Exhibit 4.6
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AMERICAN INTERNATIONAL PETROELUM CORPORATION
REGULATION S SUBSCRIPTION AGREEMENT
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THE SECURITIES BEING OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE OFFERED OR SOLD
IN THE UNITED STATES OR TO U.S. PERSONS UNLESS THE SECURITIES ARE REGISTERED
UNDER THE ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT IS
AVAILABLE.
REGULATION S SUBSCRIPTION AGREEMENT
THIS AGREEMENT has been executed by the undersigned, for
___________________ whose address is _____________________________, (the
"Subscriber"), in connection with the purchase of up to ___________ shares (the
"Shares") of common stock, $.08 par value (the "Common Stock") of AMERICAN
INTERNATIONAL PETROLEUM CORPORATION (the "Company") located at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, a corporation organized under the
laws of Nevada, United States of America.
WHEREAS, the Company proposes to issue _________________ Shares pursuant
to Regulation S, ("Regulation S") promulgated under the Securities Act of the
1933, as amended (the "Act") as consideration for a ____________________ partial
prospect fee (the "Fee") effective on the acceptance of this subscription by the
Company, and
WHEREAS, the Shares will be offered and issued pursuant to an exemption
from registration provided by Regulation S, and
WHEREAS, upon original issuance thereof, and until such time as the same
is no longer required under the applicable requirements of the Act, the Share
Certificates shall bear the following legend:
THE SECURITY EVIDENCED HEREBY WAS ORIGINALLY ISSUED PURSUANT TO
REGULATION S ("REGULATION S") UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT, AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED IN
REGULATION S) IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM AND IN EACH CASE, IN ACCORDANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION.
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NOW THEREFORE, the Subscriber agrees with the Company as follows:
1. Subscription. Subject to its terms and conditions and further subject
to acceptance of this Agreement by the Company, the Subscriber agrees to
purchase from the Company _________________ Shares for an aggregate purchase
price of U.S. $______________, in an offering of up to _________________ Shares
ending at the close of business on ___________________ (the "Payment Date").
2. Delivery and Payment. Delivery of and payment for the Shares shall be
made at such time and place as the Company and the Subscriber shall agree.
Shares shall be registered in the Subscriber's name and issued not later
than three full business days after the acceptance of this Agreement by the
Company. Shares shall be registered in the Subscriber's name and not in nominee
or other names.
3. Representations and Warranties of the Subscriber. The Subscriber hereby
represents and warrants to the Company as follows:
(a) The Subscriber acknowledges that he has received a copy of the
Company's Annual Report on Form 10-K for the year ended
December 31, 1996, the Company's Form 10-Q for the quarterly
period ended June 30, 1997, and a Proxy Statement of the
Company dated June 18, 1997 and is acquainted with the
business and financial condition of the Company. The
Subscriber further acknowledges that he has had an opportunity
to ask questions of and receive answers from the Company's
executive officers concerning the Company and the terms and
conditions of this investment and all such questions have been
answered to the full satisfaction of the Subscriber. The
Subscriber hereby further represents and warrants that it is
aware that there are substantial risks incident to an
investment in the Company and that no Federal or State agency
has passed upon the Shares or made any finding or
determination as to the fairness of an investment in the
Company.
(b) The Subscriber has the full right, power and authority to
enter into this Agreement and to carry out and consummate the
transactions contemplated herein. This Agreement constitutes
the legal, valid and binding obligation of the Subscriber
enforceable in accordance with its terms.
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(c) The Subscriber is acquiring Shares for its own account and
risk and not as part of any plan or scheme to evade the
registration requirements of the Act, and no other person has
or will have at the Payment Date any interest in or
participation in the Subscriber's Shares or any right, option,
security interest, pledge or other interest in or to such
Shares. The Subscriber understands and agrees that it must
bear the economic risk of its investment in the Shares for an
indefinite period of time. The Shares have not been registered
under the Act. The Shares may not be offered or sold, directly
or indirectly, in the United States or to any natural person
who is a resident of the United States or to any U.S. person,
as defined in Regulation S, or for the account or benefit of
any U.S. person unless registered or exempt from registration
under the Act and any applicable state securities or blue sky
laws (the "State Acts"). The Subscriber also understands that
the Company is under no obligation to register any Shares on
behalf of the Subscriber or to assist it in complying with any
exemption from registration.
(d) The Subscriber is not a U.S. person, and is not acquiring the
Shares, directly or indirectly, for the account or benefit of
any U.S. person in violation of Regulation S pursuant to which
regulation the Shares are being sold.
(e) The Subscriber agrees to dispose of or encumber its Shares
only if (i) such Shares are duly registered under the Act and
all applicable State Acts, or (ii) an exemption from
registration under the Act, including any exemption from the
registration requirements of the Act pursuant to Regulation S,
and all applicable State Acts, is available.
(f) This Agreement has not been executed or delivered by the
Subscriber in the United States, and neither the Subscriber
nor any person acting on behalf of the Subscriber engaged
directly or indirectly in any negotiations with respect to
this Agreement in the United States or was located in the
United States at the time of the buy order or offer to
purchase the securities.
