PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT (For purchasers resident in Alberta and Ontario)
(For
purchasers resident in Alberta and Ontario)
| TO: |
WESCORP
ENERGY INC. (the
"Corporation")
|
| AND TO: |
▇▇▇▇▇
& COMPANY LLP, Barristers and Solicitors
2600,
▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇ ▇▇▇
Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
Private
Placement of up to 10,000,000 units (the “Units”) at US$0.50 per Unit, each Unit
consisting of one share of common stock with a par value of $0.0001 (a “Common
Share”) and one non-transferable share purchase warrant (a “Warrant”). Each
Warrant will entitle the Subscriber to subscribe for one additional Common
Share
at a price of US$0.75 per share at any time up to 4:00 p.m. (the "Time of
Expiry") local time in Edmonton, Alberta on that date which is 24 months from
the date of issue (the "Expiry Date"). After six months from the date of issue,
the Warrants shall be deemed exercised, in accordance with their terms, at
any
time prior to the Time of Expiry on the Expiry Date if the weighted average
trading price of the Corporation's Common Shares as traded on the NASD OTC
Bulletin Board for the previous ten (10) trading days was at least $1.50 per
Common Share. In the event that the aggregate exercise price for the Warrants
is
not tendered to the Corporation with 30 days of their deemed exercise, at the
option of the Corporation, such Warrants will be deemed cancelled and of no
force and effect. The Units, the Common Shares, and the Warrants are
collectively referred to in this Agreement as the “Securities”.
Subject
to the terms and conditions contained in this subscription agreement, including
the terms and conditions set forth in Schedule “A” hereto, we, the undersigned,
hereby irrevocably subscribe for and agree to purchase Units of the Corporation
in the amount set forth below.
|
(Name
of Subscriber - please print)
By:
(Authorized
Signature)
(Official
Capacity or Title - please print)
(Please
print name of individual whose signature appears above if different
than
the name of the Subscriber printed above.)
Register
Units as set forth below:
(Name)
(Account
Reference, if applicable)
(Subscriber's
address)
(Telephone
Number)
(Fax
Number)
(Email
Address)
|
Principal
Amount of Units Purchased
Number
of securities of the Corporation held prior to purchase of the
Units
Deliver
the Units as set forth below:
(Name)
(Account
reference, if applicable)
(Contact
Name)
(Address)
(Telephone
Number)
|
All
dollar amounts referred to in this agreement are in US dollars.
These
securities are restricted securities as that term is defined in Rule 144 under
the United States Securities Act of 1933 (the “U.S. Securities Act”). As
restricted securities, they may be resold only in accordance with Rule 144
or
Regulation S under the U.S. Securities Act or pursuant to an effective
registration statement under the U.S. Securities Act or an exemption from the
U.S. Securities Act. Hedging transactions involving these securities may not
be
conducted unless in compliance with the U.S. Securities Act.
These
securities have not been registered with the United States Securities and
Exchange Commission or the securities commission of any state. This subscription
agreement does not constitute an offer to sell nor a solicitation of an offer
to
buy the securities in any jurisdiction in which such offer or solicitation
would
be unlawful. The securities may not be resold or transferred except as permitted
pursuant to registration under the U.S. Securities Act or an exemption from
it.
These
securities have not been recommended by any federal or state securities
commission or regulatory authority. Furthermore, the foregoing authorities
have
not reviewed, confirmed or determined the accuracy or adequacy of this document.
Any representation to the contrary is a criminal offense.
ACCEPTANCE:
The Corporation hereby accepts the above subscription this _____ day
of
______________, 2006.
| |
|
|
|
Per:
|
||
|
|
||
SCHEDULE
"A"
TERMS
AND CONDITIONS OF SUBSCRIPTION FOR
UNITS
OF WESCORP ENERGY INC.
