Representations, Warranties and Covenants of the Subscriber. 8.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that: (a) the Subscriber is not a U.S. Person; (b) the Subscriber is (check one or more of the following boxes): (A) a director, officer, employee or control person of the Company [ ] (B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Company [ ] (C) a parent, grandparent, brother, sister or child of the spouse of a director, senior officer or control person of the Company [ ] (D) a close personal friend of a director, senior officer or control person of the Company [ ] (E) a close business associate of a director, senior officer or control person of the Company [ X ] (c) if the Subscriber has checked one or more of boxes B, C, D or E in paragraph 8.1(b) above, the director(s), senior officer(s), or control person(s) of the Company with whom the Subscriber has the relationship is : ________________________________________________________________________________ ________________________________________________________________________________ (Fill in the name of each director. senior officer and control person with whom you have the above-mentioned relationship). (d) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person; (e) the Subscriber is resident in the jurisdiction set out under the heading "Name and Address of Subscriber" on the signature page of this Agreement and the sale of the Shares to the Subscriber as contemplated in this Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber; (f) the Subscriber is purchasing the Shares as principal for investment purposes only and not with a view to resale or distribution and, in particular, the Subscriber has no intention to distribute, either directly or indirectly, any of the Shares in the United States or to U.S. Persons; (g) the Subscriber is outside the United States when receiving and executing this Agreement; (h) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment; (i) the Subscriber has made an independent examination and investigation of an investment in the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber's decision to invest in the Shares and the Company; (j) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Shares for an indefinite period of time; (k) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company; (l) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto; (m) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms; (n) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares; (o) the Subscriber understands and agrees that none of the Shares have been registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws; (p) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares; (q) the Subscriber understands and agrees that offers and sales of any of the Shares prior to the expiration of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws; (r) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws; (s) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act; (t) the Subscriber (i) is able to fend for itself in the subscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Shares and the Company; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment; (u) the Subscriber acknowledges that it has not acquired the Shares as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; (v) the Subscriber is not aware of any advertisement of any of the Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and (w) no person has made to the Subscriber any written or oral representations: (i) that any person will resell or repurchase any of the Shares; (ii) that any person will refund the purchase price of any of the Shares; (iii) as to the future price or value of any of the Shares; or (iv) that any of the Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Shares of the Company on any stock exchange or automated dealer quotation system. 8.2 In this Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S.
Appears in 2 contracts
Samples: Private Placement Subscription Agreement (Bulldog Technologies Inc), Private Placement Subscription Agreement (Bulldog Technologies Inc)
Representations, Warranties and Covenants of the Subscriber. 8.1 The Subscriber hereby represents and warrants to to, and covenants with agrees with, the Company (which representations, warranties and covenants shall survive the Closing) thatas follows:
(a) the The Subscriber is not a U.S. Person;an “Accredited Investor” as that term is defined in Rule 501(a) of Regulation D promulgated under the Securities Act, and as specifically indicated in Exhibit A to this Agreement.
(b) If a natural person, the Subscriber is (check one or more is: a bona fide resident of the following boxes):
(A) a director, officer, employee state or control person of the Company [ ]
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Company [ ]
(C) a parent, grandparent, brother, sister or child of the spouse of a director, senior officer or control person of the Company [ ]
(D) a close personal friend of a director, senior officer or control person of the Company [ ]
(E) a close business associate of a director, senior officer or control person of the Company [ X ]
(c) if the Subscriber has checked one or more of boxes B, C, D or E in paragraph 8.1(b) above, the director(s), senior officer(s), or control person(s) of the Company with whom the Subscriber has the relationship is : ________________________________________________________________________________ ________________________________________________________________________________ (Fill non-United States jurisdiction contained in the name of each director. senior officer and control person with whom you have the above-mentioned relationship).
(d) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(e) the Subscriber is resident in the jurisdiction address set out under the heading "Name and Address of Subscriber" forth on the signature page of this Agreement and the sale of the Shares to the Subscriber as contemplated in this Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(f) the Subscriber is purchasing the Shares as principal for investment purposes only ’s home address; at least 21 years of age; and not with a view legally competent to resale or distribution and, in particularexecute this Agreement. If an entity, the Subscriber has no intention to distribute, either directly its principal offices or indirectly, any principal place of the Shares business in the state or non-United States or to U.S. Persons;
(g) jurisdiction contained in the address set forth on the signature page of this Agreement, the individual signing on behalf of the Subscriber is outside the United States when receiving and executing duly authorized to execute this Agreement;.
(hc) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber This Agreement has made an independent examination and investigation of an investment in the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber's decision to invest in the Shares and the Company;
(j) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Shares for an indefinite period of time;
(k) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto;
(m) the Subscriber has duly executed and delivered this Agreement by the Subscriber and it constitutes a the legal, valid and binding agreement obligation of the Subscriber Subscriber, enforceable against the Subscriber in accordance with its terms;.
(nd) Neither the execution, delivery or performance of this Agreement by the Subscriber violates or conflicts with, creates (with or without the giving of notice or the lapse of time, or both) a default under or a lien or encumbrance upon any of the Subscriber’s assets or properties pursuant to, or requires the consent, approval or order of any government or governmental agency or other person or entity under (i) any note, indenture, lease, license or other material agreement to which the Subscriber is a party or by which it or any of its assets or properties is bound or (ii) any statute, law, rule, regulation or court decree binding upon or applicable to the Subscriber or its assets or properties. If the Subscriber is not a natural person, the execution, delivery and performance by the Subscriber of this Agreement, and all other documents relating to an underwriter investment by Subscriber in the Shares, have been duly authorized by all necessary corporate or other action on behalf of the Subscriber and such execution, delivery and performance does not and will not constitute a breach or violation of, or dealer indefault under, the common shares charter or by-laws or equivalent governing documents of the Subscriber.
(e) The Subscriber has received, read carefully and is familiar with this Agreement; the Certificate of Designation for the Series B1 Preferred Stock; and the form of Warrant.
(f) The Subscriber, together with its professional advisor, is familiar with the Company’s business, plans and financial condition, the terms of the Offering and any other matters relating to the Offering; the Subscriber has received all materials which have been requested by the Subscriber; has had a reasonable opportunity to ask questions of the Company and its representatives; and the Company has answered to the satisfaction of the Subscriber all inquiries that the Subscriber or the Subscriber’s representatives have put to it. The Subscriber has had access to all additional information that the Subscriber has deemed necessary to verify the accuracy of the information set forth in this Agreement and the Other Offer Documents, and has taken all the steps necessary to evaluate the merits and risks of an investment as proposed under this Agreement and the Other Offer Documents.
(g) The Subscriber acknowledges that this subscription is and shall be irrevocable and this subscription and the agreements contained herein shall survive the insolvency, death or disability of the Subscriber (as applicable), except that the Subscriber shall have no obligation hereunder in the event that its subscription is for any reason rejected or the Offering is cancelled or terminated by the Company, nor is which the Subscriber participating, pursuant Company reserves the right to a contractual agreement or otherwise, do in the distribution of the Shares;its sole and absolute discretion and for any reason.
(oh) The Subscriber or the Subscriber understands and agrees that none of the Shares have been registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(p) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(q) the Subscriber understands and agrees that offers and sales of any of the Shares prior to the expiration of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(r) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(s) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(t) the Subscriber (i) is able to fend for itself in the subscription; (ii) Subscriber’s purchaser representative has such knowledge and experience in financial finance, securities, taxation, investments and other business matters so as to be capable able to protect the interests of evaluating the merits and Subscriber in connection with this transaction.
(i) The Subscriber understands the various risks of its an investment in the Company as proposed herein and can afford to bear such risks, including, without limitation, the risks of losing the entire investment.
(j) The Subscriber acknowledges that no market for the Shares (or the Common Shares into which they are convertible) presently exists and none may develop in the future and that the Subscriber may find it impossible to liquidate the investment at a time when it may be desirable to do so, or at any other time.
(k) The Subscriber has been advised by the Company that neither the Shares nor the Warrants being offered (or the Common Shares into which the Shares are convertible of for which the Warrants are exercisable) have been registered under the Securities Act, that the Shares and the CompanyWarrants will be issued on the basis of the statutory exemption provided by Section 4(2) of the Securities Act or Regulation D promulgated thereunder, or both, relating to transactions by an issuer not involving any public offering and under similar exemptions under certain state securities laws; that this transaction has not been reviewed by, passed on or submitted to any United States Federal or state agency or self-regulatory organization where an exemption is being relied upon; and (iii) has that the ability to bear Company’s reliance thereon is based in part upon the economic risks of its prospective investment and can afford representations made by the complete loss of such investment;Subscriber in this Agreement.
(ul) the The Subscriber acknowledges that it the Subscriber has not acquired been informed by the Company of, or is otherwise familiar with, the nature of the limitations imposed by the Securities Act and the rules and regulations thereunder on the transfer of the Shares as a result ofand the Warrants acquired hereunder (or the Common Shares into which the Shares are convertible of for which the Warrants are exercisable). In particular, and will not itself engage inthe Subscriber agrees that no sale, any "directed selling efforts" (as defined in Regulation S under the 0000 Xxx) in the United States in respect assignment or transfer of any of the Shares or the Warrants acquired by the Subscriber (or the Common Shares into which would include the Shares are convertible of for which the Warrants are exercisable) shall be valid or effective, and the Company shall not be required to give any activities undertaken effect to such a sale, assignment or transfer, unless (i) the sale, assignment or transfer of such Shares or Warrants are registered under the Securities Act, it being understood that the Shares or the Warrants are not currently registered for sale and that the Company has no obligation or intention to so register the Shares or the Warrants, except as contemplated by the terms of this Agreement; (ii) the Shares (or the Common Shares into which the Shares are convertible of for which the Warrants are exercisable) are sold, assigned or transferred in accordance with all the requirements and limitations of Rule 144 under the Securities Act (it being understood that Rule 144 is not available at the present time for the purpose ofsale of the Shares or the Warrants), or (iii) such sale, assignment or transfer is otherwise exempt from registration under the Securities Act, including Regulation S promulgated thereunder. The Subscriber further understands that could reasonably an opinion of counsel and other documents may be expected required to have transfer the effect ofShares or the Warrants.
(m) The Subscriber acknowledges that the Shares to be acquired will be subject to a stop transfer order and any certificate or certificates evidencing any Shares shall bear the following or a substantially similar legend and such other legends as may be required by state blue sky laws: “THE SHARES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, conditioning AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF U.S. PERSONS EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT.” The Subscriber acknowledges that the market in Warrants to be acquired will be subject to a stop transfer order and the United States certificate or certificates evidencing the Warrants shall bear the following or a substantially similar legend and such other legends as may be required by state blue sky laws: “THE WARRANTS EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF U.S. PERSONS EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT.”
(n) The Subscriber will acquire the Shares and the Warrants for the resale Subscriber’s own account (or, if such individual is married, for the joint account of the Subscriber and the Subscriber’s spouse either in joint tenancy, tenancy by the entirety or tenancy in common) for investment and not with a view to the sale or distribution thereof or the granting of any participation therein in violation of the securities laws, and has no present intention of distributing or selling to others any of such interest or granting any participation therein in violation of the securities laws.
(o) No representation, guarantee or warranty has been made to the Subscriber by any broker, the Company, any of the officers, directors, stockholders, partners, employees or agents of any of them, or any other persons, whether expressly or by implication, that:
(I) the Shares; provided, however, that Company or the Subscriber may sell will realize any given percentage of profits and/or amount or otherwise dispose type of any of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and any applicable state securities laws consideration, profit or under an exemption from such registration requirements and as otherwise provided herein;
(v) the Subscriber is not aware of any advertisement of any of the Shares and is not acquiring the Shares loss as a result of the Company’s activities or the Subscriber’s investment in the Company; or
(II) the past performance or experience of the management of the Company, or of any form other person, will in any way indicate the predictable results of general solicitation the ownership of the Shares or general advertising including advertisementsthe Warrants or of the Company’s activities.
(p) The Subscriber is not subscribing for the Shares or the Warrants as a result of or subsequent to any advertisement, articlesarticle, notices notice or other communications communication published in any newspaper, magazine or similar media or broadcast over radio television or televisionradio, or presented at any seminar or meeting whose attendees have been invited similar gathering; or any solicitation of a subscription by general solicitation or general advertising; anda person, other than Company personnel, previously not known to the undersigned.
(wq) no person has made The Subscriber is not relying on the Company with respect to the Subscriber any written tax considerations or oral representations:the economic merit of an investment.
(ir) The Subscriber understands that any person will resell or repurchase any the net proceeds from all subscriptions paid and accepted pursuant to the Offering (after deduction for commissions, discounts and expenses of the Shares;Offering) will be used in all material respects to fund the business and operations of the Company in the discretion of management.
(iis) The Subscriber acknowledges that any person will refund the representations, warranties and agreements made by the Subscriber herein shall survive the execution and delivery of this Agreement and the purchase price of any of the Shares;
(iii) as to the future price or value of any of the Shares; or
(iv) that any of the Shares will be listed and posted the Warrants.
(t) The Subscriber has consulted the Subscriber’s own financial, legal and tax advisors with respect to the economic, legal and tax consequences of an investment in the Shares and the Warrants and has not relied on the Other Offer Documents or the Company, its officers, directors or professional advisors for trading advice as to such consequences.
(u) Except as set forth on the signature page hereto, the Subscriber has not engaged any stock exchange broker or automated dealer quotation system other person or entity that application has been made is entitled to list and post any a commission, fee or other remuneration as a result of the Shares execution, delivery or performance of the Company on any stock exchange or automated dealer quotation system.
8.2 In this Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S..
Appears in 2 contracts
Samples: Subscription Agreement (Gyrotron Technology Inc), Subscription Agreement (Gyrotron Technology Inc)
Representations, Warranties and Covenants of the Subscriber. 8.1 (a) The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ab) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is not a U.S. Personcorporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution and performance of this Subscription Agreement on behalf of the Subscriber;
(bc) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(e) if the Subscriber is resident in British Columbia and is not an Accredited Investor, the Subscriber is (check one or more of the following boxes):
(A) a director, officer, employee or control person of the Company [ ]o
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Company [ ]o
(C) a parent, grandparent, brother, sister or child of the spouse of a director, senior officer or control person of the Company [ ]
(D) a close personal friend of a director, senior officer or control person of the Company [ X ]
(ED) a close business associate of a director, senior officer or control person of the Company [ X ]
(cf) if the Subscriber has checked one or more of boxes B, C, C or D or E in paragraph 8.1(b6.1(d) above, the director(s), senior officer(s), or control person(s) of the Company with whom the Subscriber has the relationship is : ________________________________________________________________________________ ________________________________________________________________________________ (Fill in the name of each director. senior officer and control person with whom you have the above-mentioned relationship).:
(dg) the Subscriber is not a U.S. Person;
(h) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(ei) the Subscriber is resident in the jurisdiction set out under the heading "“Name and Address of Subscriber" ” on the signature page of this Agreement and Subscription Agreement;
(j) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(fk) the Subscriber is purchasing acquiring the Shares as principal for investment purposes only and not with a view to resale or distribution and, in particular, the Subscriber it has no intention to distribute, distribute either directly or indirectly, indirectly any of the Shares in the United States or to U.S. Persons;
(gl) the Subscriber is outside the United States when receiving and executing this Agreement;
(h) the Subscriber Subscription Agreement and is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber has made an independent examination and investigation of an investment in acquiring the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever as principal for the Subscriber's decision to invest ’s own account (except for the circumstances outlined in the Shares and the Company;
(j) the Subscriber (i) has adequate net worth and means of providing paragraph 6(o)), for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investmentinvestment purposes only, and (iii) is able to bear the economic risks of an investment not with a view to, or for, resale, distribution or fractionalisation thereof, in the Shares for an indefinite period of time;
(k) the Subscriber understands whole or in part, and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained no other person has a direct or indirect beneficial interest in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant heretoShares;
(m) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(n) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(o) the Subscriber understands and agrees that none of the Shares have been registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(p) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(q) the Subscriber understands and agrees that offers and sales of any of the Shares prior to the expiration of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(r) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(s) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(tn) the Subscriber (i) is able to fend for him/her/itself in the subscriptionSubscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares and the CompanyShares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(uo) if the Subscriber is acquiring the Shares as a fiduciary or agent for one or more investor accounts:
(i) the Subscriber has sole investment discretion with respect to each such account and it has full power to make the foregoing acknowledgements, representations and agreements on behalf of such account, and
(ii) the investor accounts for which the Subscriber acts as a fiduciary or agent satisfy the definition of an “Accredited Investor”, as the term is defined Multilateral Instrument 45-103 adopted by the British Columbia Securities Commission;
(p) the Subscriber acknowledges that it the Subscriber has not acquired the Shares as a result of, and will not itself engage in, any "“directed selling efforts" ” (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(vq) the Subscriber is not aware of any advertisement of any of the Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingShares; and
(wr) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Shares;
(ii) that any person will refund the purchase price of any of the Shares;
(iii) as to the future price or value of any of the Shares; or
(iv) that any of the Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Shares of the Company on any stock exchange or automated dealer quotation system.
8.2 In this Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S.
Appears in 2 contracts
Samples: Private Placement Subscription Agreement (Service Air Group Inc), Private Placement Subscription Agreement (Service Air Group Inc)
Representations, Warranties and Covenants of the Subscriber. 8.1 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto and, if the Subscriber is not a U.S. Personcorporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution and performance of this Agreement on behalf of the Subscriber;
(b) the entering into of this Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(c) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(d) the Subscriber is (check one or more of the following boxesCHECK ONE OR MORE OF THE FOLLOWING BOXES):
(A) a director, officer, employee executive officer or control person of the [ ] Company [ ]or an affiliate of the Company
(B) a spouse, parent, grandparent, brother, sister or child [ ] of a director, senior executive officer or control person of the Company [ ]or an affiliate of the Company
(C) a parent, grandparent, brother, sister or child of the [ ] spouse of a director, senior executive officer or control person of the Company [ ]or an affiliate of the Company
(D) a close personal friend of a director, senior executive officer [ ] or control person of the Company [ ]or an affiliate of the Company
(E) a close business associate of a director, senior executive [ ] officer or control person of the Company or an affiliate of the Company
(F) a founder of the Company or a spouse, parent, [ X ] grandparent, brother, sister, child, close personal friend or close business associate of a founder of the Company
(G) a parent, grandparent, brother, sister or child of the [ ] spouse of a founder of the Company
(H) a company, partnership or other entity which a majority [ ] of the voting securities are beneficially owned by, or a majority of the directors are, persons or companies as described in paragraphs (A) to (G) above
(I) purchasing as principal Shares with an aggregate value of [ ] more than CDN$150,000
(J) an accredited investor [ ]
(ce) if the Subscriber has checked one or more of boxes B, C, D D, E, F, G or E H in paragraph 8.1(b6.1(d) above, the director(s), senior executive officer(s), or control person(s) or founder(s) of the Company with whom the Subscriber has the relationship is is: ________________________________________________________________________________ ________________________________________________________________________________ ---------------------------------------------------------------------- ---------------------------------------------------------------------- ---------------------------------------------------------------------- (Fill Instructions to Subscriber: fill in the name of each director. senior officer , executive officer, founder and control person with whom which you have the above-mentioned relationshiprelationship with. If you have checked box H, also indicate which of A to G describes the securityholders or directors which qualify you as box H and provide the names of those individuals. Please attach a separate page if necessary).
