Representations, Warranties, Covenants and Acknowledgements of the Subscriber. The Subscriber, on its own behalf and on behalf of any disclosed principal for whom the Subscriber is contracting under this Subscription Agreement, hereby represents, warrants, acknowledges and covenants to the Manager and to the Fund that: (a) if an individual, the Subscriber is of the age of majority and has the capacity and competence to enter into and be bound by this Subscription Agreement and all other agreements contemplated hereby and this Subscription Agreement constitutes a legal, valid and binding agreement enforceable against the Subscriber in accordance with its terms; (b) if the Subscriber is an incorporated entity: (i) the Subscriber is a valid and subsisting corporation and is in good standing under the laws of the jurisdiction of its incorporation; (ii) the Subscriber has the corporate capacity and authority to execute and deliver this Subscription Agreement and to observe and perform its obligations hereunder; (iii) this Subscription Agreement has been duly authorized, executed and delivered by the Subscriber and is a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms; and (iv) the execution and delivery of this Subscription Agreement by the Subscriber will not result in the violation of, or constitute a default under, or conflict with or cause the acceleration of any obligation of the Subscriber under (a) any contract to which the Subscriber is a party or by which it is bound; (b) any provision of the constating documents of the Subscriber; or (c) any judgment, decree, order or award of any court, government body or arbitrator having jurisdiction over the Subscriber; (c) the Subscriber is a resident in or otherwise subject to the securities laws of the province or territory of Canada set forth on the second page of this Subscription Agreement, and if the Subscriber is acting as agent for a disclosed principal, the disclosed principal is resident in or otherwise subject to the securities laws of province or territory set out on the second page of this Subscription Agreement; (d) if the Subscriber is purchasing the Units as trustee or agent (including, for greater certainty, a portfolio manager or comparable advisor) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such purchase on behalf of such principal, to agree to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and the Subscriber acknowledges that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units for whom the Subscriber may be acting; (e) the Subscriber is not a “non-Canadian” as that expression is defined in the Investment Canada Act (Canada); (f) the Subscriber is not a “non resident”, a partnership other than a “Canadian partnership”, a “tax shelter” or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within the meaning of the Tax Act; (g) the Subscriber and any disclosed principal for whom the Subscriber is contracting hereunder is: (i) an “accredited investor,” as such term is defined in National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) and, in Ontario, in Section 73.3 of the Securities Act (Ontario), and has concurrently executed and delivered a Representation Letter and the Exhibit thereto in the form attached as Schedule “A” to this Subscription Agreement; or (ii) not an individual or resident in Alberta, is purchasing the Units as principal for its own account and not for the benefit of any other person in a sufficient amount so that the aggregate acquisition cost for such Units is not less than $150,000 paid in cash at the time of the distribution and the Subscriber was not created, or is used, solely to purchase or hold securities in reliance on the exemption from the prospectus requirement set out in subsection 2.10 of NI 45-106; (h) if the Subscriber is a “permitted client”, as such term is defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”) and wishes to waive the Manager’s obligations under sections 13.3 of NI 31-103, the Subscriber has completed and signed Schedule “B” to this Subscription Agreement; (i) if the Subscriber is an individual relying on paragraph (j), (k) or (l) of the “accredited investor” definition in NI 45-106, the subscriber has completed and signed the risk acknowledgement form, Form 45-106F9, attached as Schedule “F” to this Subscription Agreement; (j) the Subscriber has read the Offering Memorandum and is aware of the characteristics of the Units and of their speculative nature, as well as of the fact that they may only be transferred with the prior written consent of the Manager, and such transfer will generally not be permitted, and that the Subscriber shall not knowingly transfer his, her or its Units in whole or in part without the approval of the Manager and will do so only in accordance with Applicable Securities Laws; (k) the decision to enter into this Subscription Agreement and to purchase the Units has not been based upon any verbal or written representation or documentation as to fact or otherwise made by or on behalf of the Manager, its affiliates or the Fund except as set forth in the Offering Memorandum; (l) the Subscriber has not received, read nor been otherwise exposed to any advertising in respect of the Units; (m) the Units are being purchased for investment only and not with a view to resale or distribution and will not be resold or otherwise transferred or disposed of except in accordance with the provisions of the applicable securities legislation and the regulations, rules and policies thereunder; (n) the Subscriber has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of its investment and is able to bear the economic risk of loss of its investment; (o) the Subscriber is aware of the characteristics of the Units, of the nature and extent of personal liability and of the risks associated with an investment in the Units; (p) the Subscriber is aware that there are securities and tax laws applicable to the holding and disposition of the Units and has obtained independent legal and tax advice and is not relying solely upon the information from the Fund, the Manager or, where applicable, their officers, trustees, directors, employees or agents; (q) the Subscriber has been independently advised as to, and is aware of, the resale restrictions under Applicable Securities Laws with respect to the Units and acknowledges receipt of a written notice of the legend restriction notation applicable to the resale of the Units; (r) the acknowledgments contained in any forms or documents delivered by the Subscriber under applicable securities laws are true and correct as of the date of execution of this Subscription Agreement, and will be true and correct as of the closing of the purchase and sale of the Units, and fully and truly state those facts necessary for the Fund to be entitled to rely on the relevant exemptions from the prospectus requirements within the meaning of Applicable Securities Laws of the province or territory of residence of the Subscriber; (s) the Subscriber is not a “U.S. Person” (as that term is defined in Regulation S promulgated under the United States Securities Act of 1933, as amended, which definition includes, but is not limited to, an individual resident in the United States, an estate or 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 United States) and is not acquiring the Units for the account of or benefit of a U.S. Person or a person in the United States; (t) the Subscriber acknowledges that the Units may not be offered, sold, resold or otherwise transferred to persons in the United States or to U.S. Persons (as such term is defined in Regulation S to the United States Securities Act of 1933, as amended); (u) the Subscriber is not a designated beneficiary within the meaning of Part XII.2 of the Tax Act; (v) the Subscriber is not a “financial institution” (as defined in Subsection 142.2 of the Tax Act) (a “Financial Institution”) or, if the Subscriber is a Financial Institution, the Subscriber has advised the Manager in writing that the Subscriber is a Financial Institution prior to the date of acceptance of the Subscriber’s subscription for Units; (w) the Subscriber represents and warrants that the Subscriber is not named on or blocked by any of the following lists (the “Prohibited Lists”) promulgated by the Department of Foreign Affairs and International Trade Canada (DFAIT), or the Department of Public Safety and Emergency Preparedness of Canada (DPSEP): (i) the List of Names subject to the Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspx; (ii) the List of Names subject to the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000; or (iii) the List of Names subject to the United Nations Al-Qaida and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525. (x) the Subscriber acknowledges and agrees that the Manager has provided herein certain lists adopted or published by applicable governmental authorities for the convenience of the Subscriber and that because these lists are subject to change from time to time, it is the responsibility of the Subscriber to ensure that the lists are current as of the time this Subscription Agreement is executed and that each representation made by the Subscriber is true and correct as of the date of the Subscription Agreement; (y) to the best of the Subscriber’s knowledge the money that the Subscriber seeks to invest is not derived from any criminal enterprise or proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada); (z) the investment portfolio and trading procedures of the Fund is proprietary to the Fund and the Manager and all information relating to such investment portfolio and trading procedures shall be kept confidential by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Manager; and (aa) the Subscriber will execute and deliver all documentation as may be required by applicable securities laws or by the Fund, as the case may be, to permit the purchase of the Units under the terms herein set forth and the Subscriber will deliver such releases or other documents for income tax and other purposes, if any, as from time to time may be required by the Manager. The representations, warranties, covenants and acknowledgements of the Subscriber contained in this Subscription Agreement shall survive the completion of the purchase and sale of the Units and the Subscriber. The Subscriber acknowledges and agrees that the representations, warranties and covenants given by the Subscriber to and in favour of the Fund and the Manager shall be deemed to be repeated and reconfirmed as at the date of any subsequent subscription for Units made by the Subscriber or reinvestment of distributions made by the Fund unless a new subscription agreement is executed.
Appears in 13 contracts
Samples: Subscription Agreement, Subscription Agreement, Subscription Agreement
Representations, Warranties, Covenants and Acknowledgements of the Subscriber. The Subscriber, on its own behalf and on behalf of any disclosed principal for whom the Subscriber is contracting under this Subscription Agreement, hereby represents, warrants, acknowledges and covenants to the Manager and to the Fund that:
(a) if an individual, the Subscriber is of the age of majority and has the capacity and competence to enter into and be bound by this Subscription Agreement and all other agreements contemplated hereby and this Subscription Agreement constitutes a legal, valid and binding agreement enforceable against the Subscriber in accordance with its terms;
(b) if the Subscriber is an incorporated entity:
(i) the Subscriber is a valid and subsisting corporation and is in good standing under the laws of the jurisdiction of its incorporation;
(ii) the Subscriber has the corporate capacity and authority to execute and deliver this Subscription Agreement and to observe and perform its obligations hereunder;
(iii) this Subscription Agreement has been duly authorized, executed and delivered by the Subscriber and is a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms; and
(iv) the execution and delivery of this Subscription Agreement by the Subscriber will not result in the violation of, or constitute a default under, or conflict with or cause the acceleration of any obligation of the Subscriber under (a) any contract to which the Subscriber is a party or by which it is bound; (b) any provision of the constating documents of the Subscriber; or (c) any judgment, decree, order or award of any court, government body or arbitrator having jurisdiction over the Subscriber;
(c) the Subscriber is a resident in or otherwise subject to the securities laws of the province or territory of Canada set forth on the second page of this Subscription Agreement, and if the Subscriber is acting as agent for a disclosed principal, the disclosed principal is resident in or otherwise subject to the securities laws of province or territory set out on the second page of this Subscription Agreement;
(d) if the Subscriber is purchasing the Units as trustee or agent (including, for greater certainty, a portfolio manager or comparable advisor) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such purchase on behalf of such principal, to agree to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and the Subscriber acknowledges that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units for whom the Subscriber may be acting;
(e) the Subscriber is not a “non-Canadian” as that expression is defined in the Investment Canada Act (Canada);
(f) the Subscriber is not a “non resident”, a partnership other than a “Canadian partnership”, a “tax shelter” or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within the meaning of the Tax Act;
(g) the Subscriber and any disclosed principal for whom the Subscriber is contracting hereunder is:
(i) an “accredited investor,” as such term is defined in National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) and, in Ontario, in Section 73.3 of the Securities Act (Ontario), and has concurrently executed and delivered a Representation Letter and the Exhibit thereto in the form attached as Schedule “A” to this Subscription Agreement; or
(ii) not an individual or resident in Alberta, is purchasing the Units as principal for its own account and not for the benefit of any other person in a sufficient amount so that the aggregate acquisition cost for such Units is not less than $150,000 paid in cash at the time of the distribution and the Subscriber was not created, or is used, solely to purchase or hold securities in reliance on the exemption from the prospectus requirement set out in subsection 2.10 of NI 45-106;
(h) if the Subscriber is a “permitted client”, as such term is defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”) and wishes to waive the Manager’s obligations under sections 13.3 of NI 31-103, the Subscriber has completed and signed Schedule “B” to this Subscription Agreement;
(i) if the Subscriber is an individual relying on paragraph (j), (k) or (l) of the “accredited investor” definition in NI 45-106, the subscriber has completed and signed the risk acknowledgement form, Form 45-106F9, attached as Schedule “F” to this Subscription Agreement;
(j) the Subscriber has read the Offering Memorandum and is aware of the characteristics of the Units and of their speculative nature, as well as of the fact that they may only be transferred with the prior written consent of the Manager, and such transfer will generally not be permitted, and that the Subscriber shall not knowingly transfer his, her or its Units in whole or in part without the approval of the Manager and will do so only in accordance with Applicable Securities Laws;
(k) the decision to enter into this Subscription Agreement and to purchase the Units has not been based upon any verbal or written representation or documentation as to fact or otherwise made by or on behalf of the Manager, its affiliates or the Fund except as set forth in the Offering Memorandum;
(l) the Subscriber has not received, read nor been otherwise exposed to any advertising in respect of the Units;
(m) the Units are being purchased for investment only and not with a view to resale or distribution and will not be resold or otherwise transferred or disposed of except in accordance with the provisions of the applicable securities legislation and the regulations, rules and policies thereunder;
(n) the Subscriber has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of its investment and is able to bear the economic risk of loss of its investment;
(o) the Subscriber is aware of the characteristics of the Units, of the nature and extent of personal liability and of the risks associated with an investment in the Units;
(p) the Subscriber is aware that there are securities and tax laws applicable to the holding and disposition of the Units and has obtained independent legal and tax advice and is not relying solely upon the information from the Fund, the Manager or, where applicable, their officers, trustees, directors, employees or agents;
(q) the Subscriber has been independently advised as to, and is aware of, the resale restrictions under Applicable Securities Laws with respect to the Units and acknowledges receipt of a written notice of the legend restriction notation applicable to the resale of the Units;
(r) the Subscriber acknowledges that no prospectus has been filed with any securities commission or other regulatory authority in connection with the issuance of the Units, such issuance is exempted from the prospectus requirements of applicable securities laws and as a result:
(i) the Subscriber is restricted from using civil remedies which would otherwise be available,
(ii) the Subscriber may not receive information that would otherwise be required to be provided, and
(iii) the Fund is relieved from certain obligations that would otherwise apply;
(s) the acknowledgments contained in any forms or documents delivered by the Subscriber under applicable securities laws are true and correct as of the date of execution of this Subscription Agreement, and will be true and correct as of the closing of the purchase and sale of the Units, and fully and truly state those facts necessary for the Fund to be entitled to rely on the relevant exemptions from the prospectus requirements within the meaning of Applicable Securities Laws of the province or territory of residence of the Subscriber;
(st) the Subscriber is not a “U.S. Person” (as that term is defined in Regulation S promulgated under the United States Securities Act of 1933, as amended, which definition includes, but is not limited to, an individual resident in the United States, an estate or 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 United States) and is not acquiring the Units for the account of or benefit of a U.S. Person or a person in the United States;
(tu) the Subscriber acknowledges that the Units may not be offered, sold, resold or otherwise transferred to persons in the United States or to U.S. Persons (as such term is defined in Regulation S to the United States Securities Act of 1933, as amended);
(uv) the Subscriber is not a designated beneficiary within the meaning of Part XII.2 of the Tax Act;
(vw) the Subscriber is not a “financial institution” (as defined in Subsection 142.2 of the Tax Act) (a “Financial Institution”) or, if the Subscriber is a Financial Institution, the Subscriber has advised the Manager in writing that the Subscriber is a Financial Institution prior to the date of acceptance of the Subscriber’s subscription for Units;
(wx) the Subscriber represents and warrants that the Subscriber is not named on or blocked by any of the following lists (the “Prohibited Lists”) promulgated by the Department of Foreign Affairs and International Trade Canada (DFAIT), or the Department of Public Safety and Emergency Preparedness of Canada (DPSEP):
(i) the List of Names subject to the Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspx;
(ii) the List of Names subject to the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000; or
(iii) the List of Names subject to the United Nations Al-Qaida and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525.
(xy) the Subscriber acknowledges and agrees that the Manager has provided herein certain lists adopted or published by applicable governmental authorities for the convenience of the Subscriber and that because these lists are subject to change from time to time, it is the responsibility of the Subscriber to ensure that the lists are current as of the time this Subscription Agreement is executed and that each representation made by the Subscriber is true and correct as of the date of the Subscription Agreement;
(yz) to the best of the Subscriber’s knowledge the money that the Subscriber seeks to invest is not derived from any criminal enterprise or proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada);
(zaa) the investment portfolio and trading procedures of the Fund is proprietary to the Fund and the Manager and all information relating to such investment portfolio and trading procedures shall be kept confidential by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Manager; and
(aabb) the Subscriber will execute and deliver all documentation as may be required by applicable securities laws or by the Fund, as the case may be, to permit the purchase of the Units under the terms herein set forth and the Subscriber will deliver such releases or other documents for income tax and other purposes, if any, as from time to time may be required by the Manager. The representations, warranties, covenants and acknowledgements of the Subscriber contained in this Subscription Agreement shall survive the completion of the purchase and sale of the Units and the Subscriber. The Subscriber acknowledges and agrees that the representations, warranties and covenants given by the Subscriber to and in favour of the Fund and the Manager shall be deemed to be repeated and reconfirmed as at the date of any subsequent subscription for Units made by the Subscriber or reinvestment of distributions made by the Fund unless a new subscription agreement is executed.
Appears in 5 contracts
Samples: Subscription Agreement, Subscription Agreement, Subscription Agreement
Representations, Warranties, Covenants and Acknowledgements of the Subscriber. The Subscriber, on its own behalf and on behalf of any disclosed principal for whom the Subscriber is contracting under this Subscription Agreement, hereby represents, warrants, acknowledges and covenants to the Manager and to the Fund that:
(a) if an individual, the Subscriber is of the age of majority and has the capacity and competence to enter into and be bound by this Subscription Agreement and all other agreements contemplated hereby and this Subscription Agreement constitutes a legal, valid and binding agreement enforceable against the Subscriber in accordance with its terms;
(b) if the Subscriber is an incorporated entity:
(i) the Subscriber is a valid and subsisting corporation and is in good standing under the laws of the jurisdiction of its incorporation;
(ii) the Subscriber has the corporate capacity and authority to execute and deliver this Subscription Agreement and to observe and perform its obligations hereunder;
(iii) this Subscription Agreement has been duly authorized, executed and delivered by the Subscriber and is a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms; and
(iv) the execution and delivery of this Subscription Agreement by the Subscriber will not result in the violation of, or constitute a default under, or conflict with or cause the acceleration of any obligation of the Subscriber under (a) any contract to which the Subscriber is a party or by which it is bound; (b) any provision of the constating documents of the Subscriber; or (c) any judgment, decree, order or award of any court, government body or arbitrator having jurisdiction over the Subscriber;
(c) the Subscriber is a resident in or otherwise subject to the securities laws of the province or territory of Canada set forth on the second page of this Subscription Agreement, and if the Subscriber is acting as agent for a disclosed principal, the disclosed principal is resident in or otherwise subject to the securities laws of province or territory set out on the second page of this Subscription Agreement;
(d) if the Subscriber is purchasing the Units as trustee or agent (including, for greater certainty, a portfolio manager or comparable advisor) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such purchase on behalf of such principal, to agree to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and the Subscriber acknowledges that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units for whom the Subscriber may be acting;
(e) the Subscriber is not a “non-Canadian” as that expression is defined in the Investment Canada Act (Canada);
(f) the Subscriber is not a “non resident”, a partnership other than a “Canadian partnership”, a “tax shelter” or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within the meaning of the Tax Act;
(g) the Subscriber is not a person that, upon becoming a Subscriber, would cause the Partnership to be a “SIFT trust” for the purposes of the Tax Act;
(h) the Subscriber and any disclosed principal for whom the Subscriber is contracting hereunder is:
(i) an “accredited investor,” as such term is defined in National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) and, in Ontario, in Section 73.3 of the Securities Act (Ontario), and has concurrently executed and delivered a Representation Letter and the Exhibit thereto in the form attached as Schedule “A” to this Subscription Agreement; or
(ii) not an individual or resident in Alberta, is purchasing the Units as principal for its own account and not for the benefit of any other person in a sufficient amount so that the aggregate acquisition cost for such Units is not less than $150,000 paid in cash at the time of the distribution and the Subscriber was not created, or is used, solely to purchase or hold securities in reliance on the exemption from the prospectus requirement set out in subsection 2.10 of NI 45-106;
(hi) if the Subscriber is a “permitted client”, as such term is defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”) and wishes to waive the Manager’s obligations under sections 13.3 of NI 31-103, the Subscriber has completed and signed Schedule “B” to this Subscription Agreement;
(ij) if the Subscriber is an individual relying on paragraph (j), (k) or (l) of the “accredited investor” definition in NI 45-106, the subscriber has completed and signed the risk acknowledgement form, Form 45-106F9, attached as Schedule “F” to this Subscription Agreement;
(jk) the Subscriber has read the Offering Memorandum and is aware of the characteristics of the Units and of their speculative nature, as well as of the fact that they may only be transferred with the prior written consent of the Manager, and such transfer will generally not be permitted, and that the Subscriber shall not knowingly transfer his, her or its Units in whole or in part without the approval of the Manager and will do so only in accordance with Applicable Securities Laws;
(kl) the decision to enter into this Subscription Agreement and to purchase the Units has not been based upon any verbal or written representation or documentation as to fact or otherwise made by or on behalf of the Manager, its affiliates or the Fund except as set forth in the Offering Memorandum;
(lm) the Subscriber has not received, read nor been otherwise exposed to any advertising in respect of the Units;
(mn) the Units are being purchased for investment only and not with a view to resale or distribution and will not be resold or otherwise transferred or disposed of except in accordance with the provisions of the applicable securities legislation and the regulations, rules and policies thereunder;
(no) the Subscriber has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of its investment and is able to bear the economic risk of loss of its investment;
(op) the Subscriber is aware of the characteristics of the Units, of the nature and extent of personal liability and of the risks associated with an investment in the Units;
(pq) the Subscriber is aware that there are securities and tax laws applicable to the holding and disposition of the Units and has obtained independent legal and tax advice and is not relying solely upon the information from the Fund, the Manager or, where applicable, their officers, trustees, directors, employees or agents;
(qr) the Subscriber has been independently advised as to, and is aware of, the resale restrictions under Applicable Securities Laws with respect to the Units and acknowledges receipt of a written notice of the legend restriction notation applicable to the resale of the Units;
(rs) the Subscriber acknowledges that no prospectus has been filed with any securities commission or other regulatory authority in connection with the issuance of the Units, such issuance is exempted from the prospectus requirements of applicable securities laws and as a result:
(i) the Subscriber is restricted from using civil remedies which would otherwise be available,
(ii) the Subscriber may not receive information that would otherwise be required to be provided, and
(iii) the Fund is relieved from certain obligations that would otherwise apply;
(t) the acknowledgments contained in any forms or documents delivered by the Subscriber under applicable securities laws are true and correct as of the date of execution of this Subscription Agreement, and will be true and correct as of the closing of the purchase and sale of the Units, and fully and truly state those facts necessary for the Fund to be entitled to rely on the relevant exemptions from the prospectus requirements within the meaning of Applicable Securities Laws of the province or territory of residence of the Subscriber;
(su) the Subscriber is not a “U.S. Person” (as that term is defined in Regulation S promulgated under the United States Securities Act of 1933, as amended, which definition includes, but is not limited to, an individual resident in the United States, an estate or 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 United States) and is not acquiring the Units for the account of or benefit of a U.S. Person or a person in the United States;
(tv) the Subscriber acknowledges that the Units may not be offered, sold, resold or otherwise transferred to persons in the United States or to U.S. Persons (as such term is defined in Regulation S to the United States Securities Act of 1933, as amended);
(uw) the Subscriber is not a designated beneficiary within the meaning of Part XII.2 of the Tax Act;
(vx) the Subscriber is not a “financial institution” (as defined in Subsection 142.2 of the Tax Act) (a “Financial Institution”) or, if the Subscriber is a Financial Institution, the Subscriber has advised the Manager in writing that the Subscriber is a Financial Institution prior to the date of acceptance of the Subscriber’s subscription for Units;
(wy) the Subscriber represents and warrants that the Subscriber is not named on or blocked by any of the following lists (the “Prohibited Lists”) promulgated by the Department of Foreign Affairs and International Trade Canada (DFAIT), or the Department of Public Safety and Emergency Preparedness of Canada (DPSEP):
(i) the List of Names subject to the Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspx;
(ii) the List of Names subject to the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000; or
(iii) the List of Names subject to the United Nations Al-Qaida and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525.
(xz) the Subscriber acknowledges and agrees that the Manager has provided herein certain lists adopted or published by applicable governmental authorities for the convenience of the Subscriber and that because these lists are subject to change from time to time, it is the responsibility of the Subscriber to ensure that the lists are current as of the time this Subscription Agreement is executed and that each representation made by the Subscriber is true and correct as of the date of the Subscription Agreement;
(yaa) the Subscriber acknowledges that the Fund and the Manager are obliged under FATCA and CRS to collect certain information about the Subscriber, and in certain circumstances, may be obliged to share this information with the relevant tax authorities, the Fund and the Manager shall be held harmless and indemnified against any loss arising as a result of a failure to process the application if such information has been requested by the Fund and/or the Manager and has not been provided by the Subscriber;
(bb) to the best of the Subscriber’s knowledge the money that the Subscriber seeks to invest is not derived from any criminal enterprise or proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada);
(zcc) the investment portfolio and trading procedures of the Fund is proprietary to the Fund and the Manager and all information relating to such investment portfolio and trading procedures shall be kept confidential by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Manager;
(dd) the Subscriber certifies that the information given on the applicable FATCA/CRS Schedule - Schedule “H” – U.S. FATCA and CRS Schedule for Individuals or Schedule “I” – U.S. FATCA and CRS Schedule for Entities - is correct and complete and that the Subscriber will provide the Fund and/or the Manager a new FATCA/CRS Schedule within 30 days of any change in circumstances that causes the information on the applicable FATCA/CRS Schedule to become incomplete or inaccurate; and
(aaee) the Subscriber will execute and deliver all documentation as may be required by applicable securities laws or by the Fund, as the case may be, to permit the purchase of the Units under the terms herein set forth and the Subscriber will deliver such releases or other documents for income tax and other purposes, if any, as from time to time may be required by the Manager. The representations, warranties, covenants and acknowledgements of the Subscriber contained in this Subscription Agreement shall survive the completion of the purchase and sale of the Units and the Subscriber. The Subscriber acknowledges and agrees that the representations, warranties and covenants given by the Subscriber to and in favour of the Fund and the Manager shall be deemed to be repeated and reconfirmed as at the date of any subsequent subscription for Units made by the Subscriber or reinvestment of distributions made by the Fund unless a new subscription agreement is executed.
Appears in 4 contracts
Samples: Subscription Agreement, Subscription Agreement, Subscription Agreement
Representations, Warranties, Covenants and Acknowledgements of the Subscriber. The Subscriber, on its own behalf and on behalf of any disclosed principal for whom the Subscriber is contracting under this Subscription Agreement, hereby represents, warrants, covenants and acknowledges and covenants to the Manager and to the Fund Corporation that:
(a) if an individual, the Subscriber is of has attained the age of majority and has the legal capacity and competence to enter into and be bound by execute this Subscription Agreement and to take all other agreements contemplated hereby and this Subscription Agreement constitutes a legal, valid and binding agreement enforceable against the Subscriber in accordance with its termsactions required pursuant hereto;
(b) if the Subscriber is not an incorporated entity:
(i) the Subscriber is a valid and subsisting corporation and is in good standing under the laws of the jurisdiction of its incorporation;
(ii) individual, the Subscriber has the corporate capacity good right, full power and absolute authority to execute and deliver this Subscription Agreement and to observe take all necessary actions, and perform its obligations hereunder;
(iii) all necessary approvals have been given to authorize it to execute this Subscription Agreement has been duly authorized, executed and delivered by the Subscriber and was not incorporated or created solely, nor is a legalit being used primarily, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms; and
(iv) the execution and delivery of this Subscription Agreement by the Subscriber will not result in the violation ofto purchase or hold securities as an accredited investor, or constitute to purchase securities without a default under, or conflict with or cause the acceleration of any obligation of the Subscriber prospectus under (a) any contract to which the Subscriber is a party or by which it is bound; (b) any provision of the constating documents of the Subscriber; or (c) any judgment, decree, order or award of any court, government body or arbitrator having jurisdiction over the Subscriberapplicable law;
(c) the Subscriber is a resident in of, or is otherwise subject to the securities laws of, the jurisdiction set out under “Subscriber Information” above and is not a resident of, or otherwise subject to the securities laws of, any other jurisdiction;
(d) the Subscriber shall not be nor become a “specified shareholder” of the province or territory Corporation within the meaning of Canada set forth on subsection 248(1) of the second page Income Tax Act (Canada) as modified for the purposes of this Subscription Agreementparagraph 130.1(6)(d) of the Income Tax Act (Canada) at any time after December 30, 2013, and if the Subscriber is acting as agent for or becomes a disclosed principal“specified shareholder” of the Corporation after December 30, the disclosed principal is resident in or otherwise subject to the securities laws of province or territory set out on the second page of this Subscription Agreement;
(d) if the Subscriber is purchasing the Units as trustee or agent (including, for greater certainty, a portfolio manager or comparable advisor) for a principal2013, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation shall immediately notify the Corporation in connection with such purchase on behalf writing of such principal, to agree to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and the Subscriber acknowledges that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units for whom the Subscriber may be actingstatus;
(e) if a partnership, if the Subscriber is not a “non-Canadian” as that expression is defined in the Investment Canada Act (Canada);
(f) the Subscriber is not a “non resident”, becomes a partnership other than a “Canadian partnership”, a “tax shelter” or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within the meaning of section 102 of the Income Tax ActAct (Canada), the Subscriber shall immediately notify the Corporation in writing of such status;
(f) except to the extent contemplated in paragraph (g) the Subscriber and any disclosed principal for whom below, the Subscriber is contracting hereunder is:
(i) an “accredited investor,” as such term is defined in National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) and, in Ontario, in Section 73.3 of purchasing the Securities Act (Ontario)Preferred Shares, and has concurrently executed and delivered a Representation Letter and will acquire the Exhibit thereto in the form attached Preferred Shares, when issued, as Schedule “A” to this Subscription Agreement; or
(ii) not an individual or resident in Albertaprincipal, is purchasing the Units as principal for its own account and not for the benefit of any other person in a sufficient amount so that the aggregate acquisition cost for such Units is not less than $150,000 paid in cash at the time of the distribution and the Subscriber was not created, or is used, solely to purchase or hold securities in reliance on the exemption from the prospectus requirement set out in subsection 2.10 of NI 45-106;
(h) if the Subscriber is a “permitted client”, as such term is defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”) and wishes to waive the Manager’s obligations under sections 13.3 of NI 31-103, the Subscriber has completed and signed Schedule “B” to this Subscription Agreement;
(i) if the Subscriber is an individual relying on paragraph (j), (k) or (l) of the “accredited investor” definition in NI 45-106, the subscriber has completed and signed the risk acknowledgement form, Form 45-106F9, attached as Schedule “F” to this Subscription Agreement;
(j) the Subscriber has read the Offering Memorandum and is aware of the characteristics of the Units and of their speculative nature, as well as of the fact that they may only be transferred with the prior written consent of the Manager, and such transfer will generally not be permitted, and that the Subscriber shall not knowingly transfer his, her or its Units in whole or in part without the approval of the Manager and will do so only in accordance with Applicable Securities Laws;
(k) the decision to enter into this Subscription Agreement and to purchase the Units has not been based upon any verbal or written representation or documentation as to fact or otherwise made by or on behalf of the Manager, its affiliates or the Fund except as set forth in the Offering Memorandum;
(l) the Subscriber has not received, read nor been otherwise exposed to any advertising in respect of the Units;
(m) the Units are being purchased purchasing Preferred Shares for investment only and not with a view to resale the resale, distribution or distribution and will not be resold other disposition of all or otherwise transferred or disposed of except in accordance with the provisions any of the applicable securities legislation and the regulations, rules and policies thereunderPreferred Shares;
(ng) in the case of the purchase by the Subscriber of the Preferred Shares as agent or trustee for any principal, each beneficial purchaser of the Preferred Shares for whom the Subscriber is acting, is purchasing its Preferred Shares as principal for its own account, and not for the benefit of any other person, for investment only and not with a view to any resale, distribution or other disposition, and the Subscriber has due and proper authority to act as agent or trustee for an on behalf of such beneficial purchaser in connection with the transactions contemplated hereby;
(h) the Subscriber has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of its an investment in the Corporation and is able to bear the economic risk of loss of its investmentsuch investment and the Subscriber understands that the purchase of the Preferred Shares involves a high degree of risk;
(oi) this Subscription Agreement, when accepted by the Corporation, will constitute a legal, valid, binding and enforceable contract of the Subscriber, enforceable against the Subscriber in accordance with its terms;
(j) the entering into of this Subscription Agreement and the transactions contemplated hereby will not result in the violation of any terms or 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 he, she or it is or may be bound;
(k) the Subscriber is aware has no knowledge of a “material fact” or “material change” (as those terms are defined in applicable securities legislation) in the affairs of the characteristics Corporation that has not been generally disclosed to the public, save knowledge of the Units, of the nature and extent of personal liability and of the risks associated with an investment in the Unitsthis particular transaction;
(pl) the Subscriber is aware that there are securities and tax laws applicable to the holding and disposition of the Units Preferred Shares and has obtained independent legal and tax been given the opportunity to seek advice in respect of such laws and is not relying solely upon the information from the FundCorporation, the Manager Administrator, or, where applicable, their partners, officers, trustees, directors, employees or agents; the Subscriber acknowledges that the Preferred Shares are not transferrable, except in the limited circumstances set out in the Articles of Incorporation;
(q) the Subscriber has been independently advised as to, and is aware of, the resale restrictions under Applicable Securities Laws with respect to the Units and acknowledges receipt of a written notice of the legend restriction notation applicable to the resale of the Units;
(r) the acknowledgments contained in any forms or documents delivered by the Subscriber under applicable securities laws are true and correct as of the date of execution of this Subscription Agreement, and will be true and correct as of the closing of the purchase and sale of the Units, and fully and truly state those facts necessary for the Fund to be entitled to rely on the relevant exemptions from the prospectus requirements within the meaning of Applicable Securities Laws of the province or territory of residence of the Subscriber;
(s) the Subscriber is not a “U.S. Person” (as that term is defined in Regulation S promulgated under the United States Securities Act of 1933, as amended, which definition includes, but is not limited to, an individual resident in the United States, an estate or 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 United States) and is not acquiring the Units for the account of or benefit of a U.S. Person or a person in the United States;
(tm) the Subscriber acknowledges that no prospectus has been filed with any securities commission or other regulatory body in connection with the Units may not be offered, sold, resold or otherwise transferred to persons in the United States or to U.S. Persons (as such term is defined in Regulation S to the United States Securities Act of 1933, as amended);
(u) the Subscriber is not a designated beneficiary within the meaning of Part XII.2 issuance of the Tax Act;
(v) Preferred Shares, such issuance is exempted from the Subscriber is not a “financial institution” (as defined in Subsection 142.2 prospectus requirements of the Tax Act) (a “Financial Institution”) or, if the Subscriber is a Financial Institution, the Subscriber has advised the Manager in writing that the Subscriber is a Financial Institution prior to the date of acceptance of the Subscriber’s subscription for Units;
(w) the Subscriber represents and warrants that the Subscriber is not named on or blocked by any of the following lists (the “Prohibited Lists”) promulgated by the Department of Foreign Affairs and International Trade Canada (DFAIT), or the Department of Public Safety and Emergency Preparedness of Canada (DPSEP):applicable securities legislation; and
(i) the List of Names subject to Subscriber is restricted from using the Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspxcivil remedies available;
(ii) the List of Names subject Subscriber may not receive information that would otherwise be required to the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000be provided; orand
(iii) the List of Names subject Corporation is relieved from certain obligations that would otherwise apply, under certain applicable securities legislation which would otherwise be available if the Preferred Shares were sold pursuant to the United Nations Al-Qaida and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525.
(x) the Subscriber acknowledges and agrees that the Manager has provided herein certain lists adopted or published by applicable governmental authorities for the convenience of the Subscriber and that because these lists are subject to change from time to time, it is the responsibility of the Subscriber to ensure that the lists are current as of the time this Subscription Agreement is executed and that each representation made by the Subscriber is true and correct as of the date of the Subscription Agreement;
(y) to the best of the Subscriber’s knowledge the money that the Subscriber seeks to invest is not derived from any criminal enterprise or proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada);
(z) the investment portfolio and trading procedures of the Fund is proprietary to the Fund and the Manager and all information relating to such investment portfolio and trading procedures shall be kept confidential by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Managera prospectus; and
(aan) the Subscriber will execute and deliver all documentation as may be required by applicable securities laws understands that no federal, provincial, state or by other agency within the Fund, as the case may be, to permit the purchase Subscriber’s jurisdiction of residence or otherwise has reviewed or passed upon any of the Units under Preferred Shares or made any finding or determination concerning the terms herein set forth and the Subscriber will deliver such releases fairness or other documents for income tax and other purposes, if any, as from time to time may be required by the Manager. The representations, warranties, covenants and acknowledgements advisability of the Subscriber contained in this Subscription Agreement shall survive the completion of the purchase and sale of the Units and the Subscriber. The Subscriber acknowledges and agrees that the representations, warranties and covenants given by the Subscriber to and in favour of the Fund and the Manager shall be deemed to be repeated and reconfirmed as at the date of any subsequent subscription for Units made by the Subscriber or reinvestment of distributions made by the Fund unless a new subscription agreement is executedinvestment.