| 1. |
Acknowledgements
re: Hold Periods and Resale
Restrictions
|
We
understand and acknowledge the following:
| (a) |
the
Warrants are not assignable or transferable without the prior written
consent of the Corporation;
|
| (b) |
Warrants
may be exercised- in full or in part- by tendering notice and funds
to the
corporation, at any time up to 4 pm, the “time of expiry”, 24 months from
the date of issue. At the “time of expiry” any remaining unexercised
Warrants shall be “deemed exercised” ;the Warrants shall be deemed
exercised, in accordance with their terms, at any time after six
months
from the date of issue and prior to the Time of Expiry on the Expiry
Date
if the weighted average trading price of the Corporation’s Common Shares
as traded on the NASD OTC Bulletin Board for the previous ten(10)
trading
days was at least $1.50 per Common
Share;
|
| (c) |
notwithstanding
the deemed exercise of the Warrants, the Corporation shall not be
obligated to issue the Common Shares issuable on the exercise of
the
Warrants unless and until the exercise price has been tendered to
the
Corporation and all other terms and conditions of the certificates
representing the Warrants have been complied with by the
holder;
|
| (d) |
in
the event that the aggregate exercise for the Warrants is not tendered
to
the Corporation with 30 days of their deemed exercise, at the option
of
the Corporation, such Warrants will be deemed cancelled and of no
force
and effect;
|
| (e) |
we
have been advised to consult our own legal advisers in connection
with any
applicable statutory hold periods and resale restrictions, both in
Canada
and in the United States, relating to the Units and the Common Shares
issuable upon the exercise of the Warrants and no representation
has been
made by the Corporation or its representatives respecting the applicable
statutory hold period or resale
restrictions;
|
| (f) |
we
are solely responsible (and the Corporation is not in any way responsible)
for compliance with applicable hold periods and resale restrictions,
including without limitation the filing of any documentation and,
if
applicable, the payment of any fees with any applicable securities
regulatory authority, and we, and (if applicable) others on whose
behalf
we are contracting hereunder, are aware that we, and (if applicable)
such
others, may not be able to resell the Units or the Common Shares
issuable
upon the exercise of the Warrants except in accordance with limited
exceptions under applicable securities legislation and regulatory
policy
and we and (if applicable) others on whose behalf we are contracting
hereunder, will not sell, resell or otherwise transfer the Units
and the
Common Shares issuable upon the exercise of the Warrants except in
compliance with applicable laws;
and
|
| (g) |
we,
on our own behalf and (if applicable) on behalf of others for whom
we are
contracting hereunder, specifically agree that we will not offer,
sell,
pledge or otherwise transfer the Units or the Common Shares issuable
upon
the exercise of the Warrants except: (i) to the Corporation; (ii)
or
inside the United States in a transaction, (A) made in compliance
with an
exemption from registration under the U.S. Securities Act provided
by Rule
144 or Rule 144A thereunder, if available, and any applicable state
securities laws of the United States or (B) in a transaction exempt
from
registration requirements under the U.S. Securities Act and any applicable
state securities laws of the United States; we understand that the
Units
and the Common Shares issuable upon the exercise of the Warrants
will bear
a legend to the foregoing effect and that prior to any transfer pursuant
to the foregoing clauses (ii) and (iii), the Corporation may require
that
the seller furnish the Corporation and the Corporation's transfer
agent
with an opinion of counsel of recognized standing, in substance and
form
satisfactory to the Corporation, that such transfer is exempt from
registration under the U.S. Securities Act and any applicable state
securities laws; we understand and acknowledge that the certificates
for
the Units and the Common Shares issuable upon the exercise of the
Warrants
and any certificates issued in replacement thereof or exchange therefor,
shall have endorsed thereon a legend reflecting such restrictions
on
transfer and we understand and acknowledge that the Corporation is
not
obligated to file and has no present intention of filing with the
United
States Securities and Exchange Commission or with any state securities
administrator or commission any registration statement in respect
of
resales of the Units or the Common Shares issuable upon the exercise
of
the Warrants in the United States.
|
A-1
| 2. |
Delivery
and Payment
|
We
agree
that the following must be delivered to
the
Corporation c/o Bryan & Company LLP, Barristers and Solicitors, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, or by fax at (▇▇▇) ▇▇▇-▇▇▇▇:
| (a) |
a
certified cheque, bank draft, money order or wire transfer payable
to
“▇▇▇▇▇
& Company LLP In Trust”,
representing the aggregate purchase price payable by us for the Units,
unless other payment arrangements acceptable to the Corporation have
been
made. The entire purchase price for the Units must be paid at the
time of
subscription;
|
| (b) |
one
completed and duly signed copy of this subscription agreement together
with the exemption certification completed in the forms attached
hereto as
Schedule "B" or Schedule "C" as
applicable;
|
| (c) |
such
other documents as may be required pursuant to terms of this subscription
agreement; and
|
| (d) |
all
other documentation as may be required by applicable securities
legislation.
|
| 3. |
Closing
|
The
Units
herein subscribed for will be issued in connection with the creation, issue
and
sale (the "Offering") of Units totalling, in the aggregate, a minimum of
US$500,000 (the "Minimum Amount") and up to a maximum of US$5,000,000 (the
"Maximum Amount").
Delivery
of and payment for the Units (the “Closing”) will be completed at the offices of
▇▇▇▇▇ & Company LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ upon the Corporation receiving subscriptions for at least the
Minimum Amount. After receiving the Minimum Amount, the Corporation contemplates
multiple Closings which will take place on such dates as may be determined
by
the Corporation until the Maximum Amount is achieved. Prior to acceptance of
this subscription by the Corporation, the Corporation is at liberty to terminate
the Offering at any time (whether or not the Minimum Amount is achieved) should
market conditions change.
This
subscription is subject to acceptance by the Corporation, as described below.
Unless other arrangements have been made with the Corporation, certificates
endorsed by the Corporation representing that the Common Shares and Warrants
will be available for delivery to us in Edmonton, Alberta, at Closing against
payment of the aggregate purchase price for the Units. If we choose not to
attend the Closing to receive the certificates representing the Units, then
the
Corporation will deliver such certificates to us at the address set out for
delivery on page 1 of this subscription agreement promptly after the
Closing.