(df) If the Subscriber is has ticked box J in paragraph 6.1(d) above, the Subscriber acknowledges and agrees that the Company shall not acquiring consider the Shares Subscriber's Subscription for acceptance unless the account undersigned provides to the Company, along with an executed copy of this Agreement:
(i) a fully completed and executed Accredited Investor Questionnaire in the form attached as Exhibit 1 hereto; and
(ii) such other supporting documentation that the Company or benefit of, directly or indirectly, any U.S. Personits legal counsel may request to establish the Subscriber's qualification as an Accredited Investor;
(eg) the Subscriber is resident in the jurisdiction set out under the heading "Name and Address of Subscriber" on the signature page of this Agreement and Agreement;
(h) the sale of the Shares to the Subscriber as contemplated in this Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(fi) the Subscriber is purchasing acquiring the Shares as principal for investment purposes only and not with a view to resale or distribution and, in particular, the Subscriber has no intention to distribute, either directly or indirectly, any of the Shares in the United States or to U.S. Persons;
(g) the Subscriber is outside the United States when receiving and executing this Agreement;
(h) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber has made an independent examination and investigation of an investment in the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber's decision to invest in the Shares and the Companydistribution;
(j) the Subscriber (i) has adequate net worth and means of providing is acquiring the Shares as principal for its current financial needs and possible personal contingenciesthe Subscriber's own account, (ii) has no need for liquidity in this investmentinvestment purposes only, and (iii) is able to bear the economic risks of an investment not with a view to, or for, resale, distribution or fractionalisation thereof, in the Shares for an indefinite period of timewhole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto;
(m) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(n) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(ol) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber has not acquired the Shares as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 1933 Act) in the United States in respect of the Shares whxxx xxxxd include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and provincial securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber understands and agrees that none of the Shares have been registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities lawsAct;
(p) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(q) the Subscriber understands and agrees that offers and sales of any of the Shares prior to the expiration of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(r) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(so) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(t) the Subscriber (i) is able to fend for itself in the subscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Shares and the Company; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(u) the Subscriber acknowledges that it has not acquired the Shares as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(vp) the Subscriber is not aware of any advertisement of any of the Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(wq) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Shares;
(ii) that any person will refund the purchase price of any of the Shares;
(iii) as to the future price or value of any of the Shares; or
(iv) that any of the Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Shares of the Company on any stock exchange or automated dealer quotation system.
8.2 In this Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Yellow Hill Energy Inc.)
Representations, Warranties and Covenants of the Subscriber. 8.1 5.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber is not a U.S. Person;
(b) the Subscriber is (check one or more of the following boxes):
(A) a director, officer, employee or control person of the Company [ ]
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Company [ ]
(C) a parent, grandparent, brother, sister or child of the spouse of a director, senior officer or control person of the Company [ ]
(D) a close personal friend of a director, senior officer or control person of the Company [ ]
(E) a close business associate of a director, senior officer or control person of the Company [ X ]
(c) if the Subscriber has checked one or more of boxes B, C, D or E in paragraph 8.1(b) above, the director(s), senior officer(s), or control person(s) of the Company with whom the Subscriber has the relationship is : ________________________________________________________________________________ ________________________________________________________________________________ (Fill in the name of each director. senior officer and control person with whom you have the above-mentioned relationship).
(d) the Subscriber is not acquiring the Shares Securities for the account or benefit of, directly or indirectly, any U.S. Person;
(ec) the Subscriber is resident in the jurisdiction set out under the heading "Name and Address “Details of Subscriber" ” on the signature page 2 of this Subscription Agreement and the sale of the Shares Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(fd) the Subscriber is an “accredited investor” within the meaning of the Canadian National Instrument 45-106 (“NI 45-106”) and:
(i) is either purchasing the Shares Securities (A) as principal and not for the benefit of any other person, or is deemed under NI 45-106 to be purchasing the Securities as principal, or (B) as agent for a beneficial purchaser disclosed in this Subscription Agreement, and is an agent or trustee with proper authority to execute all documents required in connection with the purchase of the Securities on behalf of such disclosed beneficial purchaser and such disclosed beneficial purchaser for whom the Subscriber is contracting hereunder is purchasing as principal and not for the benefit of any other person, or is deemed under NI 45-106 to be purchasing the Securities as principal, and such disclosed beneficial purchaser is an “accredited investor” within the meaning of NI 45-106;
(ii) if the Subscriber is, or the beneficial purchaser for whom the Subscriber is contracting hereunder is, as the case may be, a person, other than an individual or investment fund, that has net assets of at least CDN$5,000,000, the Subscriber was not, or the beneficial purchaser for whom the Subscriber is contracting hereunder was not, as the case may be, created or used solely to purchase or hold securities as an accredited investor; and
(iii) the Subscriber has concurrently executed and delivered a certificate in the form attached as Exhibit “D” hereto;
(e) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is a corporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution and performance of this Subscription Agreement on behalf of the Subscriber;
(f) if the Subscriber is a corporation or other entity, the entering into of this Subscription Agreement and the transactions contemplated hereby do not and will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(g) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(h) the Subscriber is acquiring the Securities as principal for its own account for investment purposes only and not with for the account of any other person and not for distribution, assignment or resale to others, and no other person has a view to resale direct or distribution andindirect beneficial interest in such Securities, in particular, the Subscriber and it has no intention to distribute, either directly or indirectly, any of the Shares not subdivided its interest in the United States or to U.S. PersonsSecurities with any other person;
(gi) the Subscriber is outside the United States when receiving and executing this AgreementSubscription Agreement and except as otherwise expressly set forth on page 2 of this Subscription Agreement is acquiring the Securities as principal for the Subscriber’s own account for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in the Securities;
(hj) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investmentinvestment and it has carefully read and considered the matters set forth under the heading “Risk Factors” appearing in the Company’s Forms 10-KSB, 10-QSB, 8-K and any other filings filed with the SEC;
(ik) the Subscriber has made an independent examination and investigation of an investment in the Shares Securities and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber's ’s decision to invest in the Shares Securities and the Company;
(jl) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Shares Securities for an indefinite period of time;
(km) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Subscription Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(ln) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto;
(mo) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(np) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of any of the SharesSecurities;
(oq) the Subscriber understands and agrees that none of the Shares Securities have been or will be registered under the 1933 Act, Act or under any state securities or "“blue sky" ” laws of any state of the United States, States and, unless so registered, may not be offered or sold in the United States or, or directly or indirectly, indirectly to U.S. Persons Persons, except in accordance with the provisions of Regulation S (“Regulation “S” promulgated under the 1933 Act, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(p) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(qr) the Subscriber understands and agrees that offers and sales of any of the Shares Securities prior to the expiration of a period of one year six months after the date of original issuance of the Shares Securities (the one year six month period hereinafter referred to as the "“Distribution Compliance Period"”) shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(rs) the Subscriber understands has not acquired the Securities as a result of, and it covenants that it will not itself engage in, any “directed selling efforts” (as defined in Regulation S) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Securities pursuant to registration of any of the Securities pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(t) the Subscriber agrees not to engage in any hedging transactions involving any of the Shares Securities unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(su) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares Securities not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(tv) the Subscriber (i) is able to fend for itself in the subscriptionSubscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Shares Securities and the Company; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(uw) the Subscriber acknowledges that it has not acquired will indemnify the Shares as a result ofCompany against, and will not itself engage inhold the Company and, where applicable, its respective directors, officers, employees, agents, advisors and shareholders harmless from, any "directed selling efforts" and all loss, liability, claim, damage and expense whatsoever (as defined including, but not limited to, any and all fees, costs and expenses whatsoever reasonably incurred in Regulation S under the 0000 Xxxinvestigating, preparing or defending against any claim, lawsuit, administrative proceeding or investigation whether commenced or threatened) in the United States in respect arising out of or based upon any representation or warranty of the Shares which would include Subscriber contained herein or in any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Shares; provided, however, that document furnished by the Subscriber may sell or otherwise dispose of any of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and Company in connection herewith being untrue in any applicable state securities laws material respect or under an exemption from such registration requirements and as otherwise provided hereinany breach or failure by the Subscriber to comply with any covenant or agreement made by the Subscriber to the Company in connection therewith;
(vx) the Subscriber is not aware of any advertisement of any of the Shares Securities and is not acquiring the Shares Securities as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising;
(y) for so long as the Subscriber owns any of the Securities it will not sell any securities of the Company “short” (and this covenant shall survive the Closing until the Subscriber has sold or converted, or the Company has redeemed, all of the Securities, as applicable); and
(wz) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Shares;Securities,
(ii) that any person will refund the purchase price of any of the Shares;Securities,
(iii) as to the future price or value of any of the Shares; Securities, or
(iv) that any of the Shares Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Shares Securities of the Company on any stock exchange or automated dealer quotation system, except that currently the Company’s common shares are quoted on the over-the-counter market operated by the Over-The-Counter Bulletin Board operated by FINRA.
8.2 5.2 In this Subscription Agreement, the term "“U.S. Person" ” shall have the meaning ascribed thereto in Regulation S.
Appears in 1 contract
Representations, Warranties and Covenants of the Subscriber. 8.1 4.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber is not a U.S. Personhas the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto;
(b) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(check one or more c) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the following boxes):Subscriber enforceable against the Subscriber in accordance with its terms;
(Ad) the Subscriber is a director, officer, employee or control person of the Company [ ]Company;
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Company [ ]
(C) a parent, grandparent, brother, sister or child of the spouse of a director, senior officer or control person of the Company [ ]
(D) a close personal friend of a director, senior officer or control person of the Company [ ]
(E) a close business associate of a director, senior officer or control person of the Company [ X ]
(c) if the Subscriber has checked one or more of boxes B, C, D or E in paragraph 8.1(b) above, the director(s), senior officer(s), or control person(s) of the Company with whom the Subscriber has the relationship is : ________________________________________________________________________________ ________________________________________________________________________________ (Fill in the name of each director. senior officer and control person with whom you have the above-mentioned relationship).
(de) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(ef) the Subscriber is not a U.S. Person;
(g) the Subscriber is resident in the jurisdiction set out under the heading "Name and Address of Subscriber" on the signature page of this Agreement and Subscription Agreement;
(h) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(fi) the Subscriber is purchasing acquiring the Shares as principal for investment purposes only and not with a view to resale or distribution and, in particular, the Subscriber it has no intention to distribute, distribute either directly or indirectly, indirectly any of the Shares in the United States or to U.S. Persons;
(gj) the Subscriber is outside the United States when receiving and executing this Agreement;
(h) the Subscriber Subscription Agreement and is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber has made an independent examination and investigation of an investment in acquiring the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever as principal for the Subscriber's decision to invest in the Shares and the Company;
(j) the Subscriber (i) has adequate net worth and means of providing own account, for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investmentinvestment purposes only, and (iii) is able to bear the economic risks of an investment not with a view to, or for, resale, distribution or fractionalisation thereof, in the Shares for an indefinite period of timewhole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto;
(m) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(n) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(o) the Subscriber understands and agrees that none of the Shares have been registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(p) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(q) the Subscriber understands and agrees that offers and sales of any of the Shares prior to the expiration of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(r) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(s) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(tl) the Subscriber (i) is able to fend for him/her/itself in the subscriptionSubscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares and the CompanyShares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(um) the Subscriber acknowledges that it the Subscriber has not acquired the Shares as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and any applicable state and provincial securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(vn) the Subscriber is not aware of any advertisement of any of the Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingShares; and
(wo) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Shares;
(ii) that any person will refund the purchase price of any of the Shares;
(iii) as to the future price or value of any of the Shares; or
(iv) that any of the Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Shares of the Company on any stock exchange or automated dealer quotation system.
8.2 In this Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S.
Appears in 1 contract
Representations, Warranties and Covenants of the Subscriber. 8.1 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto and, if the Subscriber is not a U.S. Personcorporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution and performance of this Agreement on behalf of the Subscriber;
(b) the entering into of this Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(c) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(d) the Subscriber is (check one or more of the following boxesCHECK ONE OR MORE OF THE FOLLOWING BOXES):
(A) a director, officer, employee executive officer or control person of the [ ] Company [ ]or an affiliate of the Company
(B) a spouse, parent, grandparent, brother, sister or child [ ] of a director, senior executive officer or control person of the Company [ ]or an affiliate of the Company
(C) a parent, grandparent, brother, sister or child of the [ ] spouse of a director, senior executive officer or control person of the Company [ ]or an affiliate of the Company
(D) a close personal friend of a director, senior executive [ ] officer or control person of the Company [ ]or an affiliate of the Company
(E) a close business associate of a director, senior executive [ ] officer or control person of the Company or an affiliate of the Company
(F) a founder of the Company or a spouse, parent, [ X ] grandparent, brother, sister, child, close personal friend or close business associate of a founder of the Company
(G) a parent, grandparent, brother, sister or child of the [ ] spouse of a founder of the Company
(H) a company, partnership or other entity which a majority [ ] of the voting securities are beneficially owned by, or a majority of the directors are, persons or companies as described in paragraphs (A) to (G) above
(I) purchasing as principal Shares with an aggregate value [ ] of more than CDN$150,000
(J) an accredited investor [ ]
(ce) if the Subscriber has checked one or more of boxes B, C, D D, E, F, G or E H in paragraph 8.1(b6.1(d) above, the director(s), senior executive officer(s), or control person(s) or founder(s) of the Company with whom the Subscriber has the relationship is is: ________________________________________________________________________________ ________________________________________________________________________________ ---------------------------------------------------------------------- ---------------------------------------------------------------------- (Fill in the name of each directorINSTRUCTIONS TO SUBSCRIBER: FILL IN THE NAME OF EACH DIRECTOR, EXECUTIVE OFFICER, FOUNDER AND CONTROL PERSON WHICH YOU HAVE THE ABOVE-MENTIONED RELATIONSHIP WITH. senior officer and control person with whom you have the above-mentioned relationshipIF YOU HAVE CHECKED BOX H, ALSO INDICATE WHICH OF A TO G DESCRIBES THE SECURITYHOLDERS OR DIRECTORS WHICH QUALIFY YOU AS BOX H AND PROVIDE THE NAMES OF THOSE INDIVIDUALS. PLEASE ATTACH A SEPARATE PAGE IF NECESSARY).
(df) If the Subscriber is has ticked box J in paragraph 6.1(d) above, the Subscriber acknowledges and agrees that the Company shall not acquiring consider the Shares Subscriber's Subscription for acceptance unless the account undersigned provides to the Company, along with an executed copy of this Agreement:
(i) a fully completed and executed Accredited Investor Questionnaire in the form attached as Exhibit 1 hereto; and
(ii) such other supporting documentation that the Company or benefit of, directly or indirectly, any U.S. Personits legal counsel may request to establish the Subscriber's qualification as an Accredited Investor;
(eg) the Subscriber is resident in the jurisdiction set out under the heading "Name and Address of Subscriber" on the signature page of this Agreement and Agreement;
(h) the sale of the Shares to the Subscriber as contemplated in this Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(fi) the Subscriber is purchasing acquiring the Shares as principal for investment purposes only and not with a view to resale or distribution and, in particular, the Subscriber has no intention to distribute, either directly or indirectly, any of the Shares in the United States or to U.S. Persons;
(g) the Subscriber is outside the United States when receiving and executing this Agreement;
(h) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber has made an independent examination and investigation of an investment in the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber's decision to invest in the Shares and the Companydistribution;
(j) the Subscriber (i) has adequate net worth and means of providing is acquiring the Shares as principal for its current financial needs and possible personal contingenciesthe Subscriber's own account, (ii) has no need for liquidity in this investmentinvestment purposes only, and (iii) is able to bear the economic risks of an investment not with a view to, or for, resale, distribution or fractionalisation thereof, in the Shares for an indefinite period of timewhole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto;
(m) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(n) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(ol) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber has not acquired the Shares as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 1933 Act) in the United States in respect of the Shares xxxxx xould include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and provincial securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber understands and agrees that none of the Shares have been registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities lawsAct;
(p) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(q) the Subscriber understands and agrees that offers and sales of any of the Shares prior to the expiration of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(r) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(so) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(t) the Subscriber (i) is able to fend for itself in the subscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Shares and the Company; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(u) the Subscriber acknowledges that it has not acquired the Shares as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(vp) the Subscriber is not aware of any advertisement of any of the Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(wq) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Shares;
(ii) that any person will refund the purchase price of any of the Shares;
(iii) as to the future price or value of any of the Shares; or
(iv) that any of the Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Shares of the Company on any stock exchange or automated dealer quotation system.
8.2 In this Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S.
Appears in 1 contract
Representations, Warranties and Covenants of the Subscriber. 8.1 The Subscriber Subscriber, on its own behalf and, if applicable, on behalf of each beneficial purchaser for whom it is acting, hereby represents and warrants to to, and covenants with, the Corporation and the Underwriter as follows as at the date hereof and as at the Closing Time and acknowledges that the Corporation and the Underwriter, and their respective counsel, are relying on such representations and warranties in connection with the Company (which representations, warranties and covenants shall survive the Closing) thattransactions contemplated herein:
(a) The Subscriber and (if applicable) each beneficial purchaser for whom it is acting is resident or, if not an individual, has its head office, in the jurisdiction set out on the face page of this Subscription Agreement. The address set forth on the face page of this Subscription Agreement is the residence or place of business of the Subscriber, or the residence or place of business of any beneficial purchaser for whom the Subscriber is acting, and such address was not obtained or used solely for the purpose of acquiring Flow-Through Shares and the Subscriber and any beneficial purchaser was solicited to purchase Flow-Through Shares solely in such jurisdiction. The Subscriber and, if the Subscriber is a partnership, any partner or limited partner of the partnership, or if the Subscriber is a corporation or limited liability company, any director, manager or officer, does not have and will not have prior to the Termination Date a Prescribed Relationship with the Corporation.
(b) The Subscriber is not a "U.S. Person;
" (b) as that term is defined by Regulation S under the Subscriber U.S. Securities Act, which definition includes, but is (check one not limited to, an individual resident in the United States, an estate or more trust of which any executor or administrator or trustee, respectively, is a U.S. Person and any partnership or company organized or incorporated under the laws of the following boxes):
United States (Aor any State thereof)) a director, officer, employee or control person of the Company [ ]
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Company [ ]
(C) a parent, grandparent, brother, sister or child of the spouse of a director, senior officer or control person of the Company [ ]
(D) a close personal friend of a director, senior officer or control person of the Company [ ]
(E) a close business associate of a director, senior officer or control person of the Company [ X ]
(c) if the Subscriber has checked one or more of boxes B, C, D or E in paragraph 8.1(b) above, the director(s), senior officer(s), or control person(s) of the Company with whom the Subscriber has the relationship is : ________________________________________________________________________________ ________________________________________________________________________________ (Fill in the name of each director. senior officer and control person with whom you have the above-mentioned relationship).
(d) the Subscriber is not acquiring the Flow-Through Shares for the account or benefit of, directly of a U.S. Person or indirectly, any U.S. Person;a person in the United States.
(ec) the Subscriber is resident in the jurisdiction set out under the heading "Name and Address of Subscriber" on the signature page of this Agreement and the sale of the The Flow-Through Shares have not been offered to the Subscriber as contemplated in the United States, and the individuals making the order to purchase the Flow-Through Shares and executing and delivering this Agreement complies with or is exempt from the applicable securities legislation on behalf of the jurisdiction of residence of Subscriber were not in the Subscriber;United States when the order was placed and this Subscription Agreement was executed and delivered.
