EXHIBIT 4.3
OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT
THIS OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT is executed in reliance
upon the transaction exemption afforded by Regulation S ("Regulation S") as
promulgated by the Securities and Exchange Commission ("SEC"), under the
Securities Act of 1933, as amended ("1933 Act").
THIS AGREEMENT has been executed by the undersigned in connection with
the private placement of shares of Common Stock (hereinafter referred to as the
"Shares") of AMERICAN INTERNATIONAL PETROLEUM CORPORATION (hereinafter referred
to as "AIPN") located at 444 Madison Avenue, Suite 3203, New York, New York
10022: a corporation organized under the laws of Nevada, United States of
America (hereinafter referred to as "Seller" or "Company". the
undersigned,_____________________________ a corporation organized under the laws
of _____________________ jurisdiction (hereinafter referred to as "Purchaser"),
hereby represents and warrants to, and agrees with Seller as follows:
1. AGREEMENT TO SUBSCRIBE; PURCHASE PRICE
a. The undersigned hereby subscribes for ___________ Shares of Common
Stock of AIPN for an aggregate amount of $____________ (US).
b. Form of Payment. Purchaser shall pay the purchase price by
delivering immediately available funds in United States Dollars
__________________________________ _________________________________________ as
Escrow Agent, by delivery of securities versus payment.
2. ACCEPTANCE OF SUBSCRIPTION
a. This subscription may be accepted or rejected by the Company at its
sole discretion.
b. This subscription shall be deemed accepted only when this Agreement
is signed by the Company in the space provided on the signature page hereof.
c. If the Company receives subscriptions from multiple subscribers, it
has no obligation to accept subscriptions in the order received.
3. PURCHASER REPRESENTATIONS AND WARRANTIES
a. Offshore Transaction. Purchaser hereby represents and warrants to
Seller as of the date hereof and as of the Closing Date as follows:
(i) If the Purchaser is a corporation, it is duly
organized, validly existing and in good standing
under the laws of the jurisdiction of its
incorporation, and if the Purchaser is a
partnership or other organization, it is duly
organized, validly existing and in good standing
under the laws of its jurisdiction of organization.
(ii) (a) If the Purchaser is a corporation, the
execution, delivery and performance of this
Agreement has been duly authorized by all necessary
corporate action, (b) if the Purchaser is a
partnership or other organization, the other
governing documents to enter into this agreement
and to consummate the transactions contemplated
hereby and all necessary consents and approvals
required by the partnership agreement or other
governing documents have been obtained, and (c)
this Agreement constitutes a legal, valid and
binding obligation of the Purchaser, enforceable
against the Purchaser in accordance with its terms,
except to the extent that enforceability may be
limited by applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws
affecting creditors' rights generally.
(iii) The Purchaser did not receive any offer to purchase
the Shares in the United States. This Agreement has
not been executed by the Purchaser in the United
States.
(iv) The Purchaser is not a "U.S. person," as defined by
Rule 902(o) of Regulation S (a "U.S. Person"),
promulgated under the Securities Act of 1933, as
amended (the "1933 Act") and as set forth in
Schedule A attached hereto, and is not acquiring
the Shares, directly or indirectly, for the account
or benefit of any U.S. Person.
(v) The Purchaser (a) has received a copy of the
Disclosure Documents (as hereinafter defined) and
has carefully reviewed and understands the
Disclosure Documents and this Agreement and (b)
understand that, except as set forth in the
Disclosure Documents and in this Agreement, no
representations or warranties have been made to the
Purchaser by the Company or by any distributor, or
by any of their officers, directors, employees,
agents or affiliates, and (c) agrees that, in
connections with the purchase of the Shares, it is
not relying upon any information concerning the
Company, other than (i) that contained in the
Disclosure documents and in this Agreement and (ii)
on the results of its own independent
investigations. The term "Disclosure Documents"
shall mean (a) the company's latest Annual report
to Shareholders on Form 10- K (without exhibits),
(b) the Company's Quarterly Reports on Form 10-Q
and Form 8-K thereafter, and (c) copies of the
Company's significant press releases issued after
said Annual Reports.