A-2
In
the
event that the Minimum Amount is not achieved on or before July 31, 2006, all
subscription funds shall be returned without interest or deduction.
| 4. |
Acceptance
of Subscription
|
This
subscription may be accepted in whole or in part and the right is reserved
to
the Corporation to allot to any subscriber less than the amount of the Units
subscribed for. Without limiting the generality of the foregoing, this
subscription shall not be accepted if the amount of the Units subscribed for
is
less than the Minimum Subscription Amount. Confirmation of acceptance or
rejection of this subscription will be forwarded to us promptly after the
acceptance or rejection of this subscription by the Corporation. If this
subscription is rejected in whole, we understand that any certified cheques
or
bank drafts delivered by us to the Corporation representing the purchase price
for the Units will be promptly returned to us without interest. If this
subscription is accepted only in part, we understand that a cheque representing
the purchase price for that portion of our subscription which is not accepted
will be promptly delivered to us, without interest.
| 5. |
Acknowledgements
re: Prospectus Exemptions,
etc.
|
We
acknowledge and agree that the sale of the Units to us, or (if applicable)
to
such others, is conditional upon, among other things:
| (a) |
such
sale being exempt from the prospectus filing requirements and the
requirements for the delivery of an offering memorandum (as defined
in any
applicable Canadian securities legislation), of all applicable securities
legislation relating to such sale or upon the issuance of such rulings,
orders, consents or approvals as may be required to permit such sale
without the requirement of filing a prospectus or delivering an offering
memorandum; and
|
| (b) |
the
Corporation obtaining any necessary regulatory
approvals.
|
We
also
acknowledge and agree, that:
| (a) |
we
have not received, requested or been provided with, nor have any
need to
receive, a prospectus, offering memorandum (as defined in any applicable
Canadian securities legislation) or similar disclosure document relating
to the offering of the Units and/or the business and affairs of the
Corporation and that the decision to enter into this subscription
agreement and purchase the Units has not been based upon any verbal
or
written representation as to fact or otherwise made by or on behalf
of the
Corporation or any officer, director, employee or agent of the Corporation
and that such decision is based entirely upon information set out
in this
subscription agreement and currently available public information
concerning the Corporation;
|
| (b) |
there
has not been any advertisement of the offering of the Units in printed
public media, radio, television or telecommunications, including
electronic display such as the Internet or any seminar or meeting
whose
attendees have been invited by general solicitation or general
advertising;
|
| (c) |
no
agency, governmental authority, regulatory body, stock exchange or
other
entity has made any finding or determination as to the merit for
investment of, nor have any such agencies or governmental authorities
made
any recommendation or endorsement with respect to the Units or the
Common
Shares underlying the Units;
|
| (d) |
no
prospectus has been filed by the Corporation with a securities commission
or other securities regulatory authority in any province of Canada
or any
other jurisdiction in connection with the issuance of the Units and
such
issuances are exempt from the prospectus requirements otherwise applicable
under the provisions of Canadian securities laws and, as a result,
in
connection with our purchase of the Units or the Common Shares underlying
the Units hereunder:
|
A-3
| (i) |
we
are restricted from using most of the civil remedies available under
Canadian securities laws;
|
| (ii) |
we
will not receive information that would otherwise be required to
be
provided to us under applicable securities laws or contained in a
prospectus prepared in accordance with applicable securities laws;
and
|
| (iii) |
the
Corporation is relieved from certain obligations that would otherwise
apply under such applicable securities
laws;
|
| (e) |
the
Units are being offered for sale only on a “private placement” basis;
and
|
| (f) |
▇▇▇▇▇
& Company LLP
is
acting as counsel to the Corporation pursuant to the Offering and
is not
acting as counsel to the purchasers of the
Unit.
|
We
acknowledge that the Corporation may be required to provide applicable
securities regulatory authorities with a list setting forth the identities
of
the beneficial purchasers of the Units and we consent to the disclosure of
any
such information relating to our subscription hereunder as required for the
Corporation to properly comply with all regulatory and legislative
requirements.
We
understand and acknowledge that: (i) none of the Units or the Common Shares
underlying the Units have been or will be registered under the United States
Securities
Act of 1933,
as
amended (the “U.S. Securities Act”) nor any applicable state securities laws and
may not be offered or sold or re-offered or resold, directly or indirectly,
in
the United States or to any U.S. person (as defined in Regulation S under the
U.S. Securities Act, a “U.S. Person”), unless such securities have been
registered under the U.S. Securities Act and any applicable state securities
laws, or are otherwise exempt from such registration; and (ii) certificates
representing the Units and the Common Shares issuable upon the exercise of
the
Warrants and shall bear a legend to such effect.
| 6. |
Registration
Rights
|
We
acknowledge and understand that the investor will be entitled to “piggy-back”
registration rights for the Common Shares and Common Shares issuable upon the
exercise of the Warrants within the next registration statement the Company
will
file with the SEC. We acknowledge and understand that the Corporation will
file
a S2SB Registration Application to the SEC within a 45 day period after the
final closing of this Private Placement and that if the application is not
filed
with the SEC within 90 days the final closing, each investor will receive an
additional 10% of the original units subscribed for.
| 7. |
Conditions
on Closing
|
We
acknowledge and agree that, as the offering of the Units will not be qualified
by a prospectus, the offering is subject to the condition that we execute and
return to the Corporation, as applicable, all relevant documentation required
by
this subscription agreement, applicable securities legislation, regulations,
rules and policies and applicable stock exchange rules.