(fd) The Subscriber undertakes and agrees that it will not offer or sell the Subscriber is purchasing the Shares as principal for investment purposes only and not with a view to resale or distribution and, in particular, the Subscriber has no intention to distribute, either directly or indirectly, any of the Flow-Through Shares in the United States or to unless such shares are registered under the U.S. Persons;
(g) Securities Act and the Subscriber is outside securities laws of all applicable states of the United States when receiving or another exemption from such registration requirements is available, and executing this Agreement;
(h) the Subscriber is aware further that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber has made an independent examination and investigation of an investment in the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company it will not be responsible in any way whatsoever for resell the Subscriber's decision to invest in the Flow-Through Shares and the Company;
(j) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Shares for an indefinite period of time;
(k) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto;
(m) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(n) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(o) the Subscriber understands and agrees that none of the Shares have been registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation Sapplicable securities legislation, pursuant to an effective registration statement under the 1933 Actregulations, or pursuant to an exemption fromrules, or in a transaction not subject to, the registration requirements of the 1933 Act policies and in each case only in accordance with applicable state orders and provincial securities laws;stock exchange rules.
(pe) it is The Subscriber will not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, engage in the distribution of the Shares;
(q) the Subscriber understands and agrees that offers and sales of any of the Shares prior hedging transactions with regard to the expiration of a period of one year after the date of original issuance of the Flow-Through Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made unless conducted in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;U.S. Securities Act.
(rf) the The Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(s) the Subscriber understands and agrees acknowledges that the Company Corporation and its transfer agent will refuse to register any transfer of any of the Flow-Through Shares not made in accordance with the provisions of Regulation SS of the U.S. Securities Act, pursuant to an available exemption from registration under the U.S. Securities Act or under an effective registration statement under the 1933 Act U.S. Securities Act.
(g) The Subscriber, on its own behalf and (if applicable) on behalf of each beneficial purchaser for whom it is acting, represents, warrants and certifies as set out in Schedule "A" hereto and further certifies that the Subscriber and (if applicable) each such beneficial purchaser, as the case may be, falls into one or pursuant to an available exemption from the registration requirements more of the 1933 Act;categories of prospectus exempt purchasers listed in Schedule "A" hereto (as specified by the Subscriber in such Schedule).
(th) The Subscriber has duly and properly completed, executed and delivered to the Subscriber Corporation within applicable time periods, the certificate and form set forth in Schedule "A" hereto and the representations, warranties and certifications contained therein are true and correct as at the date hereof and will be true and correct at the Closing Time.
(i) is able to fend The execution and delivery of this Subscription Agreement, the performance and compliance with the terms hereof, the subscription for itself in and purchase of the subscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Subscribed Shares and the Company; completion of the transactions described herein by the Subscriber will not result in any material breach of, or be in conflict with or constitute a material default under, or create a state of facts which, after notice or lapse of time, or both, would constitute a material default under any term or provision of the constating documents, by-laws or resolutions of the Subscriber or any beneficial purchaser for whom the Subscriber is acting, the Securities Laws or any other laws applicable to the Subscriber or any beneficial purchaser for whom the Subscriber is acting, any agreement to which the Subscriber or any beneficial purchaser for whom the Subscriber is acting is a party, or any judgment, decree, order, statute, rule or regulation applicable to the Subscriber or any beneficial purchaser for whom the Subscriber is acting
(j) The Subscriber is subscribing for the Subscribed Shares as principal for its own account and not for the benefit of any other Person (iiiwithin the meaning of applicable Securities Laws) has and not with a view to the ability resale or distribution of all or any of the Subscribed Shares, or if it is not subscribing as principal, it acknowledges that the Corporation may be required by law to bear disclose to certain regulatory authorities the economic risks identity of its prospective investment each beneficial purchaser of the Subscribed Shares for whom it is acting and can afford agrees to provide such information.
(k) In the complete loss case of a subscription for the Subscribed Shares by the Subscriber acting as trustee or agent (including, for greater certainty, a portfolio manager or comparable adviser) for a principal, the Subscriber is duly and properly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such subscription on behalf of such investment;
(u) beneficial purchaser, who is subscribing as principal for its own account, not for the benefit of any other Person and not with a view to the resale or distribution of the Subscribed Shares, and this Subscription Agreement has been duly authorized, executed and delivered by or on behalf of and constitutes a legal, valid and binding agreement of such principal, enforceable in accordance with its terms against such principal, and the Subscriber acknowledges that it the Corporation and/or the Underwriter may be required by law to disclose the identity of such beneficial purchaser for whom the Subscriber is acting and agrees to provide information as the Corporation and/or the Underwriter may be required to disclose.
(l) In the case of a subscription for the Subscribed Shares by the Subscriber acting as principal, this Subscription Agreement has not acquired been duly and properly authorized, executed and delivered by, and constitutes a legal, valid and binding agreement of, the Subscriber. This Subscription Agreement is enforceable in accordance with its terms against the Subscriber and (if applicable) any beneficial purchaser on whose behalf the Subscriber is acting.
(m) If the Subscriber is:
(i) a corporation, the Subscriber is duly incorporated and is validly subsisting under the laws of its jurisdiction of incorporation and has all requisite legal and corporate power and authority to execute and deliver this Subscription Agreement, to subscribe for the Subscribed Shares as contemplated herein and to observe and perform its obligations under the terms of this Subscription Agreement;
(ii) a result ofpartnership, syndicate or other form of unincorporated organization, the Subscriber has the necessary legal capacity and authority to execute and deliver this Subscription Agreement on behalf of such organization and to observe and perform its covenants and obligations hereunder and has obtained all necessary approvals in respect thereof; or
(iii) an individual, the Subscriber is of the full age of majority and is legally competent to execute this Subscription Agreement and to observe and perform his or her covenants and obligations hereunder.
(n) Other than the Underwriter (and any group of investment dealers managed by the Underwriter for the purposes of offering the Flow-Through Shares for sale), there is no person acting or purporting to act in connection with the transactions contemplated herein who is entitled to any brokerage or finder's fee. If any person claims that any fee or other compensation is payable by the Corporation or the Underwriter in connection with this subscription for the Subscribed Shares, the Subscriber covenants to indemnify and hold harmless the Corporation and the Underwriter with respect thereto and with respect to all costs reasonably incurred in the defence thereof.
(o) The Subscriber is not, with respect to the Corporation or any of its affiliates, a Control Person and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any become a Control Person by virtue of the Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any purchase of the Subscribed Shares; provided, however, that the Subscriber may sell or otherwise dispose of and does not intend to act in concert with any other person to form a Control Person of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;Corporation.
(vp) the The Subscriber is not aware purchasing Flow-Through Shares with knowledge of any advertisement of any of material fact or information concerning the Shares and is Corporation which has not acquiring been generally disclosed to the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; andpublic.
(wq) no No person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Flow-Through Shares;
(ii) that any person will refund the purchase price of any of the Shares;Subscription Price; or
(iii) as to the future price or value of the Flow-Through Shares.
(r) This subscription for Flow-Through Shares has not been made through or as a result of, and the distribution of Flow-Through Shares is not being accompanied by, any form of advertisement, including, without limitation, in printed public media, radio, television, internet or telecommunications, including electronic display, or as part of a general solicitation.
(s) None of the funds the Subscriber is using to purchase the Subscribed Shares is, to the knowledge of the Subscriber, proceeds obtained or derived, directly or directly, as a result of illegal activities.
(t) The Subscriber, and any beneficial purchaser for whom it is acting, deals at arm's length and will continue to deal at arm's length (within the meaning of the Tax Act and applicable Securities Laws) with the Corporation.
(u) If the Subscriber or a beneficial purchaser for whom it is acting, as the case may be, is a corporation, trust or partnership, it does not and will not have, in respect of a renunciation of Resource Expenses hereunder, a "prohibited relationship" with the Corporation within the meaning of subsection 66(12.671) of the Tax Act.
(v) Neither the Subscriber, nor any beneficial purchaser for whom it is acting, as the case may be, has or will knowingly enter into any agreement or arrangement which will cause the Flow-Through Shares to be or become "prescribed shares" for purposes of the Tax Act.
(w) The delivery of this subscription, the acceptance hereof by the Corporation and the issuance of Subscribed Shares to the Subscriber complies with all applicable laws of the Subscriber's jurisdiction of residence and domicile and will not cause the Corporation or any of its officers or directors to become subject to or require any disclosure, prospectus or other reporting requirement to which the Shares; orCorporation is not currently subject and which is not otherwise contemplated in this Subscription Agreement.
(ivx) that any If the Subscriber is a corporation, syndicate, partnership or other form of the Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Shares of the Company on any stock exchange or automated dealer quotation system.
8.2 In this Agreemententity (other than an investment fund, as defined in National Instrument 45-106), the term "U.S. Person" shall have Subscriber was not created or is not being used solely to purchase or hold the meaning ascribed thereto Subscribed Shares and has a bona fide purpose other than investing in Regulation S.the Subscribed Shares.
Appears in 1 contract
Representations, Warranties and Covenants of the Subscriber. 8.1 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber is not a U.S. Person;
(b) the Subscriber is (check one or more of the following boxes):
(A) a director, officer, employee or control person of the Company [ ]
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Company [ ]
(C) a parent, grandparent, brother, sister or child of the spouse of a director, senior officer or control person of the Company [ ]
(D) a close personal friend of a director, senior officer or control person of the Company [ ]
(E) a close business associate of a director, senior officer or control person of the Company [ X ]
(c) if the Subscriber has checked one or more of boxes B, C, D or E in paragraph 8.1(b) above, the director(s), senior officer(s), or control person(s) of the Company with whom the Subscriber has the relationship is : ________________________________________________________________________________ ________________________________________________________________________________ (Fill in the name of each director. senior officer and control person with whom you have the above-mentioned relationship).
(d) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(e) the Subscriber is resident in the jurisdiction set out under the heading "Name and Address of Subscriber" on the signature page of this Agreement and the sale of the Shares to the Subscriber as contemplated in this Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(f) the Subscriber is purchasing the Shares as principal for investment purposes only and not with a view to resale or distribution and, in particular, the Subscriber has no intention to distribute, either directly or indirectly, any of the Shares in the United States or to U.S. Persons;
(g) the Subscriber is outside the United States when receiving and executing this Agreement;
(h) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber has made an independent examination and investigation of an investment in the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber's decision to invest in the Shares and the Company;
(j) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Shares for an indefinite period of time;
(k) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant heretohereto and, if the Subscriber is a corporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution and performance of this Agreement on behalf of the Subscriber;
(mb) the entering into of this Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(c) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(nd) the Subscriber is not (CHECK ONE OR MORE OF THE FOLLOWING BOXES):
(A) a director, executive officer or control person of the Company or an underwriter of, or dealer in, the common shares affiliate of the Company
(B) a spouse, nor is the Subscriber participatingparent, pursuant to grandparent, brother, sister or child of a contractual agreement director, executive officer or otherwise, in the distribution control person of the Shares;
(o) the Subscriber understands and agrees that none of the Shares have been registered under the 1933 Act, Company or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(p) it is not an underwriter of, or dealer in, the common shares affiliate of the Company
(C) a parent, nor is the Subscriber participatinggrandparent, pursuant to a contractual agreement brother, sister or otherwise, in the distribution child of the Shares;
(q) the Subscriber understands and agrees that offers and sales of any of the Shares prior to the expiration spouse of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation Sdirector, pursuant to the registration provisions of the 1933 Act executive officer or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(r) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(s) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(t) the Subscriber (i) is able to fend for itself in the subscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Shares and the Company; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(u) the Subscriber acknowledges that it has not acquired the Shares as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(v) the Subscriber is not aware of any advertisement of any of the Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(w) no control person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Shares;
(ii) that any person will refund the purchase price of any of the Shares;
(iii) as to the future price or value of any of the Shares; or
(iv) that any of the Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Shares of the Company on any stock exchange or automated dealer quotation system.an affiliate of the Company
8.2 In this Agreement(D) a close personal friend of a director, executive officer or control person of the Company or an affiliate of the Company
(E) a close business associate of a director, executive officer or control person of the Company or an affiliate of the Company
(F) a founder of the Company or a spouse, parent, grandparent, brother, sister, child, close personal friend or close business associate of a founder of the Company
(G) a parent, grandparent, brother, sister or child of the spouse of a founder of the Company
(H) a company, partnership or other entity which a majority of the voting securities are beneficially owned by, or a majority of the directors are, persons or companies as described in paragraphs (A) to (G) above
(I) purchasing as principal Shares with an aggregate value of more than CDN$150,000 (J) an accredited investor (e) if the Subscriber has checked one or more of boxes B, C, D, E, F, G or H in paragraph 6.1(d) above, the term "U.S. Person" shall have director(s), executive officer(s), control person(s) or founder(s) of the meaning ascribed thereto in Regulation S.Company with whom the Subscriber has the relationship is: ---------------------------------------------------------------------- ---------------------------------------------------------------------- (INSTRUCTIONS TO SUBSCRIBER: FILL IN THE NAME OF EACH DIRECTOR, EXECUTIVE OFFICER, FOUNDER AND CONTROL PERSON WHICH YOU HAVE THE ABOVE-MENTIONED RELATIONSHIP WITH. IF YOU HAVE CHECKED BOX H, ALSO INDICATE WHICH OF A TO G DESCRIBES THE SECURITY HOLDERS OR DIRECTORS WHICH QUALIFY YOU AS BOX H AND PROVIDE THE NAMES OF THOSE INDIVIDUALS. PLEASE ATTACH A SEPARATE PAGE IF NECESSARY).
Appears in 1 contract
Representations, Warranties and Covenants of the Subscriber. 8.1 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is not a U.S. Person;corporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution and performance of this Subscription Agreement on behalf of the Subscriber)
(b) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(c) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(d) if the Subscriber is resident in British Columbia and is not an Accredited Investor, the Subscriber is (check one or more of the following boxes):
(A) a director, officer, employee or control person of the Company [ ]
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Company [ ]
(C) a parentclose, grandparent, brother, sister or child of the spouse personal friend of a director, senior officer or control person of the Company [ ]
(D) a close personal friend business associate of a director, senior officer or control person of the Company [ ]
(E) a close business associate of a director, senior officer or control person of the Company [ X ]
(ce) if the Subscriber has checked one or more of boxes B, C, C or D or E in paragraph 8.1(b6.1(d) above, the director(s), senior officer(s), or control person(s) of the Company with whom the Subscriber has the relationship is : ________________________________________________________________________________ ________________________________________________________________________________ (Fill in the name of each director. , senior officer and control person with whom which you have the above-mentioned relationshiprelationship with).
(df) the Subscriber is not a U.S. Person;
(g) the Subscriber is not acquiring the Shares Securities for the account or benefit of, directly or indirectly, any U.S. Person;
(eh) the Subscriber is resident in the jurisdiction set out under the heading "Name and Address of Subscriber" on the signature page of this Agreement and Subscription Agreement;
(i) the sale of the Shares Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(fj) the Subscriber is purchasing acquiring the Shares as principal Securities for investment purposes only and not with a view to resale or distribution and, in particular, the Subscriber it has no intention to distribute, distribute either directly or indirectly, indirectly any of the Shares Securities in the United States or to U.S. U. S. Persons;
(gk) the Subscriber is outside the United States when receiving and executing this Agreement;
(h) Subscription Agreement and is acquiring the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber has made an independent examination and investigation of an investment in the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever Securities as principal for the Subscriber's decision to invest own account (except for the circumstances outlined in the Shares and the Company;
(j) the Subscriber (i) has adequate net worth and means of providing paragraph 6.1(n)), for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investmentinvestment purposes only, and (iii) is able not with a view to bear the economic risks of an investment or for, resale, distribution or fractionalisation thereof, in the Shares for an indefinite period of time;
(k) the Subscriber understands whole or in part, and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained no other person as a direct or indirect beneficial interest in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the CompanySecurities;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto;
(m) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(n) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the SharesSecurities;
(o) the Subscriber understands and agrees that none of the Shares have been registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(p) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(q) the Subscriber understands and agrees that offers and sales of any of the Shares prior to the expiration of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(r) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(s) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(tm) the Subscriber (i) is able to fend for him/her/itself in the subscriptionSubscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares and the CompanySecurities; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(un) if the Subscriber is acquiring the securities as a fiduciary or agent for one or more investor accounts
(i) the Subscriber has sole investment discretion with respect to each such account and it has full power to make the foregoing acknowledgements, representations and agreements on behalf of such account, and
(ii) the investor accounts for which the Subscriber acts as a fiduciary or agent satisfy the definition of an "Accredited Investor", as the term is defined National Instrument 45-106 adopted by the British Columbia Securities Commission;
(o) the Subscriber acknowledges that it the Subscriber has not acquired the Shares Securities as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, of conditioning the market in the United States for the resale of any of the SharesSecurities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares Securities pursuant to registration of any of the Shares Securities pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(vp) the Subscriber is not aware of any advertisement of any of the Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingSecurities; and
(wq) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the SharesSecurities;
(ii) that any person will refund the purchase price of any of the SharesSecurities;
(iii) as to the future price or value of any of the SharesSecurities; or
(iv) that any of the Shares Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Shares Securities of the Company on any stock exchange or automated dealer quotation system, except that currently certain market makers make market in the common shares of the Company on the OTC Bulletin Board.
8.2 In this Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Netco Investments Inc)
Representations, Warranties and Covenants of the Subscriber. 8.1 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is not a U.S. Personcorporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution and performance of this Subscription Agreement on behalf of the Subscriber;
(b) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(c) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(d) if the Subscriber is resident in British Columbia and is not an Accredited Investor, the Subscriber is (check one or more of the following boxes):
(A) a director, officer, employee or control person of the Company [ ]
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Company [ ]
(C) a parent, grandparent, brother, sister or child of the spouse close personal friend of a director, senior officer or control person of the Company [ ]
(D) a close personal friend business associate of a director, senior officer or control person of the Company [ ]
(E) a close business associate of a director, senior officer or control person of the Company [ X ]
(ce) if the Subscriber has checked one or more of boxes B, C, C or D or E in paragraph 8.1(b6.1(d) above, the director(s), senior officer(s), or control person(s) of the Company with whom the Subscriber has the relationship is : ________________________________________________________________________________ ________________________________________________________________________________ :
(Fill f) if the Subscriber is not an Accredited Investor and has not checked one of the boxes in paragraph 6.1(d) above, the name Subscriber is purchasing pursuant to the exemption from prospectus requirements available under subsection 74(2)(4) of each directorthe BC Act as the aggregate acquisition cost for such Securities in not less than $97,000, and, if not purchasing for its own account, the Subscriber is:
A. a trust company or an insurer which has received a business authorization under the Financial Institutions Act (British Columbia) or is a trust company or an insurer authorized under the laws of another province or territory of Canada to carry on such business in such province or territory, and the Subscriber is purchasing the Shares as an agent or trustee for accounts that are fully managed by the Subscriber; or
B. an advisor who manages the investment portfolios of clients through discretionary authority granted by one or more clients and the Subscriber is:
I. registered as an advisor under the BC Act or the laws of another province or territory of Canada or the Subscriber is exempt from such registration and the Subscriber is purchasing the Shares as an agent for accounts that are fully managed by the Subscriber; or
II. carrying on the business of an advisor outside of Canada in which case:
a. it was not created solely or primarily for the purpose of purchasing Shares of the Company;
b. the total asset value of the investment portfolios it manages on behalf of clients is not less than $20,000,0000; or
c. it does not believe and has no reasonable grounds to believe that any resident of British Columbia or any directors, senior officer and control person with whom you have officers or other insiders of the above-mentioned relationship)Company or any persons carrying on investor relations activities for the Company has a beneficial interest in any of the managed accounts for which it is purchasing.
