of the Subscription Receipts to be delivered
to the holders of the Subscription Receipts as soon as practicable after
the Escrow Release Date. Concurrently, on the Escrow Release Date, the
Subscriber's funds will be released to the Corporation. If the AERA
Closing does not occur on or before the AERA Closing Deadline, the
Subscriber's funds will be returned promptly with interest.
5.3 The Subscriber hereby irrevocably authorizes the Agents, in its
discretion: (a) to act as its representative at the Closing and to execute
in its name and on its behalf all Closing receipts and documents required;
(b) to complete or correct any errors or omissions in any form or document
provided by the Subscriber; (c) to waive, in whole or in part, any
representation, warranty, covenant or condition for the benefit of the
Subscriber and contained in any agreement between the Corporation and the
Agents; (d) to receive on its behalf certificates representing the Common
Shares and Warrants comprising the Units subscribed for under this
subscription; and (e) to approve any opinions, certificates or other
documents addressed to the Subscriber.
5.4 The Subscriber acknowledges that the Agents have been appointed by the
Corporation to act as the Agents of the Corporation to offer the
Subscription Receipts on a private placement basis and, in connection
therewith, the Corporation and the Agents have entered into an agreement
(the "Agency Agreement") pursuant to which the Agents, in connection with
the issue and sale of the Subscription Receipts, will receive a fee and
compensation options from the Corporation.
5.5 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 Corporation will prepare and file with the SEC a registration
statement (the "Registration Statement") covering 110% of the Common
Shares and 110% of the Warrant Shares within 120 trading days of the
Escrow Release Date and in accordance with the terms of the Registration
Rights Agreement executed by the Corporation and attached hereto as
Exhibit "C". The Corporation will use its reasonable best efforts to have
the Registration Statement declared effective by the SEC within 180
trading days (210 trading days if the SEC reviews and comments on the
Registration Statement) of the Escrow Release Date.
14
7. LEGENDS
7.1 The certificates representing the Subscription Receipts, the Common Shares
and Warrants upon conversion of the Subscription Receipts, and Warrant
Shares upon exercise of the Warrants, will bear a legend denoting the
restrictions on transfer. The Subscriber agrees to sell, assign or
transfer the Subscription Receipts, Common Shares, Warrants and Warrant
Shares only in accordance with such restrictions.
The legend for certificates for Common Shares and Warrant Shares 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."
and
(iii) THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("U.S. SECURITIES
ACT"), OR ANY STATE SECURITIES LAWS. THE SECURITIES
REPRESENTED HEREBY MAY NOT BE OFFERED, SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE ASSIGNED EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE U.S. SECURITIES
ACT OR PURSUANT TO AN EXEMPTION THEREFROM.
HEDGING TRANSACTIONS INVOLVING THESE SECURITIES MAY NOT BE
CONDUCTED UNLESS IN COMPLIANCE WITH THE U.S. SECURITIES ACT
The legend for each Subscription Receipt and Warrant will be in
substantially the following form:
15
THIS [SUBSCRIPTION RECEIPT/WARRANT] AND THE SECURITIES
ISSUABLE UPON [CONVERSION/EXERCISE] OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
("U.S. SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. THIS
[SUBSCRIPTION RECEIPT/WARRANT] AND THE SECURITIES ISSUABLE
UPON [CONVERSION/EXERCISE] OF THIS [SUBSCRIPTION
RECEIPT/WARRANT] MAY NOT BE OFFERED, SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE ASSIGNED, EXCEPT PURSUANT
TO AN EFFECTIVENESS REGISTRATION STATEMENT UNDER THE U.S.
SECURITIES ACT OR PURSUANT TO AN EXEMPTION THEREFROM.