Appears in 2 contracts
Samples: Subscription Agreement, Subscription Agreement
Representations, Warranties, Covenants and Acknowledgements of the Subscriber. The Subscriber, on its own behalf and on behalf of any disclosed principal for whom the Subscriber is contracting under this Subscription Agreement, hereby represents, warrants, covenants and acknowledges to each Fund and covenants to the Manager and to the Fund that:
(a) if an individual, the Subscriber is of has attained the age of majority and has the legal capacity and competence to enter into and be bound by execute this Subscription Agreement and to take all other agreements contemplated hereby and this Subscription Agreement constitutes a legal, valid and binding agreement enforceable against the Subscriber in accordance with its termsactions required pursuant hereto;
(b) if not an individual, the Subscriber is an incorporated entity:
(i) the Subscriber is a valid duly formed and subsisting corporation and is in good standing under the laws of the jurisdiction of its incorporation;
(ii) the Subscriber has the corporate capacity right, full power and absolute authority to execute and deliver this Subscription Agreement and to observe and take all necessary actions to perform its obligations hereunder;
(iii) pursuant hereto, and all necessary approvals have been given to authorize it to execute this Subscription Agreement has been duly authorized, executed and delivered by the Subscriber and was not incorporated or created solely, nor is a legalit being used primarily, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms; and
(iv) the execution and delivery of this Subscription Agreement by the Subscriber will not result in the violation ofto purchase or hold securities as an accredited investor, or constitute to purchase securities without a default under, or conflict with or cause the acceleration of any obligation of the Subscriber prospectus under (a) any contract to which the Subscriber is a party or by which it is bound; (b) any provision of the constating documents of the Subscriber; or (c) any judgment, decree, order or award of any court, government body or arbitrator having jurisdiction over the Subscriberapplicable law;
(c) the Subscriber is a resident in of, or is otherwise subject to the securities laws of, the jurisdiction set out under “Subscriber Information” above and is not a resident of, or otherwise subject to the securities laws of the province or territory of Canada set forth on the second page of this Subscription Agreementof, and if the Subscriber is acting as agent for a disclosed principal, the disclosed principal is resident in or otherwise subject to the securities laws of province or territory set out on the second page of this Subscription Agreementany other jurisdiction;
(d) if the Subscriber is purchasing not a “financial institution” under subsection 142.2(1) of the Units as trustee or agent Income Tax Act (including, for greater certaintyCanada), a portfolio manager “designated beneficiary” under section 210 of the Income Tax Act (Canada), or comparable advisora “non-resident” or partnership (other than a “Canadian partnership”) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such purchase on behalf purposes of such principal, to agree to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and the Subscriber acknowledges that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units for whom the Subscriber may be actingIncome Tax Act (Canada);
(e) the Subscriber is not a “non-Canadian” as that expression is defined in purchasing the Investment Canada Act (Canada);
(f) the Subscriber is not a “non resident”, a partnership other than a “Canadian partnership”, a “tax shelter” or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within the meaning of the Tax Act;
(g) the Subscriber and any disclosed principal for whom the Subscriber is contracting hereunder is:
(i) an “accredited investor,” as such term is defined in National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) and, in Ontario, in Section 73.3 of the Securities Act (Ontario)Securities, and has concurrently executed and delivered a Representation Letter and will acquire the Exhibit thereto in the form attached Securities, when issued, as Schedule “A” to this Subscription Agreement; or
(ii) not an individual or resident in Albertaprincipal, is purchasing the Units as principal for its own account and not for the benefit of any other person in a sufficient amount so that the aggregate acquisition cost for such Units is not less than $150,000 paid in cash at the time of the distribution and the Subscriber was not created, or is used, solely to purchase or hold securities in reliance on the exemption from the prospectus requirement set out in subsection 2.10 of NI 45-106;
(h) if the Subscriber is a “permitted client”, as such term is defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”) and wishes to waive the Manager’s obligations under sections 13.3 of NI 31-103, the Subscriber has completed and signed Schedule “B” to this Subscription Agreement;
(i) if the Subscriber is an individual relying on paragraph (j), (k) or (l) of the “accredited investor” definition in NI 45-106, the subscriber has completed and signed the risk acknowledgement form, Form 45-106F9, attached as Schedule “F” to this Subscription Agreement;
(j) the Subscriber has read the Offering Memorandum and is aware of the characteristics of the Units and of their speculative nature, as well as of the fact that they may only be transferred with the prior written consent of the Manager, and such transfer will generally not be permitted, and that the Subscriber shall not knowingly transfer his, her or its Units in whole or in part without the approval of the Manager and will do so only in accordance with Applicable purchasing Securities Laws;
(k) the decision to enter into this Subscription Agreement and to purchase the Units has not been based upon any verbal or written representation or documentation as to fact or otherwise made by or on behalf of the Manager, its affiliates or the Fund except as set forth in the Offering Memorandum;
(l) the Subscriber has not received, read nor been otherwise exposed to any advertising in respect of the Units;
(m) the Units are being purchased for investment only and not with a view to the resale or distribution and will not be resold of all or otherwise transferred or disposed of except in accordance with the provisions any of the applicable securities legislation and the regulations, rules and policies thereunderSecurities;
(nf) the Subscriber has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of its an investment in the Funds and is able to bear the economic risk of loss of such investment and the Subscriber understands that the purchase of Securities involves a high degree of risk and should only be considered by persons who can bear the loss of their entire investment. To the extent necessary, the Subscriber has retained, at its own expense, and relied upon, appropriate professional advice regarding the investment, tax and legal merits and consequences of this subscription and owning the Securities;
(og) this Subscription Agreement, when accepted by the Manager, will constitute a legal, valid, binding and enforceable contract of the Subscriber, enforceable against the Subscriber in accordance with its terms;
(h) the entering into of this Subscription Agreement and the transactions contemplated hereby will not result in the violation of any terms or provisions of any law applicable to, and, if the Subscriber is not an individual, any terms or provisions of the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or to which it is or may be bound and no consent or approval of any person is required in connection with the execution and delivery of this Subscription Agreement by the Subscriber;
(i) the Subscriber is aware has no knowledge of a “material fact” or “material change” (as those terms are defined in applicable securities legislation) in the affairs of the characteristics Funds that has not been generally disclosed to the public, save knowledge of this particular transaction and the Subscriber’s decision to tender this offer to acquire Securities has not been made as a result of any verbal or other written representation made by or on behalf of the Units, of the nature and extent of personal liability and of the risks associated with an investment in the UnitsFunds or any other person;
(pj) the Subscriber is aware that there are securities and tax laws applicable to the holding and disposition of the Units Securities and has obtained independent legal and tax been given the opportunity to seek advice in respect of such laws and is not relying solely upon the information from the FundFunds, the Manager Manager, or, where applicable, their respective partners, officers, trustees, directors, employees or agents;
(q) the Subscriber has been independently advised as to, and is aware of, the resale restrictions under Applicable Securities Laws with respect to the Units and acknowledges receipt of a written notice of the legend restriction notation applicable to the resale of the Units;
(r) the acknowledgments contained in any forms or documents delivered by the Subscriber under applicable securities laws are true and correct as of the date of execution of this Subscription Agreement, and will be true and correct as of the closing of the purchase and sale of the Units, and fully and truly state those facts necessary for the Fund to be entitled to rely on the relevant exemptions from the prospectus requirements within the meaning of Applicable Securities Laws of the province or territory of residence of the Subscriber;
(s) the Subscriber is not a “U.S. Person” (as that term is defined in Regulation S promulgated under the United States Securities Act of 1933, as amended, which definition includes, but is not limited to, an individual resident in the United States, an estate or 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 United States) and is not acquiring the Units for the account of or benefit of a U.S. Person or a person in the United States;
(tk) the Subscriber acknowledges that no prospectus has been filed with any securities commission or other regulatory body in Canada in connection with the Units may not be offered, sold, resold or otherwise transferred to persons in the United States or to U.S. Persons (as such term is defined in Regulation S to the United States Securities Act of 1933, as amended);
(u) the Subscriber is not a designated beneficiary within the meaning of Part XII.2 issuance of the Tax Act;
(v) Securities, such issuance is exempted from the Subscriber is not a “financial institution” (as defined in Subsection 142.2 prospectus requirements of the Tax Act) (a “Financial Institution”) orapplicable securities legislation, if the Subscriber is a Financial Institution, the Subscriber has advised the Manager in writing that the Subscriber is a Financial Institution prior to the date of acceptance of the Subscriber’s subscription for Units;
(w) the Subscriber represents and warrants that the Subscriber is not named on or blocked by any of the following lists (the “Prohibited Lists”) promulgated by the Department of Foreign Affairs and International Trade Canada (DFAIT), or the Department of Public Safety and Emergency Preparedness of Canada (DPSEP):and
(i) the List of Names subject to Subscriber is restricted from using the Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspxcivil remedies available;
(ii) the List of Names subject Subscriber may not receive information that would otherwise be required to the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000be provided; orand
(iii) each applicable Fund is relieved from certain obligations that would otherwise apply, under certain applicable securities legislation which would otherwise be available if the List of Names subject Securities were sold pursuant to the United Nations Al-Qaida and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525.a prospectus in Canada;
(xl) the Subscriber understands that the Funds are not currently reporting issuers in any jurisdiction in Canada;
(m) the purchase of the Securities was not advertised in printed media of general and regular paid circulation, on radio or on television, or any other form of advertisement as part of a general solicitation;
(n) a Fund may invest in other funds which are managed by the Manager, or by an affiliate or an associate of the Manager. An affiliated company of Royal Bank of Canada (a “RBC Company”) may be invested in the same funds as a Fund. The Manager or its directors, officers or employees or other the directors, officers or employees of any other RBC Company may be invested in the same funds as a Fund. The Manager may receive compensation from funds in which a Fund may invest;
(o) the Subscriber understands that no federal, provincial, state or other agency within the Subscriber’s jurisdiction of residence or otherwise has reviewed or passed upon any of the Securities or made any finding or determination concerning the fairness or advisability of this investment; and
(p) the Subscriber acknowledges and agrees that no person or company has made any representation, written or oral, that they will resell the Securities or with respect to the future value of the Securities or that the Manager has provided herein certain lists adopted Securities will be listed and posted for trading on a securities exchange or published by applicable governmental authorities for the convenience of the Subscriber and that because these lists are subject to change from time to time, it is the responsibility of the Subscriber to ensure that the lists are current as of the time this Subscription Agreement is executed and that each representation made by the Subscriber is true and correct as of the date of the Subscription Agreement;
(y) to the best of the Subscriber’s knowledge the money that the Subscriber seeks to invest is not derived from any criminal enterprise or proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada);
(z) the investment portfolio and trading procedures of the Fund is proprietary to the Fund and the Manager and all information relating to such investment portfolio and trading procedures shall be kept confidential by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Manager; and
(aa) the Subscriber will execute and deliver all documentation as may be required by applicable securities laws or by the Fund, as the case may be, to permit the purchase of the Units under the terms herein set forth and the Subscriber will deliver such releases or other documents for income tax and other purposes, if any, as from time to time may be required by the Manager. The representations, warranties, covenants and acknowledgements of the Subscriber contained in this Subscription Agreement shall survive the completion of the purchase and sale of the Units and the Subscriber. The Subscriber acknowledges and agrees that the representations, warranties and covenants given by the Subscriber to and in favour of the Fund and the Manager shall be deemed to be repeated and reconfirmed as at the date of any subsequent subscription for Units made by the Subscriber or reinvestment of distributions made by the Fund unless a new subscription agreement is executedmarket.
Appears in 2 contracts
Samples: Subscription Agreement, Subscription Agreement
Representations, Warranties, Covenants and Acknowledgements of the Subscriber. The SubscriberSubscriber hereby represents and warrants to the Fund, on its own behalf and on behalf of any disclosed principal for whom the Subscriber is contracting under this Subscription Agreement, hereby represents, warrants, acknowledges and covenants to the Manager and to the Fund Trustee that:
(a) if an individual, the Subscriber is of the age of majority and has the capacity and competence to enter into and be bound by this Subscription Agreement and all other agreements contemplated hereby or in the other Principal Documents, and this Subscription Agreement constitutes a legal, valid and binding agreement enforceable against the Subscriber in accordance with its terms;
(b) if the Subscriber is an incorporated entity:
(i) the Subscriber is a valid and subsisting corporation and is in good standing entity under the laws of the jurisdiction of its incorporationformation and is in good standing (or equivalent) thereunder;
(ii) the Subscriber has the corporate capacity and authority to execute and deliver this Subscription Agreement and to observe and perform its obligations hereunder;
(iii) this Subscription Agreement has been duly authorized, executed and delivered by the Subscriber and is a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms; and;
(iv) the execution and delivery of this Subscription Agreement by the Subscriber will not result in the violation of, or constitute a default under, or conflict with or cause the acceleration of any obligation of the Subscriber under (a) any contract to which the Subscriber is a party or by which it is bound; (b) any provision of the constating or similar documents of the Subscriber; or (c) any judgment, decree, order or award of any court, government body or arbitrator having jurisdiction over the Subscriber;
(v) the Subscriber has not failed to file such returns, pay such taxes, or take such steps as may constitute grounds for the cancellation or forfeiture of its certificate, declaration or existence, nor have any proceedings been commenced or threatened, actions taken or resolutions passed that could result in the Subscriber ceasing to exist; and
(vi) (A) the Subscriber is in compliance with all applicable Anti-Money Laundering Laws (as defined below) and, if legally required to maintain anti-money laundering policies ("AML Policies") does so as required; (B) the Subscriber's AML Policies, if applicable, have been approved by legal counsel or internal compliance personnel reasonably informed concerning anti-money laundering issues; and (C) the Subscriber has not received a deficiency letter, negative report or any similar determination regarding its compliance with any applicable anti-money laundering laws and regulations and, if applicable, its AML Policies, from a person responsible for reviewing or auditing compliance therewith or from a regulator;
(c) the Subscriber is a resident in or otherwise subject to the securities laws of the province or territory of Canada set forth indicated on the second face page of this Subscription Agreement, and if the Subscriber is acting as agent for a disclosed principal, the disclosed principal is resident in or otherwise subject to the securities laws of province or territory set out on the second face page of this Subscription Agreement;
(d) if the Subscriber is purchasing the Units as trustee or agent (including, for greater certainty, a portfolio manager or comparable advisor) for a principalone or more principals, (i) the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such purchase on behalf of such principalprincipal or principals, to agree to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and (ii) the Subscriber acknowledges that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units principal or principals for whom the Subscriber may be actingacting and (iii) a true and complete list of the full legal name and address of each such principal and the number of Units subscribed for by the Subscriber on behalf of each such principal is set out in Schedule D hereto;
(e) if the Subscriber is purchasing the Units as trustee or agent (including, for greater certainty, a portfolio manager or comparable advisor) for one or more principals, the Subscriber makes the representations and warranties set out in Sections 3(b), 3(f), 3(g), 3(h)(ii), 3(m), 3(r), 3(t) and 3(u) for and on behalf of such principal or principals;
(f) the Subscriber is not a “"non-Canadian” " as that expression is defined in the Investment Canada Act (Canada);
(fg) the Subscriber is not a “non resident”, a partnership other than a “Canadian partnership”, a “tax shelter” or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within non-resident of Canada for the meaning purposes of the Income Tax Act (Canada), as amended (the "Tax Act");
(gh) the Subscriber and any disclosed principal for whom the Subscriber is contracting hereunder isSubscriber:
(i) is resident in or subject to the laws of Ontario, British Columbia, Alberta, Saskatchewan, Manitoba, Québec, Nova Scotia, New Brunswick, Xxxxxx Xxxxxx Island or Newfoundland and Labrador. (collectively, the "Offering Jurisdictions");
(ii) is (A) an “"accredited investor,” " as such term is defined in National Instrument 45-106 Prospectus Exemptions (“"NI 45-45- 106”"), or (B) making a firm commitment to invest an aggregate amount of at least $150,000 (or such lesser or greater amount as is permitted in the jurisdiction of residence of the Subscriber) and, in Ontarioif the Subscriber is not an individual, in Section 73.3 the Subscriber has not been formed, created, established or incorporated for the purpose of permitting the purchase of the Securities Act Units without a prospectus; and
(Ontario), and iii) has concurrently executed and delivered a Representation Letter and the Exhibit thereto in the form attached as Schedule “A” to this Subscription Agreement; or
(ii) not an individual or resident in Alberta, is purchasing the Units as principal for its own account and not for the benefit of any other person in a sufficient amount so that the aggregate acquisition cost for such Units is not less than $150,000 paid in cash at the time copy of the distribution and the Subscriber was not createdapplicable Investor Information Form, at Schedule "A", Schedule "B" or is used, solely to purchase or hold securities in reliance on the exemption from the prospectus requirement set out in subsection 2.10 of NI 45-106;
(h) if the Subscriber is a “permitted client”, as such term is defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”) and wishes to waive the Manager’s obligations under sections 13.3 of NI 31-103, the Subscriber has completed and signed Schedule “B” "C" to this Subscription Agreement;
(i) if the Subscriber is an individual relying on paragraph (j), (k) or (l) qualifies as a "permitted client" of the “accredited investor” definition Manager, in NI 45-106, its capacity as an exempt market dealer (as defined under applicable securities regulation) by satisfying at least one of the subscriber has completed and signed indicated criteria as set out in the risk acknowledgement form, relevant section of the applicable Investor Information Form 45-106F9, attached as Schedule “F” to this Subscription Agreement, the Subscriber has completed such relevant section of such applicable Investor Information Form, and represents to the Manager, in its capacity as an exempt market dealer, that it is a "permitted client", then the Subscriber:
(i) acknowledges that it is not relying on the Manager, in its capacity as an exempt market dealer, to ensure that an investment in the Fund by the Subscriber is suitable for the Subscriber and that, based on the information in the Principal Documents and based on the advice of the Subscriber's own advisers, the Subscriber has made that determination;
(ii) waives the regulatory requirement that the Manager, as an exempt market dealer, take reasonable steps to ensure that an investment in the Fund is suitable for the Subscriber or to inform the Subscriber of its opinion that any such investment may not be suitable for the Subscriber; and
(iii) waives the requirement under applicable securities regulation that the Manager, as an exempt market dealer, provide the Subscriber with specified information about the relationship between the Manager (in that capacity) and the Subscriber;
(j) the Subscriber has read the Offering Memorandum and is aware of the characteristics of the Units and of their speculative nature, as well as of the fact that they may only be transferred with the prior written consent of the Manager, and such transfer will generally not be permitted, and that the Subscriber shall not knowingly transfer his, her or its Units in whole or in part without the approval of the Manager and will do so only in accordance with Applicable Securities Laws;
(k) the decision to enter into this Subscription Agreement and to purchase the Units has not been based upon any verbal or written representation or documentation as to fact or otherwise made by or on behalf of the Manager, its affiliates or the Fund except as set forth in the Offering Memorandum;
(l) the Subscriber has not received, read nor been otherwise exposed to any advertising in respect of the Units;
(m) the Units are being purchased for investment only and not with a view to resale or distribution and will not be resold or otherwise transferred or disposed of except in accordance with the provisions of the applicable securities legislation and the regulations, rules and policies thereunder;
(nk) the Subscriber has received copies of and has had an opportunity to read the Principal Documents prior to executing and delivering this Subscription Agreement;
(l) the Subscriber acknowledges that the contents of the Principal Documents and the investment portfolio and trading procedures relating to the Fund are confidential and proprietary and the Subscriber will not distribute any portion of or disclose any matter set forth in the Principal Documents or any information with respect to such investment portfolio or trading procedures other than in accordance with Section 4 hereof, or unless required to do so by law, without the prior written consent of the Manager;
(m) the Subscriber has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of its investment in Units and is able to bear the economic risk of loss of its such investment;
(on) the Subscriber is aware of the characteristics of the Units, Units and of the nature and extent of personal liability and of the risks associated with an investment in the Units;
(o) the Subscriber is not relying on the Manager to ensure than an investment in the Fund by the Subscriber is suitable for the Subscriber (except as otherwise required of the Manager pursuant to applicable securities laws) and based on the information in the Confidential Offering Memorandum and/or the advice of the Subscriber's own advisers, the Subscriber has made that determination;
(p) the Subscriber is aware that there are securities and tax laws applicable to the holding and disposition of the Units and has obtained independent legal and tax been given the opportunity to seek advice in respect of such laws and is not relying solely upon the information from the Fund, the Manager or, where applicable, their partners, officers, trustees, directors, employees or agents;
(q) the Subscriber acknowledges that no prospectus has been independently advised as to, and is aware of, filed with any securities commission or other regulatory authority in connection with the resale restrictions under Applicable Securities Laws with respect to the Units and acknowledges receipt of a written notice of the legend restriction notation applicable to the resale issuance of the Units, such issuance is exempted from the prospectus requirements of applicable securities laws and as a result:
(i) the Subscriber is restricted from using certain civil remedies which would otherwise be available,
(ii) the Subscriber may not receive certain information that would otherwise be required to be provided, and
(iii) the Fund is relieved from certain obligations that would otherwise apply;
(r) the acknowledgments contained in any forms or documents delivered by the Subscriber under applicable securities laws are true and correct as of the date of execution of this Subscription Agreement, and will be true and correct as of the closing of the purchase and sale of the Units, and fully and truly state those facts necessary for the Fund and the Manager to be entitled to rely on the relevant exemptions from the prospectus and comply with applicable registration requirements or exemptions, each within the meaning of Applicable Securities Laws applicable securities laws of the province or territory of residence of the Subscriber;
(s) the Subscriber is not a “U.S. Person” (as that term is defined in Regulation S promulgated under the United States Securities Act of 1933, as amended, which definition includes, but is not limited to, an individual resident in the United States, an estate or 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 United States) and is not acquiring the Units for the account of or benefit of a U.S. Person or a person in the United States;
(t) the Subscriber acknowledges that the Units may not be offered, sold, resold or otherwise transferred to persons in the United States or to U.S. Persons (as such term is defined in Regulation S to the United States Securities Act of 1933, as amended);
(ut) the Subscriber is not a designated beneficiary within the meaning of Part XII.2 of the Tax Act;
(vu) the Subscriber is not a “"financial institution” " (as defined in Subsection 142.2 of the Tax Act) (a “"Financial Institution”") or, if the Subscriber is a Financial Institution, the Subscriber has advised the Manager in writing that the Subscriber is a Financial Institution prior to the date of acceptance of the Subscriber’s subscription for UnitsInstitution;
(w) the Subscriber represents and warrants that the Subscriber is not named on or blocked by any of the following lists (the “Prohibited Lists”) promulgated by the Department of Foreign Affairs and International Trade Canada (DFAIT), or the Department of Public Safety and Emergency Preparedness of Canada (DPSEP):
(i) the List of Names subject to the Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspx;
(ii) the List of Names subject to the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000; or
(iii) the List of Names subject to the United Nations Al-Qaida and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525.
(x) the Subscriber acknowledges and agrees that the Manager has provided herein certain lists adopted or published by applicable governmental authorities for the convenience of the Subscriber and that because these lists are subject to change from time to time, it is the responsibility of the Subscriber to ensure that the lists are current as of the time this Subscription Agreement is executed and that each representation made by the Subscriber is true and correct as of the date of the Subscription Agreement;
(y) to the best of the Subscriber’s knowledge the money that the Subscriber seeks to invest is not derived from any criminal enterprise or proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada);
(z) the investment portfolio and trading procedures of the Fund is proprietary to the Fund and the Manager and all information relating to such investment portfolio and trading procedures shall be kept confidential by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Manager; and
(aav) the Subscriber will execute and deliver all documentation as may be required by applicable securities laws or by the Fund, as the case may be, to permit the purchase of the Units under on the terms herein set forth and the Subscriber will deliver such releases or other documents for income tax and other purposesdocuments, if any, for income tax purposes as from time to time may be required by the Manager; and
(w) the Subscriber shall notify the Fund immediately if it anticipates that any representation or warranty made by the Subscriber herein will cease to be correct or if it becomes aware that any such representation or warranty has ceased to be correct. The representations, warranties, covenants and acknowledgements of the Subscriber contained in this Subscription Agreement shall survive the completion of the purchase and sale of the Units and by the Subscriber. The Subscriber acknowledges and agrees that the representations, warranties and covenants given by the Subscriber to and in favour of the Fund and the Manager shall be deemed to be repeated and reconfirmed as at the date of any subsequent subscription for Units made by the Subscriber or reinvestment of distributions made by the Fund unless a new subscription agreement is executed.
Appears in 2 contracts
Samples: Subscription Agreement, Subscription Agreement
Representations, Warranties, Covenants and Acknowledgements of the Subscriber. 4.1 The SubscriberSubscriber acknowledges, on its own behalf and on behalf of any disclosed principal for whom the Subscriber is contracting under this Subscription Agreement, hereby represents, warrants, acknowledges warrants and covenants to and with the Manager Issuer as at the date given above and to at the Fund Closing that:
(a) the Subscriber:
(i) is eligible to purchase under an exemption listed in Appendix I, and agrees to complete, sign and deliver to the Issuer the Issuer’s exemption certificate attached hereto as Appendix I; or
(ii) if not an individualindividual and purchasing sufficient Special Warrants so that the aggregate acquisition cost is not less than $150,000, then the Subscriber is of has not been created or used solely to purchase or hold the age of majority and has the capacity and competence to enter into and be bound by this Subscription Agreement and all other agreements contemplated hereby and this Subscription Agreement constitutes a legal, valid and binding agreement enforceable against the Subscriber in accordance with its termsSpecial Warrants;
(b) if the Subscriber is resident outside of British Columbia, the Subscriber certifies that the Subscriber is not resident in British Columbia and acknowledges that:
(i) no securities commission or similar regulatory authority has reviewed or passed on the merits of the Securities;
(ii) there is no government or other insurance covering the Securities;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Subscriber’s ability to resell the Securities and it is the responsibility of the Subscriber to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Subscriber that the Issuer is relying on an incorporated entityexemption from the requirements to provide the Subscriber with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Subscriber;
(c) no prospectus has been filed by the Issuer with any of the Commissions in connection with the issuance of the Securities, such issuance is exempted from the prospectus requirements of the Acts and that:
(i) the Subscriber is a valid and subsisting corporation and is in good standing restricted from using most of the civil remedies available under the laws of the jurisdiction of its incorporationActs;
(ii) the Subscriber has may not receive information that would otherwise be required to be provided to it under the corporate capacity and authority to execute and deliver this Subscription Agreement and to observe and perform its obligations hereunder;Acts; and
(iii) this Subscription Agreement has been duly authorized, executed and delivered by the Subscriber and Issuer is a legal, valid and binding obligation of relieved from certain obligations that would otherwise apply under the Subscriber, enforceable against the Subscriber in accordance with its terms; and
(iv) the execution and delivery of this Subscription Agreement by the Subscriber will not result in the violation of, or constitute a default under, or conflict with or cause the acceleration of any obligation of the Subscriber under (a) any contract to which the Subscriber is a party or by which it is bound; (b) any provision of the constating documents of the Subscriber; or (c) any judgment, decree, order or award of any court, government body or arbitrator having jurisdiction over the SubscriberActs;
(cd) the Subscriber is a resident in or otherwise subject to the securities laws of the province or territory of Canada jurisdiction set forth out under “subscriber’s address” on the second page of this Subscription Agreement, and if the Subscriber is acting as agent for a disclosed principal, the disclosed principal is resident in or otherwise subject to the securities laws of province or territory set out on the second page of this Subscription Agreement;
(d) if the Subscriber is purchasing the Units as trustee or agent (including, for greater certainty, a portfolio manager or comparable advisor) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such purchase on behalf of such principal, to agree to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and the Subscriber acknowledges that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units for whom the Subscriber may be acting;
(e) the Subscriber is not a “non-Canadian” as that expression is defined in the Investment Canada Act (Canada);
(f) the Subscriber is not a “non resident”, a partnership other than a “Canadian partnership”, a “tax shelter” or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within the meaning of the Tax Act;
(g) the Subscriber and any disclosed principal for whom the Subscriber is contracting hereunder is:
(i) an “accredited investor,” as such term is defined in National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) and, in Ontario, in Section 73.3 of purchasing the Securities Act (Ontario), and has concurrently executed and delivered a Representation Letter and the Exhibit thereto in the form attached as Schedule “A” to this Subscription Agreement; or
(ii) not an individual or resident in Alberta, is purchasing the Units as principal for its own account and not for the benefit of any other person or is deemed under the Acts to be purchasing the Securities as principal, and in either case is purchasing the Securities for investment only and not with a sufficient amount so that view to the aggregate acquisition cost for such Units is not less than $150,000 paid in cash at the time resale or distribution of all or any of the distribution Securities subscribed for hereunder;
(f) if the Subscriber is resident outside of Canada and the Subscriber was not createdUnited States, the Subscriber:
(i) is knowledgeable of, or has been (or understands that it should be) independently advised as to the applicable securities laws of the International Jurisdiction;
(ii) is used, solely purchasing the Securities pursuant to purchase or hold securities in reliance on the exemption exemptions from the prospectus requirement set out and registration requirements under the applicable securities laws of the International Jurisdiction or, if such is not applicable, the Subscriber is permitted to purchase the Securities under the applicable securities laws of the International Jurisdiction without the need to rely on any exemption; and
(iii) the applicable securities laws of the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Regulatory Authority in subsection 2.10 the International Jurisdiction in connection with the issue and sale or resale of NI 45-106the Securities subscribed for hereunder;
(g) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on a stock exchange or that application has been made to list and post any of the Securities for trading on a stock exchange;
(h) the Subscriber acknowledges that the Securities have not been registered under the 1933 Act or the securities laws of any state of the United States, that the Securities may not be offered or sold, directly or indirectly, in the United States except pursuant to registration under the 1933 Act and the securities laws of all applicable states or available exemptions therefrom, and that the Issuer has no obligation or present intention of filing a registration statement under the 1933 Act in respect of any of the Securities;
(i) the Subscriber acknowledges that as a Special Warrant holder and until the Automatic Conversion, he/she is not a shareholder of the Issuer. The Special Warrants do confer upon a Special Warrant holder any right or interest whatsoever as a Shareholder of the Company, including, but not limited to, the right to vote at, to receive notice of, or to attend, meetings of shareholders or any other proceedings of the Company, nor entitle the holder to any right or interest in respect thereof except as herein expressly provided;
(j) if the Subscriber is a “permitted client”U.S. Person, the provisions of Appendix V apply;
(k) unless the Subscriber has completed, signed and delivered the U.S. Accredited Investor Certificate attached as such term is defined Appendix V (in National Instrument 31-103 Registration Requirementswhich case the Subscriber makes the representations, Exemptions warranties and Ongoing Registrant Obligations (“NI 31-103”) and wishes to waive the Manager’s obligations under sections 13.3 of NI 31-103covenants therein), the Subscriber has completed acknowledges and signed Schedule “B” agrees that the offer to this Subscription Agreement;purchase Special Warrants was not made to the Subscriber when the Subscriber was in the United States, and at the time the Subscriber’s subscription for Special Warrants was executed and delivered to the Issuer, the Subscriber was not a U.S. Person and was outside the United States and that:
(i) if the Subscriber is an individual relying on paragraph (j), (k) not and will not be purchasing the Securities for the account or (l) benefit of any U.S. Person or person in the “accredited investor” definition in NI 45-106, the subscriber has completed and signed the risk acknowledgement form, Form 45-106F9, attached as Schedule “F” to this Subscription AgreementUnited States;
(jii) the current structure of this transaction and all transactions and activities contemplated hereunder is not a scheme to avoid the registration requirements of the 1933 Act; and
(iii) the Subscriber has read the Offering Memorandum and is aware no intention to distribute either directly or indirectly any of the characteristics of Securities in the Units and of their speculative natureUnited States, as well as of the fact that they may only be transferred except in compliance with the prior written consent 1933 Act;
(l) the offer made by this subscription is irrevocable and requires acceptance by the Issuer which will be conditional upon the sale of the Manager, and such transfer will generally not be permitted, and that Special Warrants to the Subscriber shall not knowingly transfer his, her or its Units being exempt from the prospectus and registration requirements under applicable relevant securities legislation;
(m) the Issuer will have the right to accept this subscription offer in whole or in part without and the approval acceptance of this subscription offer will be conditional upon the sale of Special Warrants to the Subscriber being exempt from the prospectus and registration requirements under applicable relevant securities legislation; if less than all of the Manager and subscription offer is accepted, the rejected portion of the Subscription Proceeds will do so only in accordance with Applicable Securities Lawsbe returned, without interest or deduction;
(kn) 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 an individual is of full age of majority, 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 given to authorize the execution of this Agreement on behalf of the Subscriber;
(o) the entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which it is or may be bound or, to the Subscriber’s knowledge, any law applicable to the Subscriber;
(p) this Agreement has been duly executed and delivered by the Subscriber and constitutes a legal, valid and binding obligation of the Subscriber enforceable against the Subscriber, subject to applicable bankruptcy, insolvency, reorganization and other laws of general application limiting the enforcement of creditors’ rights generally and the fact that specific performance is an equitable remedy available in the discretion of a court;
(q) the Subscriber has been advised to consult its own legal advisors in connection with the execution, delivery and performance by it of this Agreement and the completion of the transactions contemplated hereby;
(r) the Subscriber has been advised to consult its own financial advisors and obtain income tax advice with respect to this subscription;
(s) the Subscriber is able to bear the economic risk of the potential loss of its investment hereunder;
(t) if required by applicable securities legislation, policy or order or by any securities commission, stock exchange or other regulatory authority, the Subscriber will execute, deliver, file and otherwise assist the Issuer in filing, such reports, undertakings and other documents with respect to the issue of the Shares as may be required;
(u) the Subscriber has not received or been provided with a prospectus, offering memorandum or similar document in connection with the sale of the Special Warrants hereunder or any document purporting to describe the business and affairs of the Issuer which has been prepared for review by prospective purchasers to assist in making an investment decision in respect of the Special Warrants, and the Subscriber’s decision to subscribe for the Special Warrants was not based upon, and the Subscriber has not relied upon, any oral or written representations as to facts made by or on behalf of the Issuer other than those expressly made by the Issuer in this Agreement. The Subscriber’s decision to enter into this Subscription Agreement and to purchase the Units has not been based upon any verbal or written representation or documentation as to fact or otherwise made by or on behalf of the Manager, its affiliates or the Fund except as set forth in the Offering Memorandum;
(l) the Subscriber has not received, read nor been otherwise exposed to any advertising in respect of the Units;
(m) the Units are being purchased for investment only and not with a view to resale or distribution and will not be resold or otherwise transferred or disposed of except in accordance with the provisions of the applicable securities legislation and the regulations, rules and policies thereunder;
(n) the Subscriber has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of its investment and is able to bear the economic risk of loss of its investment;
(o) the Subscriber is aware of the characteristics of the Units, of the nature and extent of personal liability and of the risks associated with an investment in the Units;
(p) the Subscriber is aware that there are securities and tax laws applicable to the holding and disposition of the Units and has obtained independent legal and tax advice and is not relying solely upon the information Special Warrants from the Fund, Issuer is based entirely upon publicly available information concerning the Manager or, where applicable, their officers, trustees, directors, employees or agents;
(q) the Subscriber has been independently advised as to, Issuer and is aware of, the resale restrictions under Applicable Securities Laws with respect to the Units and acknowledges receipt of a written notice of the legend restriction notation applicable to the resale of the Units;
(r) the acknowledgments contained in any forms or documents delivered by the Subscriber under applicable securities laws are true and correct as of the date of execution of on this Subscription Agreement, and will be true and correct as of the closing of the purchase and sale of the Units, and fully and truly state those facts necessary for the Fund to be entitled to rely on the relevant exemptions from the prospectus requirements within the meaning of Applicable Securities Laws of the province or territory of residence of the Subscriber;
(s) the Subscriber is not a “U.S. Person” (has had access to such additional information, if any, concerning the Issuer as that term is defined it has considered necessary in Regulation S promulgated under connection with its investment decision to acquire the United States Securities Act of 1933, as amended, which definition includes, but is not limited to, an individual resident in the United States, an estate or 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 United States) and is not acquiring the Units for the account of or benefit of a U.S. Person or a person in the United States;
(t) the Subscriber acknowledges that the Units may not be offered, sold, resold or otherwise transferred to persons in the United States or to U.S. Persons (as such term is defined in Regulation S to the United States Securities Act of 1933, as amended);
(u) the Subscriber is not a designated beneficiary within the meaning of Part XII.2 of the Tax ActSpecial Warrants;
(v) the Subscriber is not a “financial institution” (as defined in Subsection 142.2 of the Tax Act) (a “Financial Institution”) or, if the Subscriber is a Financial InstitutionU.S. Person, the Subscriber has advised not purchased the Manager Special Warrants as a result of any form of “general solicitation” or “general advertising” (as those terms are used in writing that the Subscriber is a Financial Institution prior to the date of acceptance of the Subscriber’s subscription for Units;Regulation D), including advertisements, articles, notices or other communication published in any newspaper, magazine or similar media or broadcast over radio, television or internet or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
(w) the Subscriber represents and warrants that the Subscriber is Subscription Proceeds will not named on or blocked by any of the following lists (the “Prohibited Lists”) promulgated by the Department of Foreign Affairs and International Trade Canada (DFAIT), or the Department of Public Safety and Emergency Preparedness of Canada (DPSEP):
(i) the List of Names subject to the Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspx;
(ii) the List of Names subject to the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000; or
(iii) the List of Names subject to the United Nations Al-Qaida and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525.
(x) the Subscriber acknowledges and agrees that the Manager has provided herein certain lists adopted or published by applicable governmental authorities for the convenience of the Subscriber and that because these lists are subject to change from time to time, it is the responsibility of the Subscriber to ensure that the lists are current as of the time this Subscription Agreement is executed and that each representation made by the Subscriber is true and correct as of the date of the Subscription Agreement;
(y) to the best of the Subscriber’s knowledge the money that the Subscriber seeks to invest is not derived from any criminal enterprise or represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada);
(z) the investment portfolio and trading procedures of the Fund is proprietary to the Fund and the Manager and all information relating to such investment portfolio and trading procedures shall be kept confidential by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Manager; and
(aa) the Subscriber will execute and deliver all documentation as may be required by applicable securities laws or by the Fund, as the case may be, to permit the purchase of the Units under the terms herein set forth and the Subscriber will deliver such releases or other documents for income tax and other purposes, if any, as from time to time may be required by the Manager. The representations, warranties, covenants and acknowledgements of the Subscriber contained in this Subscription Agreement shall survive the completion of the purchase and sale of the Units and the Subscriber. The Subscriber acknowledges and agrees that the representations, warranties and covenants given by the Subscriber to and in favour of the Fund and the Manager shall be deemed to be repeated and reconfirmed as at the date of any subsequent subscription for Units made by the Subscriber or reinvestment of distributions made by the Fund unless a new subscription agreement is executed.