(dg) the Subscriber is not a U.S. Person;
(h) the Subscriber is not acquiring the Shares Securities for the account or benefit of, directly or indirectly, any U.S. Person;
(ei) the Subscriber is resident in the jurisdiction set out under the heading "“Name and Address of Subscriber" ” on the signature page of this Agreement and Subscription Agreement;
(j) the sale of the Shares Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(fk) the Subscriber is purchasing acquiring the Shares as principal Securities for investment purposes only and not with a view to resale or distribution and, in particular, the Subscriber it has no intention to distribute, distribute either directly or indirectly, indirectly any of the Shares Securities in the United States or to U.S. Persons;
(gl) the Subscriber is outside the United States when receiving and executing this Agreement;
(h) Subscription Agreement and is acquiring the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber has made an independent examination and investigation of an investment in the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever Securities as principal for the Subscriber's decision to invest ’s own account (except for the circumstances outlined in the Shares and the Company;
(j) the Subscriber (i) has adequate net worth and means of providing paragraph 6.1(p)), for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investmentinvestment purposes only, and (iii) is able to bear the economic risks of an investment not with a view to, or for, resale, distribution or fractionalisation thereof, in the Shares for an indefinite period of time;
(k) the Subscriber understands whole or in part, and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained no other person has a direct or indirect beneficial interest in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant heretoSecurities;
(m) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(n) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the SharesSecurities;
(o) the Subscriber understands and agrees that none of the Shares have been registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(p) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(q) the Subscriber understands and agrees that offers and sales of any of the Shares prior to the expiration of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(r) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(s) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(tn) the Subscriber (i) is able to fend for him/her/itself in the subscriptionSubscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares and the CompanySecurities; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(uo) if the Subscriber is acquiring the Securities as a fiduciary or agent for one or more investor accounts:
(i) the Subscriber has sole investment discretion with respect to each such account and it has full power to make the foregoing acknowledgements, representations and agreements on behalf of such account, and
(ii) the investor accounts for which the Subscriber acts as a fiduciary or agent satisfy the definition of an “Accredited Investor”, as the term is defined Multilateral Instrument 45-103 adopted by the British Columbia Securities Commission;
(p) the Subscriber acknowledges that it the Subscriber has not acquired the Shares Securities as a result of, and will not itself engage in, any "“directed selling efforts" ” (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the SharesSecurities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares Securities pursuant to registration of any of the Shares Securities pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(vq) the Subscriber is not aware of any advertisement of any of the Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingSecurities; and
(wr) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the SharesSecurities;
(ii) that any person will refund the purchase price of any of the SharesSecurities;
(iii) as to the future price or value of any of the SharesSecurities; or
(iv) that any of the Shares Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Shares Securities of the Company on any stock exchange or automated dealer quotation system, except that currently certain market makers make market in the common shares of the Company on the OTC Bulletin Board.
8.2 In this Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Pan American Gold Corp)
Representations, Warranties and Covenants of the Subscriber. 8.1 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is not a U.S. Personcorporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution and performance of this Subscription Agreement on behalf of the Subscriber;
(b) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or the Company in the jurisdiction of the Subscriber's residence or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is (check one or more of the following boxes):
(A) a director, officer, employee or control person of the Company [ ]
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Company [ ]
(C) a parent, grandparent, brother, sister or child of the spouse of a director, senior officer or control person of the Company [ ]
(D) a close personal friend of a director, senior officer or control person of the Company [ ]
(E) a close business associate of a director, senior officer or control person of the Company [ X ]may be bound;
(c) if the Subscriber has checked one or more of boxes B, C, D or E in paragraph 8.1(b) above, the director(s), senior officer(s), or control person(s) duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Company with whom Subscriber enforceable against the Subscriber has the relationship is : ________________________________________________________________________________ ________________________________________________________________________________ (Fill in the name of each director. senior officer and control person accordance with whom you have the above-mentioned relationship).its terms;
(d) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(e) if the Subscriber is resident in British Columbia or Alberta, and is not an Accredited Investor, the Subscriber is (CHECK ONE OR MORE OF THE FOLLOWING BOXES):
(A) a director, officer, employee or control person of the [ ] Company
(B) a spouse, parent, grandparent, brother, sister or child [ ] of a director, senior officer or control person of the Company
(C) a close personal friend of a director, senior officer [ ] or control person of the Company
(D) a close business associate of a director, senior [ ] officer or control person of the Company
(f) if the Subscriber has checked one or more of boxes B, C or D in paragraph 6.1(e) above, the director(s), senior officer(s), or control person(s) of the Company with whom the Subscriber has the relationship is : ------------------------------------------------------- ------------------------------------------------------- ------------------------------------------------------- (FILL IN THE NAME OF EACH DIRECTOR. SENIOR OFFICER AND CONTROL PERSON WHICH YOU HAVE THE ABOVE-MENTIONED RELATIONSHIP WITH).
(g) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading "Name and Address of Subscriber" on the signature page of this Agreement and Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(fj) the Subscriber is purchasing acquiring the Shares as principal for investment purposes only and not with a view to resale or distribution and, in particular, the Subscriber it has no intention to distribute, distribute either directly or indirectly, indirectly any of the Shares in the United States or to U.S. Persons;
(gk) the Subscriber is outside the United States when receiving and executing this Agreement;
(h) the Subscriber Subscription Agreement and is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber has made an independent examination and investigation of an investment in acquiring the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever as principal for the Subscriber's decision to invest own account (except for the circumstances outlined in the Shares and the Company;
(jparagraph 6.1(n)) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investmentinvestment purposes only, and (iii) is able to bear the economic risks of an investment not with a view to, or for, resale, distribution or fractionalisation thereof, in the Shares for an indefinite period of time;
(k) the Subscriber understands whole or in part, and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained no other person has a direct or indirect beneficial interest in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the CompanyShares;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto;
(m) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(n) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(o) the Subscriber understands and agrees that none of the Shares have been registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(p) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(q) the Subscriber understands and agrees that offers and sales of any of the Shares prior to the expiration of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(r) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(s) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(tm) the Subscriber (i) is able to fend for him/her/itself in the subscriptionSubscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares and the CompanyShares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(un) if the Subscriber is acquiring the Shares as a fiduciary or agent for one or more investor accounts:
(i) the Subscriber has sole investment discretion with respect to each such account and it has full power to make the foregoing acknowledgements, representations and agreements on behalf of such account, and
(ii) the investor accounts for which the Subscriber acts as a fiduciary or agent satisfy the definition of an "Accredited Investor", as the term is adopted by the British Columbia and Alberta Securities Commissions;
(o) the Subscriber acknowledges that it the Subscriber has not acquired the Shares as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 0000 Xxx1933 Act) in the United States in respect of any of the Shares which would xxxxx xould include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and any applicable state and provincial securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(vp) the Subscriber is not aware of any advertisement of any of the Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingShares; and
(wq) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Shares;
(ii) that any person will refund the purchase price of any of the Shares;
(iii) as to the future price or value of any of the Shares; or
(iv) that any of the Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Shares of the Company on any stock exchange or automated dealer quotation system.
8.2 In this Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S.
Appears in 1 contract
Representations, Warranties and Covenants of the Subscriber. 8.1 The Subscriber Subscriber, on its own behalf and, if applicable, on behalf of each beneficial purchaser for whom it is acting, hereby represents and warrants to to, and covenants with, the Corporation and the Underwriter as follows as at the date hereof and as at the Closing Time and acknowledges that the Corporation and the Underwriter, and their respective counsel, are relying on such representations and warranties in connection with the Company (which representations, warranties and covenants shall survive the Closing) thattransactions contemplated herein:
(a) The Subscriber and (if applicable) each beneficial purchaser for whom it is acting is resident or, if not an individual, has its head office, in the jurisdiction set out on page 2 of this Subscription Agreement. The address set forth on page 2 of this Subscription Agreement is the residence or place of business of the Subscriber, or the residence or place of business of any beneficial purchaser for whom the Subscriber is acting, and such address was not obtained or used solely for the purpose of acquiring Flow-Through Shares and the Subscriber and any beneficial purchaser was solicited to purchase Flow-Through Shares solely in such jurisdiction. The Subscriber and, if the Subscriber is a partnership, any partner or limited partner of the partnership, or if the Subscriber is a corporation or limited liability company, any director, manager or officer, does not have and will not have prior to the Termination Date a Prescribed Relationship with the Corporation.
(b) The Subscriber is not a “U.S. Person;
” (b) as that term is defined by Regulation S under the Subscriber U.S. Securities Act, which definition includes, but is (check one not limited to, an individual resident in the United States, an estate or more trust of which any executor or administrator or trustee, respectively, is a U.S. Person and any partnership or company organized or incorporated under the laws of the following boxes):
United States (Aor any State thereof)) a director, officer, employee or control person of the Company [ ]
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Company [ ]
(C) a parent, grandparent, brother, sister or child of the spouse of a director, senior officer or control person of the Company [ ]
(D) a close personal friend of a director, senior officer or control person of the Company [ ]
(E) a close business associate of a director, senior officer or control person of the Company [ X ]
(c) if the Subscriber has checked one or more of boxes B, C, D or E in paragraph 8.1(b) above, the director(s), senior officer(s), or control person(s) of the Company with whom the Subscriber has the relationship is : ________________________________________________________________________________ ________________________________________________________________________________ (Fill in the name of each director. senior officer and control person with whom you have the above-mentioned relationship).
(d) the Subscriber is not acquiring the Flow-Through Shares for the account or benefit of, directly of a U.S. Person or indirectly, any U.S. Person;a person in the United States.
(ec) the Subscriber is resident in the jurisdiction set out under the heading "Name and Address of Subscriber" on the signature page of this Agreement and the sale of the The Flow-Through Shares have not been offered to the Subscriber as contemplated in the United States, and the individuals making the order to purchase the Flow-Through Shares and executing and delivering this Agreement complies with or is exempt from the applicable securities legislation on behalf of the jurisdiction of residence of Subscriber were not in the Subscriber;United States when the order was placed and this Subscription Agreement was executed and delivered.
(fd) The Subscriber undertakes and agrees that it will not offer or sell the Subscriber is purchasing the Shares as principal for investment purposes only and not with a view to resale or distribution and, in particular, the Subscriber has no intention to distribute, either directly or indirectly, any of the Flow-Through Shares in the United States or to unless such shares are registered under the U.S. Persons;
(g) Securities Act and the Subscriber is outside securities laws of all applicable states of the United States when receiving or an exemption from such registration requirements is available, and executing this Agreement;
(h) the Subscriber is aware further that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber has made an independent examination and investigation of an investment in the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company it will not be responsible in any way whatsoever for resell the Subscriber's decision to invest in the Flow-Through Shares and the Company;
(j) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Shares for an indefinite period of time;
(k) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto;
(m) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(n) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(o) the Subscriber understands and agrees that none of the Shares have been registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation Sapplicable securities legislation, pursuant to an effective registration statement under the 1933 Actregulations, or pursuant to an exemption fromrules, or in a transaction not subject to, the registration requirements of the 1933 Act policies and in each case only in accordance with applicable state orders and provincial securities laws;stock exchange rules.
(pe) it is The Subscriber will not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, engage in the distribution of the Shares;
(q) the Subscriber understands and agrees that offers and sales of any of the Shares prior hedging transactions with regard to the expiration of a period of one year after the date of original issuance of the Flow-Through Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made unless conducted in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;U.S. Securities Act.
(rf) the The Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(s) the Subscriber understands and agrees acknowledges that the Company Corporation and its transfer agent will refuse to register any transfer of any of the Flow-Through Shares not made in accordance with the provisions of Regulation SS of the U.S. Securities Act, pursuant to an available exemption from registration under the U.S. Securities Act or under an effective registration statement under the 1933 Act U.S. Securities Act.
(g) The Subscriber, on its own behalf and (if applicable) on behalf of each beneficial purchaser for whom it is acting, represents, warrants and certifies as set out in Schedule “A” hereto and further certifies that the Subscriber and (if applicable) each such beneficial purchaser, as the case may be, falls into one or pursuant to an available exemption from the registration requirements more of the 1933 Act;categories of prospectus exempt purchasers listed in Schedule “A” hereto (as specified by the Subscriber in such Schedule).
(th) The Subscriber has duly and properly completed, executed and delivered to the Subscriber Corporation within applicable time periods, the certificate and form set forth in Schedule “A” hereto and the representations, warranties and certifications contained therein are true and correct as at the date hereof and will be true and correct at the Closing Time.
(i) is able to fend The execution and delivery of this Subscription Agreement, the performance and compliance with the terms hereof, the subscription for itself in and purchase of the subscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Subscribed Shares and the Company; completion of the transactions described herein by the Subscriber will not result in any material breach of, or be in conflict with or constitute a material default under, or create a state of facts which, after notice or lapse of time, or both, would constitute a material default under any term or provision of the constating documents, by-laws or resolutions of the Subscriber or any beneficial purchaser for whom the Subscriber is acting, the Securities Laws or any other laws applicable to the Subscriber or any beneficial purchaser for whom the Subscriber is acting, any agreement to which the Subscriber or any beneficial purchaser for whom the Subscriber is acting is a party, or any judgment, decree, order, statute, rule or regulation applicable to the Subscriber or any beneficial purchaser for whom the Subscriber is acting.
(j) The Subscriber is subscribing for the Subscribed Shares as principal for its own account and not for the benefit of any other Person (iiiwithin the meaning of applicable Securities Laws) has and not with a view to the ability resale or distribution of all or any of the Subscribed Shares, or if it is not subscribing as principal, it acknowledges that the Corporation may be required by law to bear disclose to certain regulatory authorities the economic risks identity of its prospective investment each beneficial purchaser of the Subscribed Shares for whom it is acting and can afford agrees to provide such information.
(k) In the complete loss case of a subscription for the Subscribed Shares by the Subscriber acting as trustee or agent (including, for greater certainty, a portfolio manager or comparable adviser) for a principal, the Subscriber is duly and properly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such subscription on behalf of such investment;
(u) beneficial purchaser, who is subscribing as principal for its own account, not for the benefit of any other Person and not with a view to the resale or distribution of the Subscribed Shares, and this Subscription Agreement has been duly authorized, executed and delivered by or on behalf of and constitutes a legal, valid and binding agreement of such principal, enforceable in accordance with its terms against such principal, and the Subscriber acknowledges that it the Corporation and/or the Underwriter may be required by law to disclose the identity of such beneficial purchaser for whom the Subscriber is acting and agrees to provide information as the Corporation and/or the Underwriter may be required to disclose.
(l) In the case of a subscription for the Subscribed Shares by the Subscriber acting as principal, this Subscription Agreement has not acquired been duly and properly authorized, executed and delivered by, and constitutes a legal, valid and binding agreement of, the Subscriber. This Subscription Agreement is enforceable in accordance with its terms against the Subscriber and (if applicable) any beneficial purchaser on whose behalf the Subscriber is acting.
(m) If the Subscriber is:
(i) a corporation, the Subscriber is duly incorporated and is validly subsisting under the laws of its jurisdiction of incorporation and has all requisite legal and corporate power and authority to execute and deliver this Subscription Agreement, to subscribe for the Subscribed Shares as contemplated herein and to observe and perform its obligations under the terms of this Subscription Agreement;
(ii) a result ofpartnership, syndicate or other form of unincorporated organization, the Subscriber has the necessary legal capacity and authority to execute and deliver this Subscription Agreement on behalf of such organization and to observe and perform its covenants and obligations hereunder and has obtained all necessary approvals in respect thereof; or
(iii) an individual, the Subscriber is of the full age of majority and is legally competent to execute this Subscription Agreement and to observe and perform his or her covenants and obligations hereunder.
(n) Other than the Underwriter (and any group of investment dealers managed by the Underwriter for the purposes of offering the Flow-Through Shares for sale), there is no person acting or purporting to act in connection with the transactions contemplated herein who is entitled to any brokerage or finder’s fee. If any person claims that any fee or other compensation is payable by the Corporation or the Underwriter in connection with this subscription for the Subscribed Shares, the Subscriber covenants to indemnify and hold harmless the Corporation and the Underwriter with respect thereto and with respect to all costs reasonably incurred in the defence thereof.
(o) The Subscriber is not, with respect to the Corporation or any of its affiliates, a Control Person and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any become a Control Person by virtue of the Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any purchase of the Subscribed Shares; provided, however, that the Subscriber may sell or otherwise dispose of and does not intend to act in concert with any other person to form a Control Person of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;Corporation.
(vp) the The Subscriber is not aware purchasing Flow-Through Shares with knowledge of any advertisement of any of material fact or information concerning the Shares and is Corporation which has not acquiring been generally disclosed to the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; andpublic.
(wq) no No person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Flow-Through Shares;
(ii) that any person will refund the purchase price of any of the Shares;Subscription Price; or
(iii) as to the future price or value of the Flow-Through Shares.
(r) This subscription for Flow-Through Shares has not been made through or as a result of, and the distribution of Flow-Through Shares is not being accompanied by, any form of advertisement, including, without limitation, in printed public media, radio, television, internet or telecommunications, including electronic display, or as part of a general solicitation.
(s) None of the funds the Subscriber is using to purchase the Subscribed Shares is, to the knowledge of the Subscriber, proceeds obtained or derived, directly or directly, as a result of illegal activities.
(t) The Subscriber, and any beneficial purchaser for whom it is acting, deals at arm’s length and will continue to deal at arm’s length (within the meaning of the Tax Act and applicable Securities Laws) with the Corporation.
(u) If the Subscriber or a beneficial purchaser for whom it is acting, as the case may be, is a corporation, trust or partnership, it does not and will not have, in respect of a renunciation of Resource Expenses hereunder, a “prohibited relationship” with the Corporation within the meaning of subsection 66(12.671) of the Tax Act.
(v) Neither the Subscriber, nor any beneficial purchaser for whom it is acting, as the case may be, has or will knowingly enter into any agreement or arrangement which will cause the Flow-Through Shares to be or become “prescribed shares” for purposes of the Tax Act.
(w) The delivery of this subscription, the acceptance hereof by the Corporation and the issuance of Subscribed Shares to the Subscriber complies with all applicable laws of the Subscriber’s jurisdiction of residence and domicile and will not cause the Corporation or any of its officers or directors to become subject to or require any disclosure, prospectus or other reporting requirement to which the Shares; orCorporation is not currently subject and which is not otherwise contemplated in this Subscription Agreement.
(ivx) that any If the Subscriber is a corporation, syndicate, partnership or other form of the Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Shares of the Company on any stock exchange or automated dealer quotation system.
8.2 In this Agreemententity (other than an investment fund, as defined in National Instrument 45-106), the term "U.S. Person" shall have Subscriber was not created or is not being used solely to purchase or hold the meaning ascribed thereto Subscribed Shares and has a bona fide purpose other than investing in Regulation S.the Subscribed Shares.
