Investor’s Exemption Status. 5.1 All Investors. The Investor, by its execution of this Subscription Agreement, hereby further represents, warrants to, and covenants with, the Company and its counsel (which representations, warranties and covenants will survive the Closing of the Offering) that the Investor is purchasing the Units as principal for its own account, it is purchasing such Units not for the benefit of any other person, and not with a view to the resale or distribution of the Units, the Investor's purchase of the Units complies with all Applicable Securities Laws of the Investor's jurisdiction of residence, and one of the following Exemptions applies to the Investor: (a) Insiders' Family, Close Friends and Business Associates Exemption (NOT AVAILABLE FOR RESIDENTS IN SASKATCHEWAN) The Investor is: (i) a director, executive officer or control person of the Company, or of an affiliate of the Company, (ii) a spouse, parent, grandparent, brother, sister, child or grandchild of a director, executive officer or control person of the Company, or of an affiliate of the Company, (iii) a parent, grandparent, brother, sister, child or grandchild of the spouse of a director, executive officer or control person of the Company or of an affiliate of the Company, (iv) a close personal friend of a director, executive officer or control person of the Company, or of an affiliate of the Company, (v) a close business associate of a director, executive officer or control person of the Company, or of an affiliate of the Company, (vi) a founder of the Company or a spouse, parent, grandparent, brother, sister, child, grandchild, close personal friend or close business associate of a founder of the Company, (vii) a parent, grandparent, brother, sister, child or grandchild of a spouse of a founder of the Company, (viii) a person of which a majority of the voting securities are beneficially owned by, or a majority of the directors are, persons described in paragraphs (i) to (vii) above; or (ix) a trust or estate of which all of the beneficiaries or a majority of the trustees or executors are persons described in paragraphs (i) to (vii) above; - A-7 - and the Investor has properly completed and duly executed a Representation Letter for Family, Friends and Business Associates attached to this Subscription Agreement as Schedule C and confirming the truth and accuracy of all statements made by the Investor in such certificate. If the Investor is from Ontario, the Company is not an investment fund; or (b) Accredited Investor Exemption The Investor is resident in any Province or Territory in Canada and he/she/it is an "accredited investor" (and will be at the closing of the issue and sale of the Units) within the meaning of NI 45-106, and in Ontario, as defined in Section 73.3 of the Securities Act (Ontario) as supplemented by the definition in NI 45-106, by virtue of satisfying the indicated criterion as set out in Appendix I to Schedule "B" (THE INVESTOR MUST ALSO INITIAL THE APPROPRIATE LINE IN APPENDIX I TO SCHEDULE B AND, IF APPLICABLE, COMPLETE EACH QUESTION WHICH FOLLOWS THAT PARTICULAR PORTION OF THE DEFINITION). If the Investor is an individual relying on paragraph (j), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed two copies of Form 45-106F9 - "Form for Individual Accredited Investors" in the form attached hereto as Appendix II to Schedule B. In addition, if the Investor is an individual relying on paragraph (j), (j.1), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed the Accredited Investor Questionnaire attached hereto as Appendix III to Schedule B. The Investor was not created or used solely to purchase or hold securities as an "accredited investor" as described in paragraph (m) of the definition of "accredited investor" in NI 45-106; or (c) Minimum Amount Exemption The Investor is resident in any Province or Territory in Canada, it is not an individual, and it was not, as the case may be, created or used solely to purchase or hold securities in reliance on the minimum amount exemption from the prospectus requirements provided for under Section 2.10 of NI 45-106, and it is either purchasing the Units: (i) as principal and not for the benefit of any other person, and the aggregate acquisition cost for the Units, payable by the Investor in cash at the time of the distribution, is not less than CDN$150,000; or (ii) as agent for the Investor disclosed on the execution page (page 4) of this Subscription Agreement, and it is an agent or trustee with proper authority to execute all documents required in connection with the purchase of the Units on behalf of such disclosed beneficial Investor and such disclosed beneficial Investor for whom it is contracting hereunder is purchasing as principal and not for the benefit of any other person, and the aggregate acquisition cost for the Units, payable by such beneficial Investor in cash at the time of the distribution, is not less than CDN$150,000. 5.2 Investor Outside of Canada. If the Investor is a resident in an International Jurisdiction or in the United States, it certifies (on its own behalf and, if applicable, on behalf of each person on whose behalf the Investor is contracting) that: (a) no securities commission or similar regulatory authority has reviewed or passed on the merits of the Securities; (b) there is no government or other insurance covering the Securities; (c) there are risks associated with the purchase of the Securities; (d) there are restrictions on the Investor's ability to resell the Securities and it is the responsibility of the Investor to determine what those restrictions are and to comply with them before selling the Securities; - A-8 - (e) the Company has advised the Investor that the Company is relying on an exemption from the requirements to provide the Investor with a prospectus and to sell the Securities through a person registered to sell the Securities under Applicable Securities Laws and, as a consequence of acquiring securities pursuant to this Exemption, certain protections, rights and remedies provided by Applicable Securities Laws, including statutory rights of rescission or damages, will not be available to the Investor; (f) the Investor is knowledgeable of securities legislation having application or jurisdiction over the Investor and the Offering (other than the laws of Canada and the United States) which would apply to this Subscription Agreement; (g) the Investor is purchasing the Securities pursuant to exemptions from any prospectus, registration or similar requirements under the laws of that International Jurisdiction and or, if such is not applicable, the Investor is permitted to purchase the Securities, and the Company has no filing obligations in the International Jurisdiction; (h) no laws in the International Jurisdiction require the Company to make any filings or seek any approvals of any kind whatsoever from any regulatory authority of any kind whatsoever in the International Jurisdiction; (i) the subscription for the Units by the Investor does not contravene any of the International Securities Laws applicable to the Investor and the Company and does not trigger any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase or to register the Units or to be registered with any governmental or regulatory authority, and the Investor will, if requested by the Company, deliver to the Company a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in paragraphs (b) and (c) above to the satisfaction of the Company, acting reasonably; (j) the Securities are being acquired for investment only and not with a view to resale and distribution within the International Jurisdiction; and (k) the Investor has executed and delivered a Certificate of Foreign Investor in the form attached as Schedule E to this Subscription Agreement and: (i) it is an "accredited investor" (and will be at the closing of the issue and sale of the Units) within the meaning of NI 45-106 by virtue of satisfying the indicated criterion as set out in Appendix I to Schedule B (THE INVESTOR MUST ALSO INITIAL THE APPROPRIATE LINE IN APPENDIX I TO SCHEDULE B AND, IF APPLICABLE, COMPLETE EACH QUESTION WHICH FOLLOWS THAT PARTICULAR PORTION OF THE DEFINITION). If the Investor is an individual relying on paragraph (j), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed two copies of Form 45-106F9 - "Form for Individual Accredited Investors" in the form attached hereto as Appendix II to Schedule B. In addition, if the Investor is an individual relying on paragraph (j), (j.1), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed the Accredited Investor Questionnaire attached hereto as Appendix III to Schedule B. The Investor was not created or used solely to purchase or hold securities as an "accredited investor" as described in paragraph (m) of the definition of "accredited investor" in NI 45-106; or (ii) it has concurrently completed Schedule C indicating that the Investor satisfies (and will satisfy at the Closing Time) one of the categories set forth therein under the family, friends and business associates exemption under NI 45-106; or (iii) it is not an individual, was not created or used solely to purchase or hold the Units and the aggregate acquisition