Appears in 1 contract
Representations, Warranties, Covenants and Acknowledgements of the Subscriber. 3.1 The SubscriberSubscriber acknowledges, on its own behalf and on behalf of any disclosed principal for whom the Subscriber is contracting under this Subscription Agreement, hereby represents, warrants, acknowledges warrants and covenants to and with the Manager Issuer that, as at the date given above and to at the Fund thatClosing:
(a) if an individual, no prospectus has been filed by the Subscriber is Issuer with any of the age Commissions in connection with the issuance of majority the Shares, such issuance is exempted from the prospectus requirements of the Acts and has the capacity and competence to enter into and be bound by this Subscription Agreement and all other agreements contemplated hereby and this Subscription Agreement constitutes a legal, valid and binding agreement enforceable against the Subscriber in accordance with its terms;
(b) if the Subscriber is an incorporated entitythat:
(i) the Subscriber is a valid and subsisting corporation and is in good standing restricted from using most of the civil remedies available under the laws of the jurisdiction of its incorporationActs;
(ii) the Subscriber has may not receive information that would otherwise be required to be provided to it under the corporate capacity and authority to execute and deliver this Subscription Agreement and to observe and perform its obligations hereunder;Acts; and
(iii) this Subscription Agreement has been duly authorized, executed and delivered by the Subscriber and Issuer is a legal, valid and binding obligation of relieved from certain obligations that would otherwise apply under the Subscriber, enforceable against the Subscriber in accordance with its terms; andActs;
(iv) the execution and delivery of this Subscription Agreement by the Subscriber will not result in the violation of, or constitute a default under, or conflict with or cause the acceleration of any obligation of the Subscriber under (a) any contract to which the Subscriber is a party or by which it is bound; (b) any provision the Subscriber certifies that it and, if applicable, the Disclosed Principal, is resident in the jurisdiction(s) set out on the first page of the constating documents of the Subscriber; or (c) any judgment, decree, order or award of any court, government body or arbitrator having jurisdiction over the Subscriberthis Agreement;
(c) the Subscriber is a resident in or otherwise subject to the securities laws of the province or territory of Canada set forth on the second page of this Subscription Agreement, and if the Subscriber is acting as agent for a disclosed principal, the disclosed principal is resident in or otherwise subject to the securities laws of province or territory set out on the second page of this Subscription Agreement;
(d) if the Subscriber is purchasing the Units as trustee or agent (including, for greater certainty, a portfolio manager or comparable advisor) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such purchase on behalf of such principal, to agree to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and the Subscriber acknowledges that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units for whom the Subscriber may be acting;
(e) the Subscriber is not a “non-Canadian” as that expression is defined in the Investment Canada Act (Canada);
(f) the Subscriber is not a “non resident”, a partnership other than a “Canadian partnership”, a “tax shelter” or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within the meaning of the Tax Act;
(g) the Subscriber and any disclosed principal for whom the Subscriber is contracting hereunder iseither:
(i) an “accredited investor,” as such term is defined in National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) and, in Ontario, in Section 73.3 of the Securities Act (Ontario), and has concurrently executed and delivered a Representation Letter and the Exhibit thereto in the form attached as Schedule “A” to this Subscription Agreement; or
(ii) not an individual or resident in Alberta, is purchasing the Units Subscriber's Shares as principal for its own account and not for the benefit of any other person or is deemed under the Acts to be purchasing the Subscriber's Shares as principal, and in either case is purchasing the Subscriber's Shares for investment only and not with a sufficient amount so view to the resale or distribution of all or any of the Subscriber's Shares; or
(ii) purchasing the Subscriber's Shares as agent for a disclosed principal (the "Disclosed Principal") and is not deemed under the Acts to be purchasing the Subscriber's Shares as principal, and it is duly authorized to enter into this Agreement and to execute and deliver all documentation in connection with the purchase on behalf of such Disclosed Principal, who is purchasing as principal for its own account and not for the benefit of any other person and for investment only and not with a view to the resale or distribution of all or any of the Subscriber's Shares and in its capacity as agent, the Subscriber is acting in compliance with all applicable securities and other laws;
(d) the Subscriber certifies that neither it nor the Disclosed Principal, if applicable, is resident in British Columbia and acknowledges that:
(i) no securities commission or similar regulatory authority has reviewed or passed on the merits of the Securities;
(ii) there is no government or other insurance covering the Shares;
(iii) there are risks associated with the purchase of the Shares;
(iv) there are restrictions on the Subscriber's or the Disclosed Principal's ability to resell the Shares and it is the responsibility of the Subscriber or the Disclosed Principal to find out what those restrictions are and to comply with them before selling the Shares; and
(v) the Issuer has advised the Subscriber that the aggregate acquisition cost for such Units Issuer is not less than $150,000 paid in cash at the time of the distribution and the Subscriber was not created, or is used, solely to purchase or hold securities in reliance relying on the an exemption from the requirements to provide the Subscriber with a prospectus requirement and to sell securities through a person registered to sell securities under the B.C. Act and, as a consequence of acquiring Shares pursuant to this exemption, certain protections, rights and remedies provided by the B.C. Act, including statutory rights of rescission or damages, will not be available to the Subscriber or the Disclosed Principal;
(e) the Subscriber or the Disclosed Principal for which it is acting, as the case may be is an Accredited Investor, by virtue of the fact that the Subscriber or such Disclosed Principal, as the case may be, falls within one or more of the sub-paragraphs of the definition of Accredited Investor set out in subsection 2.10 Appendix II (the Subscriber having checked the subparagraph(s) applicable to the Subscriber or such Disclosed Principal, as the case may be);
(f) no person has made to the Subscriber or the Disclosed Principal, if applicable, any written or oral representations:
(i) that any person will resell or repurchase any of NI 45-106the 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 a stock exchange or that application has been made to list and post any of the Shares for trading on a stock exchange, other than the Shares on the Exchange;
(g) the Subscriber or, the Disclosed Principal, as the case may be, will not become a "control person" by virtue of the purchase of the Subscriber's Shares, and does not intend to act in concert with any other person to form a control group of the Issuer;
(h) if this subscription has not been solicited in any other manner contrary to the Acts and the Subscriber is a “permitted client”, as such term is defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”) and wishes to waive the Manager’s obligations under sections 13.3 of NI 31-103, acknowledges that the Subscriber has completed and signed Schedule “B” to this Subscription Agreementwill not receive an offering memorandum or other disclosure document in respect of the Issuer;
(i) if the Subscriber is an individual relying on paragraph (j), (k) acknowledges that the Shares have not been registered under the 1933 Act or (l) the securities laws of any state of the “accredited investor” definition United States, that the Shares may not be offered or sold, directly or indirectly, in NI 45-106the United States except pursuant to registration under the 1933 Act and the securities laws of all applicable states or available exemptions therefrom, and that the subscriber Issuer has completed and signed no obligation or present intention of filing a registration statement under the risk acknowledgement form, Form 45-106F9, attached as Schedule “F” to this Subscription Agreement1933 Act in respect of any of the Shares;
(j) the Subscriber has read acknowledges and agrees that:
(i) the Offering Memorandum offer to purchase the Subscriber's Shares was not made to the Subscriber in the United States;
(ii) this Agreement was delivered to, executed and delivered by the Subscriber outside the United States;
(iii) the Subscriber is aware not, and will not be purchasing the Subscriber's Shares for the account or benefit of, any U.S. Person or person in the United States;
(iv) the current structure of this transaction and all transactions and activities contemplated hereunder is not a scheme to avoid the registration requirements of the characteristics 1933 Act;
(v) if the Subscriber is a corporation, partnership or other legal entity incorporated or organized in the United States, the Subscriber's affairs are controlled and directed from outside of the Units and of their speculative natureUnited States, as well as its purchase of the fact Shares was not solicited in the United States, no part of the transaction which is the subject of this Subscription Agreement occurred in the United States, and the Company has informed the Subscriber that they may only be transferred no market for the Shares currently exists in the United States; and
(vi) the Subscriber and any person for whose account it is acquiring the Subscriber's Shares, if applicable, has no intention to distribute either directly or indirectly any of the Shares in the United States, except in compliance with the prior written consent of the Manager, and such transfer will generally not be permitted, and that the Subscriber shall not knowingly transfer his, her or its Units in whole or in part without the approval of the Manager and will do so only in accordance with Applicable Securities Laws1933 Act;
(k) neither the decision to enter into this Subscription Agreement and to purchase Subscriber nor the Units Disclosed Principal, if applicable, has knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the affairs of the Issuer that has not been based upon generally disclosed to the public, save knowledge of this particular transaction;
(l) the Subscriber's decision to tender this offer and purchase the Subscriber's Shares has not been made as a result of any verbal or written representation or documentation as to fact or otherwise made by or on behalf of the ManagerIssuer, its affiliates or any other person and is based entirely upon currently available public information concerning the Fund except as set forth in the Offering Memorandum;
(l) the Subscriber has not received, read nor been otherwise exposed to any advertising in respect of the UnitsIssuer;
(m) the Units are being purchased for investment only offer made by this subscription is irrevocable (subject to the Subscriber's right to withdraw his subscription and not with a view to resale or distribution terminate his obligations as set out in this Agreement) and will not be resold or otherwise transferred or disposed of except in accordance with requires acceptance by the provisions Issuer and acceptance of the applicable securities legislation and the regulations, rules and policies thereunderExchange;
(n) the Issuer will have the right to accept this subscription offer in whole or in part and the acceptance of this subscription offer will be conditional upon the sale of the Subscriber's Shares to the Subscriber or the Disclosed Principal, as the case may be, being exempt from the prospectus and registration requirements under applicable relevant securities legislation;
(o) 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 an individual is of full age of majority, 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 given to authorize the execution of this Agreement on behalf of the Subscriber;
(p) the entering into of this Agreement and the transactions contemplated hereby 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 the Disclosed Principal, if applicable, or of any agreement, written or oral, to which the Subscriber, or the Disclosed Principal, if applicable, may be a party or by which it is or may be bound;
(q) this Agreement has been duly executed and delivered by the Subscriber and constitutes a legal, valid and binding obligation of the Subscriber enforceable against the Subscriber and, if applicable, the Disclosed Principal;
(r) the Subscriber has been advised to consult its own legal advisors with respect to the applicable hold periods imposed in respect of the Shares by applicable securities legislation and regulatory policies and confirms that no representations by the Issuer have been made respecting the hold periods applicable to the Shares;
(s) the Subscriber and, if applicable, the Disclosed Principal are aware of the risks and other characteristics of the Shares and of the fact that the Subscriber and, if applicable, the Disclosed Principal, may not be able to resell the Shares purchased by it except in accordance with the applicable securities legislation and regulatory policies and that the Shares may be subject to resale restrictions and may bear a legend to this effect;
(t) if required by applicable securities legislation, policy or order or by any securities commission, stock exchange or other regulatory authority, the Subscriber and, if applicable, the Disclosed Principal, will execute, deliver, file and otherwise assist the Issuer in filing, such reports, undertakings and other documents with respect to the issue of the Shares as may be required;
(u) the Subscriber and, if applicable, the Disclosed Principal, has not purchased the Shares as a result of any form of general solicitation or general advertising, including advertisements, articles, notices or other communication published in any newspaper, magazine or similar media or broadcast over radio, television or internet or any seminar or meeting whose attendees have been invited by general solicitation or general advertising;
(v) the Subscriber and, if applicable, the Disclosed Principal, have such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of its investment and is able to bear the economic risk of loss of its investment;
(ow) the Subscriber is aware of the characteristics of the UnitsSubscriber, of the nature and extent of personal liability and of the risks associated with an investment in the Units;
(p) the Subscriber is aware that there are securities and tax laws applicable to the holding and disposition of the Units and has obtained independent legal and tax advice and is not relying solely upon the information from the Fund, the Manager or, where applicable, their officers, trustees, directors, employees or agents;
(q) the Subscriber has been independently advised as to, and is aware of, the resale restrictions under Applicable Securities Laws with respect to the Units and acknowledges receipt of a written notice of the legend restriction notation applicable to the resale of the Units;
(r) the acknowledgments contained in any forms or documents delivered by the Subscriber under applicable securities laws are true and correct as of the date of execution of this Subscription Agreement, and will be true and correct as of the closing of the purchase and sale of the Units, and fully and truly state those facts necessary for the Fund to be entitled to rely on the relevant exemptions from the prospectus requirements within the meaning of Applicable Securities Laws of the province or territory of residence of the Subscriber;
(s) the Subscriber is not a “U.S. Person” (as that term is defined in Regulation S promulgated under the United States Securities Act of 1933, as amended, which definition includes, but is not limited to, an individual resident in the United States, an estate or 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 United States) and is not acquiring the Units for the account of or benefit of a U.S. Person or a person in the United States;
(t) the Subscriber acknowledges that the Units may not be offered, sold, resold or otherwise transferred to persons in the United States or to U.S. Persons (as such term is defined in Regulation S to the United States Securities Act of 1933, as amended);
(u) the Subscriber is not a designated beneficiary within the meaning of Part XII.2 of the Tax Act;
(v) the Subscriber is not a “financial institution” (as defined in Subsection 142.2 of the Tax Act) (a “Financial Institution”) or, if the Subscriber is a Financial Institutionapplicable, the Subscriber Disclosed Principal, if a corporation or other non-individual entity, has advised previously filed with the Manager Exchange a Form 4C, Corporate Placee Registration Form, and represents and warrants that there has been no change to any of the information in writing that the Subscriber is a Financial Institution prior Corporate Placee Registration Form previously filed with the Exchange up to the date of acceptance of the Subscriber’s subscription for Units;
(w) the Subscriber represents and warrants that the Subscriber is not named on or blocked by any of the following lists (the “Prohibited Lists”) promulgated by the Department of Foreign Affairs and International Trade Canada (DFAIT)this Agreement, or will deliver a completed Form 4C, Corporate Placee Registration Form in the Department of Public Safety and Emergency Preparedness of Canada (DPSEP):
(i) the List of Names subject form attached hereto as Appendix I to the Regulations Establishing a List Issuer in accordance with Part 7 of Entities made under subsection 83.05(1) of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspxthis Agreement;
(ii) the List of Names subject to the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000; or
(iii) the List of Names subject to the United Nations Al-Qaida and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525.
(x) the Subscriber acknowledges and agrees that the Manager has provided herein certain lists adopted Issuer may be required by law or published by applicable governmental otherwise to disclose to regulatory authorities for the convenience identity of the Subscriber and that because these lists are subject to change from time to timeand, it is if applicable, the responsibility of beneficial purchaser for whom the Subscriber to ensure that the lists are current as of the time this Subscription Agreement is executed and that each representation made by the Subscriber is true and correct as of the date of the Subscription Agreement;may be acting; and
(y) to the best of the Subscriber’s knowledge the money Subscriber agrees that the Subscriber seeks to invest is not derived from any criminal enterprise or proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada);
(z) the investment portfolio and trading procedures of the Fund is proprietary to the Fund and the Manager and all information relating to such investment portfolio and trading procedures shall be kept confidential by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Manager; and
(aa) the Subscriber will execute and deliver all documentation as may be required by applicable securities laws or by the Fund, as the case may be, to permit the purchase of the Units under the terms herein set forth and the Subscriber will deliver such releases or other documents for income tax and other purposes, if any, as from time to time may be required by the Manager. The above representations, warranties, covenants and acknowledgements in this subsection will be true and correct both as of the Subscriber contained in execution of this Subscription Agreement shall survive the completion subscription and as of the purchase and sale day of the Units and the Subscriber. Closing.
3.2 The Subscriber acknowledges and agrees that the foregoing representations, warranties warranties, covenants and covenants given by the Subscriber to and in favour of the Fund and the Manager shall be deemed to be repeated and reconfirmed as at the date of any subsequent subscription for Units acknowledgements are made by the Subscriber or reinvestment of distributions made with the intent that they be relied upon by the Fund unless Issuer in determining its suitability as a new subscription agreement is executedpurchaser of Shares, and the Subscriber hereby agrees to indemnify the Issuer against all losses, claims, costs, expenses and damages or liabilities which any of them may suffer or incur as a result of reliance thereon. The Subscriber undertakes to notify the Issuer immediately of any change in any representation, warranty or other information relating to the Subscriber set forth herein which takes place prior to the Closing.
Appears in 1 contract
Representations, Warranties, Covenants and Acknowledgements of the Subscriber. The SubscriberSubscriber acknowledges, on its own behalf and on behalf of any disclosed principal for whom the Subscriber is contracting under this Subscription Agreement, hereby represents, warrants, acknowledges warrants and covenants to and with the Manager Corporation that, as at the date given above and to at the Fund thatClosing:
(a) if an individual, the Subscriber is resident in the jurisdiction set out as the “Subscriber’s Residential or Head Office Address” on page 1 of this Agreement, which address is the residence or place of business of the age Subscriber and such address was not obtained or used solely for the purpose of majority and has acquiring the capacity and competence to enter into and be bound by this Subscription Agreement and all other agreements contemplated hereby and this Subscription Agreement constitutes a legal, valid and binding agreement enforceable against the Subscriber in accordance with its termsPurchased Securities;
(b) if the Subscriber is an incorporated entity:“accredited investor” (as such term is defined in NI 45-106) and the Subscriber has properly completed, executed and delivered to the Corporation this Subscription Agreement and Error! Reference source not found. (the Accredited Investor Certificate), and the Exhibit thereto, as applicable, and the acknowledgements, representations, warranties, covenants and information contained herein and therein are true and correct as of the date hereof and will be true and correct as of the Closing Date;
(c) unless the Subscriber has completed and delivered the U.S. Accredited Investor Certificate attached as Error! Reference source not found. hereto (in which case the Subscriber makes the representations, warranties and covenants therein and confirm the truth and accuracy of all statements in such schedule as of the date of this Agreement and as of the Closing Date):
(i) the Subscriber is not a valid and subsisting corporation and is in good standing under the laws of the jurisdiction of its incorporationU.S. Person;
(ii) the Offered Securities were not offered to the Subscriber has in the corporate capacity United States and authority to execute and deliver this Subscription Agreement and to observe and perform its obligations hereunderat the time the Subscriber’s buy order was made, the Subscriber was outside the United States;
(iii) this Subscription Agreement has been duly authorizedwas delivered to, executed and delivered by by, the Subscriber and is a legal, valid and binding obligation of (or the Subscriber, enforceable against ’s authorized signatory) outside the Subscriber in accordance with its terms; andUnited States;
(iv) the execution Subscriber is not, and delivery of this Subscription Agreement by the Subscriber will not result be, purchasing the Purchased Securities for the account or benefit of any U.S. Person or person in the violation of, or constitute a default under, or conflict with or cause the acceleration of any obligation of the Subscriber under (a) any contract to which the Subscriber is a party or by which it is bound; (b) any provision of the constating documents of the Subscriber; or (c) any judgment, decree, order or award of any court, government body or arbitrator having jurisdiction over the SubscriberUnited States;
(cv) the current structure of this transaction and all transactions and activities contemplated hereunder is not a scheme to avoid the registration requirements of the 1933 Act;
(vi) the Subscriber is a resident has no intention to distribute either directly or indirectly any of the Purchased Securities in the United States, except in compliance with the 1933 Act and applicable state securities laws;
(vii) the Subscriber understands that the Offered Securities have not been registered under the 1933 Act or otherwise subject to the securities laws of any state of the province or territory of Canada set forth on the second page of this Subscription Agreement, and if the Subscriber is acting as agent for a disclosed principalUnited States, the disclosed principal is resident Offered Securities may not be offered or sold, directly or indirectly, in or otherwise subject the United States except pursuant to registration under the 1933 Act and the securities laws of province all applicable states or territory set out on available exemptions therefrom, and the second page Corporation has no obligation or present intention of this Subscription Agreementfiling a registration statement under the 1933 Act in respect of any of the Offered Securities; and
(viii) the Subscriber has not purchased the Purchased Securities as a result of any form of directed selling efforts (as such term is used in Regulation S) or general solicitation or general advertising (as such terms are used under Rule 502(c) of Regulation D), and the sale of the Offered Securities was not accompanied by any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over radio, television or telecommunications, including electronic display and the internet or any seminar or meeting whose attendees have been invited by general solicitation or general advertising;
(d) if the Subscriber is purchasing acquiring the Units as trustee or agent (including, for greater certainty, a portfolio manager or comparable advisor) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such purchase on behalf of such principal, to agree to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and the Subscriber acknowledges that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units for whom the Subscriber may be acting;
(e) the Subscriber is not a “non-Canadian” as that expression is defined in the Investment Canada Act (Canada);
(f) the Subscriber is not a “non resident”, a partnership other than a “Canadian partnership”, a “tax shelter” or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within the meaning of the Tax Act;
(g) the Subscriber and any disclosed principal for whom the Subscriber is contracting hereunder is:
(i) an “accredited investor,” as such term is defined in National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) and, in Ontario, in Section 73.3 of the Purchased Securities Act (Ontario), and has concurrently executed and delivered a Representation Letter and the Exhibit thereto in the form attached as Schedule “A” to this Subscription Agreement; or
(ii) not an individual or resident in Alberta, is purchasing the Units as principal for its own account and not for the benefit of any other person in a sufficient amount so that person, is acquiring the aggregate acquisition cost for such Units is not less than $150,000 paid in cash at the time of the distribution and the Subscriber was not created, or is used, solely to purchase or hold securities in reliance on the exemption from the prospectus requirement set out in subsection 2.10 of NI 45-106;
(h) if the Subscriber is a “permitted client”, as such term is defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”) and wishes to waive the Manager’s obligations under sections 13.3 of NI 31-103, the Subscriber has completed and signed Schedule “B” to this Subscription Agreement;
(i) if the Subscriber is an individual relying on paragraph (j), (k) or (l) of the “accredited investor” definition in NI 45-106, the subscriber has completed and signed the risk acknowledgement form, Form 45-106F9, attached as Schedule “F” to this Subscription Agreement;
(j) the Subscriber has read the Offering Memorandum and is aware of the characteristics of the Units and of their speculative nature, as well as of the fact that they may only be transferred with the prior written consent of the Manager, and such transfer will generally not be permitted, and that the Subscriber shall not knowingly transfer his, her or its Units in whole or in part without the approval of the Manager and will do so only in accordance with Applicable Purchased Securities Laws;
(k) the decision to enter into this Subscription Agreement and to purchase the Units has not been based upon any verbal or written representation or documentation as to fact or otherwise made by or on behalf of the Manager, its affiliates or the Fund except as set forth in the Offering Memorandum;
(l) the Subscriber has not received, read nor been otherwise exposed to any advertising in respect of the Units;
(m) the Units are being purchased for investment only and not with a view to resale or distribution and will is not be resold a person or otherwise transferred entity created or disposed used solely to purchase or hold securities in order to comply with an exemption from the prospectus or registration requirements of except in accordance with the provisions of the applicable securities legislation and the regulations, rules and policies thereunderSecurities Laws;
(n) the Subscriber has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of its investment and is able to bear the economic risk of loss of its investment;
(o) the Subscriber is aware of the characteristics of the Units, of the nature and extent of personal liability and of the risks associated with an investment in the Units;
(p) the Subscriber is aware that there are securities and tax laws applicable to the holding and disposition of the Units and has obtained independent legal and tax advice and is not relying solely upon the information from the Fund, the Manager or, where applicable, their officers, trustees, directors, employees or agents;
(q) the Subscriber has been independently advised as to, and is aware of, the resale restrictions under Applicable Securities Laws with respect to the Units and acknowledges receipt of a written notice of the legend restriction notation applicable to the resale of the Units;
(r) the acknowledgments contained in any forms or documents delivered by the Subscriber under applicable securities laws are true and correct as of the date of execution of this Subscription Agreement, and will be true and correct as of the closing of the purchase and sale of the Units, and fully and truly state those facts necessary for the Fund to be entitled to rely on the relevant exemptions from the prospectus requirements within the meaning of Applicable Securities Laws of the province or territory of residence of the Subscriber;
(s) the Subscriber is not a “U.S. Person” (as that term is defined in Regulation S promulgated under the United States Securities Act of 1933, as amended, which definition includes, but is not limited to, an individual resident in the United States, an estate or 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 United States) and is not acquiring the Units for the account of or benefit of a U.S. Person or a person in the United States;
(te) the Subscriber acknowledges that the Units may not be offered, sold, resold or otherwise transferred to persons in the United States or to U.S. Persons (as such term is defined in Regulation S to the United States Securities Act of 1933, as amended);
(u) the Subscriber is not a designated beneficiary within the meaning of Part XII.2 of the Tax Act;
(v) the Subscriber is not a “financial institution” (as defined in Subsection 142.2 of the Tax Act) (a “Financial Institution”) or, if the Subscriber is a Financial Institution, the Subscriber has advised the Manager in writing that the Subscriber is a Financial Institution prior to the date of acceptance of the Subscriber’s subscription for Units;
(w) the Subscriber represents and warrants that the Subscriber is not named on or blocked by any of the following lists (the “Prohibited Lists”) promulgated by the Department of Foreign Affairs and International Trade Canada (DFAIT), or the Department of Public Safety and Emergency Preparedness of Canada (DPSEP):that:
(i) no securities commission or similar regulatory authority has reviewed or passed on the List of Names subject to the Regulations Establishing a List of Entities made under subsection 83.05(1) merits of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspxOffered Securities;
(ii) there is no government or other insurance covering the List of Names subject to the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000; orOffered Securities;
(iii) there are risks associated with the List purchase of Names subject to the United Nations Al-Qaida and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525.Offered Securities; and
(xiv) there are restrictions on the Subscriber acknowledges Subscriber’s ability to resell the Offered Securities and agrees that the Manager has provided herein certain lists adopted or published by applicable governmental authorities for the convenience of the Subscriber and that because these lists are subject to change from time to time, it is the responsibility of the Subscriber to ensure that find out what those restrictions are and to comply with them before selling the lists are current Offered Securities;
(f) if the Subscriber is resident outside of Canada and the United States:
(i) the Subscriber is knowledgeable of, or has been independently advised as to, the applicable Securities Laws of the time this Subscription Agreement securities regulatory authorities (the “Authorities”) having application in the jurisdiction in which the Subscriber is executed resident (the “International Jurisdiction”) which would apply to the acquisition of the Purchased Securities, if any;
(ii) the Subscriber is acquiring the Purchased Securities pursuant to exemptions from the prospectus and that each representation made registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable, the Subscriber is permitted to acquire the Purchased Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to rely on any exemption;
(iii) confirm that, to your knowledge, the acquisition of the Purchased Securities does not contravene any applicable securities laws of the Authorities in the International Jurisdiction and does not require the Corporation to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and the sale or resale of the Purchased Securities; and
(iv) the acquisition of the Purchased Securities by the Subscriber is true does not trigger:
(A) any obligation for the Corporation to prepare and correct as file a registration statement, prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the date of Corporation in the Subscription AgreementInternational Jurisdiction;
(yg) the Subscriber does not have knowledge of a “material fact” or “material change” (as those terms are defined under applicable Securities Laws) in respect of American CuMo that has not been generally disclosed to the best public;
(h) this subscription is irrevocable and requires acceptance by the Corporation and acceptance of the TSX-V;
(i) the Corporation will have the right to accept this subscription in whole or in part and the acceptance of this subscription will be conditional upon the issuance of the Purchased Securities to the Subscriber being made pursuant to applicable Exemptions;
(j) the Corporation has advised the Subscriber that the Corporation is relying on exemptions from the requirements under the Securities Laws to provide the Subscriber with a prospectus or registration statement, and no prospectus or registration statement has been filed by the Corporation with the Commission in connection with the issuance of the Offered Securities, and as a consequence:
(i) the Subscriber is restricted from using most of the civil remedies available under the Securities Laws and certain protections, rights and remedies provided by the Securities Laws, including statutory rights of rescission or damages, will not be available to the Subscriber;
(ii) the Subscriber may not receive information that would otherwise be required to be provided to the Subscriber under the Securities Laws; and
(iii) the Corporation is relieved from certain obligations that would otherwise apply under the Securities Laws;
(k) if the Subscriber is:
(i) a corporation, the Subscriber is duly incorporated and are validly subsisting under the laws of the Subscriber’s knowledge jurisdiction of incorporation and has all requisite legal and corporate power and authority to execute and deliver this Agreement, to subscribe for the money Purchased Securities as contemplated herein and to carry out and perform the Subscriber’s covenants and obligations under the terms of this Agreement and the entering into of this Agreement and the transactions contemplated hereby 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 any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
(ii) a partnership, syndicate or other form of unincorporated organization, the Subscriber has the necessary legal capacity and authority to execute and deliver this Agreement and to observe and perform your covenants and obligations hereunder and has obtained all necessary approvals in respect thereof; or
(iii) an individual, the Subscriber is of full age of majority and has the legal capacity and competence to enter into and to execute this Agreement and to observe and perform the Subscriber’s covenants and obligations hereunder;
(l) if required by applicable Securities Laws or by any securities commission, stock exchange or other regulatory authority, the Subscriber will execute, deliver, file and otherwise assist the Corporation in filing, such reports, undertakings and other documents with respect to the issue of the Purchased Securities as may be required;
(m) the Subscriber acknowledges that no agency, governmental authority, securities commission or similar regulatory body, stock exchange or other entity has reviewed, passed on or made any finding or determination as to the merit for investment of the Purchased Securities nor have any such agencies or governmental authorities made any recommendation or endorsement with respect to the Purchased Securities;
(n) this Agreement has been duly executed and delivered and, when accepted by the Corporation, will constitute a legal, valid and binding obligation enforceable against the Subscriber;
(o) the Subscriber acknowledges and consents to the fact that the Corporation is collecting the personal information (as that term is defined under applicable privacy legislation, including, without limitation, the Personal Information Protection and Electronic Documents Act (Canada) and any other applicable similar, replacement or supplemental provincial or federal legislation or laws in effect from time to time) of the Subscriber for the purpose of completing this Agreement. The Subscriber acknowledges and consents to the Corporation retaining such personal information for as long as permitted or required by law or business practices. The Subscriber further acknowledges and consents to the fact that the Corporation may be required by the Securities Act (British Columbia) and the rules and policies of any stock exchange or the rules of the Investment Industry Regulatory Organization of Canada to provide regulatory authorities with any personal information provided by the Subscriber in this Agreement. In addition to the foregoing, the Subscriber agrees and acknowledges that the Corporation may use and disclose the personal information of the Subscriber as follows:
(i) for internal use with respect to managing the relationships between and contractual obligations of the Corporation and the Subscriber or any beneficial purchaser for whom the Subscriber is contracting hereunder;
(ii) for use and disclosure for income tax related purposes, including without limitation, where required by law, disclosure to Canada Revenue Agency;
(iii) disclosure to securities regulatory authorities and other regulatory bodies with jurisdiction with respect to reports of trade and similar regulatory filings;
(iv) disclosure to a governmental or other authority to which the disclosure is required by court order or subpoena compelling such disclosure and where there is no reasonable alternative to such disclosure;
(v) disclosure to professional advisers of the Corporation in connection with the performance of their professional services; or
(vi) for use and disclosure as otherwise required or permitted by law;
(p) the Subscriber authorizes the indirect collection of the personal information by the securities regulatory authority or regulator (each as defined in National Instrument 14-101 Definitions) and confirms that the Subscriber seeks has been notified by the Corporation:
(i) that the Corporation will be delivering the personal information to invest the securities regulatory authority or regulator;
(ii) that the personal information is being collected by the securities regulatory authority or regulator under the authority granted in applicable securities laws;
(iii) that the personal information is being collected for the purposes of the administration and enforcement of applicable securities laws; and
(iv) that the title, business address and business telephone number of the public official who can answer questions about the securities regulatory authority’s or regulator’s indirect collection of the personal information is as set out in Error! Reference source not found.;
(q) this subscription is not derived from enforceable by the Subscriber unless it has been accepted by the Corporation and the Subscriber waives any criminal enterprise requirement on the Corporation’s behalf to immediately communicate its acceptance of this subscription to the Subscriber;
(r) in connection with the Subscriber’s subscription, the Subscriber has not relied upon the Corporation for investment, legal or tax advice, and has in all cases sought or elected not to seek the advice of the Subscriber’s own personal investment advisers, legal counsel and tax advisers;
(s) the funds representing the aggregate Principal Amount which will be advanced by the Subscriber to the Corporation hereunder will not represent proceeds of crime for the purposes purpose of the Proceeds of Crime (Money Laundering) Act (Canada);
(z) the investment portfolio and trading procedures of the Fund is proprietary to the Fund and the Manager and all information relating to such investment portfolio and trading procedures shall be kept confidential by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Manager; and
(aa) the Subscriber will execute and deliver all documentation as may be required by applicable securities laws or by the Fund, as the case may be, to permit the purchase of the Units under the terms herein set forth and the Subscriber will deliver such releases or other documents for income tax and other purposes, if any, as from time to time may be required by the Manager. The representations, warranties, covenants and acknowledgements of the Subscriber contained in this Subscription Agreement shall survive the completion of the purchase and sale of the Units and the Subscriber. The Subscriber acknowledges and agrees that the representations, warranties and covenants given by the Subscriber to and in favour of the Fund and the Manager shall be deemed to be repeated and reconfirmed as at the date of any subsequent subscription for Units made by the Subscriber or reinvestment of distributions made by the Fund unless a new subscription agreement is executed.
Appears in 1 contract
Samples: Subscription Agreement
Representations, Warranties, Covenants and Acknowledgements of the Subscriber. 4.1 The Subscriber, on its own behalf Subscriber and on behalf of any disclosed principal others for whom the Subscriber is may be contracting under this Subscription Agreementhereunder acknowledges, hereby represents, warrants, acknowledges warrants and covenants to and with the Manager Issuer that, as at the date given above and to at the Fund thatClosing Date:
(a) if an individual, no prospectus has been filed by the Subscriber is Issuer with any of the age Securities Commissions in connection with the issuance of majority the Securities, such issuance is exempted from the prospectus requirements of the Acts and has the capacity and competence to enter into and be bound by this Subscription Agreement and all other agreements contemplated hereby and this Subscription Agreement constitutes a legal, valid and binding agreement enforceable against the Subscriber in accordance with its terms;
(b) if the Subscriber is an incorporated entitythat:
(i) the Subscriber is a valid and subsisting corporation and is in good standing restricted from using most of the civil remedies available under the laws of the jurisdiction of its incorporationActs;
(ii) the Subscriber has may not receive information that would otherwise be required to be provided to it under the corporate capacity and authority to execute and deliver this Subscription Agreement and to observe and perform its obligations hereunder;Acts; and
(iii) the Issuer is relieved from certain obligations that would otherwise apply under the Acts;
(b) the Subscriber certifies that it and, if applicable, the Disclosed Principal is resident in the jurisdiction set out under “Subscriber’s Residential or Head Office Address” on page 1 of this Subscription Agreement has been duly authorized, executed and delivered by which address is the Subscriber and is a legal, valid and binding obligation residence or principal place of business of the Subscriber, enforceable against or Disclosed Principal, as the Subscriber in accordance with its terms; and
(iv) case may be, and such address was not obtained or used solely for the execution and delivery purpose of this Subscription Agreement by the Subscriber will not result in the violation of, or constitute a default under, or conflict with or cause the acceleration of any obligation of the Subscriber under (a) any contract to which the Subscriber is a party or by which it is bound; (b) any provision of the constating documents of acquiring the Subscriber; or (c) any judgment, decree, order or award of any court, government body or arbitrator having jurisdiction over the Subscriber’s Units;
(c) the Subscriber is a resident in or otherwise subject to the securities laws of the province or territory of Canada set forth on the second page of this Subscription Agreement, and if the Subscriber is acting as agent for a disclosed principal, the disclosed principal is resident in or otherwise subject to the securities laws of province or territory set out on the second page of this Subscription Agreement;
(d) if the Subscriber is purchasing the Units as trustee or agent (including, for greater certainty, a portfolio manager or comparable advisor) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such purchase on behalf of such principal, to agree to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and the Subscriber acknowledges that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units for whom the Subscriber may be acting;
(e) the Subscriber is not a “non-Canadian” as that expression is defined in the Investment Canada Act (Canada);
(f) the Subscriber is not a “non resident”, a partnership other than a “Canadian partnership”, a “tax shelter” or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within the meaning of the Tax Act;
(g) the Subscriber and any disclosed principal for whom the Subscriber is contracting hereunder iseither:
(i) an “accredited investor,” as such term is defined in National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) and, in Ontario, in Section 73.3 of the Securities Act (Ontario), and has concurrently executed and delivered a Representation Letter and the Exhibit thereto in the form attached as Schedule “A” to this Subscription Agreement; or
(ii) not an individual or resident in Alberta, is purchasing the Subscriber’s Units as principal for its own account and not for the benefit of any other person or is deemed under the Acts to be purchasing the Subscriber’s Units as principal, and in either case is purchasing the Subscriber’s Units for investment only and not with a sufficient amount so that view to the aggregate acquisition cost resale or distribution of all or any of the Subscriber’s Units; or
(ii) purchasing the Subscriber’s Units as agent for such Units beneficial principal(s) (the “Disclosed Principal”), all of whom are disclosed on page 1 of this Subscription Agreement, and is not less than $150,000 paid deemed under the Acts to be purchasing the Subscriber’s Units as principal, and it is duly authorized to enter into this Subscription Agreement and to execute and deliver all documentation in cash at connection with the time purchase on behalf of such Disclosed Principal, who is purchasing as principal for its own account and not for the benefit of any other person and for investment only and not with a view to the resale or distribution of all or any of the distribution Subscriber’s Units and the Subscriber in its capacity as agent is acting in compliance with all applicable securities and other laws; or
(d) the Subscriber, if not a resident of Canada, acknowledges that:
(i) no securities commission or similar regulatory authority has reviewed or passed on the merits of the Securities;
(ii) there is no government or other insurance covering the Securities;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Subscriber’s or the Disclosed Principal’s ability to resell the Securities and it is the responsibility of the Subscriber or the Disclosed Principal to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Subscriber that the Issuer is relying on an exemption from the requirement to provide the Subscriber with a prospectus under the B.C. Act and, as a consequence of acquiring Units pursuant to this exemption, certain protections, rights and remedies provided by the B.C. Act, including statutory rights of rescission or damages, will not be available to the Subscriber or the Disclosed Principal;
(e) if resident in Canada, the Subscriber or, if the Subscriber is purchasing on behalf of a Disclosed Principal, that Disclosed Principal,
(i) is a Minimum Amount Subscriber and was not created, or created and is not used, solely to purchase or hold securities in reliance on the exemption from the prospectus requirement set out in subsection 2.10 Section 2.10(1) of NI 45-106;
(hii) if the Subscriber is a “permitted client”, as such term is defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”A) and wishes to waive the Manager’s obligations under sections 13.3 of NI 31-103, the Subscriber has completed and signed Schedule “B” to this Subscription Agreement;
(i) if the Subscriber is an individual relying Accredited Investor, (B) was not created and is not used, solely to purchase or hold securities in reliance on the exemption from the prospectus requirement set out in paragraph (j), (k) or (lm) of the definition of “accredited investor” definition in Section 1.1 of NI 45-106, the subscriber has completed and signed the risk acknowledgement form, Form 45-106F9, attached as Schedule “F” to this Subscription Agreement;
(j) the Subscriber has read the Offering Memorandum and is aware of the characteristics of the Units and of their speculative nature, as well as of the fact that they may only be transferred with the prior written consent of the Manager, and such transfer will generally not be permitted, and that the Subscriber shall not knowingly transfer his, her or its Units in whole or in part without the approval of the Manager and will do so only in accordance with Applicable Securities Laws;
(k) the decision to enter into this Subscription Agreement and to purchase the Units has not been based upon any verbal or written representation or documentation as to fact or otherwise made by or on behalf of the Manager, its affiliates or the Fund except as set forth in the Offering Memorandum;
(l) the Subscriber has not received, read nor been otherwise exposed to any advertising in respect of the Units;
(m) the Units are being purchased for investment only and not with a view to resale or distribution and will not be resold or otherwise transferred or disposed of except in accordance with the provisions of the applicable securities legislation and the regulations, rules and policies thereunder;
(n) the Subscriber has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of its investment and is able to bear the economic risk of loss of its investment;
(o) the Subscriber is aware of the characteristics of the Units, of the nature and extent of personal liability and of the risks associated with an investment in the Units;
(p) the Subscriber is aware that there are securities and tax laws applicable to the holding and disposition of the Units and has obtained independent legal and tax advice and is not relying solely upon the information from the Fund, the Manager or, where applicable, their officers, trustees, directors, employees or agents;
(q) the Subscriber has been independently advised as to, and is aware of, the resale restrictions under Applicable Securities Laws with respect to the Units and acknowledges receipt of a written notice of the legend restriction notation applicable to the resale of the Units;
(r) the acknowledgments contained in any forms or documents delivered by the Subscriber under applicable securities laws are true and correct as of the date of execution of this Subscription Agreement, and will be true and correct as of the closing of the purchase and sale of the Units, and fully and truly state those facts necessary for the Fund to be entitled to rely on the relevant exemptions from the prospectus requirements within the meaning of Applicable Securities Laws of the province or territory of residence of the Subscriber;
(s) the Subscriber is not a “U.S. Person” (as that term is defined in Regulation S promulgated under the United States Securities Act of 1933, as amended, which definition includes, but is not limited to, an individual resident in the United States, an estate or 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 United States) and is not acquiring the Units for the account of or benefit of a U.S. Person or a person in the United States;
(t) the Subscriber acknowledges that the Units may not be offered, sold, resold or otherwise transferred to persons in the United States or to U.S. Persons (as such term is defined in Regulation S to the United States Securities Act of 1933, as amended);
(u) the Subscriber is not a designated beneficiary within the meaning of Part XII.2 of the Tax Act;
(v) the Subscriber is not a “financial institution” (as defined in Subsection 142.2 of the Tax Act) (a “Financial Institution”) or, if the Subscriber is a Financial Institution, the Subscriber has advised the Manager in writing that the Subscriber is a Financial Institution prior to the date of acceptance of the Subscriber’s subscription for Units;
(w) the Subscriber represents and warrants that the Subscriber is not named on or blocked by any of the following lists (the “Prohibited Lists”) promulgated by the Department of Foreign Affairs and International Trade Canada (DFAIT), or the Department of Public Safety and Emergency Preparedness of Canada (DPSEP):
(i) the List of Names subject to the Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspx;
(ii) the List of Names subject to the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000; or
(iii) the List of Names subject to the United Nations Al-Qaida and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525.