Appears in 1 contract
Representations, Warranties and Covenants of the Subscriber. 8.1 3.1 The Subscriber hereby represents and represents, warrants to and covenants with to the Company (on its own behalf and, for certainty, on behalf of each Disclosed Principal, if applicable) (which representations, warranties and covenants are true and correct as at the date hereof and shall survive the ClosingClosing Date) thatthe following, and acknowledges that the Company and its counsel are relying on such representations and warranties in connection with the transactions contemplated herein:
(a) the Subscriber is resident, or if not an individual, has a U.S. Personhead office, in the jurisdiction indicated on the cover page of this Subscription Agreement and such address was not created and is not used solely for the purpose of acquiring Shares. The purchase by and sale to the Subscriber of the Shares, and any act, solicitation, conduct or negotiation directly or indirectly in furtherance of such purchase or sale (whether with or with respect to the Subscriber or any Disclosed Principal) has occurred only in such jurisdiction and in the jurisdiction of the Disclosed Principal and the investment manager, if any, of the Subscriber;
(b) the Subscriber is will not become a “control person” within the meaning of Canadian Securities Laws (check one or generally meaning a person controlling more than 20% of the following boxes):
(Aoutstanding Shares) by virtue of the purchase of the Shares, and does not intend to act in concert with any other person to form a director, officer, employee or control person group of the Company [ ]
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person in connection with the acquisition of the Company [ ]
(C) a parent, grandparent, brother, sister or child of the spouse of a director, senior officer or control person of the Company [ ]
(D) a close personal friend of a director, senior officer or control person of the Company [ ]
(E) a close business associate of a director, senior officer or control person of the Company [ X ]Shares;
(c) if the Subscriber is an “accredited investor” within the meaning of NI 45 106, it is not an individual and it was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the Subscriber Certificate, and the Subscriber has checked one or more of boxes B, C, D or E in paragraph 8.1(b) above, the director(s), senior officer(s), or control person(s) of concurrently executed and delivered to the Company with whom the Subscriber has the relationship is : ________________________________________________________________________________ ________________________________________________________________________________ (Fill Certificate in the name of each director. senior officer and control person with whom you have the above-mentioned relationship).form attached as Schedule A to this Subscription Agreement;
(d) if the Subscriber is, or is not acquiring the Shares subscribing for the account or benefit of, directly a person in the United States or indirectly, any a U.S. Person:
(i) the Subscriber agrees to the additional terms in the United States Purchasers Representation Letter attached as Schedule B hereto; and
(ii) the Subscriber (and, if applicable, such beneficial purchaser) is a U.S. Accredited Investor and the Subscriber has completed Schedule B hereto and has identified in Schedule B the appropriate category of U.S. Accredited Investor that correctly and in all respects describes the Subscriber (and, if applicable, such beneficial purchaser);
(e) if the Subscriber is resident in or otherwise subject to the securities laws of a jurisdiction set out outside of Canada and the United States (the “International Jurisdiction”), then:
(i) the Subscriber is knowledgeable of, or has been independently advised as to, any applicable securities laws of the International Jurisdiction which would apply to this subscription;
(ii) the Company is offering and selling the Shares and the Subscriber is purchasing the Subscriber Shares pursuant to exemptions from the prospectus and registration requirements under the heading "Name applicable securities laws of the International Jurisdiction or, if such is not applicable, the Company is permitted to offer and Address of Subscriber" on sell the signature page of this Agreement Subscriber Shares and the Subscriber is permitted to purchase the Subscriber Shares under the applicable securities laws of such International Jurisdiction without the need to rely on exemptions;
(iii) the applicable securities laws of the International Jurisdiction do not require the Company to prepare and/or file any documents or be subject to ongoing reporting requirements or seek any approvals of any kind whatsoever in respect of the offer and sale of the Shares to the Subscriber as contemplated from any regulatory authority of any kind whatsoever in this Agreement complies the International Jurisdiction or any other securities laws to which the Subscriber is subject; and
(iv) the Subscriber will not sell, transfer or dispose of any Securities except in accordance with all applicable laws, including applicable Canadian Securities Laws, the U.S. Securities Act or is exempt from any applicable state securities laws in the United States, and the Subscriber acknowledges that the Company shall have no obligation to register any such purported sale, transfer or disposition which violates such applicable securities legislation of the jurisdiction of residence of the Subscriberlaws;
(f) the Subscriber is purchasing the Shares as principal for investment purposes only and not with a view to resale or distribution and, in particular, the Subscriber has no intention to distribute, either directly or indirectly, any of the Shares in the United States or to U.S. Persons;
(g) the Subscriber is outside the United States when receiving and executing this Agreement;
(h) the Subscriber is aware acknowledges that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber has made an independent examination Shares have not been and investigation of an investment in the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber's decision to invest in the Shares and the Company;
(j) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Shares for an indefinite period of time;
(k) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto;
(m) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(n) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(o) the Subscriber understands and agrees that none of the Shares have been registered under the 1933 Act, U. S. Securities Act or under any state the applicable securities or "blue sky" laws of any state of the United States, and, unless so registered, (ii) the Shares may not be offered or sold in the United States orsold, directly or indirectly, in the United States or to or for the account or benefit of U. S. Persons or persons in the United States without registration under the U.S. Persons except in accordance Securities Act and any applicable securities laws of any state of the United States or compliance with requirements of an exemption from registration and, accordingly, the provisions Shares are or will be when issued, as applicable, “restricted securities” within the meaning of Regulation SRule 144(a)(3) of the U.S. Securities Act, pursuant to an effective and (iv) the Company has no present intention of filing a registration statement under the 1933 ActU.S. Securities Act in respect of the Shares, or pursuant except as contemplated under Section 5.9;
(g) to an exemption fromthe Subscriber’s knowledge, or in the current structure of the Private Placement and all transactions and activities contemplated hereunder is not a transaction not subject to, scheme to avoid the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities lawsU. S. Securities Act;
(ph) the Subscriber acknowledges that:
(i) no prospectus has been or is intended to be filed by the Company with the Ontario Securities Commission or any other securities commission in connection with the issuance of the Shares,
(ii) no securities commission or similar regulatory authority has reviewed or passed on the merits of the Securities,
(iii) there is no government or other insurance covering the Securities and there are risks associated with the purchase of the Securities,
(iv) there are restrictions on the Subscriber’s ability to resell the Securities imposed by applicable Canadian Securities Laws and U.S. securities laws and it is the responsibility of the Subscriber to find out what those restrictions are and to comply with them before reselling such Securities, and
(v) the Company has advised the Subscriber that the Company is relying on an exemption from the requirements to provide the Subscriber with a prospectus (and in the case of Subscribers who are not subject to Canadian Securities Laws, to sell securities through a person registered to sell securities under Canadian Securities Laws), and as a consequence of acquiring the Shares pursuant to this exemption:
(A) certain protections, rights and remedies provided by Canadian Securities Laws and any other applicable securities laws, including statutory rights of rescission or damages, will not be available to the Subscriber;
(B) the Subscriber may not receive information that might otherwise be required to be provided to the Subscriber under Canadian Securities Laws and any other applicable securities laws, if the exemption was not being used; and
(C) the Company is relieved from certain obligations that would otherwise apply under the applicable Canadian Securities Laws and any other applicable securities laws, if an underwriter ofexemption was not being used;
(i) the Subscriber has not received, nor has the Subscriber requested, nor does the Subscriber have any need to receive, any offering memorandum, or dealer in, any other document describing the common shares business and affairs of the Company, nor is Company in order to assist the Subscriber participatingin making an investment decision in respect of the Shares and the Subscriber has not become aware of any advertisement in printed media of general and regular paid circulation, pursuant radio or television with respect to a contractual agreement or otherwise, in the distribution of the Shares;
(qj) except for knowledge of the Private Placement, the Subscriber has no knowledge of a “material fact” or “material change” (as those terms are defined under applicable Canadian Securities Laws) in respect of the Company that has not been generally disclosed to the public;
(k) the Subscriber’s decision to subscribe for the Shares was not based upon, and the Subscriber understands and agrees that offers and sales of has not relied upon, any verbal or written representations as to fact made by or on behalf of the Shares prior to Company and their respective directors, officers, employees, agents and representatives other than the expiration of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions Company’s representations set forth in Regulation S, pursuant this Agreement. The Subscriber’s decision to subscribe for the registration provisions of Shares was based solely upon this Subscription Agreement (including the 1933 Act or an exemption therefrom, Company’s representations set forth in this Subscription Agreement) and that all offers and sales after information about the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities lawsCompany which is publicly available;
(rl) counsel to the Subscriber understands Company, Xxxxx & XxXxxxxx LLP and agrees not Xxxxxxx Procter LLP, and their respective directors, officers, employees, agents, partners and representatives assume no responsibility or liability of any nature whatsoever for the accuracy or adequacy of any such publicly available information concerning the Company or as to engage in whether all information concerning the Company that is required to be disclosed or filed by the Company under the Canadian Securities Laws and any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities lawslaws has been so disclosed or filed;
(s) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(t) the Subscriber (i) is able to fend for itself in the subscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Shares and the Company; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(um) the Subscriber acknowledges that it has not acquired the Shares as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(v) the Subscriber is not aware of any advertisement of any of the Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(w) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the SharesSecurities;
(ii) that any person will refund the purchase price of any of the Shares;Securities; or
(iii) as to the future price or value of any of the Shares; orSecurities;
(ivn) that any of the Shares will be listed and posted for Subscriber acknowledges that
(i) it has been independently advised as to restrictions with respect to trading on any stock exchange or automated dealer quotation system or that application in the Securities imposed by securities legislation in the jurisdiction in which the Subscriber resides, and
(ii) no representation has been made to list the Subscriber by or on behalf of the Company with respect to the resale of the Securities except as set forth herein;
(o) the Subscriber will not resell the Securities, except in accordance with the provisions of applicable Canadian Securities Laws and post Exchanges’ rules and policies and any other applicable securities laws;
(p) the Subscriber understands and acknowledges that upon the original issuance thereof, and until such time as the same is no longer required under applicable requirements of applicable Canadian Securities Laws and any other applicable securities laws, the Shares subscribed for hereunder will be subject to the following restriction on transfer and any certificates representing such Shares and the Underlying Shares, if issued prior to the expiry of the applicable hold periods, and any certificates issued in exchange or, if applicable, transfer, therefor or in substitution thereof, will bear the following legends in addition to any other U.S. legends that may be required to be endorsed thereon as expressly provided in this Agreement: “UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [THE DATE THAT IS FOUR MONTHS PLUS ONE DAY FROM THE CLOSING DATE].”; and with respect to the Common Shares and Underlying Shares, “THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE LISTED ON THE TORONTO STOCK EXCHANGE, HOWEVER, THE SAID SECURITIES CANNOT BE TRADED THROUGH THE FACILITIES OF SUCH EXCHANGE SINCE THEY ARE NOT FREELY TRANSFERABLE, AND CONSEQUENTLY ANY CERTIFICATE REPRESENTING SUCH SECURITIES IS NOT "GOOD DELIVERY" IN SETTLEMENT OF TRANSACTIONS ON THE TORONTO STOCK EXCHANGE.”
(q) the Subscriber consents to the Company making a notation on its records or giving instruction to the registrar and transfer agent of the Company’s securities in order to implement the restrictions on transfer set forth and described herein;
(r) the Subscriber understands and agrees that (i) so long as the Shares and the Underlying Shares are subject to any restriction on transfer, such Securities cannot be traded through the facilities of the Exchanges since such Securities are not freely transferable and consequently are not “good delivery” in settlement of transactions on the Exchanges, and (ii) the Exchanges would deem the selling security holder to be responsible for any loss incurred on a sale made by the seller in such Securities;
(s) the Subscriber has not received, nor does it expect to receive, any financial assistance from the Company, directly or indirectly, in respect of the Subscriber’s subscription for the Shares;
(t) if the Subscriber is an individual, the Subscriber is of the full age of majority and is legally competent to execute this Subscription Agreement and take all action pursuant hereto;
(u) if the Subscriber is a corporation, partnership, unincorporated association or other entity, it has the legal capacity to enter into and be bound by this Subscription Agreement and the Subscriber further certifies that all necessary approvals of directors, shareholders or otherwise have been given and obtained in connection with the Subscriber’s purchase of the Shares;
(v) this Subscription Agreement has been duly and validly authorized, executed and delivered by and constitutes a legal, valid, binding and enforceable obligation of the Subscriber (except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought, and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, may be limited by applicable law);
(w) if the Subscriber is acting as agent or trustee (including, for greater certainty, a portfolio manager or comparable adviser) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documents in connection with such subscription on behalf of such principal, and this Subscription Agreement has been duly and validly authorized, executed and delivered by or on behalf of, and, when accepted by the Company, will constitute a legal, valid and binding obligation enforceable in accordance with the terms hereof (subject to bankruptcy, insolvency and other laws limiting the enforceability of creditors’ rights and subject to the qualification that equitable remedies may only be granted in the discretion of a court of competent jurisdiction) against, such principal;
(x) if the Subscriber is not subscribing as principal, the Subscriber acknowledges that the Company may be required by law to disclose to applicable securities regulatory authorities or stock exchanges information concerning the identities of each beneficial purchaser for whom the Subscriber is acting hereunder;
(y) the Subscriber has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of the Subscriber’s investment and is able to bear the economic risks of loss of the Subscriber’s investment;
(z) the Subscriber realizes that an investment in the Shares involves a high degree of risk and will be a highly speculative investment;
(aa) if required by the TSX, the Subscriber will execute, deliver, file and otherwise assist the Company in filing, such reports, undertakings and other documents with respect to the issue of the Shares as may be required by the TSX;
(bb) the funds representing the aggregate subscription price for the Shares will not represent proceeds of crime for the purposes of the Company on any stock exchange or automated dealer quotation system.
8.2 In this Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S.Proceeds of Crime (Money
Appears in 1 contract
Samples: Subscription Agreement (Trillium Therapeutics Inc.)
Representations, Warranties and Covenants of the Subscriber. 8.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto and, if the Subscriber is not a U.S. Personcorporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution and performance of this Agreement on behalf of the Subscriber;
(b) the entering into of this Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(c) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(d) if the Subscriber is a resident of Canada, the Subscriber is (check one or more of the following boxes):
(A) a director, officer, employee executive officer or control person of the Company [ ]or an affiliate of the Company q
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior executive officer or control person of the Company [ ]or an affiliate of the Company q
(C) a parent, grandparent, brother, sister or child of the spouse of a director, senior executive officer or control person of the Company [ ]or an affiliate of the Company q
(D) a close personal friend of a director, senior executive officer or control person of the Company [ ]or an affiliate of the Company q
(E) a close business associate of a director, senior executive officer or control person of the Company [ X ]or an affiliate of the Company q
(cF) a founder of the Company or a spouse, parent, grandparent, brother, sister, child, close personal friend or close business associate of a founder of the Company q
(G) a parent, grandparent, brother, sister or child of the spouse of a founder of the Company q
(H) a company, partnership or other entity which a majority of the voting securities are beneficially owned by, or a majority of the directors are, persons or companies as described in paragraphs (A) to (G) above q
(I) purchasing as principal Shares with an aggregate value of more than CDN$150,000 q (J) an accredited investor q (e) if the Subscriber has checked one or more of boxes B, C, D D, E, F, G or E H in paragraph 8.1(b6.1(d) above, the director(s), senior executive officer(s), or control person(s) or founder(s) of the Company with whom the Subscriber has the relationship is : ________________________________________________________________________________ ________________________________________________________________________________ is:
(Fill f) If the Subscriber has ticked box J in paragraph 6.1(d)(J) above, the Subscriber acknowledges and agrees that the Company shall not consider the Subscriber's Subscription for acceptance unless the undersigned provides to the Company, along with an executed copy of this Agreement:
(i) a fully completed and executed Accredited Investor Questionnaire in the name of each director. senior officer and control person with whom you have the above-mentioned relationship).form attached as Exhibit 1 hereto; and
(dii) such other supporting documentation that the Company or its legal counsel may request to establish the Subscriber's qualification as an Accredited Investor;
(g) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(eh) the Subscriber is not a U.S. Person;
(i) the Subscriber is resident in the jurisdiction set out under the heading "“Name and Address of Subscriber" ” on the signature page of this Agreement and Agreement;
(j) the sale of the Shares to the Subscriber as contemplated in this Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(fk) the Subscriber is purchasing acquiring the Shares as principal for investment purposes only and not with a view to resale or distribution and, in particular, the Subscriber it has no intention to distribute, distribute either directly or indirectly, indirectly any of the Shares in the United States or to U.S. Persons;
(gl) the Subscriber is outside the United States when receiving and executing this Agreement;
(h) the Subscriber Agreement and is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber has made an independent examination and investigation of an investment in acquiring the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever as principal for the Subscriber's decision to invest in the Shares and the Company;
(j) the Subscriber (i) has adequate net worth and means of providing own account, for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investmentinvestment purposes only, and (iii) is able to bear the economic risks of an investment not with a view to, or for, resale, distribution or fractionalisation thereof, in the Shares for an indefinite period of time;
(k) the Subscriber understands whole or in part, and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained no other person has a direct or indirect beneficial interest in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant heretoShares;
(m) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(n) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(n) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(o) the Subscriber acknowledges that the Subscriber has not acquired the Shares as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 Xxx) in the United States in respect of the Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and provincial securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(p) the Subscriber understands and agrees that none of the Shares have been registered under the 1933 Act, or under any state securities or "“blue sky" ” laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(p) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the SharesAct;
(q) the Subscriber understands and agrees that offers and sales of any of the Shares prior to the expiration of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the "“Distribution Compliance Period"”) shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(r) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(s) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(t) the Subscriber (i) is able to fend for itself in the subscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Shares and the Company; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(u) the Subscriber acknowledges that it has not acquired the Shares as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(v) the Subscriber is not aware of any advertisement of any of the Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(wu) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Shares;
(ii) that any person will refund the purchase price of any of the Shares;
(iii) as to the future price or value of any of the Shares; or
(iv) that any of the Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Shares of the Company on any stock exchange or automated dealer quotation system.