cost for the Units, payable by the Investor in cash at the time of the distribution, is not less than CDN$150,000. - A-9 - 5.3 U.S. Securities Law Matters. The Investor represents and warrants to the Company that: (a) if the Investor is not a U.S. Purchaser (it being understood that a discretionary or similar account (other than an estate or trust) that is excluded from the definition of U.S. Person pursuant to Rule 902(k)(2)(i) of Regulation S under the U.S. Securities Act and is held for the benefit or account of a person that is not a U.S. Person by a dealer or other professional fiduciary organized, incorporated, or (if an individual) resident in the United States shall not be considered a U.S. Purchaser) (i) it is not a person in the United States or a U.S. Person and it is not acquiring the Securities (and will not acquire any Warrant Shares) for the account or benefit of any person in the United States or any U.S. Person; (ii) it was not offered the Securities in the United States; (iii) at the time the buy order for the Securities was originated, it was outside the United States and this Subscription Agreement was not executed or delivered in the United States; (iv) the current structure of this transaction and all transactions and activities contemplated hereunder is not part of a scheme to avoid the registration requirements of the U.S. Securities Act; and (v) it understands that the Company is the seller of the Securities and the Warrant Shares and that, for purposes of Regulation S, a "distributor" is any underwriter, dealer or other person who participates, pursuant to a contractual arrangement, in the distribution of securities offered or sold in reliance on Regulation S and that an "affiliate" is any partner, officer, director or any person directly or indirectly controlling, controlled by or under common control with any person in question; except as otherwise permitted by Regulation S, the Investor agrees that it will not, during a six-month distribution compliance period, act as a distributor, either directly or through any affiliate, or sell, transfer, hypothecate or otherwise convey the Securities or the Warrant Shares other than to or for the account or benefit of a non-U.S. Person; or (b) if the Investor is a U.S. Purchaser, the Investor represents and warrants to the Company that it is an accredited investor as defined in Rule 501(a) of Regulation D of the U.S. Securities Act (a "U.S. Accredited Investor"), and is acquiring the Units for its own account or for the account or benefit of a U.S. Accredited Investor as to which it exercises sole investment discretion, to be held for investment only and not with a view to any resale, distribution or other disposition of the Units in violation of United States securities laws or applicable state securities laws; and IN THE CASE OF 5.3(b) above, the Investor has properly completed and duly executed a Certificate of U.S. Person attached to this Subscription Agreement as Schedule D, confirms the truth and accuracy of all statements made by the Investor in such certificate and understands the Company is relying on such statements, and is an "accredited investor" (and will be at the closing of the issue and sale of the Units) within the meaning of NI 45-106 by virtue of satisfying the indicated criterion as set out in Appendix I to Schedule B (THE INVESTOR MUST ALSO INITIAL THE APPROPRIATE LINE IN APPENDIX I TO SCHEDULE B AND, IF APPLICABLE, COMPLETE EACH QUESTION WHICH FOLLOWS THAT PARTICULAR PORTION OF THE DEFINITION). If the Investor is an individual relying on paragraph (j), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed two copies of Form 45-106F9 - "Form for Individual Accredited Investors" in the form attached hereto as Appendix II to Schedule B. In addition, if the Investor is an individual relying on paragraph (j), (j.1), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed the Accredited Investor Questionnaire attached hereto as Appendix III to Schedule B. The Investor was not created or used solely to purchase or hold securities as an "accredited investor" as described in paragraph (m) of the definition of "accredited investor" in NI 45-106. - A-10 -
Appears in 1 contract
Samples: Subscription Agreement
Investor’s Exemption Status. 5.1 All Investors. The Investor, by its execution of this Subscription Agreement, hereby further represents, warrants to, and covenants with, the Company and its counsel (which representations, warranties and covenants will survive the Closing of the Offering) that the Investor is purchasing the Units as principal for its own account, it is purchasing such Units not for the benefit of any other person, and not with a view to the resale or distribution of the Units, the Investor's purchase of the Units complies with all Applicable Securities Laws of the Investor's jurisdiction of residence, and one of the following Exemptions applies to the Investor:
(a) Insiders' Family, Close Friends and Business Associates Exemption (NOT AVAILABLE FOR RESIDENTS IN SASKATCHEWAN) The Investor is:Exemption
(i) a director, executive officer or control person of the Company, or of an affiliate of the Company,
(ii) a spouse, parent, grandparent, brother, sister, child or grandchild of a director, executive officer or control person of the Company, or of an affiliate of the Company,
(iii) a parent, grandparent, brother, sister, child or grandchild of the spouse of a director, executive officer or control person of the Company or of an affiliate of the Company,
(iv) a close personal friend of a director, executive officer or control person of the Company, or of an affiliate of the Company,
(v) a close business associate of a director, executive officer or control person of the Company, or of an affiliate of the Company,
(vi) a founder of the Company or a spouse, parent, grandparent, brother, sister, child, grandchild, close personal friend or close business associate of a founder of the Company,
(vii) a parent, grandparent, brother, sister, child or grandchild of a spouse of a founder of the Company,
(viii) a person of which a majority of the voting securities are beneficially owned by, or a majority of the directors are, persons described in paragraphs (i) to (vii) above; or
(ix) a trust or estate of which all of the beneficiaries or a majority of the trustees or executors are persons described in paragraphs (i) to (vii) above; - A-7 - and the Investor has properly completed and duly executed a Representation Letter for Family, Friends and Business Associates attached to this Subscription Agreement as Schedule C and confirming the truth and accuracy of all statements made by the Investor in such certificate. If the Investor is from Ontario, the Company is not an investment fund; or
(b) Accredited Investor Exemption The Investor is resident in any Province or Territory in Canada and he/she/it is an "accredited investor" (and will be at the closing of the issue and sale of the Units) within the meaning of NI 45-106, and in Ontario, as defined in Section 73.3 of the Securities Act (Ontario) as supplemented by the definition in NI 45-106, by virtue of satisfying the indicated criterion as set out in Appendix I to Schedule "B" (THE INVESTOR MUST ALSO INITIAL THE APPROPRIATE LINE IN APPENDIX I TO SCHEDULE B AND, IF APPLICABLE, COMPLETE EACH QUESTION WHICH FOLLOWS THAT PARTICULAR PORTION OF THE DEFINITION). If the Investor is an individual relying on paragraph (j), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed two copies of Form 45-106F9 - "Form for Individual Accredited Investors" in the form attached hereto as Appendix II to Schedule B. In addition, if the Investor is an individual relying on paragraph (j), (j.1), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed the Accredited Investor Questionnaire attached hereto as Appendix III to Schedule B. The Investor was not created or used solely to purchase or hold securities as an "accredited investor" as described in paragraph (m) of the definition of "accredited investor" in NI 45-106; orExemption
(c) Minimum Amount Exemption The Investor is resident in any Province or Territory in Canada, it is not an individual, and it was not, as the case may be, created or used solely to purchase or hold securities in reliance on the minimum amount exemption from the prospectus requirements provided for under Section 2.10 of NI 45-106, and it is either purchasing the Units:Exemption
(i) as principal and not for the benefit of any other person, and the aggregate acquisition cost for the Units, payable by the Investor in cash at the time of the distribution, is not less than CDN$150,000; or
(ii) as agent for the Investor disclosed on the execution page (page 4) of this Subscription Agreement, and it is an agent or trustee with proper authority to execute all documents required in connection with the purchase of the Units on behalf of such disclosed beneficial Investor and such disclosed beneficial Investor for whom it is contracting hereunder is purchasing as principal and not for the benefit of any other person, and the aggregate acquisition cost for the Units, payable by such beneficial Investor in cash at the time of the distribution, is not less than CDN$150,000.