(x) the Subscriber acknowledges and agrees that the Manager has provided herein certain lists adopted or published by applicable governmental authorities for the convenience of the Subscriber and that because these lists are subject to change from time to time, it is the responsibility of the Subscriber to ensure that the lists are current as of the time this Subscription Agreement is executed and that each representation made by the Subscriber is true and correct as of the date of the Subscription Agreement;
(y) to the best of the Subscriber’s knowledge the money that the Subscriber seeks to invest is not derived from any criminal enterprise or proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada);
(z) the investment portfolio and trading procedures of the Fund is proprietary to the Fund and the Manager and all information relating to such investment portfolio and trading procedures shall be kept confidential by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Manager; and
(aa) the Subscriber will execute and deliver all documentation as may be required by applicable securities laws or by the Fund, as the case may be, to permit the purchase of the Units under the terms herein set forth and the Subscriber will deliver such releases or other documents for income tax and other purposes, if any, as from time to time may be required by the Manager. The representations, warranties, covenants and acknowledgements of the Subscriber contained in this Subscription Agreement shall survive the completion of the purchase and sale of the Units and the Subscriber. The Subscriber acknowledges and agrees that the representations, warranties and covenants given by the Subscriber to and in favour of the Fund and the Manager shall be deemed to be repeated and reconfirmed as at the date of any subsequent subscription for Units made by the Subscriber or reinvestment of distributions made by the Fund unless a new subscription agreement is executed.
Appears in 1 contract
Samples: Subscription Agreement
Representations, Warranties, Covenants and Acknowledgements of the Subscriber. 2.1 The SubscriberSubscriber acknowledges, on its own behalf and on behalf of any disclosed principal for whom the Subscriber is contracting under this Subscription Agreement, hereby represents, warrants, acknowledges warrants and covenants to and with the Manager Corporation that, as at the date given above and to at the Fund thatClosing:
(a) if an individual, no prospectus or registration statement has been filed by the Subscriber is Corporation with any of the age Commissions in connection with the issuance of majority the Units on the basis that such issuance is exempted from the prospectus and has the capacity and competence to enter into and be bound by this Subscription Agreement and all other agreements contemplated hereby and this Subscription Agreement constitutes a legal, valid and binding agreement enforceable against the Subscriber in accordance with its terms;
(b) if the Subscriber is an incorporated entityregistration requirements of Applicable Securities Laws:
(i) the Subscriber is a valid and subsisting corporation and is in good standing under the laws may be restricted from using most of the jurisdiction of its incorporationcivil remedies available under Applicable Securities Laws;
(ii) the Subscriber has the corporate capacity and authority may not receive information that would otherwise be required to execute and deliver this Subscription Agreement and be provided to observe and perform its obligations hereunder;it under Applicable Securities Laws; and
(iii) this Subscription Agreement has been duly authorized, executed and delivered by the Corporation is relieved from certain obligations that would otherwise apply under the Applicable Securities Laws;
(a) the Subscriber certifies that it is resident in the jurisdiction(s) set out on the first page of this Agreement, and the Subscriber:
(i) is not a "US Person" (as that term is deemed in the US Securities Act of 1933, as amended (the "1933 Act") and is not purchasing the Securities for the account of or benefit of a legal, valid and binding obligation U.S. Person;
(ii) was not offered the Units while present in the United States of the Subscriber, enforceable against the Subscriber in accordance with its termsAmerica; and
(iviii) did not execute or deliver this subscription while present in the execution and delivery United States of this Subscription Agreement by America;
(a) the Subscriber will not result in at the violation of, time of Closing or constitute a default under, or conflict with or cause the acceleration exercise of any obligation of the Subscriber under (a) any contract to which the Subscriber is Subscriber’s Warrants be a party or by which it is bound; U.S. Person;
(b) the Subscriber understands and acknowledges that the Shares, the Warrants and the Warrant Shares have not been registered under the 1933 Act, or the securities laws of any provision state of the constating documents United States and that the issuance of such securities contemplated hereby will be made in reliance upon an exclusion from such registration requirements and such securities will be “restricted securities” within the Subscriber; or (c) any judgment, decree, order or award meaning of any court, government body or arbitrator having jurisdiction over Rule 144 under the Subscriber1933 Act;
(c) the Subscriber is a resident in understands and agrees that if it decides to offer, sell, pledge or otherwise subject transfer any of the Shares, the Warrants or the Warrant Shares, it will not offer, sell, pledge or otherwise transfer any of such securities, directly or indirectly, unless such securities are registered for resale under the 1933 Act and under any applicable state securities laws, if required, or: (i) the transfer is to the Corporation; (ii) the transfer is made outside the United States in accordance with the provisions of Regulation S and in compliance with applicable local laws and regulations; (iii) the transfer is made in compliance with an exemption from registration under the 1933 Act provided by Rule 144 thereunder, if available, and in accordance with applicable state securities laws; or (iv) the transfer is made in another transaction that does not require registration under the 1933 Act or any applicable state securities laws after the seller furnishes to the Corporation an opinion of counsel of recognized standing in form and substance satisfactory to the province Corporation to such effect. The Subscriber acknowledges and agrees that it will not engage in any hedging transactions with regard to the Shares, the Warrants or territory of Canada the Warrant Shares unless in compliance with the 1933 Act. The Subscriber acknowledges and agrees that a legend reflecting the restrictions and limitations on transfer and hedging set forth herein will be placed on the second page of this Subscription Agreementcertificates representing the Shares, the Warrants or the Warrant Shares, and if all certificates issued in exchange therefor or in substitution thereof, until such time as it is no longer required under the Subscriber is acting as agent for a disclosed principal, the disclosed principal is resident in 1933 Act or otherwise subject to the applicable state securities laws of province or territory set out on the second page of this Subscription Agreementlaws;
(d) if the Subscriber is purchasing consents to the Units as trustee Corporation making a notation on its records or giving instructions to any transfer agent (including, for greater certainty, a portfolio manager or comparable advisor) for a principalof the Shares, the Subscriber is duly authorized Warrants or the Warrant Shares in order to execute implement the restrictions on transfer set forth and deliver this Subscription Agreement and all other necessary documentation in connection with such purchase on behalf of such principal, to agree to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and the Subscriber acknowledges that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units for whom the Subscriber may be acting;described herein; and
(e) the Subscriber acknowledges and agrees that any person who exercises the Warrants will be required to provide to the Corporation either:
(1) a written certification that the holder (a) at the time of exercise of the Warrants is not in the United States, (b) is not a “non-Canadian” as that expression is defined in the Investment Canada Act (Canada);
(f) the Subscriber is not a “non resident”, a partnership other than a “Canadian partnership”, a “tax shelter” or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within the meaning of the Tax Act;
(g) the Subscriber and any disclosed principal for whom the Subscriber is contracting hereunder is:
(i) an “accredited investorU.S. person,” as such term is defined in National Instrument 45-106 Prospectus Exemptions Regulation S (a “NI 45-106U.S. Person”) and, in Ontario, in Section 73.3 of the Securities Act (Ontario), and has concurrently executed and delivered is not exercising such securities on behalf of a Representation Letter and the Exhibit thereto U.S. Person or a person in the United States, and (c) did not execute or deliver the exercise form attached as Schedule “A” to this Subscription Agreementfor such securities in the United States; or
(ii2) not a written opinion of counsel of recognized standing in form and substance satisfactory to the Corporation to the effect that an individual or resident in Alberta, exemption from the registration requirements of the 1933 Act and applicable state securities laws is available for the Warrant Shares.
(a) the Subscriber is purchasing the Subscriber’s Units as principal for its own account and not for the benefit of any other person in person, and is purchasing the Subscriber’s Units for investment only and not with a sufficient amount so that view to the aggregate acquisition cost for such Units is not less than $150,000 paid in cash at the time resale or distribution of all or any of the distribution and the Subscriber was not created, or is used, solely to purchase or hold securities in reliance on the exemption from the prospectus requirement set out in subsection 2.10 of NI 45-106Subscriber’s Units;
(hb) if the Subscriber is a “permitted client”, as such term is defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”) and wishes to waive the Manager’s obligations under sections 13.3 of NI 31-103, the Subscriber has completed and signed Schedule “B” to this Subscription Agreement;acknowledges that:
(i) if no Commission or similar regulatory authority has reviewed or passed on the merits of the Units;
(ii) there is no government or other insurance covering the Units;
(iii) there are risks associated with the purchase of the Units;
(iv) there are restrictions on the Subscriber’s ability to resell the Units and it is the responsibility of the Subscriber to find out what those restrictions are and to comply with them before selling the Units; and
(v) the Corporation has advised the Subscriber that the Corporation is relying on an exemption to provide the Subscriber with a prospectus or registration statement and, as a consequence of acquiring Units pursuant to an Exemption, certain protections, rights and remedies provided by Applicable Securities Laws including statutory rights of rescission or damages, may not be available to the Subscriber;
(a) the Subscriber is an individual relying on paragraph (j)Accredited Investor, (k) or (l) by virtue of the “accredited investor” fact that the Subscriber falls within one or more of the sub-paragraphs of the definition of Accredited Investor set out in NI 45Appendix I, and the Subscriber has checked the sub-106, paragraph(s) applicable to the subscriber has completed and signed the risk acknowledgement form, Form 45-106F9, attached as Schedule “F” to this Subscription AgreementSubscriber);
(jb) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Units;
(ii) that any person will refund the purchase price of any of the Units; or
(iii) as to the future price or value of any of the Units;
(a) the Subscriber will not become a “control person” by virtue of the purchase of the Subscriber’s Shares, and does not intend to act in concert with any other person to form a control group of the Issuer;
(b) the Subscriber has read no knowledge of a “material fact” or “material change” in the Offering Memorandum and is aware affairs of the characteristics Corporation that has not been generally disclosed to the public, save knowledge of the Units and of their speculative nature, as well as of the fact that they may only be transferred with the prior written consent of the Manager, and such transfer will generally not be permitted, and that the Subscriber shall not knowingly transfer his, her or its Units in whole or in part without the approval of the Manager and will do so only in accordance with Applicable Securities Lawsthis particular transaction;
(kc) the Subscriber’s decision to enter into tender this Subscription Agreement offer and to purchase the Subscriber’s Units has not been based upon made as a result of any verbal or written representation or documentation as to fact or otherwise made by or on behalf of the ManagerCorporation or any other person and is based entirely upon currently available public information concerning the Corporation;
(d) the offer made by this subscription is irrevocable by the Subscriber and requires acceptance by the Corporation;
(e) the Corporation will have the right to accept this subscription offer in whole or in part and the acceptance of this subscription offer will be conditional upon the sale of the Subscriber’s Units to the Subscriber being exempt from the prospectus and registration requirements under applicable relevant securities legislation;
(f) 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 an individual is of full age of majority, and if the Subscriber is a corporation it is duly incorporated and validly subsisting under the laws of its affiliates jurisdiction of incorporation, and all necessary approvals by its directors, shareholders and others have been given to authorize the execution of this Agreement on behalf of the Subscriber;
(g) the entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the Fund constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which it is or may be bound;
(h) this Agreement has been duly executed and delivered by the Subscriber and constitutes a legal, valid and binding obligation of the Subscriber enforceable against the Subscriber;
(i) the Subscriber has been advised to consult its own legal advisors with respect to the applicable hold periods imposed in respect of the Shares by applicable securities legislation and regulatory policies and confirms that no representations by the Corporation have been made respecting the hold periods applicable to the Units;
(j) the Subscriber is aware of the risks and other characteristics of the Units and of the fact that the Subscriber may not be able to resell the Units purchased by it except in accordance with the applicable securities legislation and regulatory policies and that the Units will be subject to resale restrictions under Applicable Securities Laws and will bear one or more legends to this effect;
(k) if required by applicable securities legislation, policy or order or by any securities commission, stock exchange or other regulatory authority, the Subscriber will execute, deliver, file and otherwise assist the Corporation in filing, such reports, undertakings and other documents with respect to the issue of the Corporation as set forth in the Offering Memorandummay be required;
(l) the Subscriber has not received, read nor been otherwise exposed to any advertising in respect acknowledges that upon completion of the Offering, the Corporation may pay certain commissions or finder’s fees with respect to the Subscriber’s purchase of Units;
(m) the Subscriber has not purchased the Units are being purchased for investment only and not with as a view to resale result of any form of general solicitation or distribution and will not be resold general advertising, including advertisements, articles, notices or otherwise transferred other communication published in any newspaper, magazine or disposed of except in accordance with the provisions of the applicable securities legislation and the regulationssimilar media or broadcast over radio, rules and policies thereundertelevision or internet or any seminar or meeting whose attendees have been invited by general solicitation or general advertising;
(n) the Subscriber has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of its investment and is able to bear the economic risk of loss of its investment;
(o) the Subscriber is aware agrees that the Corporation may be required by law or otherwise to disclose to regulatory authorities the identity of the characteristics of Subscriber and, if applicable, the Units, of beneficial purchaser for whom the nature and extent of personal liability and of the risks associated with an investment in the Units;Subscriber may be acting; and
(p) the Subscriber is aware that there are securities and tax laws applicable to the holding and disposition of the Units and has obtained independent legal and tax advice and is not relying solely upon the information from the Fund, the Manager or, where applicable, their officers, trustees, directors, employees or agents;
(q) the Subscriber has been independently advised as to, and is aware of, the resale restrictions under Applicable Securities Laws with respect to the Units and acknowledges receipt of a written notice of the legend restriction notation applicable to the resale of the Units;
(r) the acknowledgments contained in any forms or documents delivered by the Subscriber under applicable securities laws are true and correct as of the date of execution of this Subscription Agreement, and will be true and correct as of the closing of the purchase and sale of the Units, and fully and truly state those facts necessary for the Fund to be entitled to rely on the relevant exemptions from the prospectus requirements within the meaning of Applicable Securities Laws of the province or territory of residence of the Subscriber;
(s) the Subscriber is not a “U.S. Person” (as that term is defined in Regulation S promulgated under the United States Securities Act of 1933, as amended, which definition includes, but is not limited to, an individual resident in the United States, an estate or 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 United States) and is not acquiring the Units for the account of or benefit of a U.S. Person or a person in the United States;
(t) the Subscriber acknowledges that the Units may not be offered, sold, resold or otherwise transferred to persons in the United States or to U.S. Persons (as such term is defined in Regulation S to the United States Securities Act of 1933, as amended);
(u) the Subscriber is not a designated beneficiary within the meaning of Part XII.2 of the Tax Act;
(v) the Subscriber is not a “financial institution” (as defined in Subsection 142.2 of the Tax Act) (a “Financial Institution”) or, if the Subscriber is a Financial Institution, the Subscriber has advised the Manager in writing that the Subscriber is a Financial Institution prior to the date of acceptance of the Subscriber’s subscription for Units;
(w) the Subscriber represents and warrants that the Subscriber is not named on or blocked by any of the following lists (the “Prohibited Lists”) promulgated by the Department of Foreign Affairs and International Trade Canada (DFAIT), or the Department of Public Safety and Emergency Preparedness of Canada (DPSEP):
(i) the List of Names subject to the Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspx;
(ii) the List of Names subject to the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000; or
(iii) the List of Names subject to the United Nations Al-Qaida and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525.
(x) the Subscriber acknowledges and agrees that the Manager has provided herein certain lists adopted or published by applicable governmental authorities for the convenience of the Subscriber and that because these lists are subject to change from time to time, it is the responsibility of the Subscriber to ensure that the lists are current as of the time this Subscription Agreement is executed and that each representation made by the Subscriber is true and correct as of the date of the Subscription Agreement;
(y) to the best of the Subscriber’s knowledge the money that the Subscriber seeks to invest is not derived from any criminal enterprise or proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada);
(z) the investment portfolio and trading procedures of the Fund is proprietary to the Fund and the Manager and all information relating to such investment portfolio and trading procedures shall be kept confidential by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Manager; and
(aa) the Subscriber will execute and deliver all documentation as may be required by applicable securities laws or by the Fund, as the case may be, to permit the purchase of the Units under the terms herein set forth and the Subscriber will deliver such releases or other documents for income tax and other purposes, if any, as from time to time may be required by the Manager. The above representations, warranties, covenants and acknowledgements in this subsection will be true and correct both as of the Subscriber contained in execution of this Subscription Agreement shall survive the completion subscription and as of the purchase and sale day of the Units and the Subscriber. Closing.
2.2 The Subscriber acknowledges and agrees that the foregoing representations, warranties warranties, covenants and covenants given by the Subscriber to and in favour of the Fund and the Manager shall be deemed to be repeated and reconfirmed as at the date of any subsequent subscription for Units acknowledgements are made by the Subscriber or reinvestment of distributions made with the intent that they be relied upon by the Fund unless Corporation in determining its suitability as a new subscription agreement is executedpurchaser of Shares, and the Subscriber hereby agrees to indemnify the Corporation against all losses, claims, costs, expenses and damages or liabilities which any of them may suffer or incur as a result of reliance thereon. The Subscriber undertakes to notify the Corporation immediately of any change in any representation, warranty or other information relating to the Subscriber set forth herein which takes place prior to the Closing.
Appears in 1 contract
Representations, Warranties, Covenants and Acknowledgements of the Subscriber. The Subscriber, on its own behalf and on behalf of any disclosed principal for whom the Subscriber is contracting under this Subscription Agreement, hereby represents, warrants, acknowledges and covenants to the Manager and to the Fund that:
(a) if an individual, the Subscriber is of the age of majority and has the capacity and competence to enter into and be bound by this Subscription Agreement and all other agreements contemplated hereby and this Subscription Agreement constitutes a legal, valid and binding agreement enforceable against the Subscriber in accordance with its terms;
(b) if the Subscriber is an incorporated entity:
(i) the Subscriber is a valid and subsisting corporation and is in good standing under the laws of the jurisdiction of its incorporation;
(ii) the Subscriber has the corporate capacity and authority to execute and deliver this Subscription Agreement and to observe and perform its obligations hereunder;
(iii) this Subscription Agreement has been duly authorized, executed and delivered by the Subscriber and is a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms; and
(iv) the execution and delivery of this Subscription Agreement by the Subscriber will not result in the violation of, or constitute a default under, or conflict with or cause the acceleration of any obligation of the Subscriber under (a) any contract to which the Subscriber is a party or by which it is bound; (b) any provision of the constating documents of the Subscriber; or (c) any judgment, decree, order or award of any court, government body or arbitrator having jurisdiction over the Subscriber;
(c) the Subscriber is a resident in or otherwise subject to the securities laws of the province or territory of Canada set forth on the second page of this Subscription Agreement, and if the Subscriber is acting as agent for a disclosed principal, the disclosed principal is resident in or otherwise subject to the securities laws of province or territory set out on the second page of this Subscription Agreement;
(d) if the Subscriber is purchasing the Units as trustee or agent (including, for greater certainty, a portfolio manager or comparable advisor) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such purchase on behalf of such principal, to agree to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and the Subscriber acknowledges that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units for whom the Subscriber may be acting;
(e) the Subscriber is not a “non-Canadian” as that expression is defined in the Investment Canada Act (Canada);
(f) the Subscriber is not a “non resident”, a partnership other than a “Canadian partnership”, a “tax shelter” or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within the meaning of the Tax Act;
(g) the Subscriber and any disclosed principal for whom the Subscriber is contracting hereunder is:
(i) an “accredited investor,” as such term is defined in National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) and, in Ontario, in Section 73.3 of the Securities Act (Ontario), and has concurrently executed and delivered a Representation Letter and the Exhibit thereto in the form attached as Schedule “A” to this Subscription Agreement; or
(ii) not an individual or resident in Alberta, is purchasing the Units as principal for its own account and not for the benefit of any other person in a sufficient amount so that the aggregate acquisition cost for such Units is not less than $150,000 paid in cash at the time of the distribution and the Subscriber was not created, or is used, solely to purchase or hold securities in reliance on the exemption from the prospectus requirement set out in subsection 2.10 of NI 45-106;
(h) if the Subscriber is a “permitted client”, as such term is defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”) and wishes to waive the Manager’s obligations under sections 13.3 of NI 31-103, the Subscriber has completed and signed Schedule “B” to this Subscription Agreement;
(i) if the Subscriber is an individual relying on paragraph (j), (k) or (l) of the “accredited investor” definition in NI 45-106, the subscriber has completed and signed the risk acknowledgement form, Form 45-106F9, attached as Schedule “F” to this Subscription Agreement;
(j) the Subscriber has read the Offering Memorandum and is aware of the characteristics of the Units and of their speculative nature, as well as of the fact that they may only be transferred with the prior written consent of the Manager, and such transfer will generally not be permitted, and that the Subscriber shall not knowingly transfer his, her or its Units in whole or in part without the approval of the Manager and will do so only in accordance with Applicable Securities Laws;
(k) the decision to enter into this Subscription Agreement and to purchase the Units has not been based upon any verbal or written representation or documentation as to fact or otherwise made by or on behalf of the Manager, its affiliates or the Fund except as set forth in the Offering Memorandum;
(l) the Subscriber has not received, read nor been otherwise exposed to any advertising in respect of the Units;
(m) the Units are being purchased for investment only and not with a view to resale or distribution and will not be resold or otherwise transferred or disposed of except in accordance with the provisions of the applicable securities legislation and the regulations, rules and policies thereunder;
(n) the Subscriber has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of its investment and is able to bear the economic risk of loss of its investment;
(o) the Subscriber is aware of the characteristics of the Units, of the nature and extent of personal liability and of the risks associated with an investment in the Units;
(p) the Subscriber is aware that there are securities and tax laws applicable to the holding and disposition of the Units and has obtained independent legal and tax advice and is not relying solely upon the information from the Fund, the Manager or, where applicable, their officers, trustees, directors, employees or agents;
(q) the Subscriber has been independently advised as to, and is aware of, the resale restrictions under Applicable Securities Laws with respect to the Units and acknowledges receipt of a written notice of the legend restriction notation applicable to the resale of the Units;
(r) the Subscriber acknowledges that no prospectus has been filed with any securities commission or other regulatory authority in connection with the issuance of the Units, such issuance is exempted from the prospectus requirements of applicable securities laws and as a result:
(i) the Subscriber is restricted from using civil remedies which would otherwise be available,
(ii) the Subscriber may not receive information that would otherwise be required to be provided, and
(iii) the Fund is relieved from certain obligations that would otherwise apply;
(s) the acknowledgments contained in any forms or documents delivered by the Subscriber under applicable securities laws are true and correct as of the date of execution of this Subscription Agreement, and will be true and correct as of the closing of the purchase and sale of the Units, and fully and truly state those facts necessary for the Fund to be entitled to rely on the relevant exemptions from the prospectus requirements within the meaning of Applicable Securities Laws of the province or territory of residence of the Subscriber;
(st) the Subscriber is not a “U.S. Person” (as that term is defined in Regulation S promulgated under the United States Securities Act of 1933, as amended, which definition includes, but is not limited to, an individual resident in the United States, an estate or 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 United States) and is not acquiring the Units for the account of or benefit of a U.S. Person or a person in the United States;
(tu) the Subscriber acknowledges that the Units may not be offered, sold, resold or otherwise transferred to persons in the United States or to U.S. Persons (as such term is defined in Regulation S to the United States Securities Act of 1933, as amended);
(uv) the Subscriber is not a designated beneficiary within the meaning of Part XII.2 of the Tax Act;
(vw) the Subscriber is not a “financial institution” (as defined in Subsection 142.2 of the Tax Act) (a “Financial Institution”) or, if the Subscriber is a Financial Institution, the Subscriber has advised the Manager in writing that the Subscriber is a Financial Institution prior to the date of acceptance of the Subscriber’s subscription for Units;
(wx) the Subscriber represents and warrants that the Subscriber is not named on or blocked by any of the following lists (the “Prohibited Lists”) promulgated by the Department of Foreign Affairs and International Trade Canada (DFAIT), or the Department of Public Safety and Emergency Preparedness of Canada (DPSEP):
(i) the List of Names subject to the Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspx;
(ii) the List of Names subject to the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000; or
(iii) the List of Names subject to the United Nations Al-Qaida and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525athttp://xxx.xxxx-xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000.
(xy) the Subscriber acknowledges and agrees that the Manager has provided herein certain lists adopted or published by applicable governmental authorities for the convenience of the Subscriber and that because these lists are subject to change from time to time, it is the responsibility of the Subscriber to ensure that the lists are current as of the time this Subscription Agreement is executed and that each representation made by the Subscriber is true and correct as of the date of the Subscription Agreement;
(yz) to the best of the Subscriber’s knowledge the money that the Subscriber seeks to invest is not derived from any criminal enterprise or proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada);
(zaa) the investment portfolio and trading procedures of the Fund is proprietary to the Fund and the Manager and all information relating to such investment portfolio and trading procedures shall be kept confidential by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Manager; and
(aabb) the Subscriber will execute and deliver all documentation as may be required by applicable securities laws or by the Fund, as the case may be, to permit the purchase of the Units under the terms herein set forth and the Subscriber will deliver such releases or other documents for income tax and other purposes, if any, as from time to time may be required by the Manager. The representations, warranties, covenants and acknowledgements of the Subscriber contained in this Subscription Agreement shall survive the completion of the purchase and sale of the Units and the Subscriber. The Subscriber acknowledges and agrees that the representations, warranties and covenants given by the Subscriber to and in favour of the Fund and the Manager shall be deemed to be repeated and reconfirmed as at the date of any subsequent subscription for Units made by the Subscriber or reinvestment of distributions made by the Fund unless a new subscription agreement is executed.
Appears in 1 contract
Samples: Subscription Agreement
Representations, Warranties, Covenants and Acknowledgements of the Subscriber. The Subscriber, on its own behalf and on behalf of any disclosed principal for whom the Subscriber is contracting under this Subscription Agreement, hereby represents, warrants, acknowledges and covenants to the Manager Fund Manager, the Administrator and to the Fund that:
(a) if an individual, the Subscriber is of the age of majority and has the capacity and competence to enter into and be bound by this Subscription Agreement and all other agreements contemplated hereby and this Subscription Agreement constitutes a legal, valid and binding agreement enforceable against the Subscriber in accordance with its terms;
(b) if the Subscriber is an incorporated entity:
(i) the Subscriber is a valid and subsisting corporation and is in good standing under the laws of the jurisdiction of its incorporation;
(ii) the Subscriber has the corporate capacity and authority to execute and deliver this Subscription Agreement and to observe and perform its obligations hereunder;
(iii) this Subscription Agreement has been duly authorized, executed and delivered by the Subscriber and is a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms; and
(iv) the execution and delivery of this Subscription Agreement by the Subscriber will not result in the violation of, or constitute a default under, or conflict with or cause the acceleration of any obligation of the Subscriber under (a1) any contract to which the Subscriber is a party or by which it is bound; (b2) any provision of the constating documents of the Subscriber; or (c3) any judgment, decree, order or award of any court, government body or arbitrator having jurisdiction over the Subscriber;
(c) the Subscriber is a resident in or otherwise subject to the securities laws of the province or territory of Canada set forth on the second page of this Subscription Agreement, and if the Subscriber is acting as agent for a disclosed principal, the disclosed principal is resident in or otherwise subject to the securities laws of province or territory set out on the second page of this Subscription Agreement;
(d) if the Subscriber is purchasing the Units as trustee or agent (including, for greater certainty, a portfolio manager or comparable advisor) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such purchase on behalf of such principal, to agree to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and the Subscriber acknowledges that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units for whom the Subscriber may be acting;
(e) the Subscriber is not a “non-Canadian” as that expression is defined in the Investment Canada Act (Canada);
(f) the Subscriber is not a “non resident”, a partnership other than a “Canadian partnership”, a “tax shelter” or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within the meaning of the Tax Act;
(g) the Subscriber and any disclosed principal for whom the Subscriber is contracting hereunder is:
(i) an “accredited investor,” as such term is defined in National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) and, in Ontario, in Section 73.3 of the Securities Act (Ontario), and has concurrently executed and delivered a Representation Letter and the Exhibit thereto in the form attached as Schedule “A1” to this Subscription Agreement; or
(ii) not an individual or resident in Alberta, is purchasing the Units as principal for its own account and not for the benefit of any other person in a sufficient amount so that the aggregate acquisition cost for such Units is not less than $150,000 paid in cash at the time of the distribution and the Subscriber was not created, or is used, solely to purchase or hold securities in reliance on the exemption from the prospectus requirement set out in subsection 2.10 of NI 45-106;
(h) if the Subscriber is a “permitted client”, as such term is defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”) and wishes to waive the Fund Manager’s obligations under sections 13.3 of NI 31-103, the Subscriber has completed and signed Schedule “B” to this Subscription Agreement;
(i) if the Subscriber is an individual relying on paragraph (j), (k) or (l) of the “accredited investor” definition in NI 45-106, the subscriber has completed and signed the risk acknowledgement form, Form 45-106F9, attached as Schedule “F” to this Subscription Agreement;
(j) the Subscriber has read the Offering Memorandum and is aware of the characteristics of the Units and of their speculative nature, as well as of the fact that they may only be transferred with the prior written consent of the Fund Manager, and such transfer will generally not be permitted, and that the Subscriber shall not knowingly transfer his, her or its Units in whole or in part without the approval of the Fund Manager and will do so only in accordance with Applicable Securities Laws;
(k) the decision to enter into this Subscription Agreement and to purchase the Units has not been based upon any verbal or written representation or documentation as to fact or otherwise made by or on behalf of the Fund Manager, its affiliates or the Fund except as set forth in the Offering Memorandum;
(l) the Subscriber has not received, read nor been otherwise exposed to any advertising in respect of the Units;
(m) the Units are being purchased for investment only and not with a view to resale or distribution and will not be resold or otherwise transferred or disposed of except in accordance with the provisions of the applicable securities legislation and the regulations, rules and policies thereunder;
(n) the Subscriber has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of its investment and is able to bear the economic risk of loss of its investment;
(o) the Subscriber is aware of the characteristics of the Units, of the nature and extent of personal liability and of the risks associated with an investment in the Units;
(p) the Subscriber is aware that there are securities and tax laws applicable to the holding and disposition of the Units and has obtained independent legal and tax advice and is not relying solely upon the information from the Fund, the Fund Manager or, where applicable, their officers, trustees, directors, employees or agents;
(q) the Subscriber has been independently advised as to, and is aware of, the resale restrictions under Applicable Securities Laws with respect to the Units and acknowledges receipt of a written notice of the legend restriction notation applicable to the resale of the Units;
(r) the Subscriber acknowledges that no prospectus has been filed with any securities commission or other regulatory authority in connection with the issuance of the Units, such issuance is exempted from the prospectus requirements of applicable securities laws and as a result:
(i) the Subscriber is restricted from using civil remedies which would otherwise be available,
(ii) the Subscriber may not receive information that would otherwise be required to be provided, and
(iii) the Fund is relieved from certain obligations that would otherwise apply;
(s) the acknowledgments contained in any forms or documents delivered by the Subscriber under applicable securities laws Applicable Securities Laws are true and correct as of the date of execution of this Subscription Agreement, and will be true and correct as of the closing of the purchase and sale of the Units, and fully and truly state those facts necessary for the Fund to be entitled to rely on the relevant exemptions from the prospectus requirements within the meaning of Applicable Securities Laws of the province or territory of residence of the Subscriber;
(st) the Subscriber is not a “U.S. Person” (as that term is defined in Regulation S promulgated under the United States Securities Act of 1933, as amended, which definition includes, but is not limited to, an individual resident in the United States, an estate or 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 United States) and is not acquiring the Units for the account of or benefit of a U.S. Person or a person in the United States;
(tu) the Subscriber acknowledges that the Units may not be offered, sold, resold or otherwise transferred to persons in the United States or to U.S. Persons (as such term is defined in Regulation S to the United States Securities Act of 1933, as amended);
(uv) the Subscriber is not a designated beneficiary within the meaning of Part XII.2 of the Tax Act;
(vw) the Subscriber is not a “financial institution” (as defined in Subsection 142.2 of the Tax Act) (a “Financial Institution”) or, if the Subscriber is a Financial Institution, the Subscriber has advised the Fund Manager in writing that the Subscriber is a Financial Institution prior to the date of acceptance of the Subscriber’s subscription for Units;
(wx) the Subscriber represents and warrants that the Subscriber is not named on or blocked by any of the following lists (the “Prohibited Lists”) promulgated by the Department of Foreign Affairs and International Trade Canada (DFAIT), or the Department of Public Safety and Emergency Preparedness of Canada (DPSEP):
(i) the List of Names subject to the Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspx;
(ii) the List of Names subject to the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000; or
(iii) the List of Names subject to the United Nations Al-Qaida and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525.
(xy) the Subscriber acknowledges and agrees that the Fund Manager has provided herein certain lists adopted or published by applicable governmental authorities for the convenience of the Subscriber and that because these lists are subject to change from time to time, it is the responsibility of the Subscriber to ensure that the lists are current as of the time this Subscription Agreement is executed and that each representation made by the Subscriber is true and correct as of the date of the Subscription Agreement;
(yz) to the best of the Subscriber’s knowledge the money that the Subscriber seeks to invest is not derived from any criminal enterprise or proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada);
(zaa) the investment portfolio and trading procedures of the Fund is proprietary to each of the Fund and the Underlying Fund are proprietary to the Fund, the Fund Manager and the Sub-Adviser and all information relating to such investment portfolio and trading procedures shall be kept confidential by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Fund Manager; and
(aabb) the Subscriber will execute and deliver all documentation as may be required by applicable securities laws or by the Fund, as the case may be, to permit the purchase of the Units under the terms herein set forth and the Subscriber will deliver such releases or other documents for income tax and other purposes, if any, as from time to time may be required by the Fund Manager. The representations, warranties, covenants and acknowledgements of the Subscriber contained in this Subscription Agreement shall survive the completion of the purchase and sale of the Units and the Subscriber. The Subscriber acknowledges and agrees that the representations, warranties and covenants given by the Subscriber to and in favour of the Fund, the Fund Manager and the Manager Administrator shall be deemed to be repeated and reconfirmed as at the date of any subsequent subscription for Units made by the Subscriber or reinvestment of distributions made by the Fund unless a new subscription agreement is executed.