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(vi) The Purchaser understands that (a) no governmental
authority has passed upon the accuracy or
completeness of the Disclosure Documents or has
made any finding or determination concerning the
appropriateness or suitability of an investment in
the Shares and (b) no governmental authority has
recommended or endorsed, or will recommend or
endorse, the investment in the Shares.
(vii) The Purchaser is not purchasing the Shares with a
view to the distribution thereof within the meaning
of the 1933 Act.
(vii) The Purchaser will not engage in any transaction or
series of transaction that, although in technical
compliance with Regulation S, is part of a plan or
scheme to evade the registration requirements of
the 1933 act with respect to the Shares.
(ix) All subsequent offers and sales of the Shares by
Purchaser shall be made in compliance with
Regulation S under the Securities Act, pursuant to
registration under the Securities Act or pursuant
to an exemption from such registration. In any
case, the Shares shall not be resold to U.S.
persons or within the United States during the
period of forty (40) days commencing on the date of
Closing or the purchase of the Shares.
(x) Purchaser understands that the Shares are being
offered and sold to it in reliance of specific
exemptions from the registration requirements of
Federal and State securities laws and that the
Seller is relying upon the truth and accuracy of
the representations, warranties, agreements
acknowledgements and understandings of Purchaser
set forth herein in order to determine the
applicability of such exemptions and the
suitability of Purchaser to acquire the Shares.
(xi) Purchaser agrees to indemnify and hold the Company,
the Distributor, their respective officers,
directors and shareholders or any other person who
may be deemed to control the Company or the
Distributor harmless from any loss, liability,
claim, damage or expense, arising out of the
inaccuracy of any of Purchaser's representations,
warranties or statements or the breach of any of
the agreements contained herein.
4. LIMITATION ON TRANSFER AND CERTAIN COVENANTS.
a. The Purchaser acknowledges that (i) the Shares have not been
registered under the 1933 Act in reliance on provisions of Rule 903 or Rule 904
of Regulation S, nor have the Shares been registered or qualified for sale under
the laws of any other jurisdiction (either within or outside of the United
States) and (ii) the Company has no obligations hereunder or any current
intention to effect any such registration or qualification.
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b. The Purchaser covenants and agrees that is will not sell the Shares
to a U.S. Person, or for the account or benefit of a U.S. Person, prior to the
expiration of a period of 40 days following the Closing date ("Restricted
Period").
c. The Purchaser acknowledges that the certificates evidencing the
Shares will bear the following legend:
"These shares have been issued pursuant to Regulation S as an exemption
to the registration provisions under the Securities Act of 1933, as
amended. These shares cannot be transferred, offered or sold in the
U.S. or to U.S. person (as defined in Regulation S) until after
_________, 1997 (Forty-one days after issuance)."
The Company covenants and agrees that following expiration of the
Restricted Period it will advise the transfer agent for the Common Stock, upon
the request of a recordholder of the Shares, that the foregoing legend can be
removed from the certificate for the Shares.
d. The Purchaser represents and warrants to the Company that, as of the
date hereof and as of the closing Date, neither it nor any of its affiliates
has, and covenants that during the restricted Period neither it nor any of its
affiliates will establish or maintain, any short position (including any short
call position or any long put position) with respect to the common Stock of the
Company, and that no such person or entity is a party to, nor shall it enter
into during the Restricted Period, any contract or arrangement having the effect
of eliminating or substantially diminishing the risk of ownership of the Shares.
5. REPRESENTATIONS AND WARRANTIES OF THE SELLER.
The Seller represents and warrants to the Purchaser, as of the date
hereof and as of the Closing Date, that:
a. The Company is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation.
b. The execution, delivery and performance of this Agreement has been
duly authorized by all necessary corporate action and this Agreement
constitutes a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except to the extent
that enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting
creditors' right generally.
c. The execution, delivery and performance of this Agreement does and
will not (i) violate any provision of the Company's Certificate of
Incorporation or By-laws, (ii) violate or breach any material contract
or agreement to which the Company is a party, (iii) result in the
creation of any lien, security interest, charge or encumbrance on any
property or
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assets of the Company, or (iv) require the authorization, consent or
approval of any court or any administrative or governmental body
pursuant to any law, statute, rule or regulation to which the Company
is subject to any order, judgment or decree by which the Company is
bound.