8.2 In this Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Tombstone Exploration Corp)
Representations, Warranties and Covenants of the Subscriber. 8.1 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto and, if the Subscriber is not a U.S. Personcorporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution and performance of this Agreement on behalf of the Subscriber;
(b) the entering into of this Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(c) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(d) if the Subscriber is a resident of Canada, the Subscriber is (check one or more of the following boxes):
(A) a director, officer, employee executive officer or control person of the Company [ ]or an affiliate of the Company
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior executive officer or control person of the Company [ ]or an affiliate of the Company
(C) a parent, grandparent, brother, sister or child of the spouse of a director, senior executive officer or control person of the Company [ ]or an affiliate of the Company
(D) a close personal friend of a director, senior executive officer or control person of the Company [ ]or an affiliate of the Company
(E) a close business associate of a director, senior executive officer or control person of the Company [ X ]or an affiliate of the Company
(cF) a founder of the Company or a spouse, parent, grandparent, brother, sister, child, close personal friend or close business associate of a founder of the Company
(G) a parent, grandparent, brother, sister or child of the spouse of a founder of the Company
(H) a company, partnership or other entity which a majority of the voting securities are beneficially owned by, or a majority of the directors are, persons or companies as described in paragraphs (A) to (G) above
(I) purchasing as principal Shares with an aggregate value of more than CDN$150,000
(J) an accredited investor
(e) if the Subscriber has checked one or more of boxes B, C, D D, E, F, G or E H in paragraph 8.1(b6.1(d) above, the director(s), senior executive officer(s), or control person(s) or founder(s) of the Company with whom the Subscriber has the relationship is : ________________________________________________________________________________ ________________________________________________________________________________ is:
(Fill f) If the Subscriber has ticked box J in paragraph 6.1(d)(J) above, the Subscriber acknowledges and agrees that the Company shall not consider the Subscriber's Subscription for acceptance unless the undersigned provides to the Company, along with an executed copy of this Agreement:
(i) a fully completed and executed Accredited Investor Questionnaire in the name of each director. senior officer and control person with whom you have the above-mentioned relationship).form attached as Exhibit 1 hereto; and
(dii) such other supporting documentation that the Company or its legal counsel may request to establish the Subscriber's qualification as an Accredited Investor;
(g) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(eh) the Subscriber is not a U.S. Person;
(i) the Subscriber is resident in the jurisdiction set out under the heading "Name and Address of Subscriber" on the signature page of this Agreement and Agreement;
(j) the sale of the Shares to the Subscriber as contemplated in this Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(fk) the Subscriber is purchasing acquiring the Shares as principal for investment purposes only and not with a view to resale or distribution and, in particular, the Subscriber it has no intention to distribute, distribute either directly or indirectly, indirectly any of the Shares in the United States or to U.S. Persons;
(gl) the Subscriber is outside the United States when receiving and executing this Agreement;
(h) the Subscriber Agreement and is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber has made an independent examination and investigation of an investment in acquiring the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever as principal for the Subscriber's decision to invest in the Shares and the Company;
(j) the Subscriber (i) has adequate net worth and means of providing own account, for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investmentinvestment purposes only, and (iii) is able to bear the economic risks of an investment not with a view to, or for, resale, distribution or fractionalisation thereof, in the Shares for an indefinite period of time;
(k) the Subscriber understands whole or in part, and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained no other person has a direct or indirect beneficial interest in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant heretoShares;
(m) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(n) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(n) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(o) the Subscriber acknowledges that the Subscriber has not acquired the Shares as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 0000 Xxx) in the United States in respect of the Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and provincial securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(p) the Subscriber understands and agrees that none of the Shares have been registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(p) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the SharesAct;
(q) the Subscriber understands and agrees that offers and sales of any of the Shares prior to the expiration of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(r) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(s) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(t) the Subscriber (i) is able to fend for itself in the subscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Shares and the Company; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(u) the Subscriber acknowledges that it has not acquired the Shares as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(v) the Subscriber is not aware of any advertisement of any of the Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(wu) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Shares;
(ii) that any person will refund the purchase price of any of the Shares;
(iii) as to the future price or value of any of the Shares; or
(iv) that any of the Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Shares of the Company on any stock exchange or automated dealer quotation system.
8.2 In this Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Aurelio Resource Corp)
Representations, Warranties and Covenants of the Subscriber. 8.1 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto and, if the Subscriber is not a U.S. Personcorporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution and performance of this Agreement on behalf of the Subscriber;
(b) the entering into of this Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(c) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(d) the Subscriber is (check one or more of the following boxesCHECK ONE OR MORE OF THE FOLLOWING BOXES):
(A) a director, officer, employee executive officer or control person of the Company or an affiliate of the Company [ ]
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior executive officer or control person of the Company or an affiliate of the Company [ ]
(C) a parent, grandparent, brother, sister or child of the spouse of a director, senior executive officer or control person of the Company or an affiliate of the Company [ ]
(D) a close personal friend of a director, senior executive officer or control person of the Company or an affiliate of the Company [ ]
(E) a close business associate of a director, senior executive officer or control person of the Company or an affiliate of the Company [ X ]
(cF) a founder of the Company or a spouse, parent, grandparent, brother, sister, child, close personal friend or close business associate of a founder of the Company [ ]
(G) a parent, grandparent, brother, sister or child of the spouse of a founder of the Company [ ]
(H) a company, partnership or other entity which a majority of the voting securities are beneficially owned by, or a majority of the directors are, persons or companies as described in paragraphs (A) to (G) above [ ]
(I) purchasing as principal Shares with an aggregate value of more than CDN$150,000 [ ]
(J) an accredited investor [ ]
(e) if the Subscriber has checked one or more of boxes B, C, D D, E, F, G or E H in paragraph 8.1(b6.1(d) above, the director(s), senior executive officer(s), or control person(s) or founder(s) of the Company with whom the Subscriber has the relationship is is: ________________________________________________________________________________ ________________________________________________________________________________ ---------------------------------------------------------------------- ---------------------------------------------------------------------- (Fill in the name of each directorINSTRUCTIONS TO SUBSCRIBER: FILL IN THE NAME OF EACH DIRECTOR, EXECUTIVE OFFICER, FOUNDER AND CONTROL PERSON WHICH YOU HAVE THE ABOVE-MENTIONED RELATIONSHIP WITH. senior officer and control person with whom you have the above-mentioned relationshipIF YOU HAVE CHECKED BOX H, ALSO INDICATE WHICH OF A TO G DESCRIBES THE SECURITYHOLDERS OR DIRECTORS WHICH QUALIFY YOU AS BOX H AND PROVIDE THE NAMES OF THOSE INDIVIDUALS. PLEASE ATTACH A SEPARATE PAGE IF NECESSARY).
(df) If the Subscriber is has ticked box J in paragraph 6.1(d) above, the Subscriber acknowledges and agrees that the Company shall not acquiring consider the Shares Subscriber's Subscription for acceptance unless the account undersigned provides to the Company, along with an executed copy of this Agreement:
(i) a fully completed and executed Accredited Investor Questionnaire in the form attached as Exhibit 1 hereto; and
(ii) such other supporting documentation that the Company or benefit of, directly or indirectly, any U.S. Personits legal counsel may request to establish the Subscriber's qualification as an Accredited Investor;
(eg) the Subscriber is resident in the jurisdiction set out under the heading "Name and Address of Subscriber" on the signature page of this Agreement and Agreement;
(h) the sale of the Shares to the Subscriber as contemplated in this Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(fi) the Subscriber is purchasing acquiring the Shares as principal for investment purposes only and not with a view to resale or distribution and, in particular, the Subscriber has no intention to distribute, either directly or indirectly, any of the Shares in the United States or to U.S. Persons;
(g) the Subscriber is outside the United States when receiving and executing this Agreement;
(h) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber has made an independent examination and investigation of an investment in the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber's decision to invest in the Shares and the Companydistribution;
(j) the Subscriber (i) has adequate net worth and means of providing is acquiring the Shares as principal for its current financial needs and possible personal contingenciesthe Subscriber's own account, (ii) has no need for liquidity in this investmentinvestment purposes only, and (iii) is able to bear the economic risks of an investment not with a view to, or for, resale, distribution or fractionalisation thereof, in the Shares for an indefinite period of timewhole or in part, and no other person has a direct or indirect beneficial interest in such Shares;
(k) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto;
(m) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(n) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(ol) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(m) the Subscriber acknowledges that the Subscriber has not acquired the Shares as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 1933 Act) in the United States in respect of the Shares xxxxx xould include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and provincial securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(n) the Subscriber understands and agrees that none of the Shares have been registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities lawsAct;
(p) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(q) the Subscriber understands and agrees that offers and sales of any of the Shares prior to the expiration of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(r) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(so) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(t) the Subscriber (i) is able to fend for itself in the subscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Shares and the Company; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(u) the Subscriber acknowledges that it has not acquired the Shares as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(vp) the Subscriber is not aware of any advertisement of any of the Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(wq) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Shares;
(ii) that any person will refund the purchase price of any of the Shares;
(iii) as to the future price or value of any of the Shares; or
(iv) that any of the Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Shares of the Company on any stock exchange or automated dealer quotation system.
8.2 In this Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Zebra Resources Ltd.)
Representations, Warranties and Covenants of the Subscriber. 8.1 The Subscriber Subscriber, on its own behalf and, if applicable, on behalf of each beneficial purchaser for whom it is acting, hereby represents and warrants to to, and covenants with, the Corporation and the Underwriter as follows as at the date hereof and as at the Closing Time and acknowledges that the Corporation and the Underwriter, and their respective counsel, are relying on such representations and warranties in connection with the Company (which representations, warranties and covenants shall survive the Closing) thattransactions contemplated herein:
(a) The Subscriber and (if applicable) each beneficial purchaser for whom it is acting is resident or, if not an individual, has its head office, in the jurisdiction set out on the face page of this Subscription Agreement. The address set forth on the face page of this Subscription Agreement is the residence or place of business of the Subscriber, or the residence or place of business of any beneficial purchaser for whom the Subscriber is acting, and such address was not obtained or used solely for the purpose of acquiring Flow-Through Shares and the Subscriber and any beneficial purchaser was solicited to purchase Flow-Through Shares solely in such jurisdiction. The Subscriber and, if the Subscriber is a partnership, any partner or limited partner of the partnership, or if the Subscriber is a corporation or limited liability company, any director, manager or officer, does not have and will not have prior to the Termination Date a Prescribed Relationship with the Corporation.
(b) The Subscriber is not a “U.S. Person;
” (b) as that term is defined by Regulation S under the Subscriber U.S. Securities Act, which definition includes, but is (check one not limited to, an individual resident in the United States, an estate or more trust of which any executor or administrator or trustee, respectively, is a U.S. Person and any partnership or company organized or incorporated under the laws of the following boxes):
United States (Aor any State thereof)) a director, officer, employee or control person of the Company [ ]
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Company [ ]
(C) a parent, grandparent, brother, sister or child of the spouse of a director, senior officer or control person of the Company [ ]
(D) a close personal friend of a director, senior officer or control person of the Company [ ]
(E) a close business associate of a director, senior officer or control person of the Company [ X ]
(c) if the Subscriber has checked one or more of boxes B, C, D or E in paragraph 8.1(b) above, the director(s), senior officer(s), or control person(s) of the Company with whom the Subscriber has the relationship is : ________________________________________________________________________________ ________________________________________________________________________________ (Fill in the name of each director. senior officer and control person with whom you have the above-mentioned relationship).
(d) the Subscriber is not acquiring the Flow-Through Shares for the account or benefit of, directly of a U.S. Person or indirectly, any U.S. Person;a person in the United States.
(ec) the Subscriber is resident in the jurisdiction set out under the heading "Name and Address of Subscriber" on the signature page of this Agreement and the sale of the The Flow-Through Shares have not been offered to the Subscriber as contemplated in the United States, and the individuals making the order to purchase the Flow-Through Shares and executing and delivering this Agreement complies with or is exempt from the applicable securities legislation on behalf of the jurisdiction of residence of Subscriber were not in the Subscriber;United States when the order was placed and this Subscription Agreement was executed and delivered.
(fd) The Subscriber undertakes and agrees that it will not offer or sell the Subscriber is purchasing the Shares as principal for investment purposes only and not with a view to resale or distribution and, in particular, the Subscriber has no intention to distribute, either directly or indirectly, any of the Flow-Through Shares in the United States or to unless such shares are registered under the U.S. Persons;
(g) Securities Act and the Subscriber is outside securities laws of all applicable states of the United States when receiving or an exemption from such registration requirements is available, and executing this Agreement;
(h) the Subscriber is aware further that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber has made an independent examination and investigation of an investment in the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company it will not be responsible in any way whatsoever for resell the Subscriber's decision to invest in the Flow-Through Shares and the Company;
(j) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Shares for an indefinite period of time;
(k) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto;
(m) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(n) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(o) the Subscriber understands and agrees that none of the Shares have been registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation Sapplicable securities legislation, pursuant to an effective registration statement under the 1933 Actregulations, or pursuant to an exemption fromrules, or in a transaction not subject to, the registration requirements of the 1933 Act policies and in each case only in accordance with applicable state orders and provincial securities laws;stock exchange rules.
(pe) it is The Subscriber will not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, engage in the distribution of the Shares;
(q) the Subscriber understands and agrees that offers and sales of any of the Shares prior hedging transactions with regard to the expiration of a period of one year after the date of original issuance of the Flow-Through Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made unless conducted in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;U.S. Securities Act.
(rf) the The Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(s) the Subscriber understands and agrees acknowledges that the Company Corporation and its transfer agent will refuse to register any transfer of any of the Flow-Through Shares not made in accordance with the provisions of Regulation SS of the U.S. Securities Act, pursuant to an available exemption from registration under the U.S. Securities Act or under an effective registration statement under the 1933 Act U.S. Securities Act.
(g) The Subscriber, on its own behalf and (if applicable) on behalf of each beneficial purchaser for whom it is acting, represents, warrants and certifies as set out in Schedule "A" hereto and further certifies that the Subscriber and (if applicable) each such beneficial purchaser, as the case may be, falls into one or pursuant to an available exemption from the registration requirements more of the 1933 Act;categories of prospectus exempt purchasers listed in Schedule "A" hereto (as specified by the Subscriber in such Schedule).
(th) The Subscriber has duly and properly completed, executed and delivered to the Subscriber Corporation within applicable time periods, the certificate and form set forth in Schedule "A" hereto and the representations, warranties and certifications contained therein are true and correct as at the date hereof and will be true and correct at the Closing Time.
(i) is able to fend The execution and delivery of this Subscription Agreement, the performance and compliance with the terms hereof, the subscription for itself in and purchase of the subscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Subscribed Shares and the Company; completion of the transactions described herein by the Subscriber will not result in any material breach of, or be in conflict with or constitute a material default under, or create a state of facts which, after notice or lapse of time, or both, would constitute a material default under any term or provision of the constating documents, by-laws or resolutions of the Subscriber or any beneficial purchaser for whom the Subscriber is acting, the Securities Laws or any other laws applicable to the Subscriber or any beneficial purchaser for whom the Subscriber is acting, any agreement to which the Subscriber or any beneficial purchaser for whom the Subscriber is acting is a party, or any judgment, decree, order, statute, rule or regulation applicable to the Subscriber or any beneficial purchaser for whom the Subscriber is acting
(j) The Subscriber is subscribing for the Subscribed Shares as principal for its own account and not for the benefit of any other Person (iiiwithin the meaning of applicable Securities Laws) has and not with a view to the ability resale or distribution of all or any of the Subscribed Shares, or if it is not subscribing as principal, it acknowledges that the Corporation may be required by law to bear disclose to certain regulatory authorities the economic risks identity of its prospective investment each beneficial purchaser of the Subscribed Shares for whom it is acting and can afford agrees to provide such information.
(k) In the complete loss case of a subscription for the Subscribed Shares by the Subscriber acting as trustee or agent (including, for greater certainty, a portfolio manager or comparable adviser) for a principal, the Subscriber is duly and properly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such subscription on behalf of such investment;
(u) beneficial purchaser, who is subscribing as principal for its own account, not for the benefit of any other Person and not with a view to the resale or distribution of the Subscribed Shares, and this Subscription Agreement has been duly authorized, executed and delivered by or on behalf of and constitutes a legal, valid and binding agreement of such principal, enforceable in accordance with its terms against such principal, and the Subscriber acknowledges that it the Corporation and/or the Underwriter may be required by law to disclose the identity of such beneficial purchaser for whom the Subscriber is acting and agrees to provide information as the Corporation and/or the Underwriter may be required to disclose.
(l) In the case of a subscription for the Subscribed Shares by the Subscriber acting as principal, this Subscription Agreement has not acquired been duly and properly authorized, executed and delivered by, and constitutes a legal, valid and binding agreement of, the Subscriber. This Subscription Agreement is enforceable in accordance with its terms against the Subscriber and (if applicable) any beneficial purchaser on whose behalf the Subscriber is acting.
(m) If the Subscriber is:
(i) a corporation, the Subscriber is duly incorporated and is validly subsisting under the laws of its jurisdiction of incorporation and has all requisite legal and corporate power and authority to execute and deliver this Subscription Agreement, to subscribe for the Subscribed Shares as contemplated herein and to observe and perform its obligations under the terms of this Subscription Agreement;
(ii) a result ofpartnership, syndicate or other form of unincorporated organization, the Subscriber has the necessary legal capacity and authority to execute and deliver this Subscription Agreement on behalf of such organization and to observe and perform its covenants and obligations hereunder and has obtained all necessary approvals in respect thereof; or
(iii) an individual, the Subscriber is of the full age of majority and is legally competent to execute this Subscription Agreement and to observe and perform his or her covenants and obligations hereunder.
(n) Other than the Underwriter (and any group of investment dealers managed by the Underwriter for the purposes of offering the Flow-Through Shares for sale), there is no person acting or purporting to act in connection with the transactions contemplated herein who is entitled to any brokerage or finder’s fee. If any person claims that any fee or other compensation is payable by the Corporation or the Underwriter in connection with this subscription for the Subscribed Shares, the Subscriber covenants to indemnify and hold harmless the Corporation and the Underwriter with respect thereto and with respect to all costs reasonably incurred in the defence thereof.
(o) The Subscriber is not, with respect to the Corporation or any of its affiliates, a Control Person and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any become a Control Person by virtue of the Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any purchase of the Subscribed Shares; provided, however, that the Subscriber may sell or otherwise dispose of and does not intend to act in concert with any other person to form a Control Person of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;Corporation.
(vp) the The Subscriber is not aware purchasing Flow-Through Shares with knowledge of any advertisement of any of material fact or information concerning the Shares and is Corporation which has not acquiring been generally disclosed to the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; andpublic.
(wq) no No person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Flow-Through Shares;
(ii) that any person will refund the purchase price of any of the Shares;Subscription Price; or
(iii) as to the future price or value of the Flow-Through Shares.
(r) This subscription for Flow-Through Shares has not been made through or as a result of, and the distribution of Flow-Through Shares is not being accompanied by, any form of advertisement, including, without limitation, in printed public media, radio, television, internet or telecommunications, including electronic display, or as part of a general solicitation.
(s) None of the funds the Subscriber is using to purchase the Subscribed Shares is, to the knowledge of the Subscriber, proceeds obtained or derived, directly or directly, as a result of illegal activities.
(t) The Subscriber, and any beneficial purchaser for whom it is acting, deals at arm’s length and will continue to deal at arm’s length (within the meaning of the Tax Act and applicable Securities Laws) with the Corporation.
(u) If the Subscriber or a beneficial purchaser for whom it is acting, as the case may be, is a corporation, trust or partnership, it does not and will not have, in respect of a renunciation of Resource Expenses hereunder, a "prohibited relationship" with the Corporation within the meaning of subsection 66(12.671) of the Tax Act.
(v) Neither the Subscriber, nor any beneficial purchaser for whom it is acting, as the case may be, has or will knowingly enter into any agreement or arrangement which will cause the Flow-Through Shares to be or become "prescribed shares" for purposes of the Tax Act.
(w) The delivery of this subscription, the acceptance hereof by the Corporation and the issuance of Subscribed Shares to the Subscriber complies with all applicable laws of the Subscriber’s jurisdiction of residence and domicile and will not cause the Corporation or any of its officers or directors to become subject to or require any disclosure, prospectus or other reporting requirement to which the Shares; orCorporation is not currently subject and which is not otherwise contemplated in this Subscription Agreement.
(ivx) that any If the Subscriber is a corporation, syndicate, partnership or other form of the Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Shares of the Company on any stock exchange or automated dealer quotation system.
8.2 In this Agreemententity (other than an investment fund, as defined in National Instrument 45-106), the term "U.S. Person" shall have Subscriber was not created or is not being used solely to purchase or hold the meaning ascribed thereto Subscribed Shares and has a bona fide purpose other than investing in Regulation S.the Subscribed Shares.
Appears in 1 contract
Representations, Warranties and Covenants of the Subscriber. 8.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto and, if the Subscriber is not a U.S. Personcorporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution and performance of this Agreement on behalf of the Subscriber;
(b) the entering into of this Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(c) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(d) if the Subscriber is a resident of Canada, the Subscriber is (check one or more of the following boxes):
(A) a director, officer, employee executive officer or control person of the Company [ ]or an affiliate of the Company .
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior executive officer or control person of the Company [ ]or an affiliate of the Company .
(C) a parent, grandparent, brother, sister or child of the spouse of a director, senior executive officer or control person of the Company [ ]or an affiliate of the Company .