We
agree
to: (i) provide the Corporation with such information and documents, including
certificates, statutory declarations and undertakings, as the Corporation may
reasonably require from time to time to comply with any filing or other
requirements under applicable securities legislation, regulations, rules and
policies and applicable stock exchange rules; and (ii) comply with the
provisions of any applicable securities legislation, regulations, rules and
policies and applicable stock exchange rules concerning any resale of the Units
and the Common Shares issuable upon the exercise of the Warrant.
A-4
| 8. |
Representations,
Warranties and
Covenants
|
We
represent, warrant and covenant to and with the Corporation (and acknowledge
that the Corporation is relying thereon) as follows:
| (a) |
Jurisdiction
of Residence
-
we, and any person on whose behalf we are contracting, are resident
or
otherwise subject to the applicable securities legislation in the
jurisdiction set out under “Subscriber's Address” on page 1 of this
subscription agreement, and the purchase by and sale to us (and any
person
on whose behalf we are contracting), of the Units has occurred only
in
such jurisdiction. The address set out under “Subscriber’s Address” on
page 1 was not created and is not used solely for the purpose of
acquiring
the Units and we, and any person on whose behalf we are contracting,
were
solicited to purchase in such jurisdiction and are acquiring the
Units for
our own account, or for the account of a person over which we exercise
sole investment discretion, and we have the authority to make the
statements set forth in this subscription agreement. We, and any
person on
whose behalf we are contracting, have not been formed solely for
the
purpose of entering into the transactions contemplated by this
subscription agreement;
|
| (b) |
Prospectus
Exempt Purchaser
(Canadian Purchasers) -
we
make the representations, warranties and covenants set out below
and in
Schedules "B" or "C" to this subscription agreement, as applicable,
with
the Corporation and we may avail ourselves of one or more of the
categories of prospectus exemptions contemplated therein (PLEASE
CHECK ONE OF THE BOXES BELOW AND COMPLETE THE APPROPRIATE CERTIFICATE
IN
SCHEDULES "B" OR "C" ATTACHED HERETO, AS IS
APPROPRIATE):
|
ACCREDITED
INVESTOR EXEMPTION: We
are
resident in Alberta or Ontario, we are purchasing as principal and we are
“accredited investors” within the meaning of National Instrument 45-106, by
virtue of falling within one of the categories of "accredited investor" set
forth in Schedule "B" attached hereto (PLEASE
CHECK THE APPROPRIATE CATEGORY IN SCHEDULE "B" ATTACHED
HERETO);
OR
THE
FAMILY, FRIENDS AND BUSINESS ASSOCIATES EXEMPTION:
We are
resident in Alberta, we are purchasing as principal and we fall within one
of
the categories set forth in Schedule "C" attached hereto (PLEASE
CHECK THE APPROPRIATE CATEGORY IN SCHEDULE "C" ATTACHED
HERETO);
| (c) |
Offshore
Transaction - we
represent and warrant to the Corporation that (i) we are not a “U.S.
person” as that term is defined in Rule 902(c) of Regulation S; (ii) at
the time of execution of this agreement, we were outside the United
States
and no offer of the Units was made to us within the United States;
(iii)
we purchased the Units for our own account and not on behalf of any
U.S.
person, and the sale of the Units has not been prearranged with any
buyer
in the United States; and (iv) we are not a distributor as defined
in
Regulation S. We will not, before the expiration of one year from
the
Closing (the “Restricted Period”), offer or sell the Units to U.S. persons
or for the account or benefit of U.S. persons and will offer and
sell the
Units or the Common Shares issuable upon the exercise of the Warrants
only
in compliance with the provisions of Regulation S or a valid and
effective
registration statement covering the Units of the Common
Shares.
|
| (d) |
Legend
-
upon the original issuance thereof, and until such time as the same
is no
longer required under applicable requirements of the U.S. Securities
Act
or applicable state securities laws, or Canadian securities laws
the
certificates representing the Units and the Common Shares issuable
upon
the exercise of the Warrants and all certificates issued in exchange
therefor or in substitution thereof, shall bear a legend in substantially
the form set forth below:
|
“THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR ANY STATE
SECURITIES LAWS, AND MAY BE OFFERED, SOLD, PLEDGED, TRANSFERRED OR OTHERWISE
DISPOSED OF ONLY (A) TO THE CORPORATION; (B) PURSUANT TO A REGISTRATION
STATEMENT WITH RESPECT TO SUCH SECURITIES WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE U.S. SECURITIES ACT; (C) WITHIN THE UNITED STATES IN A TRANSACTION
THAT DOES NOT REQUIRE REGISTRATIONS UNDER THE U.S. SECURITIES ACT OR APPLICABLE
STATE SECURITIES LAWS, AND THE SELLER HAS FURNISHED TO THE CORPORATION AN
OPINION TO SUCH EFFECT FROM COUNSEL OF RECOGNIZED STANDING REASONABLY
SATISFACTORY TO THE CORPORATION PRIOR TO SUCH OFFER, SALE OR
TRANSFER.”