8. RELIANCE UPON REPRESENTATIONS, WARRANTIES AND COVENANTS
8.1 The Subscriber acknowledges that the representations and warranties and
covenants and acknowledgements 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 Subscription Receipts 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 Subscription Receipts the Subscriber shall be
representing and warranting that the foregoing representations and
warranties are true as at the date of AERA Closing with the same force and
effect as if they had been made by the Subscriber on the date of AERA
Closing and that they shall survive the purchase by the Subscriber of the
Subscription Receipts 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. Notwithstanding the foregoing, the
Subscriber shall deliver originally executed copies of the documents
listed in paragraph 5.1 above to the Agent as soon as possible and, in any
event, not later than 2:00 p.m. (Pacific Standard time) on January 15,
2007.
9.2 Without limitation, this subscription and the transactions contemplated
hereby are conditional upon and subject to the Corporation receiving
Exchange approval of this subscription 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 Subscription Receipts 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.
16
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 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 each of the Subscriber
Certificates, 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 Subscription Receipts by the Subscriber
pursuant hereto, the completion of the Offering and any subsequent
disposition by the Subscriber of the Subscription Receipts, Common Shares,
Warrants or Warrant Shares.
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(f) hereunder.
EXHIBIT "A"
CANADIAN ACCREDITED INVESTOR CERTIFICATE
----------------------------------------
The undersigned ("SUBSCRIBER"), in connection with the acquisition of
subscription receipts ("SUBSCRIPTION RECEIPTS") of Pacific Energy Resources Ltd.
("PERL" or the "CORPORATION") pursuant to that certain subscription agreement
(the "AGREEMENT"), hereby makes the following representations and warranties:
Subscriber understands that the Corporation is relying on this information in
determining to offer Subscription Receipts to the undersigned in a manner exempt
from the registration requirements of applicable Canadian securities laws.
The Subscriber covenants, represents and warrants to the Corporation that the
Subscriber is an "accredited investor" as defined in National Instrument 45-106
PROSPECTUS AND REGISTRATION EXEMPTIONS ("NI 45-106"), by reason of the fact that
the undersigned Purchaser is, as defined in NI 45-106 or National Instrument
14-101 DEFINITIONS (place an "X" on the appropriate line or lines):
_____ (a) a Canadian financial institution, or an authorized foreign
bank listed in Schedule III of the BANK ACT (Canada);
_____ (b) the Business Development Bank of Canada incorporated under the
BUSINESS DEVELOPMENT BANK OF CANADA ACT (Canada);
_____ (c) a subsidiary of any person or company referred to in
paragraphs 1.(a) or 1.(b), if the person or company owns all
of the voting securities of the subsidiary, except the voting
securities required by law to be owned by directors of that
subsidiary;
_____ (d) a person or company registered under the securities
legislation of a jurisdiction of Canada, as an adviser or
dealer, other than a person registered solely as a limited
market dealer under one or both of the SECURITIES ACT
(Ontario) or the SECURITIES ACT (Newfoundland and Labrador);
_____ (e) an individual registered or formerly registered under the
securities legislation of a jurisdiction of Canada, as a
representative of a person or company referred to in paragraph
1.(d);
_____ (f) the Government of Canada or a jurisdiction of Canada, or any
crown corporation, agency or wholly owned entity of the
Government of Canada or a jurisdiction of Canada;
_____ (g) a municipality, public board or commission in Canada;
_____ (h) any national, federal, state, provincial, territorial or
municipal government of or in any foreign jurisdiction, or any
agency of that government;
_____ (i) a pension fund that is regulated by either the Office of the
Superintendent of Financial Institutions (Canada) or a pension
commission or similar regulatory authority of a jurisdiction
of Canada;
_____ (j) an individual who, either alone or with a spouse, beneficially
owns, directly or indirectly, financial assets having an
aggregate realizable value that before taxes, but net of any