Appears in 1 contract
Samples: Subscription Agreement
Representations, Warranties, Covenants and Acknowledgements of the Subscriber. 2.1 The SubscriberSubscriber acknowledges, on its own behalf and on behalf of any disclosed principal for whom the Subscriber is contracting under this Subscription Agreement, hereby represents, warrants, acknowledges and covenants to and with the Manager Issuer that, as at the date given above and to at the Fund thatClosing:
(a) if an individual, no registration statement or prospectus has been filed by the Subscriber is Issuer with the SEC in connection with the issuance of the age of majority and has the capacity and competence to enter into and be bound by this Subscription Agreement and all other agreements contemplated hereby and this Subscription Agreement constitutes a legalUnits, valid and binding agreement enforceable against the Subscriber in accordance with its termsShares, or Warrants;
(b) if the Subscriber is an incorporated entity:
(i) the Subscriber is a valid and subsisting corporation and is in good standing under the laws of the jurisdiction of its incorporation;
(ii) the Subscriber has a head office in the corporate capacity and authority to execute and deliver this Subscription Agreement and to observe and perform its obligations hereunder;
(iii) this Subscription Agreement has been duly authorized, executed and delivered by jurisdiction set out on the Subscriber and is a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms; and
(iv) the execution and delivery cover page of this Subscription Agreement by the Subscriber will not result in the violation of, or constitute a default under, or conflict with or cause the acceleration of any obligation of the Subscriber under (a) any contract to which the Subscriber is a party or by which it is bound; (b) any provision of the constating documents of the Subscriber; or (c) any judgment, decree, order or award of any court, government body or arbitrator having jurisdiction over the SubscriberAgreement;
(c) the Subscriber is a resident in or otherwise subject to purchasing the securities laws of the province or territory of Canada set forth on the second page of this Subscription AgreementUnits, Shares, and if the Subscriber is acting as agent for a disclosed principal, the disclosed principal is resident in or otherwise subject to the securities laws of province or territory set out on the second page of this Subscription Agreement;
(d) if the Subscriber is purchasing the Units as trustee or agent (including, for greater certainty, a portfolio manager or comparable advisor) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such purchase on behalf of such principal, to agree to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and the Subscriber acknowledges that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units for whom the Subscriber may be acting;
(e) the Subscriber is not a “non-Canadian” as that expression is defined in the Investment Canada Act (Canada);
(f) the Subscriber is not a “non resident”, a partnership other than a “Canadian partnership”, a “tax shelter” or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within the meaning of the Tax Act;
(g) the Subscriber and any disclosed principal for whom the Subscriber is contracting hereunder is:
(i) an “accredited investor,” as such term is defined in National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) and, in Ontario, in Section 73.3 of the Securities Act (Ontario), and has concurrently executed and delivered a Representation Letter and the Exhibit thereto in the form attached as Schedule “A” to this Subscription Agreement; or
(ii) not an individual or resident in Alberta, is purchasing the Units Warrants as principal for its own account and not for the benefit of any other person in person, and is purchasing the Units, Shares, and Warrants for investment only and not with a sufficient amount so that view to the aggregate acquisition cost for such Units is not less than $150,000 paid in cash at the time resale or distribution of all or any of the distribution and Units, Shares or Warrants;
(d) the Subscriber was not createdformed for the purpose of purchasing the Units, Shares, or Warrants;
(e) the Subscriber is used, solely to purchase a corporation or hold partnership with total assets in excess of $5,000,000;
(f) neither the SEC nor any other securities in reliance commission or similar regulatory authority has reviewed or passed on the exemption from merits of the prospectus requirement set out in subsection 2.10 of NI 45-106Units, Shares, or Warrants;
(g) there is no government or other insurance covering the Units, Shares, or Warrants;
(h) if there are risks associated with the Subscriber is a “permitted client”purchase of the Units, as such term is defined in National Instrument 31-103 Registration RequirementsShares, Exemptions and Ongoing Registrant Obligations (“NI 31-103”) and wishes to waive the Manager’s obligations under sections 13.3 of NI 31-103, the Subscriber has completed and signed Schedule “B” to this Subscription AgreementWarrants;
(i) if there are restrictions on the Subscriber’s ability to resell the Units, Shares, and Warrants, and it is the responsibility of the Subscriber is an individual relying on paragraph (j), (k) or (l) of the “accredited investor” definition in NI 45-106, the subscriber has completed to find out what those restrictions are and signed the risk acknowledgement form, Form 45-106F9, attached as Schedule “F” to this Subscription Agreementcomply with them;
(j) the Subscriber:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of, the securities regulatory authorities (the “Authorities”) having application in the jurisdiction in which the Subscriber has read is resident (the Offering Memorandum and is aware “International Jurisdiction”) which would apply to the acquisition of the characteristics Units, Shares, and Warrants, if any; and
(ii) the applicable securities laws of the Units Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and of their speculative nature, as well as sale or resale of the fact that they may only be transferred with the prior written consent of the ManagerUnits, and such transfer will generally not be permittedShares, and that the Subscriber shall not knowingly transfer his, her or its Units in whole or in part without the approval of the Manager and will do so only in accordance with Applicable Securities LawsWarrants;
(k) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Units, Shares, or Warrants;
(ii) that any person will refund the purchase price of any of the Units, Shares, or Warrants; or
(iii) as to the future price or value of any of the Units, Shares, or Warrants;
(l) the Subscriber is not a “control person” of the Issuer and will not become a control person by virtue of the purchase of the Units, Shares, or Warrants, and does not intend to act in concert with any other person to form a control group of the Issuer;
(m) the Units, Shares, and Warrants have not been registered under the 1933 Act and may not be offered or sold in the United States unless registered under the 1933 Act and the securities laws of all applicable states of the United States or an exemption from such registration requirements is available;
(n) the offer of the Units, Shares, and Warrants was not made to the Subscriber when the Subscriber was in the United States and, at the time the Subscriber’s buy order was made, the Subscriber was outside the United States;
(o) the Subscriber was outside the United States at the time this Agreement was executed and delivered;
(p) the Subscriber is not and will not be purchasing the Units, Shares, or Warrants for the account or benefit of any person in the United States;
(q) the current structure of this transaction and all transactions and activities contemplated hereunder is not a scheme to avoid the registration requirements of the 1933 Act;
(r) the Subscriber has no intention to distribute either directly or indirectly any of the Units, Shares, or Warrants in the United States, except in compliance with the 1933 Act and the securities laws of all applicable states of the United States or an exemption from such registration requirements;
(s) the Subscriber has received and fully read a copy of and, in connection therewith, has had access to all materials, books, records, documents, and information relating to the Issuer and the Units, Shares, and Warrants as the Subscriber has requested and the Subscriber acknowledges that the Subscriber has been offered an opportunity to ask questions and receive answers concerning the Issuer and the Units, Shares, and Warrants and that any request for such information has been complied with to the Subscriber’s satisfaction;
(t) the Subscriber has adequate means of providing for its current monetary needs and possible contingencies, has no need for liquidity with respect to the Units, Shares, or Warrants and represents that the purchase price of $300,000 is less than 10% of its net worth;
(u) the Subscriber’s decision to enter into tender this Subscription Agreement offer and to purchase the Units Units, Shares, and Warrants has not been based upon made as a result of any verbal or written representation or documentation as to fact or otherwise made by or on behalf of the ManagerIssuer or any other person;
(v) the offer made by this subscription is irrevocable, its affiliates or subject to the Fund except as terms and conditions set forth in this Agreement, and requires only acceptance by the Offering MemorandumIssuer;
(lw) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto, and all necessary approvals by its directors, shareholders, and others have been given to authorize the execution of this Agreement on behalf of the Subscriber;
(x) the entering into of this Agreement and the transactions contemplated hereby will not receivedresult in the violation of any of the terms or provisions of any law applicable to, read nor or the governing documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which it is or may be bound;
(y) this Agreement has been otherwise exposed fully executed and delivered by the Subscriber and constitutes a legal, valid, and binding obligation of the Subscriber enforceable against the Subscriber;
(z) the Subscriber has been independently advised as to any advertising the applicable holding periods imposed in respect of the Units;
(m) , Shares, and Warrants by applicable securities legislation and regulatory policies and confirms that no representations by the Units are being purchased for investment only Issuer have been made respecting such holding periods, and not with a view to resale or distribution is aware of the risks and will other characteristics of the Units, Shares, and Warrants and of the fact that the Subscriber may not be resold able to resell the Units, Shares, or otherwise transferred or disposed of Warrants except in accordance with the provisions of the applicable securities legislation and regulatory policies and that the regulationsUnits, rules Shares, and policies thereunderWarrants may be subject to resale restrictions and may bear a legend to this effect;
(naa) if required by applicable securities legislation, policy or order or by any securities commission, stock exchange or other regulatory authority, the Subscriber will execute, deliver, file, and otherwise assist the Issuer in filing, such reports, undertakings and other documents with respect to the issue of the Units, Shares, or Warrants as may be required;
(bb) the Subscriber is not purchasing any Units, Shares, or Warrants 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, television, or internet or any seminar or meeting whose attendees have been invited by general solicitation or general advertising;
(cc) the Subscriber has been advised to consult its own legal advisors with respect to applicable resale restrictions and the Subscriber is solely responsible for compliance with applicable resale restrictions;
(dd) the Subscriber has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of its investment and is able to bear the economic risk of loss of its investment;
(oee) the Subscriber’s investment in the Units, Shares, and Warrants is speculative and involves a high degree of risk, substantial financing for the Issuer will be required in the future (a portion of which may be obtained soon after the Subscriber’s purchase of the Units), and there is no assurance that any such additional financing can be obtained, and the Subscriber hereby represents that the Subscriber is able to bear such risks;
(ff) the Subscriber is aware able to bear the economic risks of the characteristics of the Units, of the nature and extent of personal liability and of the risks associated with an investment in the Units, Shares, and Warrants, including, without limiting the generality of the foregoing, the risk of losing part or all of the Subscriber’s investment;
(pgg) the Subscriber is aware agrees that there are securities and tax laws applicable the Issuer may be required by law or otherwise to disclose to regulatory authorities the holding and disposition identity of the Units Subscriber and has obtained independent legal and tax advice and is not relying solely upon each beneficial purchaser for whom the information from the Fund, the Manager or, where applicable, their officers, trustees, directors, employees or agentsSubscriber may be acting;
(qhh) the Subscriber has been independently advised as to, and is aware of, the resale restrictions under Applicable Securities Laws to consult its own independent legal advisor with respect to the Units applicable tax consequences of this Agreement and acknowledges receipt of a written notice of the legend restriction notation applicable to the resale of the Units;
(r) the acknowledgments contained in any forms or documents delivered by the Subscriber under applicable securities laws are true and correct as of the date of execution of this Subscription Agreement, and will be true and correct as of the closing of the purchase and sale of restrictions applying to the Units, Warrants, and fully Shares, and truly state those facts necessary for the Fund to be entitled to rely on the relevant exemptions from the prospectus requirements within the meaning of Applicable Securities Laws of the province or territory of residence of the Subscriber;
(s) the Subscriber is not a “U.S. Person” (as that term is defined in Regulation S promulgated under the United States Securities Act of 1933, as amended, which definition includes, but is not limited to, an individual resident in the United States, an estate or 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 United States) and is not acquiring the Units solely responsible for the account of or benefit of a U.S. Person or a person in the United States;
(t) the Subscriber acknowledges that the Units may not be offered, sold, resold or otherwise transferred to persons in the United States or to U.S. Persons (as complying with such term is defined in Regulation S to the United States Securities Act of 1933, as amended);
(u) the Subscriber is not a designated beneficiary within the meaning of Part XII.2 of the Tax Act;
(v) the Subscriber is not a “financial institution” (as defined in Subsection 142.2 of the Tax Act) (a “Financial Institution”) or, if the Subscriber is a Financial Institution, the Subscriber has advised the Manager in writing that the Subscriber is a Financial Institution prior to the date of acceptance of the Subscriber’s subscription for Units;
(w) the Subscriber represents and warrants that the Subscriber is not named on or blocked by any of the following lists (the “Prohibited Lists”) promulgated by the Department of Foreign Affairs and International Trade Canada (DFAIT), or the Department of Public Safety and Emergency Preparedness of Canada (DPSEP):
(i) the List of Names subject to the Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspxrestrictions;
(ii) the List of Names subject Subscriber has had an adequate opportunity to review and discuss with its counsel (i) all reports that the Regulations Implementing Issuer has filed with the United Nations Resolutions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000; or
SEC since January 1, 2006, and (iiiii) the List of Names subject to Registration Statement on Form SB-2 that the United Nations Al-Qaida and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525Issuer filed with the SEC on or about February 9, 2007; and.
(xjj) the Subscriber acknowledges and agrees that the Manager has provided herein certain lists adopted or published by applicable governmental authorities for the convenience of the Subscriber above representations, warranties, covenants, and that because these lists are subject to change from time to time, it is the responsibility of the Subscriber to ensure that the lists are current acknowledgements in this Section 2.1 will be true and correct both as of the time execution of this Subscription Agreement is executed and that each representation as of the day of the Closing.
2.2 The foregoing representations, warranties, covenants, and acknowledgements are made by the Subscriber is true and correct with the intent that they be relied upon by the Issuer in determining its suitability as a purchaser of the date of the Subscription Agreement;
(y) to the best of the Subscriber’s knowledge the money that Units, Shares, and Warrants, and the Subscriber seeks hereby agrees to invest is not derived from indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which it may suffer or incur as a result of reliance thereon. The Subscriber undertakes to notify the issuer immediately of any criminal enterprise change in any representation, warranty, or proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada);
(z) the investment portfolio and trading procedures of the Fund is proprietary to the Fund and the Manager and all other information relating to such investment portfolio and trading procedures shall be kept confidential by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Manager; and
(aa) the Subscriber will execute and deliver all documentation as may be required by applicable securities laws or by the Fund, as the case may be, to permit the purchase of the Units under the terms herein set forth and herein which takes place prior to the Subscriber will deliver such releases or other documents for income tax and other purposes, if any, as from time to time may be required by the Manager. The representations, warranties, covenants and acknowledgements of the Subscriber contained in this Subscription Agreement shall survive the completion of the purchase and sale of the Units and the Subscriber. The Subscriber acknowledges and agrees that the representations, warranties and covenants given by the Subscriber to and in favour of the Fund and the Manager shall be deemed to be repeated and reconfirmed as at the date of any subsequent subscription for Units made by the Subscriber or reinvestment of distributions made by the Fund unless a new subscription agreement is executedClosing.
Appears in 1 contract
Samples: Subscription Agreement (ImmunoCellular Therapeutics, Ltd.)
Representations, Warranties, Covenants and Acknowledgements of the Subscriber. 2.1 The SubscriberSubscriber acknowledges, on its own behalf and on behalf of any disclosed principal for whom the Subscriber is contracting under this Subscription Agreement, hereby represents, warrants, acknowledges warrants and covenants to and with the Manager Corporation that, as at the date given above and to at the Fund thatClosing:
(a) if an individual, no prospectus has been filed by the Subscriber is Corporation with any of the age Commissions in connection with the issuance of majority the Units, such issuance is exempted from the prospectus requirements of the 1933 Act and has the capacity and competence to enter into and be bound by this Subscription Agreement and all other agreements contemplated hereby and this Subscription Agreement constitutes a legal, valid and binding agreement enforceable against the Subscriber in accordance with its terms;
(b) if the Subscriber is an incorporated entitythat:
(i) the Subscriber is a valid and subsisting corporation and is in good standing restricted from using most of the civil remedies available under the laws of the jurisdiction of its incorporation1933 Act;
(ii) the Subscriber has may not receive information that would otherwise be required to be provided to it under the corporate capacity and authority to execute and deliver this Subscription Agreement and to observe and perform its obligations hereunder;1933 Act; and
(iii) this Subscription Agreement has been duly authorized, executed and delivered by the Subscriber and Corporation is a legal, valid and binding obligation of relieved from certain obligations that would otherwise apply under the Subscriber, enforceable against the Subscriber in accordance with its terms; and1933 Act;
(iv) the execution and delivery of this Subscription Agreement by the Subscriber will not result in the violation of, or constitute a default under, or conflict with or cause the acceleration of any obligation of the Subscriber under (a) any contract to which the Subscriber is a party or by which it is bound; (b) any provision the Subscriber certifies that it is resident in the jurisdiction(s) set out on the first page of the constating documents of the Subscriber; or (c) any judgment, decree, order or award of any court, government body or arbitrator having jurisdiction over the Subscriberthis Agreement;
(c) the Subscriber is a resident in or otherwise subject to the securities laws of the province or territory of Canada set forth on the second page of this Subscription Agreement, and if the Subscriber is acting as agent for a disclosed principal, the disclosed principal is resident in or otherwise subject to the securities laws of province or territory set out on the second page of this Subscription Agreement;
(d) if the Subscriber is purchasing the Units as trustee or agent (including, for greater certainty, a portfolio manager or comparable advisor) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such purchase on behalf of such principal, to agree to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and the Subscriber acknowledges that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units for whom the Subscriber may be acting;
(e) the Subscriber is not a “non-Canadian” as that expression is defined in the Investment Canada Act (Canada);
(f) the Subscriber is not a “non resident”, a partnership other than a “Canadian partnership”, a “tax shelter” or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within the meaning of the Tax Act;
(g) the Subscriber and any disclosed principal for whom the Subscriber is contracting hereunder is:
(i) an “accredited investor,” as such term is defined in National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) and, in Ontario, in Section 73.3 of the Securities Act (Ontario), and has concurrently executed and delivered a Representation Letter and the Exhibit thereto in the form attached as Schedule “A” to this Subscription Agreement; or
(ii) not an individual or resident in Alberta, is purchasing the Subscriber's Units as principal for its own account and not for the benefit of any other person in a sufficient amount so that the aggregate acquisition cost for such Units is not less than $150,000 paid in cash at the time of the distribution and the Subscriber was not createdperson, or is used, solely to purchase or hold securities in reliance on the exemption from the prospectus requirement set out in subsection 2.10 of NI 45-106;
(h) if the Subscriber is a “permitted client”, as such term is defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”) and wishes to waive the Manager’s obligations under sections 13.3 of NI 31-103, the Subscriber has completed and signed Schedule “B” to this Subscription Agreement;
(i) if the Subscriber is an individual relying on paragraph (j), (k) or (l) of the “accredited investor” definition in NI 45-106, the subscriber has completed and signed the risk acknowledgement form, Form 45-106F9, attached as Schedule “F” to this Subscription Agreement;
(j) the Subscriber has read the Offering Memorandum and is aware of purchasing the characteristics of the Subscriber's Units and of their speculative nature, as well as of the fact that they may only be transferred with the prior written consent of the Manager, and such transfer will generally not be permitted, and that the Subscriber shall not knowingly transfer his, her or its Units in whole or in part without the approval of the Manager and will do so only in accordance with Applicable Securities Laws;
(k) the decision to enter into this Subscription Agreement and to purchase the Units has not been based upon any verbal or written representation or documentation as to fact or otherwise made by or on behalf of the Manager, its affiliates or the Fund except as set forth in the Offering Memorandum;
(l) the Subscriber has not received, read nor been otherwise exposed to any advertising in respect of the Units;
(m) the Units are being purchased for investment only and not with a view to the resale or distribution of all or any of the Subscriber's Units;
(d) the Subscriber acknowledges that:
(i) no securities commission or similar regulatory authority has reviewed or passed on the merits of the Units;
(ii) there is no government or other insurance covering the Units;
(iii) there are risks associated with the purchase of the Units;
(iv) there are restrictions on the Subscriber's ability to resell the Units and it is the responsibility of the Subscriber to find out what those restrictions are and to comply with them before selling the Units; and
(v) the Corporation has advised the Subscriber that the Corporation is relying on an exemption from the rules and regulations requiring it to provide the Subscriber with a prospectus and to sell securities through a person registered to sell securities under the 1933 Act and, as a consequence of acquiring Units pursuant to an Exemption, certain protections, rights and remedies provided by the 1933 Act, including statutory rights of rescission or damages, will not be resold available to the Subscriber;
(e) the Subscriber is an Accredited Investor, by virtue of the fact that the Subscriber falls within one or otherwise transferred more of the sub-paragraphs of the definition of Accredited Investor set out in Appendix I, and the Subscriber has checked the sub-paragraph(s) applicable to the Subscriber;
(f) no person has made to the Subscriber any written or disposed oral representations:
(i) that any person will resell or repurchase any of except the Units;
(ii) that any person will refund the purchase price of any of the Units; or
(iii) as to the future price or value of any of the Units;
(g) the Subscriber will not become a "control person" by virtue of the purchase of the Subscriber's Shares, and does not intend to act in accordance concert with any other person to form a control group of the Issuer;
(h) the Subscriber has no knowledge of a "material fact" or "material change" in the affairs of the Corporation that has not been generally disclosed to the public, save knowledge disclosed to it in connection with this particular transaction;
(i) the offer made by this subscription is irrevocable by the Subscriber and requires acceptance by the Corporation;
(j) the Corporation will have the right to accept this subscription offer in whole or in part and the acceptance of this subscription offer will be conditional upon the sale of the Subscriber's Units to the Subscriber being exempt from the prospectus and registration requirements under applicable relevant securities legislation;
(k) 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 an individual is of full age of majority, 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 given to authorize the execution of this Agreement on behalf of the Subscriber;
(l) the entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the applicable securities legislation incorporation documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which it is or may be bound;
(m) this Agreement has been duly executed and delivered by the regulationsSubscriber and constitutes a legal, rules valid and policies thereunderbinding obligation of the Subscriber enforceable against the Subscriber;
(n) the Subscriber has been advised to consult its own legal advisors with respect to the applicable hold periods imposed in respect of the Shares by applicable securities legislation and regulatory policies and confirms that no representations by the Corporation have been made respecting the hold periods applicable to the Units;
(o) the Subscriber is aware of the risks and other characteristics of the Units and of the fact that the Subscriber may not be able to resell the Units purchased by it except in accordance with the applicable securities legislation and regulatory policies and that the Units may be subject to resale restrictions and may bear a legend to this effect;
(p) if required by applicable securities legislation, policy or order or by any securities commission, stock exchange or other regulatory authority, the Subscriber will execute, deliver, file and otherwise assist the Corporation in filing, such reports, undertakings and other documents with respect to the issue of the Corporation as may be required;
(q) the Subscriber has not purchased the Units as a result of any form of general solicitation or general advertising, including advertisements, articles, notices or other communication published in any newspaper, magazine or similar media or broadcast over radio, television or internet or any seminar or meeting whose attendees have been invited by general solicitation or general advertising;
(r) the Subscriber has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of its investment and is able to bear the economic risk of loss of its investment;
(o) the Subscriber is aware of the characteristics of the Units, of the nature and extent of personal liability and of the risks associated with an investment in the Units;
(p) the Subscriber is aware that there are securities and tax laws applicable to the holding and disposition of the Units and has obtained independent legal and tax advice and is not relying solely upon the information from the Fund, the Manager or, where applicable, their officers, trustees, directors, employees or agents;
(q) the Subscriber has been independently advised as to, and is aware of, the resale restrictions under Applicable Securities Laws with respect to the Units and acknowledges receipt of a written notice of the legend restriction notation applicable to the resale of the Units;
(r) the acknowledgments contained in any forms or documents delivered by the Subscriber under applicable securities laws are true and correct as of the date of execution of this Subscription Agreement, and will be true and correct as of the closing of the purchase and sale of the Units, and fully and truly state those facts necessary for the Fund to be entitled to rely on the relevant exemptions from the prospectus requirements within the meaning of Applicable Securities Laws of the province or territory of residence of the Subscriber;
(s) the Subscriber is not a “U.S. Person” (as agrees that term is defined in Regulation S promulgated under the United States Securities Act of 1933, as amended, which definition includes, but is not limited to, an individual resident in Corporation may be required by law or otherwise to disclose to regulatory authorities the United States, an estate or 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 identity of the United States) and is not acquiring Subscriber and, if applicable, the Units beneficial purchaser for whom the account of or benefit of a U.S. Person or a person in the United States;Subscriber may be acting; and
(t) the Subscriber acknowledges that the Units may not be offered, sold, resold or otherwise transferred to persons in the United States or to U.S. Persons (as such term is defined in Regulation S to the United States Securities Act of 1933, as amended);
(u) the Subscriber is not a designated beneficiary within the meaning of Part XII.2 of the Tax Act;
(v) the Subscriber is not a “financial institution” (as defined in Subsection 142.2 of the Tax Act) (a “Financial Institution”) or, if the Subscriber is a Financial Institution, the Subscriber has advised the Manager in writing that the Subscriber is a Financial Institution prior to the date of acceptance of the Subscriber’s subscription for Units;
(w) the Subscriber represents and warrants that the Subscriber is not named on or blocked by any of the following lists (the “Prohibited Lists”) promulgated by the Department of Foreign Affairs and International Trade Canada (DFAIT), or the Department of Public Safety and Emergency Preparedness of Canada (DPSEP):
(i) the List of Names subject to the Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspx;
(ii) the List of Names subject to the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000; or
(iii) the List of Names subject to the United Nations Al-Qaida and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525.
(x) the Subscriber acknowledges and agrees that the Manager has provided herein certain lists adopted or published by applicable governmental authorities for the convenience of the Subscriber and that because these lists are subject to change from time to time, it is the responsibility of the Subscriber to ensure that the lists are current as of the time this Subscription Agreement is executed and that each representation made by the Subscriber is true and correct as of the date of the Subscription Agreement;
(y) to the best of the Subscriber’s knowledge the money that the Subscriber seeks to invest is not derived from any criminal enterprise or proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada);
(z) the investment portfolio and trading procedures of the Fund is proprietary to the Fund and the Manager and all information relating to such investment portfolio and trading procedures shall be kept confidential by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Manager; and
(aa) the Subscriber will execute and deliver all documentation as may be required by applicable securities laws or by the Fund, as the case may be, to permit the purchase of the Units under the terms herein set forth and the Subscriber will deliver such releases or other documents for income tax and other purposes, if any, as from time to time may be required by the Manager. The above representations, warranties, covenants and acknowledgements in this subsection will be true and correct both as of the Subscriber contained in execution of this Subscription Agreement shall survive the completion subscription and as of the purchase and sale day of Closing.
(u) the Subscriber has: (i) reviewed all of the Units Corporation's filings under the 1934 Act; and (ii) been given the Subscriber. chance to ask questions of the Corporation's officers and directors; and (iii) received answers to all questions asked
2.2 The Subscriber acknowledges and agrees that the foregoing representations, warranties warranties, covenants and covenants given by the Subscriber to and in favour of the Fund and the Manager shall be deemed to be repeated and reconfirmed as at the date of any subsequent subscription for Units acknowledgements are made by the Subscriber or reinvestment of distributions made with the intent that they be relied upon by the Fund unless Corporation in determining its suitability as a new subscription agreement is executedpurchaser of Shares, and the Subscriber hereby agrees to indemnify the Corporation against all losses, claims, costs, expenses and damages or liabilities which any of them may suffer or incur as a result of reliance thereon. The Subscriber undertakes to notify the Corporation immediately of any change in any representation, warranty or other information relating to the Subscriber set forth herein which takes place prior to the Closing.
Appears in 1 contract
Representations, Warranties, Covenants and Acknowledgements of the Subscriber. The SubscriberBy executing this Subscription Agreement, the Subscriber (on its own behalf and and, including if applicable, on behalf of any disclosed principal for whom the Subscriber is contracting under this Subscription Agreement, hereby each Disclosed Principal) represents, warrants, covenants and acknowledges to and covenants to with the Manager Issuer (and to acknowledges that the Fund Issuer is relying thereon) that:
(a) if the Subscriber is an individual, the Subscriber is of the full age of majority in the jurisdiction in which this Subscription Agreement is executed and has the capacity and competence is legally competent to enter into execute, deliver and be bound by this Subscription Agreement Agreement, to perform all of its obligations hereunder and to undertake all other agreements contemplated hereby and this Subscription Agreement constitutes a legal, valid and binding agreement enforceable against actions required of the Subscriber in accordance with its termshereunder;
(b) if the Subscriber is an incorporated entity:
(i) a corporation, the Subscriber is a valid and subsisting corporation corporation, has the necessary corporate capacity and is authority to enter into and to observe and perform its covenants and obligations under this Agreement and has taken all necessary corporate action in good standing under the laws of the jurisdiction of its incorporationrespect thereof;
(iic) if the Subscriber is a partnership, syndicate or other unincorporated form of organization, the Subscriber has the corporate necessary legal capacity and authority to execute and deliver this Subscription Agreement and to observe and perform its covenants and obligations hereunder;
(iii) this Subscription Agreement hereunder and has been duly authorized, executed and delivered by the Subscriber and is a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms; and
(iv) the execution and delivery of this Subscription Agreement by the Subscriber will not result in the violation of, or constitute a default under, or conflict with or cause the acceleration of any obligation of the Subscriber under (a) any contract to which the Subscriber is a party or by which it is bound; (b) any provision of the constating documents of the Subscriber; or (c) any judgment, decree, order or award of any court, government body or arbitrator having jurisdiction over the Subscriber;
(c) the Subscriber is a resident in or otherwise subject to the securities laws of the province or territory of Canada set forth on the second page of this Subscription Agreement, and if the Subscriber is acting as agent for a disclosed principal, the disclosed principal is resident in or otherwise subject to the securities laws of province or territory set out on the second page of this Subscription Agreementobtained all necessary approvals thereof;
(d) if the Subscriber is purchasing acting as principal, this Subscription Agreement has been duly and validly authorized, executed and delivered by the Units Subscriber, and, when accepted by the Issuer, will constitute a legal, valid and binding obligation enforceable against the Subscriber 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);
(e) if the Subscriber is acting as agent or trustee or agent (including, for greater certainty, a portfolio manager or comparable advisoradviser) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation documents in connection with such purchase 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 Issuer, will constitute a legal, valid, binding obligation enforceable in accordance with the terms hereof (subject to agree bankruptcy, insolvency and other laws limiting the enforceability of creditors rights and subject to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and the Subscriber acknowledges qualification that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units for whom the Subscriber equitable remedies may only be acting;
(e) the Subscriber is not a “non-Canadian” as that expression is defined granted in the Investment Canada Act (Canada)discretion of a court of competent jurisdiction) against, such principal;
(f) the execution and delivery of this Subscription Agreement, the performance and compliance with the terms hereof, the subscription for the Units and the completion of the transactions contemplated hereby 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 (if not an individual), the Securities Laws or any other applicable law, any agreement to which the Subscriber is not a “non resident”party or any applicable regulation, a partnership other than a “Canadian partnership”judgment, a “tax shelter” decree, order or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within the meaning of the Tax Actruling;
(g) the Subscriber is not one of a combination of shareholders of the Issuer or investors in the Offering (including by acting jointly or in concert with any such shareholder or investor) as a consequence of which the issuance of Units to the Subscriber hereunder (assuming the exercise of any convertible securities of the Issuer currently held by the Subscriber and any disclosed principal for whom such other shareholders or investors) will result in, or be part of a transaction that will result in, the Subscriber is contracting hereunder is:
(i) an creation of a new “accredited investor,Insider” as such term is defined in National Instrument 45-106 Prospectus Exemptions (or “NI 45-106”) and, in Ontario, in Section 73.3 Control Person” of the Securities Act (Ontario), and has concurrently executed and delivered a Representation Letter and Issuer under the Exhibit thereto in the form attached as Schedule “A” to this Subscription Agreement; or
(ii) not an individual policies or resident in Alberta, is purchasing the Units as principal for its own account and not for the benefit of any other person in a sufficient amount so that the aggregate acquisition cost for such Units is not less than $150,000 paid in cash at the time rules of the distribution applicable Regulatory Authorities and the Subscriber was not created, or is used, solely to purchase or hold securities in reliance on the exemption from the prospectus requirement set out in subsection 2.10 of NI 45-106Securities Laws;
(h) if the Subscriber is a “permitted client”resident of, as such term or is defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”) and wishes otherwise subject to waive the Manager’s obligations under sections 13.3 of NI 31-103laws of, the Subscriber has completed and signed Schedule jurisdiction disclosed under “BSubscriber’s Residential Address” to on the face page of this Subscription Agreement, and that such address is the residence of the Subscriber or the place of business of the Subscriber at which the Subscriber received and accepted the offer to acquire the Units and was not created or used solely for the purpose of acquiring the Units;
(i) if the Subscriber is an individual relying on paragraph (j)not subscribing as principal, (k) or (l) of the “accredited investor” definition in NI 45-106, the subscriber has completed and signed the risk acknowledgement form, Form 45-106F9, attached as Schedule “F” to this Subscription Agreement;
(j) the Subscriber has read the Offering Memorandum and is aware of the characteristics of the Units and of their speculative nature, as well as of the fact that they may only be transferred with the prior written consent of the Manager, and such transfer will generally not be permitted, and that the Subscriber shall not knowingly transfer his, her or its Units in whole or in part without the approval of the Manager and will do so only in accordance with Applicable Securities Laws;
(k) the decision to enter into this Subscription Agreement and to purchase the Units has not been based upon any verbal or written representation or documentation as to fact or otherwise made by or on behalf of the Manager, its affiliates or the Fund except as set forth in the Offering Memorandum;
(l) the Subscriber has not received, read nor been otherwise exposed to any advertising in respect of the Units;
(m) the Units are being purchased for investment only and not with a view to resale or distribution and will not be resold or otherwise transferred or disposed of except in accordance with the provisions of the applicable securities legislation and the regulations, rules and policies thereunder;
(n) the Subscriber has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of its investment and is able to bear the economic risk of loss of its investment;
(o) the Subscriber is aware of the characteristics of the Units, of the nature and extent of personal liability and of the risks associated with an investment in the Units;
(p) the Subscriber is aware that there are securities and tax laws applicable to the holding and disposition of the Units and has obtained independent legal and tax advice and is not relying solely upon the information from the Fund, the Manager or, where applicable, their officers, trustees, directors, employees or agents;
(q) the Subscriber has been independently advised as to, and is aware of, the resale restrictions under Applicable Securities Laws with respect to the Units and acknowledges receipt of a written notice of the legend restriction notation applicable to the resale of the Units;
(r) the acknowledgments contained in any forms or documents delivered by the Subscriber under applicable securities laws are true and correct as of the date of execution of this Subscription Agreement, and will be true and correct as of the closing of the purchase and sale of the Units, and fully and truly state those facts necessary for the Fund to be entitled to rely on the relevant exemptions from the prospectus requirements within the meaning of Applicable Securities Laws of the province or territory of residence of the Subscriber;
(s) the Subscriber is not a “U.S. Person” (as that term is defined in Regulation S promulgated under the United States Securities Act of 1933, as amended, which definition includes, but is not limited to, an individual resident in the United States, an estate or 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 United States) and is not acquiring the Units for the account of or benefit of a U.S. Person or a person in the United States;
(t) the Subscriber acknowledges that the Units may not be offered, sold, resold or otherwise transferred to persons in the United States or to U.S. Persons (as such term is defined in Regulation S to the United States Securities Act of 1933, as amended);
(u) the Subscriber is not a designated beneficiary within the meaning of Part XII.2 of the Tax Act;
(v) the Subscriber is not a “financial institution” (as defined in Subsection 142.2 of the Tax Act) (a “Financial Institution”) or, if the Subscriber is a Financial Institution, the Subscriber has advised the Manager in writing that the Subscriber is a Financial Institution prior to the date of acceptance of the Subscriber’s subscription for Units;
(w) the Subscriber represents and warrants that the Subscriber is not named on or blocked by any of the following lists (the “Prohibited Lists”) promulgated by the Department of Foreign Affairs and International Trade Canada (DFAIT), or the Department of Public Safety and Emergency Preparedness of Canada (DPSEP):
(i) the List of Names subject to the Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspx;
(ii) the List of Names subject to the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000; or
(iii) the List of Names subject to the United Nations Al-Qaida and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525.
(x) the Subscriber acknowledges and agrees that the Manager has provided herein certain lists adopted or published by applicable governmental authorities for the convenience of the Subscriber and that because these lists are subject to change from time to time, it is the responsibility of the Subscriber to ensure that the lists are current as of the time this Subscription Agreement is executed and that each representation made by the Subscriber is true and correct as of the date of the Subscription Agreement;
(y) to the best of the Subscriber’s knowledge the money that the Subscriber seeks to invest is not derived from any criminal enterprise or proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada);
(z) the investment portfolio and trading procedures of the Fund is proprietary to the Fund and the Manager and all information relating to such investment portfolio and trading procedures shall be kept confidential by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Manager; and
(aa) the Subscriber will execute and deliver all documentation as Issuer may be required by law to disclose to applicable securities laws regulatory authorities or by stock exchanges information concerning the Fund, as the case may be, to permit the purchase identities of the Units under the terms herein set forth and each beneficial purchaser for whom the Subscriber will deliver such releases or other documents for income tax and other purposes, if any, as from time to time may be required by the Manager. The representations, warranties, covenants and acknowledgements of the Subscriber contained in this Subscription Agreement shall survive the completion of the purchase and sale of the Units and the Subscriber. The Subscriber acknowledges and agrees that the representations, warranties and covenants given by the Subscriber to and in favour of the Fund and the Manager shall be deemed to be repeated and reconfirmed as at the date of any subsequent subscription for Units made by the Subscriber or reinvestment of distributions made by the Fund unless a new subscription agreement is executed.acting hereunder;
Appears in 1 contract
Representations, Warranties, Covenants and Acknowledgements of the Subscriber. 5.1 The SubscriberSubscriber represents, warrants, covenants and acknowledges, as applicable, to and with Apollo, on its the Subscriber’s own behalf and on behalf of any disclosed principal for whom the Subscriber is contracting under this Subscription Agreementacting as agent (and acknowledges that Apollo and its counsel, hereby representsare relying thereon), warrants, acknowledges as at the date hereof and covenants to as at the Manager and to the Fund thatClosing Time:
(a) if an individual, the Subscriber is of the age of majority understands that any funds invested are available to and has the capacity and competence will be paid to enter into and be bound by this Subscription Agreement and all other agreements contemplated hereby and this Subscription Agreement constitutes a legal, valid and binding agreement enforceable against the Subscriber Apollo in accordance with its termsthe provisions of this Agreement and need not be refunded to the Subscriber;
(b) if the Subscriber Units are being offered for sale in an Offering Jurisdiction only on a "private placement" basis and that the sale and delivery of the Units is conditional upon such sale being exempt from the requirements as to the filing of a prospectus under the Applicable Securities Laws in such Offering Jurisdiction or upon the issuance of such orders, consents or approvals as may be required to permit such sale without the requirement of filing a prospectus or delivering an incorporated entityoffering memorandum, that no prospectus has been filed by Apollo with any of the applicable securities regulatory authorities in connection with the issuance of the Units in such Offering Jurisdiction, and that:
(i) as a result, certain protections, rights and remedies provided by the Subscriber is a valid and subsisting corporation and is Applicable Securities Laws in good standing under such Offering Jurisdiction including statutory rights of rescission or damages, will not be available to the laws of the jurisdiction of its incorporationSubscriber;
(ii) no securities commission or similar regulatory authority has reviewed or passed on the Subscriber has merits of the corporate capacity and authority to execute and deliver this Subscription Agreement and to observe and perform its obligations hereunderUnits;
(iii) this Subscription Agreement has been duly authorized, executed and delivered by there is no government or other insurance covering the Subscriber and is a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms; andUnits;
(iv) the execution and delivery of this Subscription Agreement by the Subscriber will may not result in the violation of, or constitute a default under, or conflict with or cause the acceleration of any obligation of receive information that would otherwise be required to be provided to the Subscriber under the Applicable Securities Laws in such Offering Jurisdiction; and
(av) any contract to which Apollo is relieved from certain obligations that would otherwise apply under the Subscriber is a party or by which it is bound; (b) any provision of the constating documents of the Subscriber; or (c) any judgment, decree, order or award of any court, government body or arbitrator having jurisdiction over the SubscriberApplicable Securities Laws in such Offering Jurisdiction;
(c) the Subscriber certifies that it is a resident in or otherwise subject to the securities laws of the province or territory of Canada set forth on the second page of this Subscription Agreementor, and if the Subscriber is acting as agent for a disclosed principal, the disclosed such principal is is, resident in or otherwise subject to the securities laws of province or territory jurisdiction set out on the second first page of this Subscription AgreementAgreement under the heading "Subscriber Information" and "Beneficial Subscriber Information", as the case may be, which address is the residence or place of business of the Subscriber or such disclosed principal, and that such address was not obtained or used solely for the purpose of subscribing for the Units;
(d) if the Subscriber is purchasing the Units as trustee or agent (including, for greater certainty, a portfolio manager or comparable advisor) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such purchase on behalf of such principal, to agree to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and the Subscriber acknowledges that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units for whom the Subscriber may be acting;
(e) the Subscriber is not a “non-Canadian” as that expression is defined in the Investment Canada Act (Canada);
(f) the Subscriber is not a “non resident”, a partnership other than a “Canadian partnership”, a “tax shelter” or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within the meaning of the Tax Act;
(g) the Subscriber and any disclosed principal for whom the Subscriber is contracting hereunder isUnits:
(i) an “accredited investor,” as such term is defined in National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) and, in Ontario, in Section 73.3 of the Securities Act (Ontario), and has concurrently executed and delivered a Representation Letter and the Exhibit thereto in the form attached as Schedule “A” to this Subscription Agreement; or
(ii) not an individual or resident in Alberta, is purchasing the Units as principal for its own account and not for the benefit of any other person in a sufficient amount so that the aggregate acquisition cost for such Units is not less than $150,000 paid in cash at the time of the distribution and the Subscriber was not created, or is used, solely deemed under the Applicable Securities Laws to purchase or hold securities in reliance on the exemption from the prospectus requirement set out in subsection 2.10 of NI 45-106;
(h) if the Subscriber is a “permitted client”, as such term is defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”) and wishes to waive the Manager’s obligations under sections 13.3 of NI 31-103, the Subscriber has completed and signed Schedule “B” to this Subscription Agreement;
(i) if the Subscriber is an individual relying on paragraph (j), (k) or (l) of the “accredited investor” definition in NI 45-106, the subscriber has completed and signed the risk acknowledgement form, Form 45-106F9, attached as Schedule “F” to this Subscription Agreement;
(j) the Subscriber has read the Offering Memorandum and is aware of the characteristics of be purchasing the Units and of their speculative nature, as well as of the fact that they may only be transferred with the prior written consent of the Managerprincipal, and such transfer will generally not be permitted, and that the Subscriber shall not knowingly transfer his, her or its Units in whole or in part without the approval of the Manager and will do so only in accordance with Applicable Securities Laws;
(k) the decision to enter into this Subscription Agreement and to purchase either case is purchasing the Units has not been based upon any verbal or written representation or documentation as to fact or otherwise made by or on behalf of the Manager, its affiliates or the Fund except as set forth in the Offering Memorandum;
(l) the Subscriber has not received, read nor been otherwise exposed to any advertising in respect of the Units;
(m) the Units are being purchased for investment only and not with a view to the resale or distribution of all or any of the Units; or
(ii) as agent for a disclosed principal and is not deemed under the Applicable Securities Laws to be purchasing the Units as principal, and it is duly authorized to enter into this Agreement and to execute and deliver all documentation in connection with the purchase on behalf of such disclosed principal, who is purchasing as principal for its own account and not for the benefit of any other person and for investment only and not with a view to the resale or distribution of all or any of the Units;
(e) the Subscriber will file all forms and reports, together with the prescribed fees, that may be required by Applicable Securities Laws or by any legislation or order in force in its jurisdiction of residence or to which it may be subject, within the time limits prescribed therein, in respect of this subscription, the purchase or any subsequent disposition of the Units;
(f) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Units;
(ii) that any person will refund the purchase price of any of the Units; or
(iii) as to the future price or value of any of the Shares comprising part of the Units;
(g) the Subscriber, and any beneficial purchaser for whom it is acting, is at arm's length (within the meaning of the Applicable Securities Laws) with Apollo, except as disclosed in writing by the Subscriber to Apollo;
(h) the Subscriber is not (other than if the Subscriber is an officer or director of Apollo or any of its affiliates) and will not become a "control person" of Apollo by virtue of the purchase of the Units and does not intend to act in concert with any other person to form a control group of Apollo;
(i) this Subscription has not been solicited in any manner contrary to the Applicable Securities Laws;
(j) Apollo will have the right to accept this subscription in whole or in part and the acceptance of this subscription offer will be resold or otherwise transferred or disposed conditional upon the sale of except the Units to the Subscriber in accordance with a Non-US Offering Jurisdiction being exempt from the prospectus and registration requirements of the Applicable Securities Laws in such Non-US Offering Jurisdiction;
(k) 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 an individual, is of full age of majority, 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 given to authorize the execution of this Agreement on behalf of the Subscriber;
(l) the entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the applicable securities legislation constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which it is or may be bound;
(m) this Agreement has been duly executed and delivered by the regulationsSubscriber and constitutes a legal, rules valid and policies thereunderbinding obligation of the Subscriber enforceable against the Subscriber;
(n) in the case of a subscription by it for the Units acting as agent for a disclosed principal, it is duly authorized to execute and deliver this Agreement and all other necessary documentation in connection with such subscription on behalf of such principal and this Agreement has been duly authorized, executed and delivered by or on behalf of, and constitutes a legal, valid and binding agreement of, such principal;
(o) if required by the Applicable Securities Laws, policy or order or by any securities commission, stock exchange or other regulatory authority, the Subscriber will execute, deliver, file and otherwise assist Apollo in filing such reports, undertakings and other documents as may be required;
(p) the Subscriber has not purchased the Units as a result of any form of general solicitation or general advertising, including advertisements, articles, notices or other communication published in any newspaper, magazine or similar media or broadcast over radio, television or internet or any seminar or meeting whose attendees have been invited by general solicitation or general advertising;
(q) the Subscriber and each beneficial purchaser for whom it is acting acknowledges that investment in the Units is speculative in nature and that there are risks associated with the purchase of the Units and the Subscriber and each beneficial purchaser for whom it is acting has such knowledge knowledge, sophistication and experience in business and financial and business affairs matters as to be capable of evaluating the merits and risks of its investment in the Units, fully understands the speculative nature of the Units and is able to bear the economic risk of loss of its entire investment;
(o) the Subscriber is aware of the characteristics of the Units, of the nature and extent of personal liability and of the risks associated with an investment in the Units;
(p) the Subscriber is aware that there are securities and tax laws applicable to the holding and disposition of the Units and has obtained independent legal and tax advice and is not relying solely upon the information from the Fund, the Manager or, where applicable, their officers, trustees, directors, employees or agents;
(q) the Subscriber has been independently advised as to, and is aware of, the resale restrictions under Applicable Securities Laws with respect to the Units and acknowledges receipt of a written notice of the legend restriction notation applicable to the resale of the Units;
(r) Apollo may be required by law or otherwise to disclose to regulatory authorities the acknowledgments contained in any forms or documents delivered by identity of the Subscriber under applicable securities laws are true and correct as of each beneficial purchaser for whom the date of execution of this Subscription Agreement, and will Subscriber may be true and correct as of the closing of the purchase and sale of the Units, and fully and truly state those facts necessary for the Fund to be entitled to rely on the relevant exemptions from the prospectus requirements within the meaning of Applicable Securities Laws of the province or territory of residence of the Subscriberacting;
(s) the Subscriber has not received, nor has it requested, nor does it have any need to receive, any offering memorandum or any other document from Apollo describing the business and affairs of Apollo with respect to the offering and purchase of the Units;
(t) this subscription is not enforceable by the Subscriber unless it has been accepted by Apollo;
(u) in connection with the Subscriber’s subscription, the Subscriber has not relied upon Apollo for investment, legal or tax advice, and has in all cases sought or elected not to seek the advice of the Subscriber’s own personal investment advisers, legal counsel and tax advisers and the Subscriber is able, without impairing its financial condition, to hold the Units for an indefinite period of time and to bear the economic risk of, and withstand a complete loss of, the investment and it can otherwise be reasonably assumed to have the capacity to protect its own interest in connection with its investment;
(v) all costs and expenses incurred by the Subscriber (including any fees and disbursements of any special counsel or other advisors retained by the Subscriber) relating to the purchase of the Units shall be borne by the Subscriber;
(w) none of the funds the Subscriber is using to purchase the Units is, to the knowledge of the Subscriber, proceeds obtained or derived, directly or indirectly, as a result of illegal activities;
(x) it is aware that the Shares, the Warrants and the Warrant Shares have not been and may not be registered under the U.S. Securities Act and that the Shares, the Warrants and the Warrant Shares may not be offered or sold in the United States without registration under the U.S. Securities Act or compliance with requirements of an exemption from registration;
(y) it is not a “"U.S. Person” " (as that term is defined in by Regulation S promulgated under the United States U.S. Securities Act of 1933, as amendedAct, which definition includes, but is not limited to, an individual resident in the United States, an estate or trust of which any executor or administrator or trustee, respectively, is a U.S. Person and any partnership or company corporation organized or incorporated under the laws of the United States) and is not acquiring the Units for the account of or benefit of a U.S. Person or a person in the United States;
(tz) the Units have not been offered to the Subscriber acknowledges that in the United States, and the individuals making the order to purchase the Units may and executing and delivering this Agreement on behalf of the Subscriber were not be offered, sold, resold or otherwise transferred to persons in the United States when the order was placed and this Agreement was executed and delivered;
(aa) it undertakes and agrees that it will not offer or to U.S. Persons (as such term is defined sell the Shares, the Warrants or the Warrant Shares in Regulation S to the United States unless such securities are registered under the U.S. Securities Act and the securities laws of 1933all applicable states of the United States or an exemption from such registration requirements is available, as amended)and further that it will not resell the Shares, the Warrants or the Warrant Shares except in accordance with the provisions of applicable securities legislation, regulations, rules, policies and orders and stock exchange rules;
(ubb) it will not engage in hedging transactions with regard to the Subscriber is not a designated beneficiary within Shares, the meaning of Part XII.2 of Warrants or the Tax Warrant Shares unless conducted in compliance with the U.S. Securities Act;
(vcc) it acknowledges that the Subscriber is not a “financial institution” (as defined in Subsection 142.2 Corporation will refuse to register any transfer of any of the Tax Act) (a “Financial Institution”) or, if the Subscriber is a Financial InstitutionShares, the Subscriber has advised Warrants or the Manager Warrant Shares not made in writing that accordance with the Subscriber is a Financial Institution prior provisions of Regulation S under the U.S. Securities Act, pursuant to registration under the date of acceptance of U.S. Securities Act, or pursuant to an available exemption from registration under the Subscriber’s subscription for UnitsU.S. Securities Act;
(wdd) the Subscriber represents it acknowledges that there are hold periods and warrants that the Subscriber is not named on or blocked by any of the following lists (the “Prohibited Lists”) promulgated by the Department of Foreign Affairs and International Trade Canada (DFAIT), or the Department of Public Safety and Emergency Preparedness of Canada (DPSEP):
(i) the List of Names subject to the Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspx;
(ii) the List of Names subject to the Regulations Implementing the United Nations Resolutions resale restrictions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000; or
(iii) the List of Names subject to the United Nations Al-Qaida and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525Units as set out in Section 8.0 hereof.