(g) Neither the Subscriber, nor any officer, director or 5% or
more shareholder thereof, has been:
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(i) Convicted within the preceding ten years of any felony
or misdemeanor in connection with the offer, purchase or
sale of any security or commodity involving the making
of a false filing with the Commission.
(ii) Subject to any order, judgment or decree of any court of
competent jurisdiction temporarily or preliminary
enjoining or restraining, or subject to any order,
judgment or decree of any court of competent
jurisdiction, entered within the preceding five years,
permanently enjoining or restraining the investor from
engaging in or continuing any conduct or practice in
connection with the purchase or sale of any security or
commodity or involving the making or a false filing with
the Commission or any state, or arising out of the
conduct of the business of any underwriter, broker,
dealer, municipal securities dealer or investment
advisor.
(iii) Subject to an order of the Commission entered pursuant
to Section 15(b), 15B(a) or 15B(c) of the Securities
Exchange Act of l934, as amended (the "Exchange Act");
or subject to an order or the Commission entered
pursuant to Section 203(e) or (f) of the Investment
Advisers Act of l940.
(iv) Suspended or expelled from membership in, or suspended
or barred from association with a member of, an exchange
registered as a national securities exchange pursuant to
Section 6 of the Exchange Act, an association registered
as a national securities association under Section 15A
of the Exchange Act or a Canadian securities exchange or
association for any act or omission to act constituting
conduct inconsistent with just and equitable principles
of trade.
(v) Filed a registration statement which is the subject of a
registration stop order entered pursuant to the Act or
any State Act within the preceding five years.
(vi) Subject to any state's administrative enforcement order
or judgment which prohibits, denies or revokes the use
of any exemption from registration
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in connection with the offer, purchase or sale of
securities.
(h) The offer leading to the sale evidenced hereby was made in an
"offshore transaction", for purposes of Regulation S.
Subscriber is familiar with the provision of Regulation S.
(i) Neither the Subscriber nor any affiliate of the Subscriber or
any person acting on their behalf, has made or is aware of any
"directed selling efforts" in the United States, which is
defined in Regulation S to be any activity undertaken for the
purpose of, or that could reasonably be expected to have the
effect of, conditioning the market in the United States for
any of the securities being purchased hereby.
(j) The Subscriber understands that the Company is the issuer of
the securities which are the subject of this Agreement. The
Subscriber shall not, during the 40-day restricted period set
forth under Rule 903(c)(2) of Regulation S, act as a
distributor, either directly or through any affiliate, nor
shall he sell, transfer, hypothecate or otherwise convey the
securities offered hereby or any interest therein, other than
to a non U.S. person, or in any other manner offer or sell
securities of the Company in violation of Regulation S or the
Act. Such 40-day restricted period shall not begin until the
closing of the Offering at the end of business on the Payment
Date and, otherwise, as provided in Regulation S.
(k) If the Subscriber is a corporation or trust or other entity,
the officer or trustee or other person executing this
Agreement represents and warrants that he is authorized to so
sign and that the entity is authorized by the governing
documents of the entity, to make this investment;
(l) The Subscriber understands that the offer and sale of the
Shares is being made only by means of this Agreement. In
deciding to subscribe for the Shares, the Subscriber has not
considered any information other than that contained in this
Agreement and all documents provided to the Subscriber by the
Company. The Subscriber acknowledges that each of such
documents contain on the cover thereof a legend as to the
absence of registration of the Shares under the Act and the
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restrictions arising under the Act. The Subscriber
acknowledges and agrees that the purchase of the Shares
involves a high degree of risk and that the Subscriber may
sustain, and has the financial ability to sustain, the loss of
its entire investment.
4. Representations and Warranties of the Company. The Company
represents and warrants to the Subscriber, that:
(a) This Agreement has been duly authorized by the Company.
(b) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Nevada. The
Company has the corporate power and authority necessary to enter into and
perform its obligations under this Agreement, and to issue, sell and deliver the
Shares.
(c) There is no statute, rule, regulation or order that has been
enacted, adopted or issued by any governmental agency or that has been proposed
by any governmental body which might prevent the issuance of the Shares. No
injunction, restraining order or order of any nature by a federal or state court
of competent jurisdiction has been issued that would prevent the issuance of the
Shares.
(d) No form of general solicitation or general advertising was used
by the Company or any of its representatives in connection with the offer and
sale of the Shares, including, but not limited to, articles, notices or other
communications published in any newspaper, magazine, or similar medium or
broadcast over television or radio, and no seminar or meeting whose attendees
have been invited by any general advertising was used by the Company or any of
its representatives in connection with the offer and sale of the Shares.
(e) Reporting Company Status. The Company is a "Reporting Company"
as ]defined by Rule 902 of Regulation S. The Company is in full compliance, to
the extent applicable, with applicable reporting obligations under either
Section 12(b), 12(g) or 15(d) of the Securities and Exchange Act of 1934, as
amended.