related liabilities, exceeds CAD$1,000,000;
_____ (k) an individual whose net income before taxes exceeded
CAD$200,000 in each of the two most recent calendar years or
whose net income before taxes combined with that of a spouse
exceeded CAD$300,000 in each of the two most recent calendar
years and who, in either case, reasonably expects to exceed
that net income level in the current calendar year;
_____ (l) an individual who, either alone or with a spouse, has net
assets of at least CAD$5,000,000;
_____ (m) a person or company, other than an individual or investment
fund, that has net assets of at least CAD$5,000,000, as shown
on its most recently prepared financial statements;
_____ (n) an investment fund that distributes or has distributed its
securities only to
(i) a person or company that is or was an accredited
investor at the time of the distribution;
(ii) a person or company that acquires or acquired
securities in the minimum amount of CAD$150,000 or
additional investments as allowed under section 2.19
of NI 45-106; or
(iii) a person or company that acquires or acquired
securities under section 2.18 of NI 45-106;
_____ (o) an investment fund that distributes or has distributed
securities under a prospectus in a jurisdiction of Canada for
which the regulator or, in Quebec, the securities regulatory
authority, has issued a receipt;
_____ (p) a trust company or trust corporation registered or authorized
to carry on business under the TRUST AND LOAN COMPANIES ACT
(Canada) or under comparable legislation in a jurisdiction of
Canada or a foreign jurisdiction, acting on behalf of a fully
managed account managed by the trust company or trust
corporation, as the case may be;
_____ (q) a person or company acting on behalf of a fully managed
account managed by that person or company, if that person or
company
(i) is registered or authorized to carry on business as
an adviser or the equivalent under the securities
legislation of a jurisdiction of Canada or a foreign
jurisdiction, and
(ii) Ontario, is purchasing a security that is not a
security of an investment fund;
2
_____ (r) a registered charity under the INCOME TAX ACT (Canada) that,
in regard to the trade, has obtained advice from an
eligibility advisor or an adviser registered under the
securities legislation of the jurisdiction of the registered
charity to give advice on the securities being traded;
_____ (s) an entity organized in a foreign jurisdiction that is
analogous to any of the entities referred to in paragraphs
1.(a) through 1.(d) or paragraph 1.(i) in form and function;
_____ (t) a person or company in respect of which all of the owners of
interests, direct, indirect or beneficial, except the voting
securities required by law to be owned by directors, are
persons or companies that are accredited investors;
_____ (u) an investment fund that is advised by a person registered as
an adviser or a person that is exempt from registration as an
adviser, or
_____ (v) a person or company that is recognized or designated by the
securities regulatory authority or, except in Ontario and
Quebec, the regulator, as
(i) an accredited investor, or
(ii) an exempt purchaser in Alberta or British Columbia.
IN WITNESS WHEREOF, Subscriber has executed this Certificate as of
_____ , 2007.
SUBSCRIBER
_____________________________________
(Signature and office, if applicable)
_____________________________________
(Print Name)
_____________________________________
(Address)
_____________________________________
(City/Province/Postal Code)
_____________________________________
(Area Code/Telephone Number)
3
EXHIBIT "B"
U.S. ACCREDITED INVESTOR CERTIFICATE
------------------------------------
(TO BE COMPLETED BY ALL SUBSCRIBERS)
------------------------------------
The undersigned ("SUBSCRIBER"), in connection with the acquisition of
subscription receipts ("SUBSCRIPTION RECEIPTS") of Pacific Energy Resources Ltd.
("PERL" or the "CORPORATION") pursuant to that certain subscription agreement
(the "AGREEMENT"), hereby makes the following representations and warranties:
Subscriber understands that the Corporation is relying on this
information in determining to offer Subscription Receipts to the undersigned in
a manner exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 ACT"), and applicable state securities laws.
1. ACCREDITED INVESTOR
Subscriber represents and warrants that he, she or it falls within the
category (or categories) marked. PLEASE INDICATE EACH CATEGORY OF ACCREDITED
INVESTOR THAT YOU, THE SUBSCRIBER, SATISFY, BY PLACING YOUR INITIALS ON THE
APPROPRIATE LINE BELOW.