(x) the Subscriber acknowledges and agrees that the Manager has provided herein certain lists adopted or published by applicable governmental authorities for the convenience of the Subscriber and that because these lists are subject to change from time to time, it is the responsibility of the Subscriber to ensure that the lists are current as of the time this Subscription Agreement is executed and that each representation made by the Subscriber is true and correct as of the date of the Subscription Agreement;
(y) to the best of the Subscriber’s knowledge the money that the Subscriber seeks to invest is not derived from any criminal enterprise or proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada);
(z) the investment portfolio and trading procedures of the Fund is proprietary to the Fund and the Manager and all information relating to such investment portfolio and trading procedures shall be kept confidential by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Manager; and
(aa) the Subscriber will execute and deliver all documentation as may be required by applicable securities laws or by the Fund, as the case may be, to permit the purchase of the Units under the terms herein set forth and the Subscriber will deliver such releases or other documents for income tax and other purposes, if any, as from time to time may be required by the Manager. The representations, warranties, covenants and acknowledgements of the Subscriber contained in this Subscription Agreement shall survive the completion of the purchase and sale of the Units and the Subscriber. 5.2 The Subscriber acknowledges and agrees that the representationsforegoing representations and warranties are made by the Subscriber with the intent that they may be relied upon by Apollo in determining its eligibility as a purchaser of the Units under Applicable Securities Laws and the Subscriber hereby agrees to indemnify and hold harmless Apollo, its Affiliates and their representatives, directors, officers, employees and underwriters from and against all losses, liability, claims, costs, expenses and damages arising from, relating to, or connected with Apollo’s reliance thereon in the event that such representations and warranties are untrue in any material respect, such agreement regarding indemnification to survive the Closing and covenants given to continue in full force and effect for the benefit of the Subscriber notwithstanding any subsequent disposition by the Subscriber of the Units. The Subscriber further agrees that by accepting the Units, the Subscriber shall be representing and warranting that the foregoing representations and warranties contained herein or in any document furnished by the Subscriber to and in favour of the Fund and the Manager shall be deemed to be repeated and reconfirmed Apollo are true as at the date of any subsequent subscription for Units Closing with the same force and effect as if they had been made by the Subscriber or reinvestment as at the Closing and shall survive the Closing and continue in full force and effect for the benefit of distributions made Apollo notwithstanding any subsequent disposition by the Fund unless a new subscription agreement is executedSubscriber of the Units. The Subscriber undertakes to immediately notify Apollo at the address specified on page (i) of this Agreement of any change in any statement or other information relating to the Subscriber set forth herein which takes place prior to the Closing Time.
Appears in 1 contract
Representations, Warranties, Covenants and Acknowledgements of the Subscriber. The Subscriber, on its own behalf and on behalf of any disclosed principal for whom the Subscriber is contracting under this Subscription Agreement, hereby represents, warrants, acknowledges and covenants to the Manager Fund Manager, the Fund Administrator and to the Fund that:
(a) if an individual, the Subscriber is of the age of majority and has the capacity and competence to enter into and be bound by this Subscription Agreement and all other agreements contemplated hereby and this Subscription Agreement constitutes a legal, valid and binding agreement enforceable against the Subscriber in accordance with its terms;
(b) if the Subscriber is an incorporated entity:
(i) the Subscriber is a valid and subsisting corporation and is in good standing under the laws of the jurisdiction of its incorporation;
(ii) the Subscriber has the corporate capacity and authority to execute and deliver this Subscription Agreement and to observe and perform its obligations hereunder;
(iii) this Subscription Agreement has been duly authorized, executed and delivered by the Subscriber and is a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms; and
(iv) the execution and delivery of this Subscription Agreement by the Subscriber will not result in the violation of, or constitute a default under, or conflict with or cause the acceleration of any obligation of the Subscriber under (a) any contract to which the Subscriber is a party or by which it is bound; (b) any provision of the constating documents of the Subscriber; or (c) any judgment, decree, order or award of any court, government body or arbitrator having jurisdiction over the Subscriber;
(c) the Subscriber is a resident in or otherwise subject to the securities laws of the province or territory of Canada set forth on the second page of this Subscription Agreement, and if the Subscriber is acting as agent for a disclosed principal, the disclosed principal is resident in or otherwise subject to the securities laws of province or territory set out on the second page of this Subscription Agreement;
(d) if the Subscriber is purchasing the Units as trustee or agent (including, for greater certainty, a portfolio manager or comparable advisor) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such purchase on behalf of such principal, to agree to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and the Subscriber acknowledges that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units for whom the Subscriber may be acting;
(e) the Subscriber is not a “non-Canadian” as that expression is defined in the Investment Canada Act (Canada);
(f) the Subscriber is not a “non resident”, a partnership other than a “Canadian partnership”, a “tax shelter” or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within the meaning of the Tax Act;
(g) the Subscriber and any disclosed principal for whom the Subscriber is contracting hereunder is:
(i) an “accredited investor,” as such term is defined in National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) and, in Ontario, in Section 73.3 of the Securities Act (Ontario), and has concurrently executed and delivered a Representation Letter and the Exhibit thereto in the form attached as Schedule “A” to this Subscription Agreement; or
(ii) not an individual or resident in Alberta, is purchasing the Units as principal for its own account and not for the benefit of any other person in a sufficient amount so that the aggregate acquisition cost for such Units is not less than $150,000 paid in cash at the time of the distribution and the Subscriber was not created, or is used, solely to purchase or hold securities in reliance on the exemption from the prospectus requirement set out in subsection 2.10 of NI 45-106;
(h) if the Subscriber is a “permitted client”, as such term is defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”) and wishes to waive the Fund Manager’s obligations under sections 13.3 of NI 31-103, the Subscriber has completed and signed Schedule “B” to this Subscription Agreement;
(i) if the Subscriber is an individual relying on paragraph (j), (k) or (l) of the “accredited investor” definition in NI 45-106, the subscriber has completed and signed the risk acknowledgement form, Form 45-106F9, attached as Schedule “F” to this Subscription Agreement;
(j) the Subscriber has read the Offering Memorandum and is aware of the characteristics of the Units and of their speculative nature, as well as of the fact that they may only be transferred with the prior written consent of the Fund Manager, and such transfer will generally not be permitted, and that the Subscriber shall not knowingly transfer his, her or its Units in whole or in part without the approval of the Fund Manager and will do so only in accordance with Applicable Securities Laws;
(k) the decision to enter into this Subscription Agreement and to purchase the Units has not been based upon any verbal or written representation or documentation as to fact or otherwise made by or on behalf of the Fund Manager, its affiliates or the Fund except as set forth in the Offering Memorandum;
(l) the Subscriber has not received, read nor been otherwise exposed to any advertising in respect of the Units;
(m) the Units are being purchased for investment only and not with a view to resale or distribution and will not be resold or otherwise transferred or disposed of except in accordance with the provisions of the applicable securities legislation and the regulations, rules and policies thereunder;
(n) the Subscriber has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of its investment and is able to bear the economic risk of loss of its investment;
(o) the Subscriber is aware of the characteristics of the Units, of the nature and extent of personal liability and of the risks associated with an investment in the Units;
(p) the Subscriber is aware that there are securities and tax laws applicable to the holding and disposition of the Units and has obtained independent legal and tax advice and is not relying solely upon the information from the Fund, the Fund Manager or, where applicable, their officers, trustees, directors, employees or agents;
(q) the Subscriber has been independently advised as to, and is aware of, the resale restrictions under Applicable Securities Laws with respect to the Units and acknowledges receipt of a written notice of the legend restriction notation applicable to the resale of the Units;
(r) the Subscriber acknowledges that no prospectus has been filed with any securities commission or other regulatory authority in connection with the issuance of the Units, such issuance is exempted from the prospectus requirements of applicable securities laws and as a result:
(i) the Subscriber is restricted from using civil remedies which would otherwise be available,
(ii) the Subscriber may not receive information that would otherwise be required to be provided, and
(iii) the Fund is relieved from certain obligations that would otherwise apply;
(s) the acknowledgments contained in any forms or documents delivered by the Subscriber under applicable securities laws Applicable Securities Laws are true and correct as of the date of execution of this Subscription Agreement, and will be true and correct as of the closing of the purchase and sale of the Units, and fully and truly state those facts necessary for the Fund to be entitled to rely on the relevant exemptions from the prospectus requirements within the meaning of Applicable Securities Laws of the province or territory of residence of the Subscriber;
(st) the Subscriber is not a “U.S. Person” (as that term is defined in Regulation S promulgated under the United States Securities Act of 1933, as amended, which definition includes, but is not limited to, an individual resident in the United States, an estate or 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 United States) and is not acquiring the Units for the account of or benefit of a U.S. Person or a person in the United States;
(tu) the Subscriber acknowledges that the Units may not be offered, sold, resold or otherwise transferred to persons in the United States or to U.S. Persons (as such term is defined in Regulation S to the United States Securities Act of 1933, as amended);
(uv) the Subscriber is not a designated beneficiary within the meaning of Part XII.2 of the Tax Act;
(vw) the Subscriber is not a “financial institution” (as defined in Subsection 142.2 of the Tax Act) (a “Financial Institution”) or, if the Subscriber is a Financial Institution, the Subscriber has advised the Fund Manager in writing that the Subscriber is a Financial Institution prior to the date of acceptance of the Subscriber’s subscription for Units;
(wx) the Subscriber represents and warrants that the Subscriber is not named on or blocked by any of the following lists (the “Prohibited Lists”) promulgated by the Department of Foreign Affairs and International Trade Canada (DFAIT), or the Department of Public Safety and Emergency Preparedness of Canada (DPSEP):
(i) the List of Names subject to the Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspx;
(ii) the List of Names subject to the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000; or
(iii) the List of Names subject to the United Nations Al-Qaida and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525.
(xy) the Subscriber acknowledges and agrees that the Fund Manager has provided herein certain lists adopted or published by applicable governmental authorities for the convenience of the Subscriber and that because these lists are subject to change from time to time, it is the responsibility of the Subscriber to ensure that the lists are current as of the time this Subscription Agreement is executed and that each representation made by the Subscriber is true and correct as of the date of the Subscription Agreement;
(yz) to the best of the Subscriber’s knowledge the money that the Subscriber seeks to invest is not derived from any criminal enterprise or proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada);
(zaa) the investment portfolio and trading procedures of the Fund is proprietary to each of the Fund and the Underlying Fund are proprietary to the Fund, the Fund Manager and the Sub-Adviser and all information relating to such investment portfolio and trading procedures shall be kept confidential by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Fund Manager; and
(aabb) the Subscriber will execute and deliver all documentation as may be required by applicable securities laws or by the Fund, as the case may be, to permit the purchase of the Units under the terms herein set forth and the Subscriber will deliver such releases or other documents for income tax and other purposes, if any, as from time to time may be required by the Fund Manager. The representations, warranties, covenants and acknowledgements of the Subscriber contained in this Subscription Agreement shall survive the completion of the purchase and sale of the Units and the Subscriber. The Subscriber acknowledges and agrees that the representations, warranties and covenants given by the Subscriber to and in favour of the Fund, the Fund Manager and the Manager Fund Administrator shall be deemed to be repeated and reconfirmed as at the date of any subsequent subscription for Units made by the Subscriber or reinvestment of distributions made by the Fund unless a new subscription agreement is executed.
Appears in 1 contract
Samples: Subscription Agreement
Representations, Warranties, Covenants and Acknowledgements of the Subscriber. 5.1 The SubscriberSubscriber represents, warrants, covenants and acknowledges, as applicable, to and with Xxxxxx, on its the Subscriber’s own behalf and on behalf of any disclosed principal for whom the Subscriber is contracting under this Subscription Agreementacting as agent (and acknowledges that Apollo and its counsel, hereby representsare relying thereon), warrants, acknowledges as at the date hereof and covenants to as at the Manager and to the Fund thatClosing Time:
(a) if an individual, the Subscriber is of the age of majority understands that any funds invested are available to and has the capacity and competence will be paid to enter into and be bound by this Subscription Agreement and all other agreements contemplated hereby and this Subscription Agreement constitutes a legal, valid and binding agreement enforceable against the Subscriber Apollo in accordance with its termsthe provisions of this Agreement and need not be refunded to the Subscriber;
(b) if the Subscriber Shares are being offered for sale in an Offering Jurisdiction only on a “private placement” basis and that the sale and delivery of the Shares is conditional upon such sale being exempt from the requirements as to the filing of a prospectus under the Applicable Securities Laws in such Offering Jurisdiction or upon the issuance of such orders, consents or approvals as may be required to permit such sale without the requirement of filing a prospectus or delivering an incorporated entityoffering memorandum, that no prospectus has been filed by Xxxxxx with any of the applicable securities regulatory authorities in connection with the issuance of the Shares in such Offering Jurisdiction, and that:
(i) as a result, certain protections, rights and remedies provided by the Subscriber is a valid and subsisting corporation and is Applicable Securities Laws in good standing under such Offering Jurisdiction including statutory rights of rescission or damages, will not be available to the laws of the jurisdiction of its incorporationSubscriber;
(ii) no securities commission or similar regulatory authority has reviewed or passed on the Subscriber has merits of the corporate capacity and authority to execute and deliver this Subscription Agreement and to observe and perform its obligations hereunderShares;
(iii) this Subscription Agreement has been duly authorized, executed and delivered by there is no government or other insurance covering the Subscriber and is a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms; andShares;
(iv) the execution and delivery of this Subscription Agreement by the Subscriber will may not result in the violation of, or constitute a default under, or conflict with or cause the acceleration of any obligation of receive information that would otherwise be required to be provided to the Subscriber under the Applicable Securities Laws in such Offering Jurisdiction; and
(av) any contract to which Apollo is relieved from certain obligations that would otherwise apply under the Subscriber is a party or by which it is bound; (b) any provision of the constating documents of the Subscriber; or (c) any judgment, decree, order or award of any court, government body or arbitrator having jurisdiction over the SubscriberApplicable Securities Laws in such Offering Jurisdiction;
(c) the Subscriber certifies that it is a resident in or otherwise subject to the securities laws of the province or territory of Canada set forth on the second page of this Subscription Agreementor, and if the Subscriber is acting as agent for a disclosed principal, the disclosed such principal is is, resident in or otherwise subject to the securities laws of province or territory jurisdiction set out on the second first page of this Subscription AgreementAgreement under the heading “Subscriber Information” and “Beneficial Subscriber Information”, as the case may be, which address is the residence or place of business of the Subscriber or such disclosed principal, and that such address was not obtained or used solely for the purpose of subscribing for the Shares;
(d) if the Subscriber is purchasing the Units as trustee or agent (including, for greater certainty, a portfolio manager or comparable advisor) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such purchase on behalf of such principal, to agree to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and the Subscriber acknowledges that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units for whom the Subscriber may be acting;
(e) the Subscriber is not a “non-Canadian” as that expression is defined in the Investment Canada Act (Canada);
(f) the Subscriber is not a “non resident”, a partnership other than a “Canadian partnership”, a “tax shelter” or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within the meaning of the Tax Act;
(g) the Subscriber and any disclosed principal for whom the Subscriber is contracting hereunder isShares:
(i) an “accredited investor,” as such term is defined in National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) and, in Ontario, in Section 73.3 of the Securities Act (Ontario), and has concurrently executed and delivered a Representation Letter and the Exhibit thereto in the form attached as Schedule “A” to this Subscription Agreement; or
(ii) not an individual or resident in Alberta, is purchasing the Units as principal for its own account and not for the benefit of any other person in a sufficient amount so that the aggregate acquisition cost for such Units is not less than $150,000 paid in cash at the time of the distribution and the Subscriber was not created, or is used, solely deemed under the Applicable Securities Laws to purchase or hold securities in reliance on be purchasing the exemption from the prospectus requirement set out in subsection 2.10 of NI 45-106;
(h) if the Subscriber is a “permitted client”, Shares as such term is defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”) and wishes to waive the Manager’s obligations under sections 13.3 of NI 31-103, the Subscriber has completed and signed Schedule “B” to this Subscription Agreement;
(i) if the Subscriber is an individual relying on paragraph (j), (k) or (l) of the “accredited investor” definition in NI 45-106, the subscriber has completed and signed the risk acknowledgement form, Form 45-106F9, attached as Schedule “F” to this Subscription Agreement;
(j) the Subscriber has read the Offering Memorandum and is aware of the characteristics of the Units and of their speculative nature, as well as of the fact that they may only be transferred with the prior written consent of the Managerprincipal, and such transfer will generally not be permitted, and that in either case is purchasing the Subscriber shall not knowingly transfer his, her or its Units in whole or in part without the approval of the Manager and will do so only in accordance with Applicable Securities Laws;
(k) the decision to enter into this Subscription Agreement and to purchase the Units has not been based upon any verbal or written representation or documentation as to fact or otherwise made by or on behalf of the Manager, its affiliates or the Fund except as set forth in the Offering Memorandum;
(l) the Subscriber has not received, read nor been otherwise exposed to any advertising in respect of the Units;
(m) the Units are being purchased Shares for investment only and not with a view to the resale or distribution of all or any of the Shares; or
(ii) as agent for a disclosed principal and is not deemed under the Applicable Securities Laws to be purchasing the Shares as principal, and it is duly authorized to enter into this Agreement and to execute and deliver all documentation in connection with the purchase on behalf of such disclosed principal, who is purchasing as principal for its own account and not for the benefit of any other person and for investment only and not with a view to the resale or distribution of all or any of the Shares;
(e) the Subscriber will file all forms and reports, together with the prescribed fees, that may be required by Applicable Securities Laws or by any legislation or order in force in its jurisdiction of residence or to which it may be subject, within the time limits prescribed therein, in respect of this subscription, the purchase or any subsequent disposition of the Shares;
(f) 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; or
(iii) as to the future price or value of any of the Shares;
(g) the Subscriber, and any beneficial purchaser for whom it is acting, is at arm’s length (within the meaning of the Applicable Securities Laws) with Xxxxxx, except as disclosed in writing by the Subscriber to Apollo;
(h) the Subscriber is not (other than if the Subscriber is an officer or director of Apollo or any of its affiliates) and will not become a “control person” of Apollo by virtue of the purchase of the Shares and does not intend to act in concert with any other person to form a control group of Apollo;
(i) this Subscription has not been solicited in any manner contrary to the Applicable Securities Laws;
(j) to the best of its knowledge, the Subscriber (other than if the Subscriber is a director or officer of Apollo or any of its affiliates) has no knowledge of a “material fact”, “material change”, or “material non-public information” (as those terms are defined in or under the Applicable Securities Laws) in respect of the affairs of Apollo that has not been generally disclosed to the public;
(k) Xxxxxx will have the right to accept this subscription in whole or in part and the acceptance of this subscription offer will be resold or otherwise transferred or disposed conditional upon the sale of except the Shares to the Subscriber in accordance with a Non-US Offering Jurisdiction being exempt from the prospectus and registration requirements of the Applicable Securities Laws in such Non-US Offering Jurisdiction;
(l) 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 an individual, is of full age of majority, 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 given to authorize the execution of this Agreement on behalf of the Subscriber;
(m) the entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the applicable securities legislation and constating documents of, the regulationsSubscriber or of any agreement, rules and policies thereunderwritten or oral, to which the Subscriber may be a party or by which it is or may be bound;
(n) this Agreement has been duly executed and delivered by the Subscriber and constitutes a legal, valid and binding obligation of the Subscriber enforceable against the Subscriber;
(o) in the case of a subscription by it for the Shares acting as agent for a disclosed principal, it is duly authorized to execute and deliver this Agreement and all other necessary documentation in connection with such subscription on behalf of such principal and this Agreement has been duly authorized, executed and delivered by or on behalf of, and constitutes a legal, valid and binding agreement of, such principal;
(p) if required by the Applicable Securities Laws, policy or order or by any securities commission, stock exchange or other regulatory authority, the Subscriber will execute, deliver, file and otherwise assist Apollo in filing such reports, undertakings and other documents as may be required;
(q) the Subscriber has not purchased the Shares as a result of any form of general solicitation or general advertising, including advertisements, articles, notices or other communication published in any newspaper, magazine or similar media or broadcast over radio, television or internet or any seminar or meeting whose attendees have been invited by general solicitation or general advertising;
(r) the Subscriber and each beneficial purchaser for whom it is acting acknowledges that investment in the Shares is speculative in nature and that there are risks associated with the purchase of the Shares and the Subscriber and each beneficial purchaser for whom it is acting has such knowledge knowledge, sophistication and experience in business and financial and business affairs matters as to be capable of evaluating the merits and risks of its investment in the Shares, fully understands the speculative nature of the Shares and is able to bear the economic risk of loss of its entire investment;
(o) the Subscriber is aware of the characteristics of the Units, of the nature and extent of personal liability and of the risks associated with an investment in the Units;
(p) the Subscriber is aware that there are securities and tax laws applicable to the holding and disposition of the Units and has obtained independent legal and tax advice and is not relying solely upon the information from the Fund, the Manager or, where applicable, their officers, trustees, directors, employees or agents;
(q) the Subscriber has been independently advised as to, and is aware of, the resale restrictions under Applicable Securities Laws with respect to the Units and acknowledges receipt of a written notice of the legend restriction notation applicable to the resale of the Units;
(r) the acknowledgments contained in any forms or documents delivered by the Subscriber under applicable securities laws are true and correct as of the date of execution of this Subscription Agreement, and will be true and correct as of the closing of the purchase and sale of the Units, and fully and truly state those facts necessary for the Fund to be entitled to rely on the relevant exemptions from the prospectus requirements within the meaning of Applicable Securities Laws of the province or territory of residence of the Subscriber;
(s) Apollo may be required by law or otherwise to disclose to regulatory authorities the identity of the Subscriber is not a “U.S. Person” (as that term is defined in Regulation S promulgated under and each beneficial purchaser for whom the United States Securities Act of 1933, as amended, which definition includes, but is not limited to, an individual resident in the United States, an estate or 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 United States) and is not acquiring the Units for the account of or benefit of a U.S. Person or a person in the United StatesSubscriber may be acting;
(t) the Subscriber acknowledges that has not received, nor has it requested, nor does it have any need to receive, any offering memorandum or any other document from Apollo describing the Units may not be offered, sold, resold or otherwise transferred to persons in the United States or to U.S. Persons (as such term is defined in Regulation S business and affairs of Apollo with respect to the United States Securities Act offering and purchase of 1933, as amended);
the Shares; (u) the Subscriber this subscription is not a designated beneficiary within the meaning of Part XII.2 of the Tax Act;
(v) the Subscriber is not a “financial institution” (as defined in Subsection 142.2 of the Tax Act) (a “Financial Institution”) or, if the Subscriber is a Financial Institution, the Subscriber has advised the Manager in writing that the Subscriber is a Financial Institution prior to the date of acceptance of the Subscriber’s subscription for Units;
(w) the Subscriber represents and warrants that the Subscriber is not named on or blocked by any of the following lists (the “Prohibited Lists”) promulgated by the Department of Foreign Affairs and International Trade Canada (DFAIT), or the Department of Public Safety and Emergency Preparedness of Canada (DPSEP):
(i) the List of Names subject to the Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspx;
(ii) the List of Names subject to the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000; or
(iii) the List of Names subject to the United Nations Al-Qaida and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525.
(x) the Subscriber acknowledges and agrees that the Manager has provided herein certain lists adopted or published by applicable governmental authorities for the convenience of the Subscriber and that because these lists are subject to change from time to time, it is the responsibility of the Subscriber to ensure that the lists are current as of the time this Subscription Agreement is executed and that each representation made enforceable by the Subscriber is true and correct as of the date of the Subscription Agreement;
(y) to the best of the Subscriber’s knowledge the money that the Subscriber seeks to invest is not derived from any criminal enterprise or proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada);
(z) the investment portfolio and trading procedures of the Fund is proprietary to the Fund and the Manager and all information relating to such investment portfolio and trading procedures shall be kept confidential unless it has been accepted by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Manager; and
(aa) the Subscriber will execute and deliver all documentation as may be required by applicable securities laws or by the Fund, as the case may be, to permit the purchase of the Units under the terms herein set forth Xxxxxx and the Subscriber will deliver such releases or other documents for income tax and other purposes, if any, as from time waives any requirement on Xxxxxx’s behalf to time may be required by the Manager. The representations, warranties, covenants and acknowledgements immediately communicate its acceptance of the Subscriber contained in this Subscription Agreement shall survive the completion of the purchase and sale of the Units and subscription to the Subscriber. The Subscriber acknowledges and agrees that the representations, warranties and covenants given by the Subscriber to and in favour of the Fund and the Manager shall be deemed to be repeated and reconfirmed as at the date of any subsequent subscription for Units made by the Subscriber or reinvestment of distributions made by the Fund unless a new subscription agreement is executed.;
Appears in 1 contract
Samples: Subscription Agreement (Jipangu Inc)
Representations, Warranties, Covenants and Acknowledgements of the Subscriber. The Subscriber, on its own behalf and on behalf of any disclosed principal for whom the Subscriber is contracting under By executing this Subscription Agreement, hereby the Subscriber represents, warrants, covenants and acknowledges to and covenants to with the Manager Issuer (and to acknowledges that the Fund Issuer is relying thereon) that:
(a) if an individualthe Subscriber is a corporation, the Subscriber is of the age of majority a valid and subsisting corporation, has the necessary corporate capacity and competence authority to enter into and be bound by to observe and perform its covenants and obligations under this Subscription Agreement and has taken all other agreements contemplated hereby and this Subscription Agreement constitutes a legal, valid and binding agreement enforceable against the Subscriber necessary corporate action in accordance with its termsrespect thereof;
(b) if the Subscriber is an incorporated entity:
(i) the Subscriber is a valid and subsisting corporation and is in good standing under the laws partnership, syndicate or other unincorporated form of the jurisdiction of its incorporation;
(ii) organization, the Subscriber has the corporate necessary legal capacity and authority to execute and deliver this Subscription Agreement and to observe and perform its covenants and obligations hereunderhereunder and has obtained all necessary approvals thereof;
(iiic) this Subscription Agreement has been duly and validly authorized, executed and delivered by the Subscriber and is Subscriber, and, when accepted by the Issuer, will constitute a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms; andthe 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);
(ivd) the execution and delivery of this Subscription Agreement by Agreement, the Subscriber performance and compliance with the terms hereof, the subscription for the Convertible Note and the Warrants and the completion of the transactions contemplated hereby will not result in the violation any material breach of, or be in conflict with or constitute a material default under, or conflict with create a state of facts which, after notice or cause the acceleration lapse of time, or both, would constitute a material default under any obligation term or provision of the Subscriber under (a) constating documents, by-laws or resolutions of the Subscriber, the Securities Laws or any contract other applicable law, any agreement to which the Subscriber is a party or by which it is bound; (b) any provision of the constating documents of the Subscriber; or (c) any applicable regulation, judgment, decree, order or award of any court, government body or arbitrator having jurisdiction over the Subscriber;
(c) the Subscriber is a resident in or otherwise subject to the securities laws of the province or territory of Canada set forth on the second page of this Subscription Agreement, and if the Subscriber is acting as agent for a disclosed principal, the disclosed principal is resident in or otherwise subject to the securities laws of province or territory set out on the second page of this Subscription Agreement;
(d) if the Subscriber is purchasing the Units as trustee or agent (including, for greater certainty, a portfolio manager or comparable advisor) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such purchase on behalf of such principal, to agree to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and the Subscriber acknowledges that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units for whom the Subscriber may be actingruling;
(e) the Subscriber is not one of a “non-Canadian” as that expression is defined combination of shareholders of the Issuer or investors in the Investment Canada Act Offering (Canada)including by acting jointly or in concert with any such shareholder or investor) as a consequence of which the issuance of Securities to the Subscriber hereunder (assuming the exercise of any convertible securities of the Issuer currently held by the Subscriber and any such other shareholders or investors) will result in, or be part of a transaction that will result in, the creation of a new “Insider” or “Control Person” of the Issuer under the policies of the Exchange and Securities Laws;
(f) the Subscriber is not a “non resident”, a partnership other than a “Canadian partnership”, a “tax shelter” or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within the meaning of the Tax Act;
(g) the Subscriber and any disclosed principal for whom the Subscriber is contracting hereunder is:
(i) an “accredited investor,” as such term is defined in National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) and, in Ontario, in Section 73.3 of the Securities Act (Ontario), and has concurrently executed and delivered a Representation Letter and the Exhibit thereto in the form attached as Schedule “A” to this Subscription Agreement; or
(ii) not an individual or resident in Alberta, is purchasing the Units as principal for its own account and not for the benefit of any other person in a sufficient amount so that the aggregate acquisition cost for such Units is not less than $150,000 paid in cash at the time of the distribution and the Subscriber was not createdof, or is used, solely to purchase or hold securities in reliance on the exemption from the prospectus requirement set out in subsection 2.10 of NI 45-106;
(h) if the Subscriber is a “permitted client”, as such term is defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”) and wishes to waive the Manager’s obligations under sections 13.3 of NI 31-103, the Subscriber has completed and signed Schedule “B” to this Subscription Agreement;
(i) if the Subscriber is an individual relying on paragraph (j), (k) or (l) of the “accredited investor” definition in NI 45-106, the subscriber has completed and signed the risk acknowledgement form, Form 45-106F9, attached as Schedule “F” to this Subscription Agreement;
(j) the Subscriber has read the Offering Memorandum and is aware of the characteristics of the Units and of their speculative nature, as well as of the fact that they may only be transferred with the prior written consent of the Manager, and such transfer will generally not be permitted, and that the Subscriber shall not knowingly transfer his, her or its Units in whole or in part without the approval of the Manager and will do so only in accordance with Applicable Securities Laws;
(k) the decision to enter into this Subscription Agreement and to purchase the Units has not been based upon any verbal or written representation or documentation as to fact or otherwise made by or on behalf of the Manager, its affiliates or the Fund except as set forth in the Offering Memorandum;
(l) the Subscriber has not received, read nor been otherwise exposed to any advertising in respect of the Units;
(m) the Units are being purchased for investment only and not with a view to resale or distribution and will not be resold or otherwise transferred or disposed of except in accordance with the provisions of the applicable securities legislation and the regulations, rules and policies thereunder;
(n) the Subscriber has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of its investment and is able to bear the economic risk of loss of its investment;
(o) the Subscriber is aware of the characteristics of the Units, of the nature and extent of personal liability and of the risks associated with an investment in the Units;
(p) the Subscriber is aware that there are securities and tax laws applicable subject to the holding and disposition of the Units and has obtained independent legal and tax advice and is not relying solely upon the information from the Fund, the Manager or, where applicable, their officers, trustees, directors, employees or agents;
(q) the Subscriber has been independently advised as to, and is aware laws of, the resale restrictions jurisdiction disclosed under Applicable Securities Laws with respect to “Subscriber’s Address” on the Units and acknowledges receipt of a written notice of the legend restriction notation applicable to the resale of the Units;
(r) the acknowledgments contained in any forms or documents delivered by the Subscriber under applicable securities laws are true and correct as of the date of execution face page of this Subscription Agreement, and will be true and correct as that such address is the place of the closing of the purchase and sale of the Units, and fully and truly state those facts necessary for the Fund to be entitled to rely on the relevant exemptions from the prospectus requirements within the meaning of Applicable Securities Laws of the province or territory of residence of the Subscriber;
(s) the Subscriber is not a “U.S. Person” (as that term is defined in Regulation S promulgated under the United States Securities Act of 1933, as amended, which definition includes, but is not limited to, an individual resident in the United States, an estate or 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 United States) and is not acquiring the Units for the account of or benefit of a U.S. Person or a person in the United States;
(t) the Subscriber acknowledges that the Units may not be offered, sold, resold or otherwise transferred to persons in the United States or to U.S. Persons (as such term is defined in Regulation S to the United States Securities Act of 1933, as amended);
(u) the Subscriber is not a designated beneficiary within the meaning of Part XII.2 of the Tax Act;
(v) the Subscriber is not a “financial institution” (as defined in Subsection 142.2 of the Tax Act) (a “Financial Institution”) or, if the Subscriber is a Financial Institution, the Subscriber has advised the Manager in writing that the Subscriber is a Financial Institution prior to the date of acceptance of the Subscriber’s subscription for Units;
(w) the Subscriber represents and warrants that the Subscriber is not named on or blocked by any of the following lists (the “Prohibited Lists”) promulgated by the Department of Foreign Affairs and International Trade Canada (DFAIT), or the Department of Public Safety and Emergency Preparedness of Canada (DPSEP):
(i) the List of Names subject to the Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspx;
(ii) the List of Names subject to the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000; or
(iii) the List of Names subject to the United Nations Al-Qaida and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525.