A-5
"UNLESS
PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT
TRADE THE SECURITY BEFORE THE DATE THAT IS FOUR (4) MONTHS AND ONE (1) DAY
AFTER
THE LATTER OF [(i)THE
DISTRIBUTION DATE];
AND (ii) THE DATE THE ISSUER BECAME A REPORTING ISSUER IN THE PROVINCE OR
TERRITORY."
provided,
that if the Units or Common Shares issuable upon the exercise of the Warrants
are being sold outside the United States in compliance with the requirements
of
Rule 904 of Regulation S under the U.S. Securities Act, the seller shall provide
the Corporation with a declaration in the form attached hereto as Schedule
“D”;
| (e) |
Investment
Intent - we
are acquiring the Units for our own account (or a trust account if
the
subscriber is a trustee) and not as a nominee. We understand that the
purchase of the Units involves a high degree of risk and that we
must bear
the economic risk of this investment indefinitely unless sale of
the Units
is registered pursuant to the U.S. Securities Act, or an exemption
from
registration for their sale is available. We understand that, in
the view
of the United States Securities and Exchange Commission, the statutory
basis for the exemption claimed for this transaction would not be
present
if the offering of the Units, although in technical compliance with
Regulation S, is part of a plan or scheme to evade the registration
provisions of the U.S. Securities Act. We are acquiring the Units
for
investment purposes.
|
| (f) |
General
Solicitation in the U.S. -
we, on our own behalf and (if applicable) on behalf of others for
whom we
are contracting hereunder, acknowledge that we have not purchased
the
Units as a result of any general solicitation or general advertising,
as
such terms are used in Regulation D under the U.S. Securities Act,
including without limitation, advertisements, articles, notices or
other
communications published in any newspaper, magazine or similar media,
or
broadcast over radio or television, or any seminar or meeting whose
attendees have been invited by general solicitation or general
advertising;
|
| (g) |
No
Sale in Violation of the Securities Laws -
we covenant that we will not knowingly sell, transfer or otherwise
dispose
of the Units in violation of the U.S. Securities Act, the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) or the rules and
regulations of the Securities and Exchange Commission. We will only
offer
and sell the Units pursuant to an effective registration statement
under
the U.S. Securities Act or an exemption from the registration provisions
of the U.S. Securities Act or outside the United States in accordance
with
applicable securities laws.
|
| (h) |
Resale
Restrictions - we
have been independently advised as to, and are aware of the restrictions
with respect to trading in the Units and Common Shares underlying
the
Units pursuant to the applicable securities laws and any applicable
stock
exchanges;
|
| (i) |
Due
Execution and Delivery - we
are responsible for obtaining such legal advice as we consider necessary
in connection with the execution, delivery and performance by us
of this
agreement and the transactions contemplated herein and we represent
and
warrant that such execution, delivery and performance shall not contravene
any applicable laws of the jurisdiction in which we are resident;
|
| (j) |
Independent
Tax Advice - we
are solely responsible for obtaining such advice concerning the tax
consequences of our investment in the Units and we are not relying
on the
Corporation for advice concerning such tax
consequences;
|
A-6
| (k) |
Capacity
-
if we and, if applicable, any person on whose behalf we are contracting
(i) are an individual, we have attained the age of majority and are
legally competent to execute this subscription agreement and to perform
all actions required pursuant hereto; or (ii) are a corporation,
partnership, unincorporated association or other entity, we, as the
case
may be, have the legal capacity and competence to enter into and
be bound
by this subscription agreement and we further certify that all necessary
approvals of directors, shareholders or otherwise have been given
and
obtained;
|
| (l) |
Authority
-
the entering into of this subscription agreement and the completion
of the
transactions contemplated herein will not result in the violation
of any
of the terms and provisions of any law applicable to, or the constating
documents of, us or any purchaser on whose behalf we are contracting
or of
any agreement, written or oral, to which we are or such other purchaser
is
a party or by which we or such other purchaser are
bound;
|
| (m) |
Enforceability
-
this subscription agreement has been duly and validly authorized,
executed
and delivered by us and, upon acceptance by the Corporation this
subscription agreement will constitute a legal, valid and binding
contract
of ours, enforceable against us, in accordance with its
terms;
|
| (n) |
No
Representation re: Resale, Refund, Future Price or
Listing
-
no person has made any written or oral representation to
us:
|
| (i) |
that
any person will resell or repurchase the Units or the Common Shares
underlying the Units;
|
| (ii) |
that
any person will refund the purchase price of the Units or the Common
Shares underlying the Units other than as may be provided in this
subscription agreement; or
|
| (iii) |
relating
to the future price or value of the Units or the Common Shares underlying
the Units.