_____ Category 1. A bank, as defined in Section 3(a)(2) of the 1933
Act, whether acting in its individual or fiduciary
capacity; or
_____ Category 2. A savings and loan association or other institution
as defined in Section 3(a) (5) (A) of the 1933 Act,
whether acting in its individual or fiduciary
capacity; or
_____ Category 3. A broker or dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934; or
_____ Category 4. An insurance company as defined in Section 2(13) of
the Act; or
_____ Category 5. An investment company registered under the Investment
Company Act of 1940; or
_____ Category 6. A business development company as defined in Section
2(a) (48) of the Investment Company Act of 1940; or
_____ Category 7. A small business investment company licensed by the
U.S. Small Business Administration under Section
301(c) or (d) of the Small Business Investment Act of
1958; or
_____ Category 8. A plan established and maintained by a state, its
political subdivision or any agency or
instrumentality of a state or its political
subdivisions, for the benefit of its employees, with
assets in excess of US$5,000,000; or
_____ Category 9. An employee benefit plan within the meaning of the
Employee Retirement Income Security Act of 1974 in
which the investment decision is made by a plan
fiduciary, as defined in Section 3(21) of such Act,
which is either a bank, savings and loan association,
insurance company or registered investment advisor,
or an employee benefit plan with total assets in
excess of US$5,000,000 or, if a self-directed plan,
the investment decisions are made solely by persons
who are accredited investors; or
_____ Category 10. A private business development company as defined in
Section 202(a) (22) or the Investment Advisors Act of
1940; or
_____ Category 11. An organization described in Section 501(c)(3) of the
Internal Revenue Code, a corporation, a Massachusetts
or similar business trust, or a partnership, not
formed for the specific purpose of acquiring the
Units, with total assets in excess of US$5,000,000;
or
_____ Category 12. A director, executive officer or general partner of
the Corporation; or
_____ Category 13. A natural person whose individual net worth, or joint
net worth with that person's spouse, at the time of
this purchase exceeds US$1,000,000; or
_____ Category 14. A natural person who had an individual income in
excess of US$200,000 in each of the two most recent
years or joint income with that person's spouse in
excess of US$300,000 in each of those years and has a
reasonable expectation of reaching the same income
level in the current year; or
_____ Category 15. A trust, with total assets in excess of US$5,000,000,
not formed for the specific purpose of acquiring the
Units, whose purchase is directed by a sophisticated
person as described in SEC Rule 506(b)(2)(ii); or
_____ Category 16. An entity in which all of the equity owners are
accredited investors.
2. PURCHASING ENTIRELY FOR OWN ACCOUNT
-----------------------------------
Subscriber represents and warrants that he, she or it is purchasing
the Subscription Receipts solely for Subscriber's own account for investment and
not with a view to or for sale or distribution of the Units or any portion
thereof and without any present intention of selling, offering to sell or
otherwise disposing of or distributing the Subscription Receipts or any portion
thereof in any transaction other than a transaction complying with the
registration requirements of the 1933 Act, and applicable state securities or
"blue sky" laws, or pursuant to an exemption therefrom. Subscriber also
represents that the entire legal and beneficial interest of the Subscription
Receipts and underlying securities is being purchased for, and will be held for,
Subscriber's account only, and neither in whole nor in part for any other person
or entity.
3. ECONOMIC RISK AND SUITABILITY
-----------------------------
Subscriber represents and warrants as follows:
(a) Subscriber realizes that Subscriber's purchase of the
Subscription Receipts involves a high degree of risk and will
be a highly speculative investment, and that he, she or it is
able, without impairing Subscriber's financial condition, to
hold the Subscription Receipts an underlying Common Shares and
Warrants for an indefinite period of time.