5.2 Investor Outside of Canada. If the Investor is a resident in an International Jurisdiction or in the United States, it certifies (on its own behalf and, if applicable, on behalf of each person on whose behalf the Investor is contracting) that:
(a) no securities commission or similar regulatory authority has reviewed or passed on the merits of the Securities;
(b) there is no government or other insurance covering the Securities;
(c) there are risks associated with the purchase of the Securities;
(d) there are restrictions on the Investor's ability to resell the Securities and it is the responsibility of the Investor to determine what those restrictions are and to comply with them before selling the Securities; - A-8 -
(e) the Company has advised the Investor that the Company is relying on an exemption from the requirements to provide the Investor with a prospectus and to sell the Securities through a person registered to sell the Securities under Applicable Securities Laws and, as a consequence of acquiring securities pursuant to this Exemption, certain protections, rights and remedies provided by Applicable Securities Laws, including statutory rights of rescission or damages, will not be available to the Investor;
(f) the Investor is knowledgeable of securities legislation having application or jurisdiction over the Investor and the Offering (other than the laws of Canada and the United States) which would apply to this Subscription Agreement;
(g) the Investor is purchasing the Securities pursuant to exemptions from any prospectus, registration or similar requirements under the laws of that International Jurisdiction and or, if such is not applicable, the Investor is permitted to purchase the Securities, and the Company has no filing obligations in the International Jurisdiction;
(h) no laws in the International Jurisdiction require the Company to make any filings or seek any approvals of any kind whatsoever from any regulatory authority of any kind whatsoever in the International Jurisdiction;
(i) the subscription for the Units by the Investor does not contravene any of the International Securities Laws applicable to the Investor and the Company and does not trigger any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase or to register the Units or to be registered with any governmental or regulatory authority, and the Investor will, if requested by the Company, deliver to the Company a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in paragraphs (b) and (c) above to the satisfaction of the Company, acting reasonably;
(j) the Securities are being acquired for investment only and not with a view to resale and distribution within the International Jurisdiction; and
(k) the Investor has executed and delivered a Certificate of Foreign Investor in the form attached as Schedule E to this Subscription Agreement and:
(i) it is an "accredited investor" (and will be at the closing of the issue and sale of the Units) within the meaning of NI 45-106 by virtue of satisfying the indicated criterion as set out in Appendix I to Schedule B (THE INVESTOR MUST ALSO INITIAL THE APPROPRIATE LINE IN APPENDIX I TO SCHEDULE B AND, IF APPLICABLE, COMPLETE EACH QUESTION WHICH FOLLOWS THAT PARTICULAR PORTION OF THE DEFINITION). If the Investor is an individual relying on paragraph (j), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed two copies of Form 45-106F9 - "Form for Individual Accredited Investors" in the form attached hereto as Appendix II to Schedule B. In addition, if the Investor is an individual relying on paragraph (j), (j.1), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed the Accredited Investor Questionnaire attached hereto as Appendix III to Schedule B. The Investor was not created or used solely to purchase or hold securities as an "accredited investor" as described in paragraph (m) of the definition of "accredited investor" in NI 45-106; or
(ii) it has concurrently completed Schedule C indicating that the Investor satisfies (and will satisfy at the Closing Time) one of the categories set forth therein under the family, friends and business associates exemption under NI 45-106; or
(iii) it is not an individual, was not created or used solely to purchase or hold the Units and the aggregate acquisition cost for the Units, payable by the Investor in cash at the time of the distribution, is not less than CDN$150,000. - A-9 -
5.3 U.S. Securities Law Matters. The Investor represents and warrants to the Company that: (a) if the Investor is not a U.S. Purchaser (it being understood that a discretionary or similar account (other than an estate or trust) that is excluded from the definition of U.S. Person pursuant to Rule 902(k)(2)(i) of Regulation S under the U.S. Securities Act and is held for the benefit or account of a person that is not a U.S. Person by a dealer or other professional fiduciary organized, incorporated, or (if an individual) resident in the United States shall not be considered a U.S. Purchaser)
(i) it is not a person in the United States or a U.S. Person and it is not acquiring the Securities (and will not acquire any Warrant Shares) for the account or benefit of any person in the United States or any U.S. Person;
(ii) it was not offered the Securities in the United States;
(iii) at the time the buy order for the Securities was originated, it was outside the United States and this Subscription Agreement was not executed or delivered in the United States;
(iv) the current structure of this transaction and all transactions and activities contemplated hereunder is not part of a scheme to avoid the registration requirements of the U.S. Securities Act; and
(v) it understands that the Company is the seller of the Securities and the Warrant Shares and that, for purposes of Regulation S, a "distributor" is any underwriter, dealer or other person who participates, pursuant to a contractual arrangement, in the distribution of securities offered or sold in reliance on Regulation S and that an "affiliate" is any partner, officer, director or any person directly or indirectly controlling, controlled by or under common control with any person in question; except as otherwise permitted by Regulation S, the Investor agrees that it will not, during a six-month distribution compliance period, act as a distributor, either directly or through any affiliate, or sell, transfer, hypothecate or otherwise convey the Securities or the Warrant Shares other than to or for the account or benefit of a non-U.S. Person; or