|
| (o) |
Investment
Experience - we
have knowledge and experience with respect to investments of this
type
enabling us, to evaluate the merits and risks thereof and the capacity
to
obtain competent independent business, legal and tax advice regarding
this
investment;
|
| (p) |
Investment
Intent -
we
are subscribing for the Units as principal for
our own account and not for the benefit of any other person (within
the
meaning of applicable securities legislation) and not with a view
to
resale or distribution of all or any of the Units or the Common Shares
underlying the Units, or in the case of a subscription for the Units,
by
us acting as trustee or agent (including, for greater certainty,
a
portfolio manager or comparable adviser) for a principal, that we
are duly
authorized to execute and deliver this subscription agreement and
all
other necessary documentation in connection with such subscription
on
behalf of each such beneficial person, each of whom is subscribing
as
principal for its own account, not for the benefit of any other person
and
not with a view to the resale or distribution of the
Units;
|
| (q) |
Share
Ownership
-
we own that number and type of securities of the Corporation set
forth on
page 1 of this subscription agreement;
and
|
We
acknowledge that the foregoing representations and warranties are made by us
with the intent that they may be relied upon in determining our eligibility
and
the eligibility of any person on whose behalf we are contracting, to purchase
the Units under relevant securities legislation and we hereby agree, on our
own
behalf and on behalf of any person on whose behalf we are contracting, to
indemnify the Corporation against all losses, claims, costs, expenses and
damages and other liabilities which it may suffer or incur as the result of
or
arising from the reliance by the Corporation on any such representation or
warranty. We further agree that by accepting the Units we shall be representing
and warranting that the foregoing representations and warranties are true as
at
Closing, with the same force and effect as if they had been made by us on such
date and that they will survive the purchase by us of the Units and will
continue in full force and effect notwithstanding any subsequent disposition
by
the us of the Units.
A-7
| 9. |
Commissions
|
We
acknowledge that the Corporation may pay cash commission, in accordance with
all
regulatory requirements, to agents for obtaining subscriptions in connection
with the offering. The Corporation has retained non-exclusive agents for this
offering.
| 10. |
Survival
|
This
subscription agreement, including without limitation the representations,
warranties and covenants contained herein, shall survive and continue in full
force and effect and be binding upon the Corporation and the undersigned for
a
period of three years from Closing notwithstanding the issuance of the Units
or
the Common Shares issuable upon the exercise of the Warrants.
| 11. |
Governing
Law
|
This
agreement shall be governed by and construed in accordance with the laws of
the
Province of Alberta and the federal laws of Canada applicable therein. We,
hereby irrevocably attorn to the jurisdiction of the courts of the Province
of
Alberta with respect to any matters arising out of this agreement.
| 12. |
Costs
|
All
costs
and expenses incurred by us (including any fees and disbursements of any counsel
retained by us) relating to the purchase by us of the Units or the issuance
of
Common Shares issuable upon the exercise of the Warrants shall be borne by
us.
| 13. |
Assignment
|
This
agreement is not transferable or assignable, in whole or in part, by us or
(if
applicable) by others on whose behalf we are contracting hereunder.
| 14. |
Enurement
|
This
agreement will be binding upon and enure to the benefit of the parties hereto
and their respective successors and assigns.
| 16 |
Entire
Agreement and Headings
|
This
agreement (including the schedules hereto) contains the entire agreement of
the
parties hereto relating to the subject matter hereof and there are no
representations, covenants or other agreements relating to the subject matter
hereof except as stated or referred to herein. This agreement may be amended
or
modified in any respect by written instrument only. The headings contained
herein are for convenience only and shall not affect the meanings or
interpretation hereof.
| 17. |
Time
of Essence
|
Time
shall be of the essence of this agreement.
| 18. |
Counterparts
and Facsimile
Deliveries
|
This
agreement may be executed in one or more counterparts, each of which
counterparts when executed shall constitute an original and all of which
counterparts so executed shall constitute one and the same instrument. The
Corporation shall be entitled to rely on delivery of a facsimile copy of this
agreement, including the completed schedules attached hereto, and acceptance
by
the Corporation of any such facsimile copy shall be legally effective to create
a valid and binding agreement between the parties hereto in accordance with
the
terms hereof. Notwithstanding the foregoing, the undersigned shall deliver
to
the Corporation at the address specified in Section 3
hereof,
an originally executed copy of this agreement, including the schedules attached
hereto, within two business days of Closing.
A-8
SCHEDULE
"B"
ALBERTA
AND ONTARIO RESIDENTS ONLY
TO: WESCORP
ENERGY INC.
The
undersigned ("Subscriber") hereby represents, covenants and certifies to Wescorp
Energy Inc that the Subscriber is:
1. purchasing
the securities of the Corporation as principal;
2. it
or its
disclosed principal is resident in or subject to the laws of the Province of
Alberta or the Province of Ontario, and
3. it
or its
disclosed principal is an "accredited investor" (as that term is defined in
National Instrument 45-106) by virtue of satisfying the indicated criteria
on
Appendix I hereto.