d. When issued in accordance with the terms of this Agreement, the
Shares:
(i) except for the Regulation S legend provided in this
Agreement, will be free and clear of any restrictions, liens,
claims or other encumbrances by the Company (other than those
that may arise by reason of any action or inaction of the
Purchaser);
(ii) will be duly authorized, validly issued, fully paid an
nonassessable;
(iii) will not have been issued or sold in violation of any
preemptive or other similar rights of the holders of any
securities of the Company; and
(iv) will not subject the holders thereof to personal
liability to the Company solely by reason of their ownership
of such Shares.
e. The Company is a "Reporting Issuer" as defined by Rule 901(1) of
Regulation S. The Company is in full compliance, to the extent
applicable, with all reporting obligations under either Section 12(b),
12(g) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). The Common Stock trades on NASDAQ National Market
System and its trading symbol is "AIPN"".
f. Seller has not offered the securities which are the subject of this
transaction to any person in the United States, any identifiable groups
of U.S. citizens abroad, or to any U.S. person as that term is defined
in Regulation S.
g. At the time the buy order was originated, Seller and/or its agents
reasonably believed Purchaser was outside of the United States and was
not a U.S. person.
h. Seller and/or its agents reasonably believe that the transaction has
not been pre- arranged with a buyer in the United States.
i. In regard to this transaction, Seller has not conducted any "direct
selling efforts" as that term is defined in Rule 902 of regulation S
nor has Seller conducted any general solicitation relating to the offer
and sale of the securities which are the subject of this transaction to
person resident within the United States or elsewhere.
Each of the foregoing representations and warranties shall survive the
Closing.
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6. REMEDIES.
In the event of a breach by the Purchaser of any of the
representations, warranties or covenants contained in this Agreement, and
without limitation of any other remedy available to the Company at law or in
equity, the Company shall have the right and the option to rescind the sale of
the Shares to the Purchaser. In such case, the amount payable to the Purchaser
upon rescission will be the aggregate Purchase Price, less all expenses, costs
and damages incurred by the Company, and whereupon the Company shall have no
further liability or obligation to the Purchaser under this agreement or
otherwise.
7. ASSIGNABILITY.
Neither this Agreement, nor the rights or obligations of either party
hereunder, may be transferred or assigned without the prior written consent of
the other party (which may be withheld for any reason in the sole discretion of
the party required to provide such consent) and any purported transfer or
assignment not so consented to shall be void. This Agreement shall be binding on
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
8. ENTIRE AGREEMENTS.
This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter of hereof, and there are no
representations, warranties, covenants or other agreements of either party
except as stated herein.
9. AMENDMENTS.
No provision of this Agreement shall be waived, discharged or amended,
except by an instrument in writing signed by the party against whom any such
waiver, modification, discharge or amendment is sought.
10. WAIVERS.
No waiver by either party of any default with respect to any provision,
condition or requirements of this Agreement shall be deemed to be a waiver of
any future default with respect to the same provision, condition or requirement,
or a waiver of any other provision, condition or requirement hereof. No delay or
omission of either party to exercise any right hereunder shall in any manner
impair the exercise of such right at any future time.
11. APPLICABLE LAW.
This Agreement shall be construed in accordance with and governed by
the laws of the State of New York without regard to the conflicts of laws
principles thereof.
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12. SEVERABILITY.
Each provision of this Agreement shall be considered severable and if
for any reason any provision which is not essential to the effectuation of the
basic purposes of this Agreement is determined by a court of competent
jurisdiction to be invalid or unenforceable, or contrary to existing or future
applicable law, such invalidity shall not impair the operation of or affect
those provisions of this Agreement which are valid. In such case, this Agreement
shall be construed so as to limit any term or provision so as to make it
enforceable or valid within the requirements of any applicable law, and in the
event such term or provision cannot be so limited, this Agreement shall be
construed to omit such invalid or unenforceable provision.