(x) the Subscriber acknowledges and agrees that the Manager has provided herein certain lists adopted or published by applicable governmental authorities for the convenience business of the Subscriber and that because these lists are subject to change from time to time, it is the responsibility of at which the Subscriber received and accepted the offer to ensure that acquire the lists are current as of the time this Subscription Agreement is executed Securities and that each representation made by the Subscriber is true and correct as of the date of the Subscription Agreement;
(y) to the best of the Subscriber’s knowledge the money that the Subscriber seeks to invest is was not derived from any criminal enterprise created or proceeds of crime used solely for the purposes purpose of acquiring the Proceeds of Crime (Money Laundering) Act (Canada)Securities;
(z) the investment portfolio and trading procedures of the Fund is proprietary to the Fund and the Manager and all information relating to such investment portfolio and trading procedures shall be kept confidential by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Manager; and
(aa) the Subscriber will execute and deliver all documentation as may be required by applicable securities laws or by the Fund, as the case may be, to permit the purchase of the Units under the terms herein set forth and the Subscriber will deliver such releases or other documents for income tax and other purposes, if any, as from time to time may be required by the Manager. The representations, warranties, covenants and acknowledgements of the Subscriber contained in this Subscription Agreement shall survive the completion of the purchase and sale of the Units and the Subscriber. The Subscriber acknowledges and agrees that the representations, warranties and covenants given by the Subscriber to and in favour of the Fund and the Manager shall be deemed to be repeated and reconfirmed as at the date of any subsequent subscription for Units made by the Subscriber or reinvestment of distributions made by the Fund unless a new subscription agreement is executed.
Appears in 1 contract
Representations, Warranties, Covenants and Acknowledgements of the Subscriber. 2.1 The SubscriberSubscriber acknowledges, on its own behalf and on behalf of any disclosed principal for whom the Subscriber is contracting under this Subscription Agreement, hereby represents, warrants, acknowledges warrants and covenants to and with the Manager Corporation that, as at the date given above and to at the Fund thatClosing:
(a) if an individual, no prospectus has been filed by the Subscriber is Corporation with any of the age Commissions in connection with the issuance of majority the Units, such issuance is exempted from the prospectus requirements of the 1933 Act and has the capacity and competence to enter into and be bound by this Subscription Agreement and all other agreements contemplated hereby and this Subscription Agreement constitutes a legal, valid and binding agreement enforceable against the Subscriber in accordance with its terms;
(b) if the Subscriber is an incorporated entitythat:
(i) the Subscriber is a valid and subsisting corporation and is in good standing restricted from using most of the civil remedies available under the laws of the jurisdiction of its incorporation1933 Act;
(ii) the Subscriber has may not receive information that would otherwise be required to be provided to it under the corporate capacity and authority to execute and deliver this Subscription Agreement and to observe and perform its obligations hereunder;1933 Act; and
(iii) this Subscription Agreement has been duly authorized, executed and delivered by the Subscriber and Corporation is a legal, valid and binding obligation of relieved from certain obligations that would otherwise apply under the Subscriber, enforceable against the Subscriber in accordance with its terms; and193 Act;
(iv) the execution and delivery of this Subscription Agreement by the Subscriber will not result in the violation of, or constitute a default under, or conflict with or cause the acceleration of any obligation of the Subscriber under (a) any contract to which the Subscriber is a party or by which certifies that it is bound; (b) any provision of the constating documents of the Subscriber; or (c) any judgment, decree, order or award of any court, government body or arbitrator having jurisdiction over the Subscriber;
(c) the Subscriber is a resident in or otherwise subject to the securities laws of the province or territory of Canada set forth on the second page of this Subscription Agreement, and if the Subscriber is acting as agent for a disclosed principal, the disclosed principal is resident in or otherwise subject to the securities laws of province or territory jurisdiction(s) set out on the second first page of this Subscription Agreement;
(db) if the Subscriber is purchasing the Units as trustee or agent (including, for greater certainty, a portfolio manager or comparable advisor) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such purchase on behalf of such principal, to agree to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and the Subscriber acknowledges that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units for whom the Subscriber may be acting;
(e) the Subscriber is not a “non-Canadian” as that expression is defined in the Investment Canada Act (Canada);
(f) the Subscriber is not a “non resident”, a partnership other than a “Canadian partnership”, a “tax shelter” or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within the meaning of the Tax Act;
(g) the Subscriber and any disclosed principal for whom the Subscriber is contracting hereunder is:
(i) an “accredited investor,” as such term is defined in National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) and, in Ontario, in Section 73.3 of the Securities Act (Ontario), and has concurrently executed and delivered a Representation Letter and the Exhibit thereto in the form attached as Schedule “A” to this Subscription Agreement; or
(ii) not an individual or resident in Alberta, is purchasing the Subscriber’s Units as principal for its own account and not for the benefit of any other person in person, and is purchasing the Subscriber’s Units for investment only and not with a sufficient amount so that view to the aggregate acquisition cost for such Units is not less than $150,000 paid in cash at the time resale or distribution of all or any of the distribution and the Subscriber was not created, or is used, solely to purchase or hold securities in reliance on the exemption from the prospectus requirement set out in subsection 2.10 of NI 45-106Subscriber’s Units;
(hc) if the Subscriber is a “permitted client”, as such term is defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”) and wishes to waive the Manager’s obligations under sections 13.3 of NI 31-103, the Subscriber has completed and signed Schedule “B” to this Subscription Agreement;acknowledges that:
(i) if no securities commission or similar regulatory authority has reviewed or passed on the merits of the Units;
(ii) there is no government or other insurance covering the Units;
(iii) there are risks associated with the purchase of the Units;
(iv) there are restrictions on the Subscriber’s ability to resell the Units and it is the responsibility of the Subscriber to find out what those restrictions are and to comply with them before selling the Units; and
(v) the Corporation has advised the Subscriber that the Corporation is relying on an exemption to provide the Subscriber with a prospectus and to sell securities through a person registered to sell securities under the 1933 Act and, as a consequence of acquiring Units pursuant to an Exemption, certain protections, rights and remedies provided by the 1933 Act, including statutory rights of rescission or damages, will not be available to the Subscriber;
(a) the Subscriber is an individual relying on paragraph (j)Accredited Investor, (k) or (l) by virtue of the “accredited investor” fact that the Subscriber falls within one or more of the sub-paragraphs of the definition of Accredited Investor set out in NI 45Appendix I, and the Subscriber has checked the sub-106, paragraph(s) applicable to the subscriber has completed and signed the risk acknowledgement form, Form 45-106F9, attached as Schedule “F” to this Subscription AgreementSubscriber);
(jb) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Units;
(ii) that any person will refund the purchase price of any of the Units; or
(iii) as to the future price or value of any of the Units;
(a) the Subscriber will not become a “control person” by virtue of the purchase of the Subscriber’s Shares, and does not intend to act in concert with any other person to form a control group of the Issuer;
(b) the Subscriber has read no knowledge of a “material fact” or “material change” in the Offering Memorandum and is aware affairs of the characteristics Corporation that has not been generally disclosed to the public, save knowledge of the Units and of their speculative nature, as well as of the fact that they may only be transferred with the prior written consent of the Manager, and such transfer will generally not be permitted, and that the Subscriber shall not knowingly transfer his, her or its Units in whole or in part without the approval of the Manager and will do so only in accordance with Applicable Securities Lawsthis particular transaction;
(kc) the Subscriber’s decision to enter into tender this Subscription Agreement offer and to purchase the Subscriber’s Units has not been based upon made as a result of any verbal or written representation or documentation as to fact or otherwise made by or on behalf of the ManagerCorporation or any other person and is based entirely upon currently available public information concerning the Corporation;
(d) the offer made by this subscription is irrevocable by the Subscriber and requires acceptance by the Corporation;
(e) the Corporation will have the right to accept this subscription offer in whole or in part and the acceptance of this subscription offer will be conditional upon the sale of the Subscriber’s Units to the Subscriber being exempt from the prospectus and registration requirements under applicable relevant securities legislation;
(f) 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 an individual is of full age of majority, and if the Subscriber is a corporation it is duly incorporated and validly subsisting under the laws of its affiliates jurisdiction of incorporation, and all necessary approvals by its directors, shareholders and others have been given to authorize the execution of this Agreement on behalf of the Subscriber;
(g) the entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the Fund constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which it is or may be bound;
(h) this Agreement has been duly executed and delivered by the Subscriber and constitutes a legal, valid and binding obligation of the Subscriber enforceable against the Subscriber;
(i) the Subscriber has been advised to consult its own legal advisors with respect to the applicable hold periods imposed in respect of the Shares by applicable securities legislation and regulatory policies and confirms that no representations by the Corporation have been made respecting the hold periods applicable to the Units;
(j) the Subscriber is aware of the risks and other characteristics of the Units and of the fact that the Subscriber may not be able to resell the Units purchased by it except in accordance with the applicable securities legislation and regulatory policies and that the Units may be subject to resale restrictions and may bear a legend to this effect;
(k) if required by applicable securities legislation, policy or order or by any securities commission, stock exchange or other regulatory authority, the Subscriber will execute, deliver, file and otherwise assist the Corporation in filing, such reports, undertakings and other documents with respect to the issue of the Corporation as set forth in the Offering Memorandummay be required;
(l) the Subscriber has not received, read nor been otherwise exposed to any advertising in respect acknowledges that upon completion of the Private Placement, the Corporation may pay certain commissions or finder’s fees with respect to the Subscriber’s purchase of Units;
(m) the Subscriber has not purchased the Units are being purchased for investment only and not with as a view to resale result of any form of general solicitation or distribution and will not be resold general advertising, including advertisements, articles, notices or otherwise transferred other communication published in any newspaper, magazine or disposed of except in accordance with the provisions of the applicable securities legislation and the regulationssimilar media or broadcast over radio, rules and policies thereundertelevision or internet or any seminar or meeting whose attendees have been invited by general solicitation or general advertising;
(n) the Subscriber has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of its investment and is able to bear the economic risk of loss of its investment;
(o) the Subscriber is aware agrees that the Corporation may be required by law or otherwise to disclose to regulatory authorities the identity of the characteristics of Subscriber and, if applicable, the Units, of beneficial purchaser for whom the nature and extent of personal liability and of the risks associated with an investment in the Units;Subscriber may be acting; and
(p) the Subscriber is aware that there are securities and tax laws applicable to the holding and disposition of the Units and has obtained independent legal and tax advice and is not relying solely upon the information from the Fund, the Manager or, where applicable, their officers, trustees, directors, employees or agents;
(q) the Subscriber has been independently advised as to, and is aware of, the resale restrictions under Applicable Securities Laws with respect to the Units and acknowledges receipt of a written notice of the legend restriction notation applicable to the resale of the Units;
(r) the acknowledgments contained in any forms or documents delivered by the Subscriber under applicable securities laws are true and correct as of the date of execution of this Subscription Agreement, and will be true and correct as of the closing of the purchase and sale of the Units, and fully and truly state those facts necessary for the Fund to be entitled to rely on the relevant exemptions from the prospectus requirements within the meaning of Applicable Securities Laws of the province or territory of residence of the Subscriber;
(s) the Subscriber is not a “U.S. Person” (as that term is defined in Regulation S promulgated under the United States Securities Act of 1933, as amended, which definition includes, but is not limited to, an individual resident in the United States, an estate or 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 United States) and is not acquiring the Units for the account of or benefit of a U.S. Person or a person in the United States;
(t) the Subscriber acknowledges that the Units may not be offered, sold, resold or otherwise transferred to persons in the United States or to U.S. Persons (as such term is defined in Regulation S to the United States Securities Act of 1933, as amended);
(u) the Subscriber is not a designated beneficiary within the meaning of Part XII.2 of the Tax Act;
(v) the Subscriber is not a “financial institution” (as defined in Subsection 142.2 of the Tax Act) (a “Financial Institution”) or, if the Subscriber is a Financial Institution, the Subscriber has advised the Manager in writing that the Subscriber is a Financial Institution prior to the date of acceptance of the Subscriber’s subscription for Units;
(w) the Subscriber represents and warrants that the Subscriber is not named on or blocked by any of the following lists (the “Prohibited Lists”) promulgated by the Department of Foreign Affairs and International Trade Canada (DFAIT), or the Department of Public Safety and Emergency Preparedness of Canada (DPSEP):
(i) the List of Names subject to the Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspx;
(ii) the List of Names subject to the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000; or
(iii) the List of Names subject to the United Nations Al-Qaida and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525.
(x) the Subscriber acknowledges and agrees that the Manager has provided herein certain lists adopted or published by applicable governmental authorities for the convenience of the Subscriber and that because these lists are subject to change from time to time, it is the responsibility of the Subscriber to ensure that the lists are current as of the time this Subscription Agreement is executed and that each representation made by the Subscriber is true and correct as of the date of the Subscription Agreement;
(y) to the best of the Subscriber’s knowledge the money that the Subscriber seeks to invest is not derived from any criminal enterprise or proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada);
(z) the investment portfolio and trading procedures of the Fund is proprietary to the Fund and the Manager and all information relating to such investment portfolio and trading procedures shall be kept confidential by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Manager; and
(aa) the Subscriber will execute and deliver all documentation as may be required by applicable securities laws or by the Fund, as the case may be, to permit the purchase of the Units under the terms herein set forth and the Subscriber will deliver such releases or other documents for income tax and other purposes, if any, as from time to time may be required by the Manager. The above representations, warranties, covenants and acknowledgements in this subsection will be true and correct both as of the Subscriber contained in execution of this Subscription Agreement shall survive the completion subscription and as of the purchase and sale day of the Units and the Subscriber. Closing.
2.2 The Subscriber acknowledges and agrees that the foregoing representations, warranties warranties, covenants and covenants given by the Subscriber to and in favour of the Fund and the Manager shall be deemed to be repeated and reconfirmed as at the date of any subsequent subscription for Units acknowledgements are made by the Subscriber or reinvestment of distributions made with the intent that they be relied upon by the Fund unless Corporation in determining its suitability as a new subscription agreement is executedpurchaser of Shares, and the Subscriber hereby agrees to indemnify the Corporation against all losses, claims, costs, expenses and damages or liabilities which any of them may suffer or incur as a result of reliance thereon. The Subscriber undertakes to notify the Corporation immediately of any change in any representation, warranty or other information relating to the Subscriber set forth herein which takes place prior to the Closing.
Appears in 1 contract
Representations, Warranties, Covenants and Acknowledgements of the Subscriber. The Subscriber, on its own behalf and on behalf of any disclosed principal for whom the Subscriber is contracting under this Subscription Agreement, hereby represents, warrants, covenants and acknowledges to each Fund and covenants to the Manager and to the Fund that:
(a) if an individual, the Subscriber is of has attained the age of majority and has the legal capacity and competence to enter into and be bound by execute this Subscription Agreement and to take all other agreements contemplated hereby and this Subscription Agreement constitutes a legal, valid and binding agreement enforceable against the Subscriber in accordance with its termsactions required pursuant hereto;
(b) if not an individual, the Subscriber is an incorporated entity:
(i) the Subscriber is a valid duly formed and subsisting corporation and is in good standing under the laws of the jurisdiction of its incorporation;
(ii) the Subscriber has the corporate capacity right, full power and absolute authority to execute and deliver this Subscription Agreement and to observe and take all necessary actions to perform its obligations hereunder;
(iii) pursuant hereto, and all necessary approvals have been given to authorize it to execute this Subscription Agreement has been duly authorizedand, executed and delivered by if the purchase includes the purchase of Securities of a Fund pursuant to an exemption from the prospectus requirements of Canadian securities laws (a “Private Fund”), the Subscriber and was not incorporated or created solely, nor is a legalit being used primarily, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms; and
(iv) the execution and delivery of this Subscription Agreement by the Subscriber will not result in the violation ofto purchase or hold securities as an accredited investor, or constitute to purchase securities without a default under, or conflict with or cause the acceleration of any obligation of the Subscriber prospectus under (a) any contract to which the Subscriber is a party or by which it is bound; (b) any provision of the constating documents of the Subscriber; or (c) any judgment, decree, order or award of any court, government body or arbitrator having jurisdiction over the Subscriberapplicable law;
(c) the Subscriber is a resident in of, or is otherwise subject to the securities laws of, the jurisdiction set out under “Subscriber Information” above and is not a resident of, or otherwise subject to the securities laws of the province or territory of Canada set forth on the second page of this Subscription Agreementof, and if the Subscriber is acting as agent for a disclosed principal, the disclosed principal is resident in or otherwise subject to the securities laws of province or territory set out on the second page of this Subscription Agreementany other jurisdiction;
(d) if the Subscriber is purchasing the Units as trustee or agent (including, for greater certainty, a portfolio manager or comparable advisor) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such purchase on behalf of such principal, to agree to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and the Subscriber acknowledges that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units for whom the Subscriber may be acting;
(e) the Subscriber is not a “financial institution” under subsection 142.2(1) of the Income Tax Act (Canada), a “designated beneficiary” under section 210 of the Income Tax Act (Canada), or a “non-Canadianresident” as that expression is defined in or partnership (other than a “Canadian partnership”) for the Investment Canada purposes of the Income Tax Act (Canada);
(fe) if the purchase includes the purchase of Securities of a Private Fund, the Subscriber is not a “non resident”, a partnership other than a “Canadian partnership”, a “tax shelter” or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within purchasing the meaning of the Tax Act;
(g) the Subscriber and any disclosed principal for whom the Subscriber is contracting hereunder is:
(i) an “accredited investor,” as such term is defined in National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) and, in Ontario, in Section 73.3 of the Securities Act (Ontario)Securities, and has concurrently executed and delivered a Representation Letter and will acquire the Exhibit thereto in the form attached Securities, when issued, as Schedule “A” to this Subscription Agreement; or
(ii) not an individual or resident in Albertaprincipal, is purchasing the Units as principal for its own account and not for the benefit of any other person in a sufficient amount so that the aggregate acquisition cost for such Units is not less than $150,000 paid in cash at the time of the distribution and the Subscriber was not created, or is used, solely to purchase or hold securities in reliance on the exemption from the prospectus requirement set out in subsection 2.10 of NI 45-106;
(h) if the Subscriber is a “permitted client”, as such term is defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”) and wishes to waive the Manager’s obligations under sections 13.3 of NI 31-103, the Subscriber has completed and signed Schedule “B” to this Subscription Agreement;
(i) if the Subscriber is an individual relying on paragraph (j), (k) or (l) of the “accredited investor” definition in NI 45-106, the subscriber has completed and signed the risk acknowledgement form, Form 45-106F9, attached as Schedule “F” to this Subscription Agreement;
(j) the Subscriber has read the Offering Memorandum and is aware of the characteristics of the Units and of their speculative nature, as well as of the fact that they may only be transferred with the prior written consent of the Manager, and such transfer will generally not be permitted, and that the Subscriber shall not knowingly transfer his, her or its Units in whole or in part without the approval of the Manager and will do so only in accordance with Applicable purchasing Securities Laws;
(k) the decision to enter into this Subscription Agreement and to purchase the Units has not been based upon any verbal or written representation or documentation as to fact or otherwise made by or on behalf of the Manager, its affiliates or the Fund except as set forth in the Offering Memorandum;
(l) the Subscriber has not received, read nor been otherwise exposed to any advertising in respect of the Units;
(m) the Units are being purchased for investment only and not with a view to the resale or distribution and will not be resold of all or otherwise transferred or disposed of except in accordance with the provisions any of the applicable securities legislation and the regulations, rules and policies thereunderSecurities;
(nf) the Subscriber has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of its an investment in the Funds and is able to bear the economic risk of loss of such investment and the Subscriber understands that the purchase of Securities involves a high degree of risk and should only be considered by persons who can bear the loss of their entire investment. To the extent necessary, the Subscriber has retained, at its own expense, and relied upon, appropriate professional advice regarding the investment, tax and legal merits and consequences of this subscription and owning the Securities;
(og) this Subscription Agreement, when accepted by the Manager, will constitute a legal, valid, binding and enforceable contract of the Subscriber, enforceable against the Subscriber in accordance with its terms;
(h) the entering into of this Subscription Agreement and the transactions contemplated hereby will not result in the violation of any terms or provisions of any law applicable to, and, if the Subscriber is not an individual, any terms or provisions of the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or to which it is or may be bound and no consent or approval of any person is required in connection with the execution and delivery of this Subscription Agreement by the Subscriber;
(i) the Subscriber is aware has no knowledge of a “material fact” or “material change” (as those terms are defined in applicable securities legislation) in the affairs of the characteristics Funds that has not been generally disclosed to the public, save knowledge of this particular transaction and the Subscriber’s decision to tender this offer to acquire Securities has not been made as a result of any verbal or other written representation made by or on behalf of the Units, of the nature and extent of personal liability and of the risks associated with an investment in the UnitsFunds or any other person;
(pj) the Subscriber is aware that there are securities and tax laws applicable to the holding and disposition of the Units Securities and has obtained independent legal and tax been given the opportunity to seek advice in respect of such laws and is not relying solely upon the information from the FundFunds, the Manager Manager, or, where applicable, their respective partners, officers, trustees, directors, employees or agents;
(qk) to the extent the subscription is for a Private Fund, the Subscriber acknowledges that no prospectus has been independently advised as to, and is aware of, filed with any securities commission or other regulatory body in Canada in connection with the resale restrictions under Applicable Securities Laws with respect to the Units and acknowledges receipt of a written notice issuance of the legend restriction notation applicable to the resale of the Units;
(r) the acknowledgments contained in any forms or documents delivered by the Subscriber under applicable securities laws are true and correct as of the date of execution of this Subscription AgreementSecurities, and will be true and correct as of the closing of the purchase and sale of the Units, and fully and truly state those facts necessary for the Fund to be entitled to rely on the relevant exemptions such issuance is exempted from the prospectus requirements within the meaning of Applicable Securities Laws of the province or territory of residence of the Subscriber;
(s) the Subscriber is not a “U.S. Person” (as that term is defined in Regulation S promulgated under the United States Securities Act of 1933applicable securities legislation, as amended, which definition includes, but is not limited to, an individual resident in the United States, an estate or 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 United States) and is not acquiring the Units for the account of or benefit of a U.S. Person or a person in the United States;
(t) the Subscriber acknowledges that the Units may not be offered, sold, resold or otherwise transferred to persons in the United States or to U.S. Persons (as such term is defined in Regulation S to the United States Securities Act of 1933, as amended);
(u) the Subscriber is not a designated beneficiary within the meaning of Part XII.2 of the Tax Act;
(v) the Subscriber is not a “financial institution” (as defined in Subsection 142.2 of the Tax Act) (a “Financial Institution”) or, if the Subscriber is a Financial Institution, the Subscriber has advised the Manager in writing that the Subscriber is a Financial Institution prior to the date of acceptance of the Subscriber’s subscription for Units;
(w) the Subscriber represents and warrants that the Subscriber is not named on or blocked by any of the following lists (the “Prohibited Lists”) promulgated by the Department of Foreign Affairs and International Trade Canada (DFAIT), or the Department of Public Safety and Emergency Preparedness of Canada (DPSEP):and
(i) the List of Names subject to Subscriber is restricted from using the Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspxcivil remedies available;
(ii) the List of Names subject Subscriber may not receive information that would otherwise be required to the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000be provided; orand
(iii) each applicable Fund is relieved from certain obligations that would otherwise apply, under certain applicable securities legislation which would otherwise be available if the List of Names subject Securities were sold pursuant to a prospectus in Canada;
(l) the Subscriber understands that the Private Funds are not currently reporting issuers in any jurisdiction in Canada;
(m) to the United Nations Al-Qaida extent the subscription is for a Private Fund, the purchase of the Securities was not advertised in printed media of general and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525.regular paid circulation, on radio or on television, or any other form of advertisement as part of a general solicitation;
(xn) a Fund may invest in other funds which are managed by the Manager, or by an affiliate or an associate of the Manager. An affiliated company of Royal Bank of Canada (a “RBC Company”) may be invested in the same funds as a Fund. The Manager or its directors, officers or employees or other the directors, officers or employees of any other RBC Company may be invested in the same funds as a Fund. The Manager may receive compensation from funds in which a Fund may invest;
(o) the Subscriber understands that no federal, provincial, state or other agency within the Subscriber’s jurisdiction of residence or otherwise has reviewed or passed upon any of the Securities or made any finding or determination concerning the fairness or advisability of this investment; and
(p) the Subscriber acknowledges and agrees that no person or company has made any representation, written or oral, that they will resell the Securities or with respect to the future value of the Securities or that the Manager has provided herein certain lists adopted Securities will be listed and posted for trading on a securities exchange or published by applicable governmental authorities for the convenience of the Subscriber and that because these lists are subject to change from time to time, it is the responsibility of the Subscriber to ensure that the lists are current as of the time this Subscription Agreement is executed and that each representation made by the Subscriber is true and correct as of the date of the Subscription Agreement;
(y) to the best of the Subscriber’s knowledge the money that the Subscriber seeks to invest is not derived from any criminal enterprise or proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada);
(z) the investment portfolio and trading procedures of the Fund is proprietary to the Fund and the Manager and all information relating to such investment portfolio and trading procedures shall be kept confidential by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Manager; and
(aa) the Subscriber will execute and deliver all documentation as may be required by applicable securities laws or by the Fund, as the case may be, to permit the purchase of the Units under the terms herein set forth and the Subscriber will deliver such releases or other documents for income tax and other purposes, if any, as from time to time may be required by the Manager. The representations, warranties, covenants and acknowledgements of the Subscriber contained in this Subscription Agreement shall survive the completion of the purchase and sale of the Units and the Subscriber. The Subscriber acknowledges and agrees that the representations, warranties and covenants given by the Subscriber to and in favour of the Fund and the Manager shall be deemed to be repeated and reconfirmed as at the date of any subsequent subscription for Units made by the Subscriber or reinvestment of distributions made by the Fund unless a new subscription agreement is executedmarket.
Appears in 1 contract
Samples: Subscription Agreement
Representations, Warranties, Covenants and Acknowledgements of the Subscriber. The Subscriber, on its own behalf and on behalf of any disclosed principal for whom the Subscriber is contracting under this Subscription Agreement, hereby represents, warrants, acknowledges and covenants to the Manager and to the Fund that:
(a) if an individual, the Subscriber is of the age of majority and has the capacity and competence to enter into and be bound by this Subscription Agreement and all other agreements contemplated hereby and this Subscription Agreement constitutes a legal, valid and binding agreement enforceable against the Subscriber in accordance with its terms;
(b) if the Subscriber is an incorporated entity:
(i) the Subscriber is a valid and subsisting corporation and is in good standing under the laws of the jurisdiction of its incorporation;
(ii) the Subscriber has the corporate capacity and authority to execute and deliver this Subscription Agreement and to observe and perform its obligations hereunder;
(iii) this Subscription Agreement has been duly authorized, executed and delivered by the Subscriber and is a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms; and
(iv) the execution and delivery of this Subscription Agreement by the Subscriber will not result in the violation of, or constitute a default under, or conflict with or cause the acceleration of any obligation of the Subscriber under under: (a) any contract to which the Subscriber is a party or by which it is bound; (b) any provision of the constating documents of the Subscriber; or (c) any judgment, decree, order or award of any court, government body or arbitrator having jurisdiction over the Subscriber;
(c) the Subscriber is a resident in or otherwise subject to the securities laws of the province or territory of Canada set forth on the second page of this Subscription Agreement, and if the Subscriber is acting as agent for a disclosed principal, the disclosed principal is resident in or otherwise subject to the securities laws of province or territory set out on the second page of this Subscription Agreement;
(d) if the Subscriber is purchasing the Units as trustee or agent (including, for greater certainty, a portfolio manager or comparable advisor) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such purchase on behalf of such principal, to agree to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and the Subscriber acknowledges that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units for whom the Subscriber may be acting;
(e) the Subscriber is not a “non-Canadian” as that expression is defined in the Investment Canada Act (Canada);
(f) the Subscriber is not a “non resident”, a partnership other than a “Canadian partnership”, a “tax shelter” or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within the meaning of the Income Tax Act (Canada) (the “Tax Act”);
(g) the Subscriber is not a person that, upon becoming a Subscriber, would cause the Fund to be a “SIFT trust” for the purposes of the Tax Act;
(gh) the Subscriber and any disclosed principal for whom the Subscriber is contracting hereunder is:
(i) an “accredited investor,” as such term is defined in National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) and, in Ontario, in Section 73.3 of the Securities Act (Ontario), and has concurrently executed and delivered a Representation Letter and the Exhibit thereto in the form attached as Schedule “A” to this Subscription Agreement; or
(ii) not an individual or resident in Alberta, is purchasing the Units as principal for its own account and not for the benefit of any other person in a sufficient amount so that the aggregate acquisition cost for such Units is not less than $150,000 paid in cash at the time of the distribution and the Subscriber was not created, or is used, solely to purchase or hold securities in reliance on the exemption from the prospectus requirement set out in subsection 2.10 of NI 45-106;
(hi) if the Subscriber is a “permitted client”, as such term is defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”) and wishes to waive the Manager’s obligations under sections 13.3 of NI 31-103, the Subscriber has completed and signed Schedule “B” to this Subscription Agreement;
(ij) if the Subscriber is an individual relying on paragraph (j), (k) or (l) of the “accredited investor” definition in NI 45-106, the subscriber has completed and signed the risk acknowledgement form, Form 45-106F9, attached as Schedule “F” to this Subscription Agreement;
(jk) the Subscriber has read the Offering Memorandum and is aware of the characteristics of the Units and of their speculative nature, as well as of the fact that they may only be transferred with the prior written consent of the Manager, and such transfer will generally not be permitted, and that the Subscriber shall not knowingly transfer his, her or its Units in whole or in part without the approval of the Manager and will do so only in accordance with Applicable Securities Laws;
(kl) the decision to enter into this Subscription Agreement and to purchase the Units has not been based upon any verbal or written representation or documentation as to fact or otherwise made by or on behalf of the Manager, its affiliates or the Fund except as set forth in the Offering Memorandum;
(lm) the Subscriber has not received, read nor been otherwise exposed to any advertising in respect of the Units;
(mn) the Units are being purchased for investment only and not with a view to resale or distribution and will not be resold or otherwise transferred or disposed of except in accordance with the provisions of the applicable securities legislation and the regulations, rules and policies thereunder;
(no) the Subscriber has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of its investment and is able to bear the economic risk of loss of its investment;
(op) the Subscriber is aware of the characteristics of the Units, of the nature and extent of personal liability and of the risks associated with an investment in the Units;
(pq) the Subscriber is aware that there are securities and tax laws applicable to the holding and disposition of the Units and has obtained independent legal and tax advice and is not relying solely upon the information from the Fund, the Manager or, where applicable, their officers, trustees, directors, employees or agents;
(qr) the Subscriber has been independently advised as to, and is aware of, the resale restrictions under Applicable Securities Laws with respect to the Units and acknowledges receipt of a written notice of the legend restriction notation applicable to the resale of the Units;
(rs) the Subscriber acknowledges that no prospectus has been filed with any securities commission or other regulatory authority in connection with the issuance of the Units, such issuance is exempted from the prospectus requirements of applicable securities laws and as a result:
(i) the Subscriber is restricted from using civil remedies which would otherwise be available,
(ii) the Subscriber may not receive information that would otherwise be required to be provided, and
(iii) the Fund is relieved from certain obligations that would otherwise apply;
(t) the acknowledgments contained in any forms or documents delivered by the Subscriber under applicable securities laws are true and correct as of the date of execution of this Subscription Agreement, and will be true and correct as of the closing of the purchase and sale of the Units, and fully and truly state those facts necessary for the Fund to be entitled to rely on the relevant exemptions from the prospectus requirements within the meaning of Applicable Securities Laws of the province or territory of residence of the Subscriber;
(su) the Subscriber is not a “U.S. Person” (as that term is defined in Regulation S promulgated under the United States Securities Act of 1933, as amended, which definition includes, but is not limited to, an individual resident in the United States, an estate or 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 United States) and is not acquiring the Units for the account of or benefit of a U.S. Person or a person in the United States;
(tv) the Subscriber acknowledges that the Units may not be offered, sold, resold or otherwise transferred to persons in the United States or to U.S. Persons (as such term is defined in Regulation S to the United States Securities Act of 1933, as amended);
(uw) the Subscriber is not a designated beneficiary within the meaning of Part XII.2 of the Tax Act;
(vx) the Subscriber is not a “financial institution” (as defined in Subsection 142.2 of the Tax Act) (a “Financial Institution”) or, if the Subscriber is a Financial Institution, the Subscriber has advised the Manager in writing that the Subscriber is a Financial Institution prior to the date of acceptance of the Subscriber’s subscription for Units;
(wy) the Subscriber represents and warrants that the Subscriber is not named on or blocked by any of the following lists (the “Prohibited Lists”) promulgated by the Department of Foreign Affairs and International Trade Canada (DFAIT), or the Department of Public Safety and Emergency Preparedness of Canada (DPSEP):
(i) the List of Names subject to the Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspx;
(ii) the List of Names subject to the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000; or
(iii) the List of Names subject to the United Nations Al-Qaida and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525.
(xz) the Subscriber acknowledges and agrees that the Manager has provided herein certain lists adopted or published by applicable governmental authorities for the convenience of the Subscriber and that because these lists are subject to change from time to time, it is the responsibility of the Subscriber to ensure that the lists are current as of the time this Subscription Agreement is executed and that each representation made by the Subscriber is true and correct as of the date of the Subscription Agreement;
(yaa) the Subscriber acknowledges that the Fund and the Manager are obliged under FATCA and CRS to collect certain information about the Subscriber, and in certain circumstances, may be obliged to share this information with the relevant tax authorities, the Fund and the Manager shall be held harmless and indemnified against any loss arising as a result of a failure to process the application if such information has been requested by the Fund and/or the Manager and has not been provided by the Subscriber;
(bb) to the best of the Subscriber’s knowledge the money that the Subscriber seeks to invest is not derived from any criminal enterprise or proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada);
(zcc) the investment portfolio and trading procedures of the Fund is proprietary to the Fund and the Manager and all information relating to such investment portfolio and trading procedures shall be kept confidential by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Manager;
(dd) the Subscriber certifies that the information given on the applicable FATCA/CRS Schedule - Schedule “H” – U.S. FATCA and CRS Schedule for Individuals or Schedule “I” – U.S. FATCA and CRS Schedule for Entities - is correct and complete and that the Subscriber will provide the Fund and/or the Manager a new FATCA/CRS Schedule within 30 days of any change in circumstances that causes the information on the applicable FATCA/CRS Schedule to become incomplete or inaccurate; and
(aaee) the Subscriber will execute and deliver all documentation as may be required by applicable securities laws or by the Fund, as the case may be, to permit the purchase of the Units under the terms herein set forth and the Subscriber will deliver such releases or other documents for income tax and other purposes, if any, as from time to time may be required by the Manager. The representations, warranties, covenants and acknowledgements of the Subscriber contained in this Subscription Agreement shall survive the completion of the purchase and sale of the Units and the Subscriber. The Subscriber acknowledges and agrees that the representations, warranties and covenants given by the Subscriber to and in favour of the Fund and the Manager shall be deemed to be repeated and reconfirmed as at the date of any subsequent subscription for Units made by the Subscriber or reinvestment of distributions made by the Fund unless a new subscription agreement is executed.