DATED
this ___________ day
of
________________________________,
20__.
|
Name
of Entity
|
||
|
Authorized
Signature
|
||
|
Print
Name of Signatory
|
||
B-1
APPENDIX
I TO SCHEDULE "B"
The
undersigned represents, warrants and certifies that the Subscriber falls within
the category of "Accredited Investor" which is initialled
below:
|
________
|
(a)
|
a
Canadian financial institution or an authorized foreign bank listed
in
Schedule III of the Bank
Act (Canada);
|
|
________
|
(b)
|
the
Business Development Bank incorporated under the Business
Development Bank of Canada Act (Canada);
|
|
________ |
(c)
|
a
subsidiary of any person referred to in paragraphs (a) to (b), if
the
person 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 registered under the securities legislation of a jurisdiction
of
Canada, as an adviser or dealer, other than a limited market dealer
registered under 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
referred to in paragraph (d);
|
|
________ |
(f)
|
the
government of Canada or a jurisdiction of Canada, or any crown Company,
agency or wholly-owned entity of the government of Canada or a
jurisdiction of Canada;
|
|
________ |
(g)
|
a
municipality, public board or commission in Canada and a metropolitan
community, school board, the comité de gestion de la taxe solaire do l'ile
de Montreal or an intermunicipal management board in
Quebec;
|
|
________ |
(h)
|
a
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
Cdn.$1,000,000;
|
|
________ |
(k)
|
an
individual whose net income before taxes exceeded Cdn.$200,000 in
each of
the two most recent calendar years or whose net income before taxes
combined with that of a spouse exceeded Cdn.$300,000 in each of the
two
most recent calendar years and who, in either case, has a reasonable
expectation of exceeding the same net income level in the current
calendar
year;
|
|
________ |
(l)
|
an
individual who, either alone or with a spouse, has net assets of
at least
$5,000,000;
|
|
________
|
(m)
|
a
person, other than an investment fund, that has net assets of at
least
Cdn.$5,000,000 as shown on its most recently prepared financial
statements;
|
B-2
|
________ |
(n)
|
an
investment fund that distributes or has distributed its securities
only to
(i) a person that is or was an accredited investor at the time of
the
distribution, (ii) a person that acquires or acquired securities
in the
circumstances referred to in section 2.10 (minimum investment amount)
of
National Instrument 45-106, and section 2.1.9 (additional investment
in
investment funds) of National Instrument 45-106, or (iii) a person
described in paragraphs (i) or (ii) that acquires or acquired securities
under section 2.8 (investment funds reinvested) of National Instrument
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 acting on behalf of a fully managed account managed by that
person,
if that person (i) is registered or authorized to carry on business
as an
advisor or the equivalent under the securities legislation of a
jurisdiction of Canada or a foreign jurisdiction, and (ii) in Ontario,
is
purchasing a security that is not a security of an investment
fund;
|
|
________ |
(r)
|
a
registered charity under the Income
Tax Act
(Canada) that, in regard to the trade, has obtained advice from an
eligibility advisor or other advisor or registered to provide 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 paragraph (a) through (d) and paragraph (i)
in
form and function;
|
|
________ |
(t)
|
a
person 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 that are accredited investors;
or
|
|
________ |
(u)
|
an
investment fund that is advised by a person registered as an advisor
or a
person that is exempt from registration and is an advisor, or the
person
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
after
September 14, 2005.
|
For
the
purposes hereof:
"eligibility
advisor"
means
|
(a)
|
a
person that is registered as an investment dealer or in an equivalent
category of registration under the securities legislation of the
jurisdiction of a purchaser and authorized to give advice with respect
to
the type of securities being distributed, and
|
|
(b)
|
in
Saskatchewan or Manitoba, also means a lawyer who is a practicing
member
in good standing with a law society of a jurisdiction of Canada or
a
public accountant who is a member in good standing of an institute
or
association of chartered accountants, certified general accountants
or
certified management accountants in a jurisdiction of Canada provided
that
the lawyer or public accountant must not
|
B-3
|
(i)
|
have
a professional, business or personal relationship with the issuer,
or any
of its directors, executive officers, founders or control persons,
and
|
|
(ii)
|
have
acted for or been retained personally or otherwise as an employee,
an
executive officer, a director, associate or partner of a person that
has
acted for or been retained by the issuer or any of its directors,
executive officers, founders or control persons within the previous
12
months;
|
“EVCC”
means
an employee venture capital corporation that does not have a restricted
constitution, and is registered under Part 2 of the Employee
Investment Act
(British
Columbia) and whose business objective is making multiple
investments;
“financial
assets”
means:
|
(a)
|
cash,
|
|
(b)
|
securities,
or
|
|
(c)
|
a
contract or insurance, a deposit or an evidence of a deposit that
is not a
security for the purposes of securities
legislation;
|
"investment
fund"
means a
mutual fund or non-redeemable investment fund and, for greater certainty in
British Columbia, includes an EVCC and a VCC;
"person"
includes
|
(a)
|
an
individual,
|
|
(b)
|
a
corporation,
|
|
(c)
|
a
partnership, trust, fund and an association, syndicate, organization
or
other organized group of persons, whether incorporated or not, and
|
|
(d)
|
an
individual or other person in that person's capacity as a trustee,
executor, administrator, or personnel or other legal
representative;
|
“related liabilities,”
means
| (a) |
liabilities
incurred or assumed for the purpose of financing the acquisition
or
ownership of financial assets, or
|
| (b) |
liabilities
that are secured by financial
assets.
|
“VCC”
means
a
venture capital corporation registered under Part 1 of the Small
Business Venture Capital Act
(British
Columbia) whose business objective is making multiple investments.