(D) a close personal friend of a director, senior executive officer or control person of the Company [ ]or an affiliate of the Company .
(E) a close business associate of a director, senior executive officer or control person of the Company [ X ]or an affiliate of the Company .
(cF) a founder of the Company or a spouse, parent, grandparent, brother, sister, child, close personal friend or close business associate of a founder of the Company .
(G) a parent, grandparent, brother, sister or child of the spouse of a founder of the Company .
(H) a company, partnership or other entity which a majority of the voting securities are beneficially owned by, or a majority of the directors are, persons or companies as described in paragraphs (A) to (G) above .
(I) purchasing as principal Shares with an aggregate value of more than CDN$150,000 .
(J) an accredited investor .
(e) if the Subscriber has checked one or more of boxes B, C, D D, E, F, G or E H in paragraph 8.1(b6.1(d) above, the director(s), senior executive officer(s), or control person(s) or founder(s) of the Company with whom the Subscriber has the relationship is : ________________________________________________________________________________ ________________________________________________________________________________ is:
(Fill f) If the Subscriber has ticked box J in paragraph 6.1(d)(J) above, the Subscriber acknowledges and agrees that the Company shall not consider the Subscriber's Subscription for acceptance unless the undersigned provides to the Company, along with an executed copy of this Agreement:
(i) a fully completed and executed Accredited Investor Questionnaire in the name of each director. senior officer and control person with whom you have the above-mentioned relationship).form attached as Exhibit 1 hereto; and
(dii) such other supporting documentation that the Company or its legal counsel may request to establish the Subscriber's qualification as an Accredited Investor;
(g) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(eh) the Subscriber is not a U.S. Person;
(i) the Subscriber is resident in the jurisdiction set out under the heading "“Name and Address of Subscriber" ” on the signature page of this Agreement and Agreement;
(j) the sale of the Shares to the Subscriber as contemplated in this Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(fk) the Subscriber is purchasing acquiring the Shares as principal for investment purposes only and not with a view to resale or distribution and, in particular, the Subscriber it has no intention to distribute, distribute either directly or indirectly, indirectly any of the Shares in the United States or to U.S. Persons;
(gl) the Subscriber is outside the United States when receiving and executing this Agreement;
(h) the Subscriber Agreement and is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber has made an independent examination and investigation of an investment in acquiring the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever as principal for the Subscriber's decision to invest in the Shares and the Company;
(j) the Subscriber (i) has adequate net worth and means of providing own account, for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investmentinvestment purposes only, and (iii) is able to bear the economic risks of an investment not with a view to, or for, resale, distribution or fractionalisation thereof, in the Shares for an indefinite period of time;
(k) the Subscriber understands whole or in part, and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained no other person has a direct or indirect beneficial interest in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant heretoShares;
(m) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(n) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(n) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(o) the Subscriber acknowledges that the Subscriber has not acquired the Shares as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the 0000 Xxx) in the United States in respect of the Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state and provincial securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(p) the Subscriber understands and agrees that none of the Shares have been registered under the 1933 Act, or under any state securities or "“blue sky" ” laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(p) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the SharesAct;
(q) the Subscriber understands and agrees that offers and sales of any of the Shares prior to the expiration of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the "“Distribution Compliance Period"”) shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(r) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(s) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(t) the Subscriber (i) is able to fend for itself in the subscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Shares and the Company; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(u) the Subscriber acknowledges that it has not acquired the Shares as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(v) the Subscriber is not aware of any advertisement of any of the Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(wu) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Shares;
(ii) that any person will refund the purchase price of any of the Shares;
(iii) as to the future price or value of any of the Shares; or
(iv) that any of the Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Shares of the Company on any stock exchange or automated dealer quotation system.
8.2 In this Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Sunpeaks Ventures, Inc.)
Representations, Warranties and Covenants of the Subscriber. 8.1 (a) The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ab) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is not a U.S. Personcorporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution and performance of this Subscription Agreement on behalf of the Subscriber;
(bc) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(e) if the Subscriber is resident in British Columbia and is not an Accredited Investor, the Subscriber is (check one or more of the following boxes):
(A) a director, officer, employee or control person of the Company [ ]
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Company [ ]
(C) a parent, grandparent, brother, sister or child of the spouse of a director, senior officer or control person of the Company [ ]
(D) a close personal friend of a director, senior officer or control person of the Company [ X ]
(ED) a close business associate of a director, senior officer or control person of the Company [ X ]
(cf) if the Subscriber has checked one or more of boxes B, C, C or D or E in paragraph 8.1(b6.1(d) above, the director(s), senior officer(s), or control person(s) of the Company with whom the Subscriber has the relationship is : ________________________________________________________________________________ ________________________________________________________________________________ (Fill in the name of each director. senior officer and control person with whom you have the above-mentioned relationship).:
(dg) the Subscriber is not a U.S. Person;
(h) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(ei) the Subscriber is resident in the jurisdiction set out under the heading "“Name and Address of Subscriber" ” on the signature page of this Agreement and Subscription Agreement;
(j) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(fk) the Subscriber is purchasing acquiring the Shares as principal for investment purposes only and not with a view to resale or distribution and, in particular, the Subscriber it has no intention to distribute, distribute either directly or indirectly, indirectly any of the Shares in the United States or to U.S. Persons;
(gl) the Subscriber is outside the United States when receiving and executing this Agreement;
(h) the Subscriber Subscription Agreement and is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber has made an independent examination and investigation of an investment in acquiring the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever as principal for the Subscriber's decision to invest ’s own account (except for the circumstances outlined in the Shares and the Company;
(j) the Subscriber (i) has adequate net worth and means of providing paragraph 6(o)), for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investmentinvestment purposes only, and (iii) is able to bear the economic risks of an investment not with a view to, or for, resale, distribution or fractionalisation thereof, in the Shares for an indefinite period of time;
(k) the Subscriber understands whole or in part, and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained no other person has a direct or indirect beneficial interest in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant heretoShares;
(m) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(n) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(o) the Subscriber understands and agrees that none of the Shares have been registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(p) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(q) the Subscriber understands and agrees that offers and sales of any of the Shares prior to the expiration of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(r) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(s) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(tn) the Subscriber (i) is able to fend for him/her/itself in the subscriptionSubscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares and the CompanyShares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(uo) if the Subscriber is acquiring the Shares as a fiduciary or agent for one or more investor accounts:
(i) the Subscriber has sole investment discretion with respect to each such account and it has full power to make the foregoing acknowledgements, representations and agreements on behalf of such account, and
(ii) the investor accounts for which the Subscriber acts as a fiduciary or agent satisfy the definition of an “Accredited Investor”, as the term is defined Multilateral Instrument 45-103 adopted by the British Columbia Securities Commission;
(p) the Subscriber acknowledges that it the Subscriber has not acquired the Shares as a result of, and will not itself engage in, any "“directed selling efforts" ” (as defined in Regulation S under the 0000 1000 Xxx) in the United States in respect of any of the Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(vq) the Subscriber is not aware of any advertisement of any of the Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingShares; and
(wr) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Shares;
(ii) that any person will refund the purchase price of any of the Shares;
(iii) as to the future price or value of any of the Shares; or
(iv) that any of the Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Shares of the Company on any stock exchange or automated dealer quotation system.
8.2 In this Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Service Air Group Inc)
Representations, Warranties and Covenants of the Subscriber. 8.1 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is not a U.S. Personcorporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution and performance of this Subscription Agreement on behalf of the Subscriber;
(b) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or the Company in the jurisdiction of the Subscriber's residence or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(c) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(d) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(e) if the Subscriber is resident in British Columbia or Alberta, and is not an Accredited Investor, the Subscriber is (check one or more of the following boxesCHECK ONE OR MORE OF THE FOLLOWING BOXES):
(A) a director, officer, employee or control person of the Company [ ]
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Company [ ]
(C) a parent, grandparent, brother, sister or child of the spouse close personal friend of a director, senior officer or control person of the Company [ ]
(D) a close personal friend business associate of a director, senior officer or control person of the Company [ ]
(E) a close business associate of a director, senior officer or control person of the Company [ X ]
(cf) if the Subscriber has checked one or more of boxes B, C, C or D or E in paragraph 8.1(b6.1(e) above, the director(s), senior officer(s), or control person(s) of the Company with whom the Subscriber has the relationship is is: ________________________________________________________________________________ ________________________________________________________________________________ ------------------------------------------------------- ------------------------------------------------------- ------------------------------------------------------- (Fill in the name of each directorFILL IN THE NAME OF EACH DIRECTOR. senior officer and control person with whom you have the aboveSENIOR OFFICER AND CONTROL PERSON WHICH YOU HAVE THE ABOVE-mentioned relationshipMENTIONED RELATIONSHIP WITH).
(dg) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any a U.S. Person;
(eh) the Subscriber is resident in the jurisdiction set out under the heading "Name and Address of Subscriber" on the signature page of this Agreement and Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(fj) the Subscriber is purchasing acquiring the Shares as principal for investment purposes only and not with a view to resale or distribution and, in particular, the Subscriber it has no intention to distribute, distribute either directly or indirectly, indirectly any of the Shares in the United States or to U.S. Persons;
(gk) the Subscriber is outside the United States when receiving and executing this Agreement;
(h) the Subscriber Subscription Agreement and is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber has made an independent examination and investigation of an investment in acquiring the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever as principal for the Subscriber's decision to invest own account (except for the circumstances outlined in the Shares and the Company;
(jparagraph 6.1(n)) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investmentinvestment purposes only, and (iii) is able to bear the economic risks of an investment not with a view to, or for, resale, distribution or fractionalisation thereof, in the Shares for an indefinite period of time;
(k) the Subscriber understands whole or in part, and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained no other person has a direct or indirect beneficial interest in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the CompanyShares;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto;
(m) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(n) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(o) the Subscriber understands and agrees that none of the Shares have been registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(p) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(q) the Subscriber understands and agrees that offers and sales of any of the Shares prior to the expiration of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(r) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(s) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(tm) the Subscriber (i) is able to fend for him/her/itself in the subscriptionSubscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares and the CompanyShares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(un) if the Subscriber is acquiring the Shares as a fiduciary or agent for one or more investor accounts:
(i) the Subscriber has sole investment discretion with respect to each such account and it has full power to make the foregoing acknowledgements, representations and agreements on behalf of such account, and
(ii) the investor accounts for which the Subscriber acts as a fiduciary or agent satisfy the definition of an "Accredited Investor", as the term is adopted by the British Columbia and Alberta Securities Commissions;
(o) the Subscriber acknowledges that it the Subscriber has not acquired the Shares as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 0000 Xxx1933 Act) in the United States in respect of any of the Shares which would xxxxx xould include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and any applicable state and provincial securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(vp) the Subscriber is not aware of any advertisement of any of the Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingShares; and
(wq) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Shares;
(ii) that any person will refund the purchase price of any of the Shares;
(iii) as to the future price or value of any of the Shares; or
(iv) that any of the Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Shares of the Company on any stock exchange or automated dealer quotation system.
8.2 In this Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (VB Trade Inc)
Representations, Warranties and Covenants of the Subscriber. 8.1 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is not a U.S. Personcorporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution and performance of this Subscription Agreement on behalf of the Subscriber;
(b) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or the Company in the jurisdiction of the Subscriber's residence or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(c) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(d) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(e) if the Subscriber is resident in British Columbia and is not an Accredited Investor, the Subscriber is (check one or more of the following boxesCHECK ONE OR MORE OF THE FOLLOWING BOXES):
(A) a director, officer, employee or control person of the Company [ ]
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Company [ ]
(C) a parent, grandparent, brother, sister or child of the spouse close personal friend of a director, senior officer or control person of the Company [ ]
(D) a close personal friend business associate of a director, senior officer or control person of the Company [ ]
(E) a close business associate of a director, senior officer or control person of the Company [ X ]
(cf) if the Subscriber has checked one or more of boxes B, C, C or D or E in paragraph 8.1(b6.1(e) above, the director(s), senior officer(s), or control person(s) of the Company with whom the Subscriber has the relationship is : ________________________________________________________________________________ ________________________________________________________________________________ ------------------------------------------------------- ------------------------------------------------------- ------------------------------------------------------- (Fill in the name of each directorFILL IN THE NAME OF EACH DIRECTOR. senior officer and control person with whom you have the aboveSENIOR OFFICER AND CONTROL PERSON WHICH YOU HAVE THE ABOVE-mentioned relationshipMENTIONED RELATIONSHIP WITH).
(dg) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any a U.S. Person;
(eh) the Subscriber is resident in the jurisdiction set out under the heading "Name and Address of Subscriber" on the signature page of this Agreement and Subscription Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(fj) the Subscriber is purchasing acquiring the Shares as principal for investment purposes only and not with a view to resale or distribution and, in particular, the Subscriber it has no intention to distribute, distribute either directly or indirectly, indirectly any of the Shares in the United States or to U.S. Persons;
(gk) the Subscriber is outside the United States when receiving and executing this Agreement;
(h) the Subscriber Subscription Agreement and is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber has made an independent examination and investigation of an investment in acquiring the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever as principal for the Subscriber's decision to invest own account (except for the circumstances outlined in the Shares and the Company;
(jparagraph 6.1(n)) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investmentinvestment purposes only, and (iii) is able to bear the economic risks of an investment not with a view to, or for, resale, distribution or fractionalisation thereof, in the Shares for an indefinite period of time;
(k) the Subscriber understands whole or in part, and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained no other person has a direct or indirect beneficial interest in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the CompanyShares;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto;
(m) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(n) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(o) the Subscriber understands and agrees that none of the Shares have been registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(p) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(q) the Subscriber understands and agrees that offers and sales of any of the Shares prior to the expiration of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(r) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(s) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(tm) the Subscriber (i) is able to fend for him/her/itself in the subscriptionSubscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares and the CompanyShares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(un) if the Subscriber is acquiring the Shares as a fiduciary or agent for one or more investor accounts:
(i) the Subscriber has sole investment discretion with respect to each such account and it has full power to make the foregoing acknowledgements, representations and agreements on behalf of such account, and
(ii) the investor accounts for which the Subscriber acts as a fiduciary or agent satisfy the definition of an "Accredited Investor", as the term is defined in MI 45-103 adopted by the British Columbia Securities Commission;
(o) the Subscriber acknowledges that it the Subscriber has not acquired the Shares as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 0000 Xxx1933 Act) in the United States in respect of any of the Shares which would xxxxx xould include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and any applicable state and provincial securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(vp) the Subscriber is not aware of any advertisement of any of the Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingShares; and
(wq) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Shares;
(ii) that any person will refund the purchase price of any of the Shares;
(iii) as to the future price or value of any of the Shares; or
(iv) that any of the Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Shares of the Company on any stock exchange or automated dealer quotation system.
8.2 In this Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Powerraise Inc)
Representations, Warranties and Covenants of the Subscriber. 8.1 4.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto and, if the Subscriber is not a U.S. Personcorporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution and performance of this Agreement on behalf of the Subscriber;
(b) the entering into of this Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(c) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(d) the Subscriber is (check one or more of the following boxes):
(A) a director, officer, employee or control person of the Company [ ]
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Company [ ]
(C) a parent, grandparent, brother, sister or child of the spouse of a director, senior officer or control person of the Company [ ]
(D) a close personal friend of a director, senior officer or control person of the Company Comapny [ ]
(E) a close business associate of a director, senior officer or control person of the Company [ X ]
(ce) if the Subscriber has checked one or more of boxes boxes, B, C, D or E in paragraph 8.1(b4.1(d) above, the director(s), senior officer(s), or control person(s) of the Company with whom the Subscriber has the a relationship is : ________________________________________________________________________________ ________________________________________________________________________________ (Fill in the name of each director. senior officer and control person with whom you have the above-mentioned relationship).is:
(df) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(eg) the Subscriber is not a U.S. Person;
(h) the Subscriber is resident in the jurisdiction set out under the heading "Name and Address of Subscriber" on the signature page of this Agreement and Agreement;
(i) the sale of the Shares to the Subscriber as contemplated in this Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(fj) the Subscriber is purchasing acquiring the Shares as principal for investment purposes only and not with a view to resale or distribution and, in particular, the Subscriber it has no intention to distribute, distribute either directly or indirectly, indirectly any of the Shares in the United States or to U.S. Persons;
(gk) the Subscriber is outside the United States when receiving and executing this Agreement;
(h) the Subscriber Agreement and is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber has made an independent examination and investigation of an investment in acquiring the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever as principal for the Subscriber's decision to invest in the Shares and the Company;
(j) the Subscriber (i) has adequate net worth and means of providing own account, for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investmentinvestment purposes only, and (iii) is able to bear the economic risks of an investment not with a view to, or for, resale, distribution or fractionalisation thereof, in the Shares for an indefinite period of time;
(k) the Subscriber understands whole or in part, and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained no other person has a direct or indirect beneficial interest in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the CompanyShares;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto;
(m) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(n) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(m) the Subscriber (i) is able to fend for him/her/itself in the Subscription; (ii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(n) the Subscriber acknowledges that the Subscriber has not acquired the Shares as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 0000 Xxx) in the United States in respect of the Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of the Shares pursuant to registration of the Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(o) the Subscriber understands and agrees that none of the Shares have been registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities lawsAct;
(p) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(q) the Subscriber understands and agrees that offers and sales of any of the Shares prior to the expiration of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(rq) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(sr) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(t) the Subscriber (i) is able to fend for itself in the subscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Shares and the Company; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(u) the Subscriber acknowledges that it has not acquired the Shares as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(vs) the Subscriber is not aware of any advertisement of any of the Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(wt) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Shares;,
(ii) that any person will refund the purchase price of any of the Shares;,
(iii) as to the future price or value of any of the Shares; , or
(iv) that any of the Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Shares of the Company on any stock exchange or automated dealer quotation system.