(b) if the Investor is a U.S. Purchaser, the Investor represents and warrants to the Company that it is an accredited investor as defined in Rule 501(a) of Regulation D of the U.S. Securities Act (a "U.S. Accredited Investor"), and is acquiring the Units for its own account or for the account or benefit of a U.S. Accredited Investor as to which it exercises sole investment discretion, to be held for investment only and not with a view to any resale, distribution or other disposition of the Units in violation of United States securities laws or applicable state securities laws; and IN THE CASE OF 5.3(b) above, the Investor has properly completed and duly executed a Certificate of U.S. Person attached to this Subscription Agreement as Schedule D, confirms the truth and accuracy of all statements made by the Investor in such certificate and understands the Company is relying on such statements, and is an "accredited investor" (and will be at the closing of the issue and sale of the Units) within the meaning of NI 45-106 by virtue of satisfying the indicated criterion as set out in Appendix I to Schedule B (THE INVESTOR MUST ALSO INITIAL THE APPROPRIATE LINE IN APPENDIX I TO SCHEDULE B AND, IF APPLICABLE, COMPLETE EACH QUESTION WHICH FOLLOWS THAT PARTICULAR PORTION OF THE DEFINITION). If the Investor is an individual relying on paragraph (j), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed two copies of Form 45-106F9 - "Form for Individual Accredited Investors" in the form attached hereto as Appendix II to Schedule B. In addition, if the Investor is an individual relying on paragraph (j), (j.1), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed the Accredited Investor Questionnaire attached hereto as Appendix III to Schedule B. The Investor was not created or used solely to purchase or hold securities as an "accredited investor" as described in paragraph (m) of the definition of "accredited investor" in NI 45-106. - A-10 -
Appears in 1 contract
Investor’s Exemption Status. 5.1 All Investors. 6.1 The Investor, by its execution of this Subscription Agreement, hereby further represents, warrants to, and covenants with, the Company and its counsel Issuer (which representations, warranties and covenants will shall survive the Closing of the Offering) that the Investor is purchasing the Units as principal for its own account, it is purchasing such Units not for the benefit of any other person, and not with a view to the resale or distribution of the Units, the Investor's purchase of the Units complies with all Applicable Securities Laws of the Investor's jurisdiction of residence, and one of the following Exemptions applies to the Investor:
(a) Insiders' ’ Family, Close Friends and Business Associates Exemption (NOT AVAILABLE FOR RESIDENTS IN SASKATCHEWAN) The Investor is:Exemption
(i) a director, executive officer or control person of the CompanyIssuer, or of an affiliate of the CompanyIssuer,
(ii) a spouse, parent, grandparent, brother, sister, sister or child or grandchild of a director, executive officer or control person of the CompanyIssuer, or of an affiliate of the CompanyIssuer,
(iii) a parent, grandparent, brother, sister, sister or child or grandchild of the spouse of a director, executive officer or control person of the Company Issuer or of an affiliate of the CompanyIssuer,
(iv) a close personal friend of a director, executive officer or control person of the CompanyIssuer, or of an affiliate of the CompanyIssuer,
(v) a close business associate of a director, executive officer or control person of the CompanyIssuer, or of an affiliate of the CompanyIssuer,
(vi) a founder of the Company Issuer or a spouse, parent, grandparent, brother, sister, child, grandchild, close personal friend or close business associate of a founder of the CompanyIssuer,
(vii) a parent, grandparent, brother, sister, sister or child or grandchild of a spouse of a founder of the CompanyIssuer,
(viii) a person of which a majority of the voting securities are beneficially owned by, or a majority of the directors are, persons described in paragraphs (i) to (vii) above; ), or
(ix) a trust or estate of which all of the beneficiaries or a majority of the trustees or executors are persons described in paragraphs (i) to (vii) above; - A-7 - and the Investor has properly completed and duly executed a Representation Letter for Family, Friends and Business Associates attached to this Subscription Agreement as Schedule C and confirming the truth and accuracy of all statements made by the Investor in such certificate. If the Investor is from Ontario, the Company is not an investment fund; or
(b) Accredited Investor Exemption The Investor is resident in any Province or Territory in Canada and he/she/it is an "accredited investor" (and will be at the closing of the issue and sale of the Units) within the meaning of NI 45-106, and in Ontario, as defined in Section 73.3 of the Securities Act (Ontario) as supplemented by the definition in NI 45-106, by virtue of satisfying the indicated criterion as set out in Appendix I to Schedule "B" (THE INVESTOR MUST ALSO INITIAL THE APPROPRIATE LINE IN APPENDIX I TO SCHEDULE B AND, IF APPLICABLE, COMPLETE EACH QUESTION WHICH FOLLOWS THAT PARTICULAR PORTION OF THE DEFINITION). If the Investor is an individual relying on paragraph (j), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed two copies of Form 45-106F9 - "Form for Individual Accredited Investors" in the form attached hereto as Appendix II to Schedule B. In addition, if the Investor is an individual relying on paragraph (j), (j.1), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed the Accredited Investor Questionnaire attached hereto as Appendix III to Schedule B. The Investor was not created or used solely to purchase or hold securities as an "accredited investor" as described in paragraph (m) of the definition of "accredited investor" in NI 45-106; or
(c) Minimum Amount Exemption The Investor is resident in any Province or Territory in Canada, it is not an individual, and it was not, as the case may be, created or used solely to purchase or hold securities in reliance on the minimum amount exemption from the prospectus requirements provided for under Section 2.10 of NI 45-106, and it is either purchasing the Units:
(i) as principal and not for the benefit of any other person, and the aggregate acquisition cost for the Units, payable by the Investor in cash at the time of the distribution, is not less than CDN$150,000; or
(ii) as agent for the Investor disclosed on the execution page (page 4) of this Subscription Agreement, and it is an agent or trustee with proper authority to execute all documents required in connection with the purchase of the Units on behalf of such disclosed beneficial Investor and such disclosed beneficial Investor for whom it is contracting hereunder is purchasing as principal and not for the benefit of any other person, and the aggregate acquisition cost for the Units, payable by such beneficial Investor in cash at the time of the distribution, is not less than CDN$150,000.