(b) Subscriber alone, or with the assistance of professional
advisors, has such knowledge and experience in financial and
business matters that the undersigned is capable of evaluating
the merits and risks of Subscriber's purchase of the
Subscription Receipts, or has a pre-existing personal or
2
business relationship with the Corporation or any of its
officers, directors, or controlling persons, of a duration and
nature that enables the undersigned to be aware of the
character, business acumen and general business and financial
circumstances of the Corporation or such other person.
(c) If Subscriber is a partnership, trust, corporation or other
entity, its principal place of business and principal office
are located within the state set forth in its address below.
(d) Subscriber has relied solely upon the documents and materials
submitted therewith, advice of his or her representatives, if
any, and independent investigations made by Subscriber and/or
his or her Subscriber representatives, if any, in making the
decision to purchase the Subscription Receipts subscribed for
herein and acknowledges that no representations or agreements
other than those set forth in the Disclosure Documents have
been made to the Subscriber in respect thereto.
(e) Subscriber confirms that Subscriber has received no general
solicitation or general advertisement and has attended no
seminar or meeting (whose attendees have been invited by any
general solicitation or general advertisement) and has
received no advertisement in any newspaper, magazine, or
similar media, broadcast on television or radio regarding the
offering of the Subscription Receipts.
4. RESTRICTED SECURITIES
---------------------
Subscriber acknowledges that the Corporation has hereby disclosed to
Subscriber in writing:
(a) The Subscription Receipts have not been registered under the
1933 Act, or the securities laws of any state of the United
States, and the Subscription Receipts and their underlying
securities must be held indefinitely unless a transfer of them
is subsequently registered under the Act or an exemption from
such registration is available; and
(b) The Corporation will make a notation in its records of the
above-described restrictions on transfer.
IN WITNESS WHEREOF, Subscriber has executed this Certificate as of
_______, 2007.
SUBSCRIBER
______________________________________
(Signature and office, if applicable)
______________________________________
(Print Name)
______________________________________
(Address)
______________________________________
______________________________________
(Area Code/Telephone Number)
3
Annex A
Plan of Distribution
The selling security holders and any of their pledgees, donees,
assignees and successors-in-interest may, from time to time, sell any or all of
their shares of common stock being offered under this prospectus on any stock
exchange, market or trading facility on which shares of our common stock are
traded or in private transactions. These sales may be at fixed or negotiated
prices. The selling security holders may use any one or more of the following
methods when disposing of shares:
o ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
o block trades in which the broker-dealer will attempt to sell
the shares as agent but may position and resell a portion of
the block as principal to facilitate the transaction;
o purchases by a broker-dealer as principal and resales by the
broker-dealer for its account;
o an exchange distribution in accordance with the rules of the
applicable exchange;
o privately negotiated transactions;
o to cover short sales made after the date that the registration
statement of which this prospectus is a part is declared
effective by the Securities and Exchange Commission;
o broker-dealers may agree with the selling security holders to
sell a specified number of such shares at a stipulated price
per share;
o a combination of any of these methods of sale; and
o any other method permitted pursuant to applicable law.
The shares may also be sold under Rule 144 under the Securities Act, if
available, rather than under this prospectus. The selling security holders have
the sole and absolute discretion not to accept any purchase offer or make any
sale of shares if they deem the purchase price to be unsatisfactory at any
particular time.
The selling security holders may pledge their shares to their brokers
under the margin provisions of customer agreements. If a selling security holder
defaults on a margin loan, the broker may, from time to time, offer and sell the
pledged shares.
Broker-dealers engaged by the selling security holders may arrange for
other broker-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the selling security holders (or, if any
broker-dealer acts as agent for the purchaser of shares, from the purchaser) in
amounts to be negotiated, which commissions as to a particular broker or dealer
may be in excess of customary commissions to the extent permitted by applicable
law.
If sales of shares offered under this prospectus are made to
broker-dealers as principals, we would be required to file a post-effective
amendment to the registration statement of which this prospectus is a part. In
the post-effective amendment, we would be required to disclose the names of any
participating broker-dealers and the compensation arrangements relating to such
sales.