13. FAX SIGNATURES AND COUNTERPARTS.
This Agreement may be executed in any number of counterparts, including
counterparts transmitted by telecopier or FAX, any one of which shall constitute
an original of this Agreement. When counterparts of facsimile copies have been
executed by all parties, they shall have the same effect as the signature to
each counterpart or copy were upon the same documents and copies of such
documents shall be deemed valid as originals. The parties agree that all such
signatures amy be transferred to a single document upon the request of any
party.
14. NOTICES
Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be effective (a) upon hand delivery or
delivery by telecopy or facsimile at the address or number designated below (if
delivery on a business day during normal business hours where such notice is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received) or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The addresses for
such communications shall be:
If to the Company: American International Petroleum Corporation
444 Madison Avenue, Suite 3203
New York, NY 10022
If to the Purchaser, as set forth on the signature page hereof.
Either party hereto may from time to time change its address for
notices under this Section 15 by giving at least 10 days written notice of such
changed address to the other party hereto.
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15. HEADINGS.
The headings herein are for convenience of reference only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
the interpretation of any of the provisions hereof.
16. NO THIRD PARTY BENEFICIARIES.
This Agreement is intended for the benefit of the parties hereto and
their respective successors and permitted assigns, and is not for the benefit
of, nor may any provisions hereof be enforced by, any other person.
17. FEES AND EXPENSES.
Each party shall pay for the fees and expenses of its own advisers,
counsel, accountants and other experts, if any, and all other expenses incurred
by such party incident to the negotiation, preparation, execution and delivery
and performance of this Agreement.
18. CONSENT TO JURISDICTION.
Each of the Company and the Purchaser (i) hereby irrevocably submits to
the nonexclusive jurisdiction of the United States District Court for the
Southern District of New York of any New York State Court sitting in New York
City for the purposes of any suit, action or proceeding rising out of or
relating to this Agreement and (ii) hereby waives, and agrees not to assert in
any such suit, action or proceeding, any claim that it is brought in an
inconvenient forum or that the venue of the suit, action or proceeding is
improper. Each of the Company and the Purchaser consents to process being served
in any such suit, action or proceeding by mailing a copy thereof to such party
at the address in effect for notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of process and notice
thereof. Nothing in the paragraph shall affect or limit any right to serve
process in any other manner permitted by law.
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IN WITNESS WHEREOF, the undersigned has caused this Offshore Securities
Subscription Agreement to be executed by a duly authorized officer:
________________________________________
Name of Purchaser (Please Print or Type)
By:_____________________________
NAME:
TITLE
Date:___________________
________________________
________________________
________________________
Business Address
________________________ ____________________
Telephone Number Facsimile Number
ACCEPTED:
AMERICAN INTERNATIONAL PETROLEUM CORPORATION
By:____________________________________
NAME:
TITLE:
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SCHEDULE A
CATEGORIES OF U.S. PERSONS
1.) Any natural person resident in the United States;
2.) Any partnership or corporation organized or incorporated under the
laws of the United States;
3.) Any estate of which any executor or administrator is a U.S. person;
4.) Any trust of which any trustee is a U.S. person;
5.) Any agency or branch of a foreign entity located in the U.S.;
6.) Any non-discretionary account or similar account (other than estate
or trust) held by a dealer or other fiduciary for the benefit or
account of a U.S. person;
7.) Any partnership or corporation if; (A) organized or incorporated
under the laws of any foreign jurisdiction; and (B) formed by a
U.S. person principally for the purpose of investment in securities
not registered under the Act, unless it is organized or
incorporated, and owned, by accredited investors (as defined in
Rule 501[a]) who are not natural persons, estates or trusts.
8.) Any employee benefit plan established and administered in
accordance with the law of a country other than the United States
and customary practices and documentation of such country shall not
be deemed a U.S. person.
9.) Any agency or branch of a U.S. person located outside the United
States shall not be deemed a "U.S. person" if:
the agency or branch operates for valid business
reasons; and the agency or branch is engaged in
the business of insurance or banking and is
subject to substantive insurance or banking
regulation, respectively, in the jurisdiction
where located.
10.) The International Monetary Fund, the International Bank for
Reconstruction and Development, the Inter-American Development
Bank, the Asian Development Bank, the African Development Bank, the
United States, and their agencies, affiliates and pension plans,
and any other similar international organizations, their agencies,
affiliates and pension plans shall not be deemed "U.S. person."
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