5.2 Investor Outside of Canada. If the Investor is a resident in an International Jurisdiction or in the United States, it certifies (on its own behalf and, if applicable, on behalf of each person on whose behalf the Investor is contracting) that:
(a) no securities commission or similar regulatory authority has reviewed or passed on the merits of the Securities;
(b) there is no government or other insurance covering the Securities;
(c) there are risks associated with the purchase of the Securities;
(d) there are restrictions on the Investor's ability to resell the Securities and it is the responsibility of the Investor to determine what those restrictions are and to comply with them before selling the Securities; - A-8 -
(e) the Company has advised the Investor that the Company is relying on an exemption from the requirements to provide the Investor with a prospectus and to sell the Securities through a person registered to sell the Securities under Applicable Securities Laws and, as a consequence of acquiring securities pursuant to this Exemption, certain protections, rights and remedies provided by Applicable Securities Laws, including statutory rights of rescission or damages, will not be available to the Investor;
(f) the Investor is knowledgeable of securities legislation having application or jurisdiction over the Investor and the Offering (other than the laws of Canada and the United States) which would apply to this Subscription Agreement;
(g) the Investor is purchasing the Securities pursuant to exemptions from any prospectus, registration or similar requirements under the laws of that International Jurisdiction and or, if such is not applicable, the Investor is permitted to purchase the Securities, and the Company has no filing obligations in the International Jurisdiction;
(h) no laws in the International Jurisdiction require the Company to make any filings or seek any approvals of any kind whatsoever from any regulatory authority of any kind whatsoever in the International Jurisdiction;
(i) the subscription for the Units by the Investor does not contravene any of the International Securities Laws applicable to the Investor and the Company and does not trigger any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase or to register the Units or to be registered with any governmental or regulatory authority, and the Investor will, if requested by the Company, deliver to the Company a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in paragraphs (b) and (c) above to the satisfaction of the Company, acting reasonably;
(j) the Securities are being acquired for investment only and not with a view to resale and distribution within the International Jurisdiction; and
(k) the Investor has executed and delivered a Certificate of Foreign Investor in the form attached as Schedule E to this Subscription Agreement and:
(i) it is an "accredited investor" (and will be at the closing of the issue and sale of the Units) within the meaning of NI 45-106 by virtue of satisfying the indicated criterion as set out in Appendix I to Schedule B (THE INVESTOR MUST ALSO INITIAL THE APPROPRIATE LINE IN APPENDIX I TO SCHEDULE B AND, IF APPLICABLE, COMPLETE EACH QUESTION WHICH FOLLOWS THAT PARTICULAR PORTION OF THE DEFINITION). If the Investor is an individual relying on paragraph (j), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed two copies of Form 45-106F9 - "Form for Individual Accredited Investors" in the form attached hereto as Appendix II to Schedule B. In addition, if the Investor is an individual relying on paragraph (j), (j.1), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed the Accredited Investor Questionnaire attached hereto as Appendix III to Schedule B. The Investor was not created or used solely to purchase or hold securities as an "accredited investor" as described in paragraph (m) of the definition of "accredited investor" in NI 45-106; or
(ii) it has concurrently completed Schedule C indicating that the Investor satisfies (and will satisfy at the Closing Time) one of the categories set forth therein under the family, friends and business associates exemption under NI 45-106; or
(iii) it is not an individual, was not created or used solely to purchase or hold the Units and the aggregate acquisition cost for the Units, payable by the Investor in cash at the time of the distribution, is not less than CDN$150,000. - A-9 -
5.3 U.S. Securities Law Matters. The Investor represents and warrants to the Company that: (a) if the Investor is not a U.S. Purchaser (it being understood that a discretionary or similar account (other than an estate or trust) that is excluded from the definition of U.S. Person pursuant to Rule 902(k)(2)(i) of Regulation S under the U.S. Securities Act and is held for the benefit or account of a person that is not a U.S. Person by a dealer or other professional fiduciary organized, incorporated, or (if an individual) resident in the United States shall not be considered a U.S. Purchaser)
(i) it is not a person in the United States or a U.S. Person and it is not acquiring the Securities (and will not acquire any Warrant Shares) for the account or benefit of any person in the United States or any U.S. Person;
(ii) it was not offered the Securities in the United States;
(iii) at the time the buy order for the Securities was originated, it was outside the United States and this Subscription Agreement was not executed or delivered in the United States;
(iv) the current structure of this transaction and all transactions and activities contemplated hereunder is not part of a scheme to avoid the registration requirements of the U.S. Securities Act; and
(v) it understands that the Company is the seller of the Securities and the Warrant Shares and that, for purposes of Regulation S, a "distributor" is any underwriter, dealer or other person who participates, pursuant to a contractual arrangement, in the distribution of securities offered or sold in reliance on Regulation S and that an "affiliate" is any partner, officer, director or any person directly or indirectly controlling, controlled by or under common control with any person in question; except as otherwise permitted by Regulation S, the Investor agrees that it will not, during a six-month distribution compliance period, act as a distributor, either directly or through any affiliate, or sell, transfer, hypothecate or otherwise convey the Securities or the Warrant Shares other than to or for the account or benefit of a non-U.S. Person; or
(b) if the Investor is a U.S. Purchaser, the Investor represents and warrants to the Company that it is an accredited investor as defined in Rule 501(a) of Regulation D of the U.S. Securities Act (a "U.S. Accredited Investor"), and is acquiring the Units for its own account or for the account or benefit of a U.S. Accredited Investor as to which it exercises sole investment discretion, to be held for investment only and not with a view to any resale, distribution or other disposition of the Units in violation of United States securities laws or applicable state securities laws; and IN THE CASE OF 5.3(b) above, the Investor has properly completed and duly executed a Certificate of U.S. Person attached to this Subscription Agreement as Schedule D, confirms the truth and accuracy of all statements made by the Investor in such certificate and understands the Company is relying on such statements, and is an "accredited investor" (and will be at the closing of the issue and sale of the Units) within the meaning of NI 45-106 by virtue of satisfying the indicated criterion as set out in Appendix I to Schedule B (THE INVESTOR MUST ALSO INITIAL THE APPROPRIATE LINE IN APPENDIX I TO SCHEDULE B AND, IF APPLICABLE, COMPLETE EACH QUESTION WHICH FOLLOWS THAT PARTICULAR PORTION OF THE DEFINITION). If the Investor is an individual relying on paragraph (j), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed two copies of Form 45-106F9 - "Form for Individual Accredited Investors" in the form attached hereto as Appendix II to Schedule B. In addition, if the Investor is an individual relying on paragraph (j), (j.1), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed the Accredited Investor Questionnaire attached hereto as Appendix III to Schedule B. The Investor was not created or used solely to purchase or hold securities as an "accredited investor" as described in paragraph (m) of the definition of "accredited investor" in NI 45-106. - A-10 -
Appears in 1 contract
Samples: Unit Subscription Agreement (Farallon Resources Ltd.)