8.2 In this Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Fundstech Corp)
Representations, Warranties and Covenants of the Subscriber. 8.1 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is not a U.S. Personcorporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution and performance of this Subscription Agreement on behalf of the Subscriber;
(b) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(c) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(d) the Subscriber is not acquiring the Units for the account or benefit of, directly or indirectly, any U.S. Person, as that term is defined in Regulation S;
(e) the Subscriber is (check one or more of the following boxes):
(A) a director, officer, employee executive officer or control person of the Company or an affiliate of the Company [ ]
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior executive officer or control person of the Company or an affiliate of the Company [ ]
(C) a parent, grandparent, brother, sister or child of the spouse of a director, senior executive officer or control person of the Company or an affiliate of the Company [ ]
(D) a close personal friend of a director, senior executive officer or control person of the Company or an affiliate of the Company [ ]
(E) a close business associate of a director, senior executive officer or control person of the Company or an affiliate of the Company [ X ]
(cF) a founder of the Company or a spouse, parent, grandparent, brother, sister, child, close personal friend or close business associate of a founder of the Company [ ]
(G) a parent, grandparent, brother, sister or child of the spouse of a founder of the Company [ ]
(H) a company, partnership or other entity which a majority of the voting securities are beneficially owned by, or a majority of the directors are, persons or companies as described in paragraphs (A) to (G) above [ ]
(I) purchasing as principal Shares with an aggregate value of more than CDN$150,000 [ ]
(J) an accredited investor [ ]
(f) if the Subscriber has checked one or more of boxes B, C, D D, E, F, G or E H in paragraph 8.1(b6.1 (e) above, the director(s), senior executive officer(s), or control person(s) or founder(s) of the Company with whom the Subscriber has the relationship is is: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________
(g) if the Subscriber has checked any box in paragraph 6.1(e) above, state the name of the person with whom the Subscriber has the relationship indicated or the position held by the Subscriber to qualify the Subscriber _______________________________________________________ _______________________________________________________ _______________________________________________________ to check that box:
(Fill h) If the Subscriber has ticked box J in paragraph 6.1(e) above, the Subscriber acknowledges and agrees that the Company shall not consider the Subscriber's Subscription for acceptance unless the undersigned provides to the Company, along with an executed copy of this Agreement:
(i) a fully completed and executed Accredited Investor Questionnaire in the name of each director. senior officer and control person with whom you have the above-mentioned relationship).form attached as Exhibit 1 hereto; and
(dii) such other supporting documentation that the Company or its legal counsel may request to establish the Subscriber's qualification as an Accredited Investor;
(i) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any a U.S. Person, as that term is defined in Regulation S;
(ej) the Subscriber is resident in the jurisdiction set out under the heading "“Name and Address of Subscriber" ” on the signature page of this Agreement and Subscription Agreement;
(k) the sale of the Shares Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(fl) the Subscriber is purchasing acquiring the Shares as principal Units for investment purposes only and not with a view to resale or distribution and, in particular, the Subscriber it has no intention to distribute, distribute either directly or indirectly, indirectly any of the Shares Units in the United States or to U.S. Persons, as that term is defined in Regulation S;
(gm) the Subscriber is outside the United States when receiving and executing this Agreement;
(h) Subscription Agreement and is acquiring the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber has made an independent examination and investigation of an investment in the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever Units as principal for the Subscriber's decision to invest ’s own account (except for the circumstances outlined in the Shares and the Company;
(jparagraph 6.1(n) the Subscriber (ibelow) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investmentinvestment purposes only, and (iii) is able to bear the economic risks of an investment not with a view to, or for, resale, distribution or fractionalisation thereof, in the Shares for an indefinite period of time;
(k) the Subscriber understands whole or in part, and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained no other person has a direct or indirect beneficial interest in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto;
(m) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its termsUnits;
(n) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the SharesUnits;
(o) the Subscriber understands and agrees that none of the Shares have been registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(p) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(q) the Subscriber understands and agrees that offers and sales of any of the Shares prior to the expiration of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(r) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(s) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(t) the Subscriber (i) is able to fend for him/her/itself in the subscriptionSubscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares and the CompanyUnits; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(up) if the Subscriber is acquiring the Units as a fiduciary or agent for one or more investor accounts:
(i) the Subscriber has sole investment discretion with respect to each such account and it has full power to make the foregoing acknowledgements, representations and agreements on behalf of such account, and
(ii) the investor accounts for which the Subscriber acts as a fiduciary or agent satisfy the definition of an “Accredited Investor”, as the term is defined in the Canadian National Instrument NI 45-106;
(q) the Subscriber acknowledges that it the Subscriber has not acquired the Shares Units as a result of, and will not itself engage in, any "“directed selling efforts" ” (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares Units which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the SharesUnits; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares Units pursuant to registration of any of the Shares Units pursuant to the 1933 Act and any applicable state and provincial securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(vr) the Subscriber is not aware of any advertisement of any of the Shares and is not acquiring the Shares as a result of any form of general solicitation Units or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingSecurities; and
(ws) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the SharesUnits;
(ii) that any person will refund the purchase price of any of the SharesUnits;
(iii) as to the future price or value of any of the SharesUnits; or
(iv) that any of the Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Shares of the Company on any stock exchange or automated dealer quotation system; except that the Company’s Common Stock is currently approved for trading on the U.S. Over the Counter Bulletin Board.
8.2 In this Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Raptor Pharmaceuticals Corp.)
Representations, Warranties and Covenants of the Subscriber. 8.1 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is not a U.S. Personcorporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution and performance of this Subscription Agreement on behalf of the Subscriber;
(b) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(c) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(d) if the Subscriber is resident in British Columbia and is not an Accredited Investor, the Subscriber is (check one or more of the following boxes):
(A) a director, officer, employee or control person of the Company [ ]
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Company [ ]
(C) a parent, grandparent, brother, sister or child of the spouse close personal friend of a director, senior officer or control person of the Company [ ]
(D) a close personal friend business associate of a director, senior officer or control person of the Company [ ]
(E) a close business associate of a director, senior officer or control person of the Company [ X ]
(ce) if the Subscriber has checked one or more of boxes B, C, C or D or E in paragraph 8.1(b6.1(a) above, the director(s), senior officer(s), or control person(s) of the Company with whom the Subscriber has the relationship is : ________________________________________________________________________________ ________________________________________________________________________________ (Fill in the name of each director. senior officer and control person with whom you have the above-mentioned relationship).:
(df) the Subscriber is not a U.S. Person;
(g) the Subscriber is not acquiring the Shares Securities for the account or benefit of, directly or indirectly, any U.S. Person;
(eh) the Subscriber is resident in the jurisdiction set out under the heading "“Name and Address of Subscriber" ” on the signature page of this Agreement and Subscription Agreement;
(i) the sale of the Shares Securities to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(fj) the Subscriber is purchasing acquiring the Shares as principal Securities for investment purposes only and not with a view to resale or distribution and, in particular, the Subscriber it has no intention to distribute, distribute either directly or indirectly, indirectly any of the Shares Securities in the United States or to U.S. Persons;
(gk) the Subscriber is outside the United States when receiving and executing this Agreement;
(h) Subscription Agreement and is acquiring the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber has made an independent examination and investigation of an investment in the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever Securities as principal for the Subscriber's decision to invest ’s own account (except for the circumstances outlined in the Shares and the Company;
(j) the Subscriber (i) has adequate net worth and means of providing paragraph 6.1(n)), for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investmentinvestment purposes only, and (iii) is able to bear the economic risks of an investment not with a view to, or for, resale, distribution or fractionalisation thereof, in the Shares for an indefinite period of time;
(k) the Subscriber understands whole or in part, and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained no other person has a direct or indirect beneficial interest in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the CompanySecurities;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto;
(m) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(n) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the SharesSecurities;
(o) the Subscriber understands and agrees that none of the Shares have been registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(p) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(q) the Subscriber understands and agrees that offers and sales of any of the Shares prior to the expiration of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(r) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(s) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(tm) the Subscriber (i) is able to fend for him/her/itself in the subscriptionSubscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares and the CompanySecurities; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(un) if the Subscriber is acquiring the Securities as a fiduciary or agent for one or more investor accounts:
(i) the Subscriber has sole investment discretion with respect to each such account and it has full power to make the foregoing acknowledgements, representations and agreements on behalf of such account, and
(ii) the investor accounts for which the Subscriber acts as a fiduciary or agent satisfy the definition of an “Accredited Investor”, as the term is defined Multilateral Instrument 45-103 adopted by the British Columbia Securities Commission;
(o) the Subscriber acknowledges that it the Subscriber has not acquired the Shares Securities as a result of, and will not itself engage in, any "“directed selling efforts" ” (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the SharesSecurities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares Securities pursuant to registration of any of the Shares Securities pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(vp) the Subscriber is not aware of any advertisement of any of the Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingSecurities; and
(wq) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the SharesSecurities;
(ii) that any person will refund the purchase price of any of the SharesSecurities;
(iii) as to the future price or value of any of the SharesSecurities; or
(iv) that any of the Shares Securities will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Shares Securities of the Company on any stock exchange or automated dealer quotation system, except that currently certain market makers make market in the common shares of the Company on the OTC Bulletin Board.
8.2 In this Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Liberty Star Gold Corp)
Representations, Warranties and Covenants of the Subscriber. 8.1 5.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the entering into of this Subscription Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is not a U.S. Personor may be bound;
(b) the Subscriber is (check one or more has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the following boxes):
(A) a director, officer, employee or control person of Subscriber enforceable against the Company [ ]
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Company [ ]
(C) a parent, grandparent, brother, sister or child of the spouse of a director, senior officer or control person of the Company [ ]
(D) a close personal friend of a director, senior officer or control person of the Company [ ]
(E) a close business associate of a director, senior officer or control person of the Company [ X ]Subscriber in accordance with its terms;
(c) if the Subscriber has checked one or more of boxes B, C, D or E in paragraph 8.1(b) above, the director(s), senior officer(s), or control person(s) of the Company with whom the Subscriber has the relationship is : ________________________________________________________________________________ ________________________________________________________________________________ (Fill requisite knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the name of each director. senior officer Shares and control person with whom you have the above-mentioned relationship).Company;
(d) all information contained in the Subscriber Acknowledgment Letter is not acquiring complete and accurate and may be relied upon by the Shares for the account or benefit of, directly or indirectly, any U.S. PersonCompany;
(e) the Subscriber is resident in the jurisdiction set out under the heading "Name and Address of Subscriber" on the signature page of this Agreement and the sale of the Shares to the Subscriber as contemplated in this Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the SubscriberSubscription Agreement;
(f) the Subscriber is purchasing acquiring the Shares as principal for the Subscriber's own account, for investment purposes only only, and not with a view to resale to, or for, resale, distribution andor fractionalisation thereof, in particularwhole or in part, the Subscriber and no other person has no intention to distribute, either directly a direct or indirectly, any of the Shares indirect beneficial interest in the United States or to U.S. PersonsShares;
(g) the Subscriber is outside the United States when receiving and executing this Agreement;
(h) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber has made an independent examination and investigation of an investment in the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber's decision to invest in the Shares and the Company;
(j) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Shares for an indefinite period of time;
(k) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto;
(m) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(n) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(o) the Subscriber understands and agrees that none of the Shares have been registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(p) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(q) the Subscriber understands and agrees that offers and sales of any of the Shares prior to the expiration of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(r) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(s) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(t) the Subscriber (i) is able to fend for itself in the subscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Shares and the Company; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(u) the Subscriber acknowledges that it has not acquired the Shares as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(vh) the Subscriber is not aware of any advertisement of pertaining to the Company or any of the Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingShares; and
(wi) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Shares;
(ii) that any person will refund the purchase price of any of the Shares;
(iii) as to the future price or value of any of the Shares; or
(iv) that any of the Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Shares of the Company on any stock exchange or automated dealer quotation system, except that currently certain market makers make market in the common shares of the Company on the OTC Bulletin Board.
8.2 In this Agreement(j) the subscriber is aware that he will not be able to rely on the resale provisions of Multilateral Instrument 45-102, adopted by the term "U.S. Person" shall have BC Securities Commission, and that any subsequent trade in the meaning ascribed thereto Shares in Regulation S.any Province or territory of Canada will be a distribution subject to the prospectus and registration requirements of Canadian securities legislation, to the extent that the trade is at that time subject to any such Canadian securities legislation.
Appears in 1 contract
Samples: Lease Purchase and Sale Agreement (Scarab Systems Inc)
Representations, Warranties and Covenants of the Subscriber. 8.1 6.1 The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(a) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto and, if the Subscriber is not a U.S. Personcorporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution and performance of this Agreement on behalf of the Subscriber;
(b) the entering into of this Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(c) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(d) the Subscriber is (check tick one or more of the following boxes):
(A) a director, executive officer, employee or control person of the Company or an affiliate of the Company [ ]
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer executive officer, founder or control person of the Company or an affiliate of the Company [ ]
(C) a parent, grandparent, brother, sister or child of the spouse of a director, senior officer executive officer, founder or control person of the Company or an affiliate of the Company [ ]
(D) a close personal friend of a director, senior officer executive officer, founder or control person of the Company [ ]
(E) a close business associate of a director, senior officer executive officer, founder or control person of the Company or an affiliate of the Company [ X ]
(cF) an accredited investor [ ]
(G) a company, partnership or other entity of which a majority of the voting securities are beneficially owned by, or a majority of the directors are, persons described in paragraphs A to F [ ]
(H) a trust or estate of which all of the beneficiaries or a majority of the trustees or executors are persons described in paragraphs A to F [ ]
(I) purchasing as principal Units with an aggregate acquisition cost of not less than CDN$150,000 [ ]
(e) if the Subscriber has checked ticked one or more of boxes B, C, D D, E, G or E H in paragraph 8.1(bSection 6.1(d) above, the director(s)director, senior officer(s)executive officer, founder or control person(s) person of the Company with whom the Subscriber undersigned has the relationship is : ________________________________________________________________________________ ________________________________________________________________________________ (Fill in the name of each director. senior officer and control person with whom you have the above-mentioned relationship).
(d) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(e) the Subscriber is resident in the jurisdiction set out under the heading "Name and Address of Subscriber" on the signature page of this Agreement and the sale of the Shares to the Subscriber as contemplated in this Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(f) the Subscriber is purchasing the Shares as principal for investment purposes only and not with a view to resale or distribution and, in particular, the Subscriber has no intention to distribute, either directly or indirectly, any of the Shares in the United States or to U.S. Persons;
(g) the Subscriber is outside the United States when receiving and executing this Agreement;
(h) the Subscriber is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber has made an independent examination and investigation of an investment in the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever for the Subscriber's decision to invest in the Shares and the Company;
(j) the Subscriber (i) has adequate net worth and means of providing for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investment, and (iii) is able to bear the economic risks of an investment in the Shares for an indefinite period of time;
(k) the Subscriber understands and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto;
(m) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(n) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(o) the Subscriber understands and agrees that none of the Shares have been registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(p) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(q) the Subscriber understands and agrees that offers and sales of any of the Shares prior to the expiration of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(r) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(s) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(t) the Subscriber (i) is able to fend for itself in the subscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Shares and the Company; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(u) the Subscriber acknowledges that it has not acquired the Shares as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 0000 Xxx) in the United States in respect of any of the Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(v) the Subscriber is not aware of any advertisement of any of the Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(w) no person has made to the Subscriber any written or oral representationsis:
(i) that any person will resell or repurchase any of the Shares;
(ii) that any person will refund the purchase price of any of the Shares;
(iii) as to the future price or value of any of the Shares; or
(iv) that any of the Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Shares of the Company on any stock exchange or automated dealer quotation system.
8.2 In this Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Pan American Gold Corp)
Representations, Warranties and Covenants of the Subscriber. 8.1 (a) The Subscriber hereby represents and warrants to and covenants with the Company (which representations, warranties and covenants shall survive the Closing) that:
(ab) the Subscriber has the legal capacity and competence to enter into and execute this Subscription Agreement and to take all actions required pursuant hereto and, if the Subscriber is not a U.S. Personcorporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution and performance of this Subscription Agreement on behalf of the Subscriber;
(bc) the entering into of this Subscription Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(d) the Subscriber has duly executed and delivered this Subscription Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber;
(e) if the Subscriber is resident in British Columbia and is not an Accredited Investor, the Subscriber is (check one or more of the following boxes):
(A) a director, officer, employee or control person of the Company [ ]o
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Company [ ]o
(C) a parent, grandparent, brother, sister or child of the spouse of a director, senior officer or control person of the Company [ ]
(D) a close personal friend of a director, senior officer or control person of the Company [ X ]
(ED) a close business associate of a director, senior officer or control person of the Company [ X ]
(cf) if the Subscriber has checked one or more of boxes B, C, C or D or E in paragraph 8.1(b6.1(d) above, the director(s), senior officer(s), or control person(s) of the Company with whom the Subscriber has the relationship is : ________________________________________________________________________________ ________________________________________________________________________________ (Fill in the name of each director. senior officer and control person with whom you have the above-mentioned relationship).:
(dg) the Subscriber is not a U.S. Person;
(h) the Subscriber is not acquiring the Shares for the account or benefit of, directly or indirectly, any U.S. Person;
(ei) the Subscriber is resident in the jurisdiction set out under the heading "“Name and Address of Subscriber" ” on the signature page of this Agreement and Subscription Agreement;
(j) the sale of the Shares to the Subscriber as contemplated in this Subscription Agreement complies with or is exempt from the applicable securities legislation of the jurisdiction of residence of the Subscriber;
(fk) the Subscriber is purchasing acquiring the Shares as principal for investment purposes only and not with a view to resale or distribution and, in particular, the Subscriber it has no intention to distribute, distribute either directly or indirectly, indirectly any of the Shares in the United States or to U.S. Persons;
(gl) the Subscriber is outside the United States when receiving and executing this Agreement;
(h) the Subscriber Subscription Agreement and is aware that an investment in the Company is speculative and involves certain risks, including the possible loss of the entire investment;
(i) the Subscriber has made an independent examination and investigation of an investment in acquiring the Shares and the Company and has depended on the advice of its legal and financial advisors and agrees that the Company will not be responsible in any way whatsoever as principal for the Subscriber's decision to invest ’s own account (except for the circumstances outlined in the Shares and the Company;
(j) the Subscriber (i) has adequate net worth and means of providing paragraph 6(o)), for its current financial needs and possible personal contingencies, (ii) has no need for liquidity in this investmentinvestment purposes only, and (iii) is able to bear the economic risks of an investment not with a view to, or for, resale, distribution or fractionalisation thereof, in the Shares for an indefinite period of time;
(k) the Subscriber understands whole or in part, and agrees that the Company and others will rely upon the truth and accuracy of the acknowledgements, representations and agreements contained no other person has a direct or indirect beneficial interest in this Agreement and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber shall promptly notify the Company;
(l) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant heretoShares;
(m) the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber in accordance with its terms;
(n) the Subscriber is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(o) the Subscriber understands and agrees that none of the Shares have been registered under the 1933 Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(p) it is not an underwriter of, or dealer in, the common shares of the Company, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Shares;
(q) the Subscriber understands and agrees that offers and sales of any of the Shares prior to the expiration of a period of one year after the date of original issuance of the Shares (the one year period hereinafter referred to as the "Distribution Compliance Period") shall only be made in compliance with the safe harbor provisions set forth in Regulation S, pursuant to the registration provisions of the 1933 Act or an exemption therefrom, and that all offers and sales after the Distribution Compliance Period shall be made only in compliance with the registration provisions of the 1933 Act or an exemption therefrom and in each case only in accordance with applicable state and provincial securities laws;
(r) the Subscriber understands and agrees not to engage in any hedging transactions involving any of the Shares unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state and provincial securities laws;
(s) the Subscriber understands and agrees that the Company will refuse to register any transfer of the Shares not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act;
(tn) the Subscriber (i) is able to fend for him/her/itself in the subscriptionSubscription; (ii) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares and the CompanyShares; and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment;
(uo) if the Subscriber is acquiring the Shares as a fiduciary or agent for one or more investor accounts:
(i) the Subscriber has sole investment discretion with respect to each such account and it has full power to make the foregoing acknowledgements, representations and agreements on behalf of such account, and
(ii) the investor accounts for which the Subscriber acts as a fiduciary or agent satisfy the definition of an “Accredited Investor”, as the term is defined Multilateral Instrument 45-103 adopted by the British Columbia Securities Commission;
(p) the Subscriber acknowledges that it the Subscriber has not acquired the Shares as a result of, and will not itself engage in, any "“directed selling efforts" ” (as defined in Regulation S under the 0000 1000 Xxx) in the United States in respect of any of the Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Shares; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares pursuant to registration of any of the Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;
(vq) the Subscriber is not aware of any advertisement of any of the Shares and is not acquiring the Shares as a result of any form of general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertisingShares; and
(wr) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Shares;
(ii) that any person will refund the purchase price of any of the Shares;
(iii) as to the future price or value of any of the Shares; or
(iv) that any of the Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the Shares of the Company on any stock exchange or automated dealer quotation system.
8.2 In this Agreement, the term "U.S. Person" shall have the meaning ascribed thereto in Regulation S.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Service Air Group Inc)