The selling security holders and any broker-dealers or agents that are
involved in selling the shares offered under this prospectus may be deemed to be
"underwriters" within the meaning of the Securities Act in connection with these
sales. Commissions received by these broker-dealers or agents and any profit on
the resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. Any broker-dealers or agents
that are deemed to be underwriters may not sell shares offered under this
prospectus unless and until we set forth the names of the underwriters and the
material details of their underwriting arrangements in a supplement to this
prospectus or, if required, in a replacement prospectus included in a
post-effective amendment to the registration statement of which this prospectus
is a part.
The selling security holders and any other persons participating in the
sale or distribution of the shares offered under this prospectus will be subject
to applicable provisions of the Exchange Act, and the rules and regulations
under that act, including Regulation M. These provisions may restrict activities
of, and limit the timing of purchases and sales of any of the shares by, the
selling security holders or any other person. Furthermore, under Regulation M,
persons engaged in a distribution of securities are prohibited from
simultaneously engaging in market making and other activities with respect to
those securities for a specified period of time prior to the commencement of
such distributions, subject to specified exceptions or exemptions. All of these
limitations may affect the marketability of the shares.
If any of the shares of common stock offered for sale pursuant to this
prospectus are transferred other than pursuant to a sale under this prospectus,
then subsequent holders could not use this prospectus until a post-effective
amendment or prospectus supplement is filed, naming such holders. We offer no
assurance as to whether any of the selling security holders will sell all or any
portion of the shares offered under this prospectus.
We have agreed to pay all fees and expenses incident to the
registration of the shares being offered under this prospectus. However, each
selling security holder and purchaser is responsible for paying any discounts,
concessions and similar selling expenses they incur.
We and certain of the selling security holders have agreed to indemnify
one another against certain losses, damages and liabilities arising in
connection with this prospectus, including liabilities under the Securities Act.
2
EXHIBIT "D"
CERTIFICATE
ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS
FOR NON-CANADIAN SUBSCRIBERS
(OTHER THAN U.S. SUBSCRIBERS)
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 the Agent and their respective counsel (and
acknowledges that the Corporation and the Agent and their respective 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
Subscription Receipts 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 said 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 Subscription Receipts
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 Subscription
Receipts (or the Common Shares and Warrants issuable
upon conversion of the Subscription Receipts) 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 Subscription
Receipts and Common Shares and Warrants 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 Subscription Receipts (or the Common Shares
and Warrants issuable upon conversion of the Subscription
Receipts) 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 ______________, 2007.
__________________________________________
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 "E"
RULE 904 OFFSHORE RESALE
SELLER CERTIFICATION
[DATE]
The undersigned, is the beneficial owner (the "SELLER") 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/exercise of a warrant to
purchase] the Shares on [date].
2. The undersigned 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 undersigned has delivered or caused to be delivered the
certificates covering 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 his behalf knows that the transaction has been pre-arranged
with a buyer in the United States.
5. None of the undersigned, the undersigned'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 undersigned 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 undersigned 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 undersigned 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 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.
10. The undersigned 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 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.
Tax Id. No.:
_____________________________________ ________________________________
Signature Advisor (if applicable):
_____________________________________ ________________________________
Name of Seller Custodian:
_____________________________________ ________________________________
Name and Title of Signatory Account No.:
(if 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 certificate(s) or bond(s) Sign here______________________
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 other (PERSON(S) EXECUTING THE POWER)
Exchanges having signatures on file with SIGN(S) HERE
transfer agent or by a commercial bank or
trust company having its principal office or
correspondent in the City of New York
EXHIBIT "F"
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/exercise of a warrant to
purchase] 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 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 certificate(s) or bond(s) Sign here______________________
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 other (PERSON(S) EXECUTING THE POWER
Exchanges having signatures on file with SIGN(S) HERE)
transfer agent or by a commercial bank or
trust company having its principal office or
correspondent in the City of New York