5. Reliance on Representations. The Subscriber understands that the
Company is relying on the Subscriber's representations concering the
Subscriber's compliance with the rules governing offers and sales made outside
the United States pursuant to Regulation S.
6. Conditions of the Subscriber's Obligations. The Subscriber's obligation
to purchase the Shares subject to the satisfaction of each and every one of the
following conditions as of the Payment Date:
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(a) No order asserting that the transactions contemplated by this
Agreement are subject to the registration requirements of the Act shall have
been issued, and no proceedings for that purpose shall have been commenced or
shall be pending or, to the knowledge of the Company, be contemplated. No stop
order suspending the sale of the Shares shall have been issued, and no
proceedings for that purpose shall have been commenced or shall be pending or,
to the knowledge of the Company, be contemplated.
(b) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental agency
that would prevent the issuance of the Shares. No injunction, restraining order
or order of any nature by a federal or state court of competent jurisdiction
shall have been issued that would prevent the issuance of the Shares.
7. Conditions of the Company's Obligations. The Company's obligations to
sell the Shares under this Agreement on the Payment Date, is subject to the
satisfaction of each and every one of the following conditions as of the Payment
Date:
(a) All of the representations and warranties of the Subscriber
contained in this Agreement shall be true and correct on the Payment Date with
the same force and effect as if made on and as of the Payment Date. The
Subscriber shall have performed or complied with all agreements and satisfied
all conditions on its part to be performed, complied with or satisfied at or
prior to the Payment Date.
(b) No order asserting that the transactions contemplated by this
Agreement are subject to the registration requirements of the Act shall have
been issued, and no proceedings for that purpose shall have been commenced or
shall be pending or, to the knowledge of the Company, be contemplated. No stop
order suspending the sale of the Shares shall have been issued, and no
proceedings for that purpose shall have been commenced or shall be pending or,
to the knowledge of the Company, be contemplated.
(c) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental agency
that would prevent the issuance of the Shares. No injunction, restraining order
or order of any nature by a federal or state court of competent jurisdiction
shall have been issued that would prevent the issuance of the Shares.
8. Subsequent Transfers of the Securities. The Subscriber further agrees
that, in connection with the resale of the Shares it will offer to sell the
Shares only after 41 days from the date of the closing of the last purchase
under the Offering, and only to, and will solicit offers
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to buy the Shares only from, persons who in purchasing such Shares will have
represented and agreed that (1) they are purchasing the Shares for their own
account, (2) all requirements of Regulation S have been satisfied, (3) if sold
outside the United States, the sale shall be to a foreign person in a
transaction meeting the requirements of Rule 904 of Regulation S under the Act,
and (4) the holder will, and each subsequent holder is required to, notify any
purchaser from it of the security evidenced thereby of the resale restrictions
set forth in Regulation S.
9. Notice. Notices given pursuant to any provision of this Agreement shall
be addressed as follows: (i) if to the Company, to American International
Petroleum Corporation, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, with a copy to Snow ▇▇▇▇▇▇ ▇▇▇▇▇▇ P.C., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (ii) if to the Subscriber at the address
set forth at the signature page of this Agreement, or in any case to such other
address as the person to be notified may have requested in writing.
10. Miscellaneous. Except as otherwise provided, this Agreement has been
and is made solely for the benefit of the Company and shall be binding upon the
Subscriber and its successors and assigns, all as and to the extent provided in
this Agreement, and no other persons shall acquire or have any right under or by
virtue of this Agreement. Subscriber shall not assign this Agreement. A
facsimile transmission of this signed Agreement shall be legal and binding on
all parties hereto. This Agreement may be signed in various counterparts, which
together shall constitute one and the same instrument.
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES, AND EACH PARTY HEREBY AGREES THAT ALL PERFORMANCE DUE WITH RESPECT
TO TRANSACTIONS UNDERTAKEN PURSUANT TO THIS AGREEMENT SHALL BE DEEMED TO BE DUE
OR TO HAVE OCCURRED IN NEW YORK. THE EXCLUSIVE VENUE AND PLACE OF JURISDICATION
FOR ANY LITIGATION ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR THE NEW YORK
STATE SUPREME COURT LOCATED IN THE COUNTY OF NEW YORK. THE PARTIES HERETO WAIVE
TRIAL BY JURY OF ANY DISPUTES BETWEEN THEM.
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IN WITNESS WHEREOF, the parties have executed this Agreement, the
________day of __________, ______.
Number of Shares
subscribed for: ______________
________________________________________
Name of Subbscriber
By: ___________________________________
Name:
Title:
Address:______________________________________________________
_________________________________________________________
Country in which this Agreement is executed by Subscriber:_______________
Telephone Number:_____________________
Telecopier Number:____________________
Social Security No. or Tax I.D. No. (if applicable): N/A
AMERICAN INTERNATIONAL
PETROLEUM CORPORATION
By: _____________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Vice President
ACCEPTED this ______ day of _________, ______
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