Investor’s Exemption Status. 5.1 All Investors. The Investor, by its execution of this Subscription Agreement, hereby further represents, warrants to, and covenants with, the Company and its counsel Issuer (which representations, warranties and covenants will shall survive the Closing of the Offering) that the Investor is purchasing the Units Shares as principal for its own account, it is purchasing such Units Shares not for the benefit of any other person, and not with a view to the resale or distribution of the Units, the Investor's purchase of the Units complies with all Applicable Securities Laws of the Investor's jurisdiction of residence, Shares and one of the following Exemptions applies to the Investor:
(a) Insiders' I nsiders’ Family, Close Friends and Business Associates Exemption (NOT AVAILABLE FOR RESIDENTS IN SASKATCHEWAN) The Investor is:
(i) a director, executive officer or control person of the CompanyIssuer, or of an affiliate of the CompanyIssuer,
(ii) a spouse, parent, grandparent, brother, sister, sister or child or grandchild of a director, executive officer or control person of the CompanyIssuer, or of an affiliate of the CompanyIssuer,
(iii) a parent, grandparent, brother, sister, sister or child or grandchild of the spouse of a director, executive officer or control person of the Company Issuer or of an affiliate of the CompanyIssuer,
(iv) a close personal friend of a director, executive officer or control person of the CompanyIssuer, or of an affiliate of the CompanyIssuer,
(v) a close business associate of a director, executive officer or control person of the CompanyIssuer, or of an affiliate of the CompanyIssuer,
(vi) a founder of the Company Issuer or a spouse, parent, grandparent, brother, sister, child, grandchild, close personal friend or close business associate of a founder of the CompanyIssuer,
(vii) a parent, grandparent, brother, sister, sister or child or grandchild of a spouse of a founder of the CompanyIssuer,
(viii) a person of which a majority of the voting securities are beneficially owned by, or a majority of the directors are, persons described in paragraphs (i) to (vii) above; ), or
(ix) a trust or estate of which all of the beneficiaries or a majority of the trustees or executors are persons described in paragraphs (i) to (vii) above; - A-7 - and the Investor has properly completed and duly executed a Representation Letter for Family, Friends and Business Associates attached to this Subscription Agreement as Schedule C and confirming the truth and accuracy of all statements made by the Investor in such certificate. If the Investor is from Ontario, the Company is not an investment fund; or);
(b) Accredited Investor Exemption The Investor is resident in any Province or Territory in Canada and he/she/it is an "accredited investor" (and will be at the closing of the issue and sale of the Units) within the meaning of NI 45-106, and in Ontario, as defined in Section 73.3 of the Securities Act (Ontario) as supplemented by the definition in NI 45-106, by virtue of satisfying the indicated criterion as set out in Appendix I to Schedule "B" (THE INVESTOR MUST ALSO INITIAL THE APPROPRIATE LINE IN APPENDIX I TO SCHEDULE B AND, IF APPLICABLE, COMPLETE EACH QUESTION WHICH FOLLOWS THAT PARTICULAR PORTION OF THE DEFINITION). If the Investor is an individual relying on paragraph (j), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed two copies of Form 45-106F9 - "Form for Individual Accredited Investors" in the form attached hereto as Appendix II to Schedule B. In addition, if the Investor is an individual relying on paragraph (j), (j.1), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed the Accredited Investor Questionnaire attached hereto as Appendix III to Schedule B. The Investor was not created or used solely to purchase or hold securities as an "accredited investor" as described in paragraph (m) of the definition of "accredited investor" in NI 45-106; or
(c) Minimum Amount Exemption The Investor is resident in any Province or Territory in Canada, it is not an individual, and it was not, as the case may be, created or used solely to purchase or hold securities in reliance on the minimum amount exemption from the prospectus requirements provided for under Section 2.10 of NI 45-106, and it is either purchasing the Units:Exemption
(i) as principal and not for the benefit of any other person, and the The aggregate acquisition cost for of purchasing the Units, payable by the Investor Shares will not be less than Cdn.$150,000 paid in cash at the time of the distribution, is not less than CDN$150,000; or
(ii) as agent for the Investor disclosed on the execution page (page 4) of this Subscription Agreement, and it is an agent or trustee with proper authority to execute all documents required in connection with the purchase of the Units on behalf of such disclosed beneficial Investor and such disclosed beneficial Investor for whom it is contracting hereunder is purchasing as principal and not for the benefit of any other person, and the aggregate acquisition cost for the Units, payable by such beneficial Investor in cash at the time of the distribution, is not less than CDN$150,000.
5.2 Investor Outside of Canada. If the Investor is a resident in an International Jurisdiction or in the United States, it certifies (on its own behalf and, if applicable, on behalf of each person on whose behalf the Investor is contracting) that:
(a) no securities commission or similar regulatory authority has reviewed or passed on the merits of the Securities;
(b) there is no government or other insurance covering the Securities;
(c) there are risks associated with the purchase of the Securities;
(d) there are restrictions on the Investor's ability to resell the Securities and it is the responsibility of the Investor to determine what those restrictions are and to comply with them before selling the Securities; - A-8 -
(e) the Company has advised the Investor that the Company is relying on an exemption from the requirements to provide the Investor with a prospectus and to sell the Securities through a person registered to sell the Securities under Applicable Securities Laws and, as a consequence of acquiring securities pursuant to this Exemption, certain protections, rights and remedies provided by Applicable Securities Laws, including statutory rights of rescission or damages, will not be available to the Investor;
(f) the Investor is knowledgeable of securities legislation having application or jurisdiction over the Investor and the Offering (other than the laws of Canada and the United States) which would apply to this Subscription Agreement;
(g) the Investor is purchasing the Securities pursuant to exemptions from any prospectus, registration or similar requirements under the laws of that International Jurisdiction and or, if such is not applicable, the Investor is permitted to purchase the Securities, and the Company has no filing obligations in the International Jurisdiction;
(h) no laws in the International Jurisdiction require the Company to make any filings or seek any approvals of any kind whatsoever from any regulatory authority of any kind whatsoever in the International Jurisdiction;
(i) the subscription for the Units by the Investor does not contravene any of the International Securities Laws applicable to the Investor and the Company and does not trigger any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase or to register the Units or to be registered with any governmental or regulatory authoritypurchase, and the Investor will, if requested by the Company, deliver to the Company a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in paragraphs (b) and (c) above to the satisfaction of the Company, acting reasonably;
(j) the Securities are being acquired for investment only and has not with a view to resale and distribution within the International Jurisdiction; and
(k) the Investor has executed and delivered a Certificate of Foreign Investor in the form attached as Schedule E to this Subscription Agreement and:
(i) it is an "accredited investor" (and will be at the closing of the issue and sale of the Units) within the meaning of NI 45-106 by virtue of satisfying the indicated criterion as set out in Appendix I to Schedule B (THE INVESTOR MUST ALSO INITIAL THE APPROPRIATE LINE IN APPENDIX I TO SCHEDULE B AND, IF APPLICABLE, COMPLETE EACH QUESTION WHICH FOLLOWS THAT PARTICULAR PORTION OF THE DEFINITION). If the Investor is an individual relying on paragraph (j), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed two copies of Form 45-106F9 - "Form for Individual Accredited Investors" in the form attached hereto as Appendix II to Schedule B. In addition, if the Investor is an individual relying on paragraph (j), (j.1), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed the Accredited Investor Questionnaire attached hereto as Appendix III to Schedule B. The Investor was not created or used solely to purchase or hold securities as an "accredited investor" as described in paragraph (m) of the definition of "accredited investor" in NI 45-106; or
(ii) it has concurrently completed Schedule C indicating that the Investor satisfies (and will satisfy at the Closing Time) one of the categories set forth therein under the family, friends and business associates exemption under NI 45-106; or
(iii) it is not an individual, was not been created or used solely to purchase or hold the Units and the aggregate acquisition cost for the UnitsShares in reliance on this Exemption;
(c) Accredited Investor Exemption