▇-▇
▇▇▇▇▇▇▇▇
"▇"
▇▇▇▇▇▇▇
RESIDENTS ONLY
TO: WESCORP
ENERGY INC.
The
undersigned ("Subscriber") hereby represents, covenants and certifies to Wescorp
Energy Inc that the Subscriber is:
| 1. |
purchasing
the securities of the Corporation as
principal;
|
| 2. |
it
or its disclosed principal is resident in or subject to the laws
of the
Province of Alberta,
|
| 3. |
it
or its disclosed principal falls within the family, friends and business
associate exemption (as set out in National Instrument 45-106) by
virtue
of satisfying the indicated criteria on Appendix 1 hereto
|
DATED
this _________day
of_______________________________,
20__.
|
Name
of Entity
|
||
|
Authorized
Signature
|
||
|
Print
Name of Signatory
|
C-1
APPENDIX
I TO SCHEDULE "C"
The
Subscriber represents that the Subscriber falls within the category of "Family,
Friends and Business Associates" which is initialled below:
| ________ |
(a)
|
a
director, executive officer or control person of the Corporation,
or of an
affiliate of the Corporation;
|
| ________ |
(b)
|
a
spouse, parent, grandparent, brother, sister or child of a director,
executive officer or control person of the Corporation, or of an
affiliate
of the Corporation;
|
| ________ |
(c)
|
a
parent, grandparent, brother, sister or child of the spouse of a
director,
executive officer or control person of the Corporation, or of an
affiliate
of the Corporation;
|
| ________ |
(d)
|
a
close personal friend (by reason of the fact that Subscriber has
known
such individual for a sufficient period of time and in a sufficiently
close relationship to be in a position to assess the capabilities
and the
trustworthiness of such individual) of a director, executive officer
or
control person of the Corporation, or of an affiliate of the
Corporation;
|
| ________ |
(e)
|
a
close business associate (by reason of the fact that Subscriber has
had
sufficient prior business dealings with such individual to be in
a
position to assess the capabilities and trustworthiness of such
individual) of a director, executive officer or control person of
the
Corporation, or of an affiliate of the Corporation;
|
| ________ |
(f)
|
a
founder of the Corporation or a spouse, parent, grandparent, brother,
sister, child, close personal friend or close business associate
of a
founder of the Corporation;
|
| ________ |
(g)
|
a
parent, grandparent, brother, sister or child of the spouse of a
founder
of the Corporation;
|
| ________ |
(h)
|
a
person or Corporation of which a majority of the voting securities
are
beneficially owned by, or a majority of the directors are, persons
or
companies described in subsections (a) to (g) above; or
|
| ________ |
(i)
|
a
trust or estate of which all of the beneficiaries or a majority of
the
trustees are persons or companies described in subsections (a) to
(g)
above;
|
C-2
SCHEDULE
“D”
DECLARATION
| TO: |
[name
of company]
|
| AND TO: |
[name
of transfer agent]
|
The
undersigned (a) acknowledges that the sale of the securities of
_______________________ (the “Corporation”) to which this declaration relates is
being made in reliance on Rule 904 of Regulation S under the United States
Securities Act of 1933, as amended (the “U.S. Securities Act”), and
(b) certifies that (1) the undersigned is not an “affiliate” (as that term
is defined in Rule 405 under the U.S. Securities Act) of the Corporation, a
“distributor” (as that term is defined in Rule 902(d) of Regulation S under the
U.S. Securities Act) or an affiliate of a distributor or acting on behalf of
any
of the foregoing, (2) the offer of such securities was not made to a person
in
the United States and either (A) 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 shall reasonably believe that the buyer is outside the United States,
or
(B) the transaction will be executed in, on or through the facilities of a
“designated offshore securities market” (as that term is defined in Rule 902(b)
of Regulation S under the U.S. Securities Act) 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, (3) neither the seller nor any affiliate of the
seller nor any person acting on any of their behalf has engaged or will engage
in any “directed selling efforts” (as that term is defined in Rule 902(c) of
Regulation S under the U.S. Securities Act) in the United States in connection
with the offer and sale of such securities (4) the sale 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 U.S. Securities Act), (5) the contemplated sale is not
a
transaction, or part of a series of transactions which, although in technical
compliance with Regulation S, is part of a plan or scheme to evade the
registration provisions of the U.S. Securities Act, and (6) the undersigned
in
making such sale has complied and will comply with the terms of Rule 904(b)
of
Regulation S. Terms used herein have the meanings given to them by
Regulation S under the U.S. Securities Act.
If
requested by the Corporation and/or its registrar and transfer agent, the
undersigned shall provide an opinion of counsel, of recognized standing
reasonably satisfactory to the Corporation, to the effect that the sale complies
with the terms of Rule 904 of Regulation S.
|
Dated:
_______________
|
(Name
of Holder - please print)
|
|
(Authorized
Signature)
|
|
|
(Official
Capacity - please print)
|
|
|
(please
print here the name of the individual whose signature appears above,
if
different from the name of holder printed
above)
|
D-1