(d) For residents of Ontario only, payable by the Investor in cash at the time is:
(i) a founder of the distributionIssuer,
(ii) an affiliate of a founder of the Issuer,
(iii) a spouse, is not less than CDN$150,000. - A-9 -parent, brother, sister, grandparent or child of an executive officer, director or founder of the Issuer, or
5.3 U.S. Securities Law Matters. The Investor represents and warrants to the Company that: (aiv) if the Investor is not a U.S. Purchaser (it being understood that a discretionary or similar account (other than an estate or trust) that is excluded from the definition of U.S. Person pursuant to Rule 902(k)(2)(i) of Regulation S under the U.S. Securities Act and is held for the benefit or account of a person that is not a U.S. Person by a dealer or other professional fiduciary organized, incorporated, or (if an individual) resident in the United States shall not be considered a U.S. Purchaser)
(i) it is not a control person in the United States or a U.S. Person and it is not acquiring the Securities (and will not acquire any Warrant Shares) for the account or benefit of any person in the United States or any U.S. Person;
(ii) it was not offered the Securities in the United States;
(iii) at the time the buy order for the Securities was originated, it was outside the United States and this Subscription Agreement was not executed or delivered in the United States;
(iv) the current structure of this transaction and all transactions and activities contemplated hereunder is not part of a scheme to avoid the registration requirements of the U.S. Securities Act; and
(v) it understands that the Company is the seller of the Securities and the Warrant Shares and that, for purposes of Regulation S, a "distributor" is any underwriter, dealer or other person who participates, pursuant to a contractual arrangement, in the distribution of securities offered or sold in reliance on Regulation S and that an "affiliate" is any partner, officer, director or any person directly or indirectly controlling, controlled by or under common control with any person in question; except as otherwise permitted by Regulation S, the Investor agrees that it will not, during a six-month distribution compliance period, act as a distributor, either directly or through any affiliate, or sell, transfer, hypothecate or otherwise convey the Securities or the Warrant Shares other than to or for the account or benefit of a non-U.S. Person; or
(b) if the Investor is a U.S. Purchaser, the Investor represents and warrants to the Company that it is an accredited investor as defined in Rule 501(a) of Regulation D of the U.S. Securities Act (a "U.S. Accredited Investor"), and is acquiring the Units for its own account or for the account or benefit of a U.S. Accredited Investor as to which it exercises sole investment discretion, to be held for investment only and not with a view to any resale, distribution or other disposition of the Units in violation of United States securities laws or applicable state securities laws; and IN THE CASE OF 5.3(b) above, the Investor has properly completed and duly executed a Certificate of U.S. Person attached to this Subscription Agreement as Schedule D, confirms the truth and accuracy of all statements made by the Investor in such certificate and understands the Company is relying on such statements, and is an "accredited investor" (and will be at the closing of the issue and sale of the Units) within the meaning of NI 45-106 by virtue of satisfying the indicated criterion as set out in Appendix I to Schedule B (THE INVESTOR MUST ALSO INITIAL THE APPROPRIATE LINE IN APPENDIX I TO SCHEDULE B AND, IF APPLICABLE, COMPLETE EACH QUESTION WHICH FOLLOWS THAT PARTICULAR PORTION OF THE DEFINITION). If the Investor is an individual relying on paragraph (j), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed two copies of Form 45-106F9 - "Form for Individual Accredited Investors" in the form attached hereto as Appendix II to Schedule B. In addition, if the Investor is an individual relying on paragraph (j), (j.1), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed the Accredited Investor Questionnaire attached hereto as Appendix III to Schedule B. The Investor was not created or used solely to purchase or hold securities as an "accredited investor" as described in paragraph (m) of the definition of "accredited investor" in NI 45-106. - A-10 -Issuer.
Appears in 1 contract
Samples: Common Share Subscription Agreement (Trans-Orient Petroleum Ltd.)
Investor’s Exemption Status. 5.1 All Investors. The Investor, by its execution of this Subscription Agreement, hereby further represents, warrants to, and covenants with, the Company and its counsel Issuer (which representations, warranties and covenants will shall survive the Closing of the Offering) that the Investor is purchasing the Units Notes as principal for its own account, it is purchasing such Units Notes not for the benefit of any other person, and not with a view to the resale or distribution of the Units, the Investor's purchase of the Units complies with all Applicable Securities Laws of the Investor's jurisdiction of residence, Notes and one of the following Exemptions applies to the Investor:
(a) Insiders' ’ Family, Close Friends and Business Associates Exemption (NOT AVAILABLE FOR RESIDENTS IN SASKATCHEWAN) The Investor is:Exemption
(i) a director, executive officer or control person of the CompanyIssuer, or of an affiliate of the CompanyIssuer,
(ii) a spouse, parent, grandparent, brother, sister, sister or child or grandchild of a director, executive officer or control person of the CompanyIssuer, or of an affiliate of the CompanyIssuer,
(iii) a parent, grandparent, brother, sister, sister or child or grandchild of the spouse of a director, executive officer or control person of the Company Issuer or of an affiliate of the CompanyIssuer,
(iv) a close personal friend of a director, executive officer or control person of the CompanyIssuer, or of an affiliate of the CompanyIssuer,
(v) a close business associate of a director, executive officer or control person of the CompanyIssuer, or of an affiliate of the CompanyIssuer,
(vi) a founder of the Company Issuer or a spouse, parent, grandparent, brother, sister, child, grandchild, close personal friend or close business associate of a founder of the CompanyIssuer,
(vii) a parent, grandparent, brother, sister, sister or child or grandchild of a spouse of a founder of the CompanyIssuer,
(viii) a person of which a majority of the voting securities are beneficially owned by, or a majority of the directors are, persons described in paragraphs (i) to (vii) above; ), or
(ix) a trust or estate of which all of the beneficiaries or a majority of the trustees or executors are persons described in paragraphs (i) to (vii) above; - A-7 - and the Investor has properly completed and duly executed a Representation Letter for Family, Friends and Business Associates attached to this Subscription Agreement as Schedule C and confirming the truth and accuracy of all statements made by the Investor in such certificate. If the Investor is from Ontario, the Company is not an investment fund; or
(b) Accredited Investor Exemption The Investor is resident in any Province or Territory in Canada and he/she/it is an "accredited investor" (and will be at the closing of the issue and sale of the Units) within the meaning of NI 45-106, and in Ontario, as defined in Section 73.3 of the Securities Act (Ontario) as supplemented by the definition in NI 45-106, by virtue of satisfying the indicated criterion as set out in Appendix I to Schedule "B" (THE INVESTOR MUST ALSO INITIAL THE APPROPRIATE LINE IN APPENDIX I TO SCHEDULE B AND, IF APPLICABLE, COMPLETE EACH QUESTION WHICH FOLLOWS THAT PARTICULAR PORTION OF THE DEFINITION). If the Investor is an individual relying on paragraph (j), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed two copies of Form 45-106F9 - "Form for Individual Accredited Investors" in the form attached hereto as Appendix II to Schedule B. In addition, if the Investor is an individual relying on paragraph (j), (j.1), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed the Accredited Investor Questionnaire attached hereto as Appendix III to Schedule B. The Investor was not created or used solely to purchase or hold securities as an "accredited investor" as described in paragraph (m) of the definition of "accredited investor" in NI 45-106; or
(c) Minimum Amount Exemption The Investor is resident in any Province or Territory in Canada, it is not an individual, and it was not, as the case may be, created or used solely to purchase or hold securities in reliance on the minimum amount exemption from the prospectus requirements provided for under Section 2.10 of NI 45-106, and it is either purchasing the Units:
(i) as principal and not for the benefit of any other person, and the aggregate acquisition cost for the Units, payable by the Investor in cash at the time of the distribution, is not less than CDN$150,000; or
(ii) as agent for the Investor disclosed on the execution page (page 4) of this Subscription Agreement, and it is an agent or trustee with proper authority to execute all documents required in connection with the purchase of the Units on behalf of such disclosed beneficial Investor and such disclosed beneficial Investor for whom it is contracting hereunder is purchasing as principal and not for the benefit of any other person, and the aggregate acquisition cost for the Units, payable by such beneficial Investor in cash at the time of the distribution, is not less than CDN$150,000.
5.2 Investor Outside of Canada. If the Investor is a resident in an International Jurisdiction or in the United States, it certifies (on its own behalf and, if applicable, on behalf of each person on whose behalf the Investor is contracting) that:
(a) no securities commission or similar regulatory authority has reviewed or passed on the merits of the Securities;
(b) there is no government or other insurance covering the Securities;
(c) there are risks associated with the purchase of the Securities;
(d) there are restrictions on the Investor's ability to resell the Securities and it is the responsibility of the Investor to determine what those restrictions are and to comply with them before selling the Securities; - A-8 -
(e) the Company has advised the Investor that the Company is relying on an exemption from the requirements to provide the Investor with a prospectus and to sell the Securities through a person registered to sell the Securities under Applicable Securities Laws and, as a consequence of acquiring securities pursuant to this Exemption, certain protections, rights and remedies provided by Applicable Securities Laws, including statutory rights of rescission or damages, will not be available to the Investor;
(f) the Investor is knowledgeable of securities legislation having application or jurisdiction over the Investor and the Offering (other than the laws of Canada and the United States) which would apply to this Subscription Agreement;
(g) the Investor is purchasing the Securities pursuant to exemptions from any prospectus, registration or similar requirements under the laws of that International Jurisdiction and or, if such is not applicable, the Investor is permitted to purchase the Securities, and the Company has no filing obligations in the International Jurisdiction;
(h) no laws in the International Jurisdiction require the Company to make any filings or seek any approvals of any kind whatsoever from any regulatory authority of any kind whatsoever in the International Jurisdiction;
(i) the subscription for the Units by the Investor does not contravene any of the International Securities Laws applicable to the Investor and the Company and does not trigger any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase or to register the Units or to be registered with any governmental or regulatory authority, and the Investor will, if requested by the Company, deliver to the Company a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in paragraphs (b) and (c) above to the satisfaction of the Company, acting reasonably;
(j) the Securities are being acquired for investment only and not with a view to resale and distribution within the International Jurisdiction; and
(k) the Investor has executed and delivered a Certificate of Foreign Investor in the form attached as Schedule E to this Subscription Agreement and:
(i) it is an "accredited investor" (and will be at the closing of the issue and sale of the Units) within the meaning of NI 45-106 by virtue of satisfying the indicated criterion as set out in Appendix I to Schedule B (THE INVESTOR MUST ALSO INITIAL THE APPROPRIATE LINE IN APPENDIX I TO SCHEDULE B AND, IF APPLICABLE, COMPLETE EACH QUESTION WHICH FOLLOWS THAT PARTICULAR PORTION OF THE DEFINITION). If the Investor is an individual relying on paragraph (j), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed two copies of Form 45-106F9 - "Form for Individual Accredited Investors" in the form attached hereto as Appendix II to Schedule B. In addition, if the Investor is an individual relying on paragraph (j), (j.1), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed the Accredited Investor Questionnaire attached hereto as Appendix III to Schedule B. The Investor was not created or used solely to purchase or hold securities as an "accredited investor" as described in paragraph (m) of the definition of "accredited investor" in NI 45-106; or
(ii) it has concurrently completed Schedule C indicating that the Investor satisfies (and will satisfy at the Closing Time) one of the categories set forth therein under the family, friends and business associates exemption under NI 45-106; or
(iii) it is not an individual, was not created or used solely to purchase or hold the Units and the aggregate acquisition cost for the Units, payable by the Investor in cash at the time of the distribution, is not less than CDN$150,000. - A-9 -
5.3 U.S. Securities Law Matters. The Investor represents and warrants to the Company that: (a) if the Investor is not a U.S. Purchaser (it being understood that a discretionary or similar account (other than an estate or trust) that is excluded from the definition of U.S. Person pursuant to Rule 902(k)(2)(i) of Regulation S under the U.S. Securities Act and is held for the benefit or account of a person that is not a U.S. Person by a dealer or other professional fiduciary organized, incorporated, or (if an individual) resident in the United States shall not be considered a U.S. Purchaser)
(i) it is not a person in the United States or a U.S. Person and it is not acquiring the Securities (and will not acquire any Warrant Shares) for the account or benefit of any person in the United States or any U.S. Person;
(ii) it was not offered the Securities in the United States;
(iii) at the time the buy order for the Securities was originated, it was outside the United States and this Subscription Agreement was not executed or delivered in the United States;
(iv) the current structure of this transaction and all transactions and activities contemplated hereunder is not part of a scheme to avoid the registration requirements of the U.S. Securities Act; and
(v) it understands that the Company is the seller of the Securities and the Warrant Shares and that, for purposes of Regulation S, a "distributor" is any underwriter, dealer or other person who participates, pursuant to a contractual arrangement, in the distribution of securities offered or sold in reliance on Regulation S and that an "affiliate" is any partner, officer, director or any person directly or indirectly controlling, controlled by or under common control with any person in question; except as otherwise permitted by Regulation S, the Investor agrees that it will not, during a six-month distribution compliance period, act as a distributor, either directly or through any affiliate, or sell, transfer, hypothecate or otherwise convey the Securities or the Warrant Shares other than to or for the account or benefit of a non-U.S. Person; or
(b) if the Investor is a U.S. Purchaser, the Investor represents and warrants to the Company that it is an accredited investor as defined in Rule 501(a) of Regulation D of the U.S. Securities Act (a "U.S. Accredited Investor"), and is acquiring the Units for its own account or for the account or benefit of a U.S. Accredited Investor as to which it exercises sole investment discretion, to be held for investment only and not with a view to any resale, distribution or other disposition of the Units in violation of United States securities laws or applicable state securities laws; and IN THE CASE OF 5.3(b) above, the Investor has properly completed and duly executed a Certificate of U.S. Person attached to this Subscription Agreement as Schedule D, confirms the truth and accuracy of all statements made by the Investor in such certificate and understands the Company is relying on such statements, and is an "accredited investor" (and will be at the closing of the issue and sale of the Units) within the meaning of NI 45-106 by virtue of satisfying the indicated criterion as set out in Appendix I to Schedule B (THE INVESTOR MUST ALSO INITIAL THE APPROPRIATE LINE IN APPENDIX I TO SCHEDULE B AND, IF APPLICABLE, COMPLETE EACH QUESTION WHICH FOLLOWS THAT PARTICULAR PORTION OF THE DEFINITION). If the Investor is an individual relying on paragraph (j), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed two copies of Form 45-106F9 - "Form for Individual Accredited Investors" in the form attached hereto as Appendix II to Schedule B. In addition, if the Investor is an individual relying on paragraph (j), (j.1), (k) or (l) of the "accredited investor" definition in Appendix I to Schedule B, the Investor has duly completed and signed the Accredited Investor Questionnaire attached hereto as Appendix III to Schedule B. The Investor was not created or used solely to purchase or hold securities as an "accredited investor" as described in paragraph (m) of the definition of "accredited investor" in NI 45-106. - A-10 -
Appears in 1 contract
Samples: Subordinated Convertible Note Subscription Agreement (Rockwell Ventures Inc)