Appears in 1 contract
Samples: Subscription Agreement
Representations, Warranties, Covenants and Acknowledgements of the Subscriber. 4.1 The SubscriberSubscriber acknowledges, on its own behalf and on behalf of any disclosed principal for whom the Subscriber is contracting under this Subscription Agreement, hereby represents, warrants, acknowledges warrants and covenants to and with the Manager Issuer that, as at the date given above and to at the Fund thatClosing:
(a) if an individual, no prospectus has been filed by the Subscriber is Issuer with any of the age Commissions in connection with the issuance of majority the Securities, such issuance is exempted from the prospectus requirements of the Acts and has the capacity and competence to enter into and be bound by this Subscription Agreement and all other agreements contemplated hereby and this Subscription Agreement constitutes a legal, valid and binding agreement enforceable against the Subscriber in accordance with its terms;
(b) if the Subscriber is an incorporated entitythat:
(i) the Subscriber is a valid and subsisting corporation and is in good standing restricted from using most of the civil remedies available under the laws of the jurisdiction of its incorporationActs;
(ii) the Subscriber has may not receive information that would otherwise be required to be provided to it under the corporate capacity and authority to execute and deliver this Subscription Agreement and to observe and perform its obligations hereunder;Acts; and
(iii) this Subscription Agreement has been duly authorized, executed and delivered by the Subscriber and Issuer is a legal, valid and binding obligation of relieved from certain obligations that would otherwise apply under the Subscriber, enforceable against the Subscriber in accordance with its terms; andActs;
(iv) the execution and delivery of this Subscription Agreement by the Subscriber will not result in the violation of, or constitute a default under, or conflict with or cause the acceleration of any obligation of the Subscriber under (a) any contract to which the Subscriber is a party or by which it is bound; (b) any provision the Subscriber certifies that it and, if applicable, the Disclosed Principal, is resident in the jurisdiction(s) set out on the first page of the constating documents of the Subscriber; or (c) any judgment, decree, order or award of any court, government body or arbitrator having jurisdiction over the Subscriberthis Agreement;
(c) the Subscriber is a resident in or otherwise subject to the securities laws of the province or territory of Canada set forth on the second page of this Subscription Agreement, and if the Subscriber is acting as agent for a disclosed principal, the disclosed principal is resident in or otherwise subject to the securities laws of province or territory set out on the second page of this Subscription Agreement;
(d) if the Subscriber is purchasing the Units as trustee or agent (including, for greater certainty, a portfolio manager or comparable advisor) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such purchase on behalf of such principal, to agree to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and the Subscriber acknowledges that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units for whom the Subscriber may be acting;
(e) the Subscriber is not a “non-Canadian” as that expression is defined in the Investment Canada Act (Canada);
(f) the Subscriber is not a “non resident”, a partnership other than a “Canadian partnership”, a “tax shelter” or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within the meaning of the Tax Act;
(g) the Subscriber and any disclosed principal for whom the Subscriber is contracting hereunder iseither:
(i) an “accredited investor,” as such term is defined in National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) and, in Ontario, in Section 73.3 of the Securities Act (Ontario), and has concurrently executed and delivered a Representation Letter and the Exhibit thereto in the form attached as Schedule “A” to this Subscription Agreement; or
(ii) not an individual or resident in Alberta, is purchasing the Subscriber’s Units as principal for its own account and not for the benefit of any other person or is deemed under the Acts to be purchasing the Subscriber’s Units as principal, and in either case is purchasing the Subscriber’s Units for investment only and not with a sufficient amount so view to the resale or distribution of all or any of the Subscriber’s Units; or
(ii) purchasing the Subscriber’s Units as agent for a disclosed principal (the “Disclosed Principal”) and is not deemed under the Acts to be purchasing the Subscriber’s Units as principal, and it is duly authorized to enter into this Agreement and to execute and deliver all documentation in connection with the purchase on behalf of such Disclosed Principal, who is purchasing as principal for its own account and not for the benefit of any other person and for investment only and not with a view to the resale or distribution of all or any of the Subscriber’s Units and in its capacity as agent, the Subscriber is acting in compliance with all applicable securities and other laws;
(d) the Subscriber, if not a resident of British Columbia, certifies that neither it nor the Disclosed Principal, if applicable, is resident in British Columbia and acknowledges that:
(i) no securities commission or similar regulatory authority has reviewed or passed on the merits of the Securities;
(ii) there is no government or other insurance covering the Securities;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Subscriber’s or the Disclosed Principal’s ability to resell the Securities and it is the responsibility of the Subscriber or the Disclosed Principal to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Subscriber that the Issuer is relying on an exemption from the requirements to provide the Subscriber with a prospectus and to sell securities through a person registered to sell securities under the B.C. Act and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the B.C. Act, including statutory rights of rescission or damages, will not be available to the Subscriber or the Disclosed Principal;
(e) if the Subscriber is resident in Canada or outside of the United States, the Subscriber or the Disclosed Principal for which it is acting, as the case may be:
(i) is an Accredited Investor, by virtue of the fact that the Subscriber or such Disclosed Principal, as the case may be, falls within one or more of the sub-paragraphs of the definition of Accredited Investor set out in the Certificate of Accredited Investor in the form attached hereto as Schedule “A” (the Subscriber having checked and initialled the sub-paragraph(s) applicable to the Subscriber or such Disclosed Principal, as the case may be, including Appendix I for certain accredited investors who are individual persons if applicable); or
(ii) is qualified to purchase Units pursuant to the exemption contained in either Section 2.5, Section 2.6 or Section 2.6.1 of National Instrument 45-106 (the “Family, Friends and Business Associates Exemption”), provided that no commission or finder’s fee is paid to any director, officer, founder or control person of the Issuer or an affiliate of the Issuer in connection with the distribution (the Subscriber having duly completed and executed the Family, Friends and Business Associates Status Certificate in the form attached hereto as Schedule “B”, including Appendix I for certain Subscribers resident in Saskatchewan and Appendix II for all Subscribers resident in Ontario); or
(iii) is not an individual person and is purchasing Units having an aggregate acquisition cost for such Units is of not less than $150,000 150,000, paid in cash at the time of the distribution and trade, provided that the Subscriber was not created, or is used, created solely to purchase or hold securities in reliance on the this exemption from the prospectus requirement set out and registration requirements (the Subscriber having duly completed and executed the Minimum Amount Investment Status Certificate in subsection 2.10 the form attached hereto as Schedule “C”);
(f) if the Subscriber or the Disclosed Principal is resident outside of NI 45-106Canada and the United States, the Subscriber and the Disclosed Principal, if applicable:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the “Authorities”) having application in the jurisdiction in which the Subscriber, or the Disclosed Principal is resident (the “International Jurisdiction”) which would apply to the acquisition by the Subscriber of Units hereunder;
(ii) is purchasing Units hereunder pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable, the Subscriber, and the Disclosed Principal, if applicable, is permitted to purchase Units hereunder under the applicable securities laws of the Authorities in the International Jurisdiction without the need to rely on any exemption; and
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Subscriber’s Units;
(g) no person has made to the Subscriber or the Disclosed Principal, if applicable, any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on a stock exchange or that application has been made to list and post any of the Securities for trading on a stock exchange, other than the Shares and the Warrant Shares, if applicable, on the Exchange;
(h) if the Subscriber is a “permitted client”or, the Disclosed Principal, as such term is defined the case may be, does not intend to act in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”) and wishes concert with any other person to waive form a control group of the Manager’s obligations under sections 13.3 of NI 31-103, the Subscriber has completed and signed Schedule “B” to this Subscription AgreementIssuer;
(i) if this subscription has not been solicited in any other manner contrary to the Acts and the Subscriber is acknowledges that the Subscriber will not receive an individual relying on paragraph (j), (k) offering memorandum or (l) other disclosure document in respect of the “accredited investor” definition in NI 45-106, the subscriber has completed and signed the risk acknowledgement form, Form 45-106F9, attached as Schedule “F” to this Subscription AgreementIssuer;
(j) the Subscriber has read acknowledges that the Offering Memorandum and is aware Securities have not been registered under the 1933 Act or the securities laws of any state of the characteristics of United States, that the Units and of their speculative nature, as well as of the fact that they Securities may only be transferred with the prior written consent of the Manager, and such transfer will generally not be permittedoffered or sold, directly or indirectly, in the United States except pursuant to registration under the 1933 Act and the securities laws of all applicable states or available exemptions therefrom, and that the Subscriber shall not knowingly transfer his, her Issuer has no obligation or its Units present intention of filing a registration statement under the 1933 Act in whole or in part without the approval respect of any of the Manager and will do so only in accordance with Applicable Securities LawsSecurities;
(k) unless the decision Subscriber has completed and delivered the U.S. Accredited Investor Questionnaire attached as Schedule “E” hereto (in which case the Subscriber makes the representations, warranties and covenants therein) the Subscriber acknowledges and agrees that:
(i) the offer to enter into purchase the Subscriber’s Units was not made to the Subscriber in the United States;
(ii) this Agreement was delivered to, executed and delivered by the Subscriber outside the United States;
(iii) the Subscriber is not, and will not be purchasing the Subscriber’s Units for the account or benefit of any person in the United States;
(iv) the current structure of this transaction and all transactions and activities contemplated hereunder is not a scheme to avoid the registration requirements of the 1933 Act;
(v) the Subscriber and any person for whose account it is acquiring the Subscriber’s Units, if applicable, has no intention to distribute either directly or indirectly any of the Securities in the United States, except in compliance with the 1933 Act; and
(vi) if the Subscriber is a corporation, partnership or other legal entity incorporated or organized in the United States, the Subscriber’s affairs are controlled and directed from outside of the United States, its purchase of the Subscriber’s Units was not solicited in the United States, no part of the transaction which is the subject of this Subscription Agreement occurred in the United States, and the Company has informed the Subscriber that no market for any of the Securities currently exists in the United States;
(l) neither the Subscriber nor the Disclosed Principal, if applicable, has knowledge of a “material fact” or “material change” (as those terms are defined in the Acts) in the affairs of the Issuer that has not been generally disclosed to the public, save knowledge of this particular transaction;
(m) the Subscriber’s decision to tender this offer and purchase the Subscriber’s Units has not been based upon made as a result of any verbal or written representation or documentation as to fact or otherwise made by or on behalf of the Manager, its affiliates Issuer or any other person and is based entirely upon currently available public information concerning the Fund except as set forth in the Offering Memorandum;
(l) the Subscriber has not received, read nor been otherwise exposed to any advertising in respect of the Units;
(m) the Units are being purchased for investment only and not with a view to resale or distribution and will not be resold or otherwise transferred or disposed of except in accordance with the provisions of the applicable securities legislation and the regulations, rules and policies thereunderIssuer;
(n) the offer made by this subscription is irrevocable (subject to the Subscriber’s right to withdraw his subscription and to terminate his obligations as set out in this Agreement) and requires acceptance by the Issuer and acceptance of the Exchange;
(o) the Issuer will have the right to accept this subscription offer in whole or in part and the acceptance of this subscription offer will be conditional upon the sale of the Subscriber’s Units to the Subscriber or the Disclosed Principal, as the case may be, being exempt from the prospectus and registration requirements under applicable relevant securities legislation;
(p) 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 an individual is of full age of majority, 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 given to authorize the execution of this Agreement on behalf of the Subscriber;
(q) the entering into of this Agreement and the transactions contemplated hereby 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 the Disclosed Principal, if applicable, or of any agreement, written or oral, to which the Subscriber, or the Disclosed Principal, if applicable, may be a party or by which it is or may be bound;
(r) this Agreement has been duly executed and delivered by the Subscriber and constitutes a legal, valid and binding obligation of the Subscriber enforceable against the Subscriber and, if applicable, the Disclosed Principal;
(s) the Subscriber has been advised to consult its own legal advisors with respect to the applicable hold periods imposed in respect of the Securities by applicable securities legislation and regulatory policies and confirms that no representations by the Issuer have been made respecting the hold periods applicable to the Securities;
(t) the Subscriber and, if applicable, the Disclosed Principal are aware of the risks and other characteristics of the Securities and of the fact that the Subscriber and, if applicable, the Disclosed Principal, may not be able to resell the Securities purchased by it except in accordance with the applicable securities legislation and regulatory policies and that the Securities may be subject to resale restrictions and may bear a legend to this effect;
(u) if required by applicable securities legislation, policy or order or by any securities commission, stock exchange or other regulatory authority, the Subscriber and, if applicable, the Disclosed Principal, will execute, deliver, file and otherwise assist the Issuer in filing, such reports, undertakings and other documents with respect to the issue of the Securities as may be required;
(v) the Subscriber and, if applicable, the Disclosed Principal, has not purchased the Securities as a result of any form of general solicitation or general advertising, including advertisements, articles, notices or other communication published in any newspaper, magazine or similar media or broadcast over radio, television or internet or any seminar or meeting whose attendees have been invited by general solicitation or general advertising;
(w) the Subscriber and, if applicable, the Disclosed Principal, have such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of its investment and is able to bear the economic risk of loss of its investment;
(ox) the Subscriber is aware of the characteristics of the UnitsSubscriber, of the nature and extent of personal liability and of the risks associated with an investment in the Units;
(p) the Subscriber is aware that there are securities and tax laws applicable to the holding and disposition of the Units and has obtained independent legal and tax advice and is not relying solely upon the information from the Fund, the Manager or, where applicable, their officers, trustees, directors, employees or agents;
(q) the Subscriber has been independently advised as to, and is aware of, the resale restrictions under Applicable Securities Laws with respect to the Units and acknowledges receipt of a written notice of the legend restriction notation applicable to the resale of the Units;
(r) the acknowledgments contained in any forms or documents delivered by the Subscriber under applicable securities laws are true and correct as of the date of execution of this Subscription Agreement, and will be true and correct as of the closing of the purchase and sale of the Units, and fully and truly state those facts necessary for the Fund to be entitled to rely on the relevant exemptions from the prospectus requirements within the meaning of Applicable Securities Laws of the province or territory of residence of the Subscriber;
(s) the Subscriber is not a “U.S. Person” (as that term is defined in Regulation S promulgated under the United States Securities Act of 1933, as amended, which definition includes, but is not limited to, an individual resident in the United States, an estate or 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 United States) and is not acquiring the Units for the account of or benefit of a U.S. Person or a person in the United States;
(t) the Subscriber acknowledges that the Units may not be offered, sold, resold or otherwise transferred to persons in the United States or to U.S. Persons (as such term is defined in Regulation S to the United States Securities Act of 1933, as amended);
(u) the Subscriber is not a designated beneficiary within the meaning of Part XII.2 of the Tax Act;
(v) the Subscriber is not a “financial institution” (as defined in Subsection 142.2 of the Tax Act) (a “Financial Institution”) or, if the Subscriber is a Financial Institutionapplicable, the Subscriber Disclosed Principal, if a corporation or other non-individual entity, has advised previously filed with the Manager Exchange a Form 4C, Corporate Placee Registration Form, and represents and warrants that there has been no change to any of the information in writing that the Subscriber is a Financial Institution prior Corporate Placee Registration Form previously filed with the Exchange up to the date of acceptance of the Subscriber’s subscription for Units;
(w) the Subscriber represents and warrants that the Subscriber is not named on or blocked by any of the following lists (the “Prohibited Lists”) promulgated by the Department of Foreign Affairs and International Trade Canada (DFAIT)this Agreement, or will deliver a completed Form 4C, Corporate Placee Registration Form in the Department of Public Safety and Emergency Preparedness of Canada (DPSEP):
(i) the List of Names subject form attached hereto as Schedule “D” to the Regulations Establishing a List Issuer in accordance with Section 7.2 of Entities made under subsection 83.05(1) of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspx;
(ii) the List of Names subject to the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000; or
(iii) the List of Names subject to the United Nations Al-Qaida and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525.
(x) the Subscriber acknowledges and agrees that the Manager has provided herein certain lists adopted or published by applicable governmental authorities for the convenience of the Subscriber and that because these lists are subject to change from time to time, it is the responsibility of the Subscriber to ensure that the lists are current as of the time this Subscription Agreement is executed and that each representation made by the Subscriber is true and correct as of the date of the Subscription Agreement;
(y) none of the funds being used to the best of purchase Securities hereunder are to the Subscriber’s knowledge the money that proceeds obtained or derived directly or indirectly as a result of illegal activities. The funds being used to purchase Securities hereunder which will be advanced by the Subscriber seeks to invest is the Issuer will not derived from any criminal enterprise or represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada);
(z) the investment portfolio and trading procedures of the Fund is proprietary to the Fund and the Manager and all information relating to such investment portfolio and trading procedures shall be kept confidential by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Manager; and
(aa) the Subscriber will execute and deliver all documentation as may be required by applicable securities laws or by the Fund, as the case may be, to permit the purchase of the Units under the terms herein set forth and the Subscriber will deliver such releases or other documents for income tax and other purposes, if any, as from time to time may be required by the Manager. The representations, warranties, covenants and acknowledgements of the Subscriber contained in this Subscription Agreement shall survive the completion of the purchase and sale of the Units and the Subscriber. The Subscriber acknowledges and agrees that the representations, warranties and covenants given by the Subscriber to and in favour of the Fund and the Manager shall be deemed to be repeated and reconfirmed as at the date of any subsequent subscription for Units made by the Subscriber or reinvestment of distributions made by the Fund unless a new subscription agreement is executed.
Appears in 1 contract
Samples: Subscription Agreement
Representations, Warranties, Covenants and Acknowledgements of the Subscriber. The SubscriberSubscriber acknowledges, on its own behalf and on behalf of any disclosed principal for whom the Subscriber is contracting under this Subscription Agreement, hereby represents, warrants, acknowledges warrants and covenants to and with the Manager Corporation that, as at the date given above and to at the Fund thatClosing:
(a) if an individual, no prospectus has been filed by the Subscriber is Corporation with the SEC in connection with the issuance of the age Units (or any Warrant Shares), such issuance is exempted from the prospectus requirements of majority the 1933 Act and has the capacity and competence to enter into and be bound by this Subscription Agreement and all other agreements contemplated hereby and this Subscription Agreement constitutes a legal, valid and binding agreement enforceable against the Subscriber in accordance with its terms;
(b) if the Subscriber is an incorporated entitythat:
(i) the Subscriber is a valid and subsisting corporation and is in good standing restricted from using most of the civil remedies available under the laws of the jurisdiction of its incorporation1933 Act;
(ii) the Subscriber has may not receive information that would otherwise be required to be provided to it under the corporate capacity and authority to execute and deliver this Subscription Agreement and to observe and perform its obligations hereunder;1933 Act; and
(iii) this Subscription Agreement has been duly authorized, executed and delivered by the Subscriber and Corporation is a legal, valid and binding obligation of relieved from certain obligations that would otherwise apply under the Subscriber, enforceable against the Subscriber in accordance with its terms; and0000 Xxx.
(iv) the execution and delivery of this Subscription Agreement by the Subscriber will not result in the violation of, or constitute a default under, or conflict with or cause the acceleration of any obligation of the Subscriber under (a) any contract to which the Subscriber is a party or by which it is bound; (b) any provision the Subscriber certifies that it is a company registered in the State of the constating documents of the Subscriber; or (c) any judgment, decree, order or award of any court, government body or arbitrator having jurisdiction over the SubscriberIsrael;
(c) the Subscriber is a resident in or otherwise subject to the securities laws of the province or territory of Canada set forth on the second page of this Subscription Agreement, and if the Subscriber is acting as agent for a disclosed principal, the disclosed principal is resident in or otherwise subject to the securities laws of province or territory set out on the second page of this Subscription Agreement;
(d) if the Subscriber is purchasing the Subscriber’s Units as trustee or agent (including, for greater certainty, a portfolio manager or comparable advisor) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such purchase on behalf of such principal, to agree to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and the Subscriber acknowledges that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units for whom the Subscriber may be acting;
(e) the Subscriber is not a “non-Canadian” as that expression is defined in the Investment Canada Act (Canada);
(f) the Subscriber is not a “non resident”, a partnership other than a “Canadian partnership”, a “tax shelter” or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within the meaning of the Tax Act;
(g) the Subscriber and any disclosed principal for whom the Subscriber is contracting hereunder is:
(iWarrant Shares) an “accredited investor,” as such term is defined in National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) and, in Ontario, in Section 73.3 of the Securities Act (Ontario), and has concurrently executed and delivered a Representation Letter and the Exhibit thereto in the form attached as Schedule “A” to this Subscription Agreement; or
(ii) not an individual or resident in Alberta, is purchasing the Units as principal for its own account and not for the benefit of any other person in a sufficient amount so that the aggregate acquisition cost for such Units is not less than $150,000 paid in cash at the time of the distribution and the Subscriber was not createdperson, or is used, solely to purchase or hold securities in reliance on the exemption from the prospectus requirement set out in subsection 2.10 of NI 45-106;
(h) if the Subscriber is a “permitted client”, as such term is defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”) and wishes to waive the Manager’s obligations under sections 13.3 of NI 31-103, the Subscriber has completed and signed Schedule “B” to this Subscription Agreement;
(i) if the Subscriber is an individual relying on paragraph (j), (k) or (l) of the “accredited investor” definition in NI 45-106, the subscriber has completed and signed the risk acknowledgement form, Form 45-106F9, attached as Schedule “F” to this Subscription Agreement;
(j) the Subscriber has read the Offering Memorandum and is aware of purchasing the characteristics of the Subscriber’s Units (and of their speculative nature, as well as of the fact that they may only be transferred with the prior written consent of the Manager, and such transfer will generally not be permitted, and that the Subscriber shall not knowingly transfer his, her or its Units in whole or in part without the approval of the Manager and will do so only in accordance with Applicable Securities Laws;
(kany Warrant Shares) the decision to enter into this Subscription Agreement and to purchase the Units has not been based upon any verbal or written representation or documentation as to fact or otherwise made by or on behalf of the Manager, its affiliates or the Fund except as set forth in the Offering Memorandum;
(l) the Subscriber has not received, read nor been otherwise exposed to any advertising in respect of the Units;
(m) the Units are being purchased for investment only and not with a view to the resale or distribution of all or any of the Subscriber’s Units (and any Warrant Shares);
(d) the Subscriber acknowledges that:
(i) the SEC or similar Regulatory Authority has not reviewed or passed on the merits of the Units (and any Warrant Shares);
(ii) there is no government or other insurance covering the Units (and any Warrant Shares);
(iii) there are risks associated with the purchase of the Units (and any Warrant Shares);
(iv) there are restrictions on the Subscriber’s ability to resell the Units (and any Warrant Shares); and
(v) the Corporation has advised the Subscriber that the Corporation is relying on an exemption from the rules and regulations requiring it to provide the Subscriber with a prospectus and to sell securities through a person registered to sell securities under the 1933 Act and, as a consequence of acquiring Units (and any Warrant Shares) pursuant to an Exemption, certain protections, rights and remedies provided by the 1933 Act, including statutory rights of rescission or damages, will not be resold available to the Subscriber;
(e) the Subscriber is not a U.S. Person;
(f) no person has made to the Subscriber any written or otherwise transferred oral representations:
(i) that any person will resell or disposed repurchase any of the Shares;
(ii) as to the future price or value of any of the Shares;
(g) the offer made by this subscription is irrevocable by the Subscriber and requires acceptance by the Corporation;
(h) the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto, and 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 given to authorize the execution of this Agreement on behalf of the Subscriber;
(i) the entering into of this Agreement and the transaction contemplated hereby will not result in the violation of any of the terms and provisions of the incorporation documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which it is or may be bound;
(j) this Agreement has been duly executed and delivered by the Subscriber and constitutes a legal, valid and binding obligation of the Subscriber enforceable against the Subscriber;
(k) the Subscriber is aware of the risks and other characteristics of the Units (and any Warrant Shares) and of the fact that the Subscriber may not be able to resell the Units (and any Warrant Shares) purchased by it except in accordance with the provisions of the applicable securities legislation and regulatory policies and that the regulations, rules Units (and policies thereunderany Warrant Shares) may be subject to resale restrictions and may bear a legend to this effect;
(nl) if required by applicable securities legislation, policy or order or by any securities commission, stock exchange or other regulatory authority, the Subscriber will execute, deliver, file and otherwise assist the Corporation in filing, such reports, undertakings and other documents with respect to the issue of the Corporation as may be required;
(m) the Subscriber has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of its investment and is able investment;
(n) the Subscriber agrees that the Corporation may be required by law or otherwise to bear disclose to any Regulatory Authorities the economic risk identity of loss of its investmentthe Subscriber and, if applicable, the beneficial purchaser for whom the Subscriber may be acting;
(o) the Subscriber is aware has reviewed all of the characteristics of Corporation's filings under the Units, of the nature and extent of personal liability and of the risks associated with an investment in the Units1934 Act;
(p) the Subscriber is aware that there are securities and tax laws applicable to the holding and disposition of the Units and has obtained independent legal and tax advice and is not relying solely upon the information from the Fund, the Manager or, where applicable, their officers, trustees, directors, employees or agents;
(q) the Subscriber has been independently advised as to, and is aware of, the resale restrictions under Applicable Securities Laws with respect to the Units and acknowledges receipt of a written notice of the legend restriction notation applicable to the resale of the Units;
(r) the acknowledgments contained in any forms or documents delivered by the Subscriber under applicable securities laws are true and correct as of the date of execution of this Subscription Agreement, and will be true and correct as of the closing of the purchase and sale of the Units, and fully and truly state those facts necessary for the Fund to be entitled to rely on the relevant exemptions from the prospectus requirements within the meaning of Applicable Securities Laws of the province or territory of residence of the Subscriber;
(s) the Subscriber is not a “U.S. Person” (as that term is defined in Regulation S promulgated under the United States Securities Act of 1933, as amended, which definition includes, but is not limited to, an individual resident in the United States, an estate or 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 United States) and is not acquiring the Units for the account of or benefit of a U.S. Person or a person in the United States;
(t) the Subscriber acknowledges that the Units may not be offered, sold, resold or otherwise transferred to persons in the United States or to U.S. Persons (as such term is defined in Regulation S to the United States Securities Act of 1933, as amended);
(u) the Subscriber is not a designated beneficiary within the meaning of Part XII.2 of the Tax Act;
(v) the Subscriber is not a “financial institution” (as defined in Subsection 142.2 of the Tax Act) (a “Financial Institution”) or, if the Subscriber is a Financial Institution, the Subscriber has advised the Manager in writing that the Subscriber is a Financial Institution prior to the date of acceptance of the Subscriber’s subscription for Units;
(w) the Subscriber represents and warrants that the Subscriber is not named on or blocked by any of the following lists (the “Prohibited Lists”) promulgated by the Department of Foreign Affairs and International Trade Canada (DFAIT), or the Department of Public Safety and Emergency Preparedness of Canada (DPSEP):
(i) the List of Names subject to the Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspx;
(ii) the List of Names subject to the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000; or
(iii) the List of Names subject to the United Nations Al-Qaida and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525.
(x) the Subscriber acknowledges and agrees that the Manager has provided herein certain lists adopted or published by applicable governmental authorities for the convenience of the Subscriber and that because these lists are subject to change from time to time, it is the responsibility of the Subscriber to ensure that the lists are current as of the time this Subscription Agreement is executed and that each representation made by the Subscriber is true and correct as of the date of the Subscription Agreement;
(y) to the best of the Subscriber’s knowledge the money that the Subscriber seeks to invest is not derived from any criminal enterprise or proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada);
(z) the investment portfolio and trading procedures of the Fund is proprietary to the Fund and the Manager and all information relating to such investment portfolio and trading procedures shall be kept confidential by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Manager; and
(aa) the Subscriber will execute and deliver all documentation as may be required by applicable securities laws or by the Fund, as the case may be, to permit the purchase of the Units under the terms herein set forth and the Subscriber will deliver such releases or other documents for income tax and other purposes, if any, as from time to time may be required by the Manager. The above representations, warranties, covenants and acknowledgements in this subsection will be true and correct both as of the Subscriber contained in execution of this Subscription Agreement shall survive the completion subscription and as of the purchase and sale day of Closing; and
(q) other than as aforesaid no further representations are made by Subscriber in connection with the Units and the SubscriberPrivate Placement. The Subscriber acknowledges and agrees that the foregoing representations, warranties warranties, covenants and covenants given by the Subscriber to and in favour of the Fund and the Manager shall be deemed to be repeated and reconfirmed as at the date of any subsequent subscription for Units acknowledgements are made by the Subscriber or reinvestment of distributions made with the intent that they be relied upon by the Fund unless Corporation in determining its suitability as a new subscription agreement is executedpurchaser of Units (and any Warrant Shares). The Subscriber undertakes to notify the Corporation immediately of any change in any representation, warranty or other information relating to the Subscriber set forth herein which takes place prior to the Closing.
Appears in 1 contract
Representations, Warranties, Covenants and Acknowledgements of the Subscriber. 2.1 The SubscriberSubscriber acknowledges, on its own behalf and on behalf of any disclosed principal for whom the Subscriber is contracting under this Subscription Agreement, hereby represents, warrants, acknowledges warrants and covenants to and with the Manager Corporation that, as at the date given above and to at the Fund thatClosing:
(a) if an individual, no prospectus has been filed by the Subscriber is Corporation with any of the age Commissions in connection with the issuance of majority the Units, such issuance is exempted from the prospectus requirements of the 1933 Act and has the capacity and competence to enter into and be bound by this Subscription Agreement and all other agreements contemplated hereby and this Subscription Agreement constitutes a legal, valid and binding agreement enforceable against the Subscriber in accordance with its terms;
(b) if the Subscriber is an incorporated entitythat:
(i) the Subscriber is a valid and subsisting corporation and is in good standing restricted from using most of the civil remedies available under the laws of the jurisdiction of its incorporation1933 Act;
(ii) the Subscriber has may not receive information that would otherwise be required to be provided to it under the corporate capacity and authority to execute and deliver this Subscription Agreement and to observe and perform its obligations hereunder;1933 Act; and
(iii) this Subscription Agreement has been duly authorized, executed and delivered by the Subscriber and Corporation is a legal, valid and binding obligation of relieved from certain obligations that would otherwise apply under the Subscriber, enforceable against the Subscriber in accordance with its terms; and193 Act;
(iv) the execution and delivery of this Subscription Agreement by the Subscriber will not result in the violation of, or constitute a default under, or conflict with or cause the acceleration of any obligation of the Subscriber under (a) any contract to which the Subscriber is a party or by which it is bound; (b) any provision the Subscriber certifies that it is resident in the jurisdiction(s) set out on the first page of the constating documents of the Subscriber; or (c) any judgment, decree, order or award of any court, government body or arbitrator having jurisdiction over the Subscriberthis Agreement;
(c) the Subscriber is a resident in or otherwise subject to the securities laws of the province or territory of Canada set forth on the second page of this Subscription Agreement, and if the Subscriber is acting as agent for a disclosed principal, the disclosed principal is resident in or otherwise subject to the securities laws of province or territory set out on the second page of this Subscription Agreement;
(d) if the Subscriber is purchasing the Units as trustee or agent (including, for greater certainty, a portfolio manager or comparable advisor) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such purchase on behalf of such principal, to agree to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and the Subscriber acknowledges that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units for whom the Subscriber may be acting;
(e) the Subscriber is not a “non-Canadian” as that expression is defined in the Investment Canada Act (Canada);
(f) the Subscriber is not a “non resident”, a partnership other than a “Canadian partnership”, a “tax shelter” or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within the meaning of the Tax Act;
(g) the Subscriber and any disclosed principal for whom the Subscriber is contracting hereunder is:
(i) an “accredited investor,” as such term is defined in National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) and, in Ontario, in Section 73.3 of the Securities Act (Ontario), and has concurrently executed and delivered a Representation Letter and the Exhibit thereto in the form attached as Schedule “A” to this Subscription Agreement; or
(ii) not an individual or resident in Alberta, is purchasing the Subscriber’s Units as principal for its own account and not for the benefit of any other person in a sufficient amount so that the aggregate acquisition cost for such Units is not less than $150,000 paid in cash at the time of the distribution and the Subscriber was not createdperson, or is used, solely to purchase or hold securities in reliance on the exemption from the prospectus requirement set out in subsection 2.10 of NI 45-106;
(h) if the Subscriber is a “permitted client”, as such term is defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”) and wishes to waive the Manager’s obligations under sections 13.3 of NI 31-103, the Subscriber has completed and signed Schedule “B” to this Subscription Agreement;
(i) if the Subscriber is an individual relying on paragraph (j), (k) or (l) of the “accredited investor” definition in NI 45-106, the subscriber has completed and signed the risk acknowledgement form, Form 45-106F9, attached as Schedule “F” to this Subscription Agreement;
(j) the Subscriber has read the Offering Memorandum and is aware of purchasing the characteristics of the Subscriber’s Units and of their speculative nature, as well as of the fact that they may only be transferred with the prior written consent of the Manager, and such transfer will generally not be permitted, and that the Subscriber shall not knowingly transfer his, her or its Units in whole or in part without the approval of the Manager and will do so only in accordance with Applicable Securities Laws;
(k) the decision to enter into this Subscription Agreement and to purchase the Units has not been based upon any verbal or written representation or documentation as to fact or otherwise made by or on behalf of the Manager, its affiliates or the Fund except as set forth in the Offering Memorandum;
(l) the Subscriber has not received, read nor been otherwise exposed to any advertising in respect of the Units;
(m) the Units are being purchased for investment only and not with a view to the resale or distribution of all or any of the Subscriber’s Units;
(d) the Subscriber acknowledges that:
(i) no securities commission or similar regulatory authority has reviewed or passed on the merits of the Units;
(ii) there is no government or other insurance covering the Units;
(iii) there are risks associated with the purchase of the Units;
(iv) there are restrictions on the Subscriber’s ability to resell the Units and it is the responsibility of the Subscriber to find out what those restrictions are and to comply with them before selling the Units; and
(v) the Corporation has advised the Subscriber that the Corporation is relying on an exemption to provide the Subscriber with a prospectus and to sell securities through a person registered to sell securities under the 1933 Act and, as a consequence of acquiring Units pursuant to an Exemption, certain protections, rights and remedies provided by the 1933 Act, including statutory rights of rescission or damages, will not be resold available to the Subscriber;
(e) the Subscriber is an Accredited Investor, by virtue of the fact that the Subscriber falls within one or otherwise transferred more of the sub-paragraphs of the definition of Accredited Investor set out in Appendix I, and the Subscriber has checked the sub-paragraph(s) applicable to the Subscriber);
(f) no person has made to the Subscriber any written or disposed oral representations:
(i) that any person will resell or repurchase any of except the Units;
(ii) that any person will refund the purchase price of any of the Units; or
(iii) as to the future price or value of any of the Units;
(g) the Subscriber will not become a “control person” by virtue of the purchase of the Subscriber’s Shares, and does not intend to act in accordance concert with any other person to form a control group of the Issuer;
(h) the Subscriber has no knowledge of a “material fact” or “material change” in the affairs of the Corporation that has not been generally disclosed to the public, save knowledge disclosed to it in connection with this particular transaction;
(i) the offer made by this subscription is irrevocable by the Subscriber and requires acceptance by the Corporation;
(j) the Corporation will have the right to accept this subscription offer in whole or in part and the acceptance of this subscription offer will be conditional upon the sale of the Subscriber’s Units to the Subscriber being exempt from the prospectus and registration requirements under applicable relevant securities legislation;
(k) 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 an individual is of full age of majority, 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 given to authorize the execution of this Agreement on behalf of the Subscriber;
(l) the entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the applicable securities legislation constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which it is or may be bound;
(m) this Agreement has been duly executed and delivered by the regulationsSubscriber and constitutes a legal, rules valid and policies thereunderbinding obligation of the Subscriber enforceable against the Subscriber;
(n) the Subscriber has been advised to consult its own legal advisors with respect to the applicable hold periods imposed in respect of the Shares by applicable securities legislation and regulatory policies and confirms that no representations by the Corporation have been made respecting the hold periods applicable to the Units;
(o) the Subscriber is aware of the risks and other characteristics of the Units and of the fact that the Subscriber may not be able to resell the Units purchased by it except in accordance with the applicable securities legislation and regulatory policies and that the Units may be subject to resale restrictions and may bear a legend to this effect;
(p) if required by applicable securities legislation, policy or order or by any securities commission, stock exchange or other regulatory authority, the Subscriber will execute, deliver, file and otherwise assist the Corporation in filing, such reports, undertakings and other documents with respect to the issue of the Corporation as may be required;
(q) the Subscriber acknowledges that upon completion of the Private Placement, the Corporation may pay certain commissions or finder’s fees with respect to the Subscriber’s purchase of Units;
(r) the Subscriber has not purchased the Units as a result of any form of general solicitation or general advertising, including advertisements, articles, notices or other communication published in any newspaper, magazine or similar media or broadcast over radio, television or internet or any seminar or meeting whose attendees have been invited by general solicitation or general advertising;
(s) the Subscriber has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of its investment and is able to bear the economic risk of loss of its investment;
(o) the Subscriber is aware of the characteristics of the Units, of the nature and extent of personal liability and of the risks associated with an investment in the Units;
(p) the Subscriber is aware that there are securities and tax laws applicable to the holding and disposition of the Units and has obtained independent legal and tax advice and is not relying solely upon the information from the Fund, the Manager or, where applicable, their officers, trustees, directors, employees or agents;
(q) the Subscriber has been independently advised as to, and is aware of, the resale restrictions under Applicable Securities Laws with respect to the Units and acknowledges receipt of a written notice of the legend restriction notation applicable to the resale of the Units;
(r) the acknowledgments contained in any forms or documents delivered by the Subscriber under applicable securities laws are true and correct as of the date of execution of this Subscription Agreement, and will be true and correct as of the closing of the purchase and sale of the Units, and fully and truly state those facts necessary for the Fund to be entitled to rely on the relevant exemptions from the prospectus requirements within the meaning of Applicable Securities Laws of the province or territory of residence of the Subscriber;
(s) the Subscriber is not a “U.S. Person” (as that term is defined in Regulation S promulgated under the United States Securities Act of 1933, as amended, which definition includes, but is not limited to, an individual resident in the United States, an estate or 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 United States) and is not acquiring the Units for the account of or benefit of a U.S. Person or a person in the United States;
(t) the Subscriber acknowledges agrees that the Units Corporation may not be offered, sold, resold required by law or otherwise transferred to persons in disclose to regulatory authorities the United States or to U.S. Persons (as such term is defined in Regulation S to identity of the United States Securities Act of 1933Subscriber and, as amended);if applicable, the beneficial purchaser for whom the Subscriber may be acting; and
(u) the Subscriber is not a designated beneficiary within the meaning of Part XII.2 of the Tax Act;
(v) the Subscriber is not a “financial institution” (as defined in Subsection 142.2 of the Tax Act) (a “Financial Institution”) or, if the Subscriber is a Financial Institution, the Subscriber has advised the Manager in writing that the Subscriber is a Financial Institution prior to the date of acceptance of the Subscriber’s subscription for Units;
(w) the Subscriber represents and warrants that the Subscriber is not named on or blocked by any of the following lists (the “Prohibited Lists”) promulgated by the Department of Foreign Affairs and International Trade Canada (DFAIT), or the Department of Public Safety and Emergency Preparedness of Canada (DPSEP):
(i) the List of Names subject to the Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspx;
(ii) the List of Names subject to the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000; or
(iii) the List of Names subject to the United Nations Al-Qaida and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525.
(x) the Subscriber acknowledges and agrees that the Manager has provided herein certain lists adopted or published by applicable governmental authorities for the convenience of the Subscriber and that because these lists are subject to change from time to time, it is the responsibility of the Subscriber to ensure that the lists are current as of the time this Subscription Agreement is executed and that each representation made by the Subscriber is true and correct as of the date of the Subscription Agreement;
(y) to the best of the Subscriber’s knowledge the money that the Subscriber seeks to invest is not derived from any criminal enterprise or proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada);
(z) the investment portfolio and trading procedures of the Fund is proprietary to the Fund and the Manager and all information relating to such investment portfolio and trading procedures shall be kept confidential by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Manager; and
(aa) the Subscriber will execute and deliver all documentation as may be required by applicable securities laws or by the Fund, as the case may be, to permit the purchase of the Units under the terms herein set forth and the Subscriber will deliver such releases or other documents for income tax and other purposes, if any, as from time to time may be required by the Manager. The above representations, warranties, covenants and acknowledgements in this subsection will be true and correct both as of the Subscriber contained in execution of this Subscription Agreement shall survive the completion subscription and as of the purchase and sale day of the Units and the Subscriber. Closing.
2.2 The Subscriber acknowledges and agrees that the foregoing representations, warranties warranties, covenants and covenants given by the Subscriber to and in favour of the Fund and the Manager shall be deemed to be repeated and reconfirmed as at the date of any subsequent subscription for Units acknowledgements are made by the Subscriber or reinvestment of distributions made with the intent that they be relied upon by the Fund unless Corporation in determining its suitability as a new subscription agreement is executedpurchaser of Shares, and the Subscriber hereby agrees to indemnify the Corporation against all losses, claims, costs, expenses and damages or liabilities which any of them may suffer or incur as a result of reliance thereon. The Subscriber undertakes to notify the Corporation immediately of any change in any representation, warranty or other information relating to the Subscriber set forth herein which takes place prior to the Closing.
Appears in 1 contract
Representations, Warranties, Covenants and Acknowledgements of the Subscriber. 3.1 The SubscriberSubscriber acknowledges, on its own behalf and on behalf of any disclosed principal for whom the Subscriber is contracting under this Subscription Agreement, hereby represents, warrants, acknowledges warrants and covenants to and with the Manager Issuer, the Underwriters and to the Fund U.S. Placement Agent that, as at the date given above and at the Closing:
(a) if an individual, no prospectus has been filed by the Subscriber is Issuer with any of the age Commissions in connection with the issuance of majority the Common Shares, such issuance is exempted from the prospectus requirements of the Acts and has the capacity and competence to enter into and be bound by this Subscription Agreement and all other agreements contemplated hereby and this Subscription Agreement constitutes a legal, valid and binding agreement enforceable against the Subscriber in accordance with its terms;
(b) if the Subscriber is an incorporated entitythat:
(i) the Subscriber is a valid and subsisting corporation and is in good standing the Disclosed Principal, if applicable, are restricted from using most of the civil remedies available under the laws of the jurisdiction of its incorporationActs;
(ii) the Subscriber has and the corporate capacity and authority Disclosed Principal, if applicable, may not receive information that would otherwise be required to execute and deliver this Subscription Agreement and be provided to observe and perform its obligations hereunder;it under the Acts; and
(iii) this Subscription Agreement has been duly authorized, executed and delivered by the Issuer is relieved from certain obligations that would otherwise apply under the Acts;
(b) the Subscriber and certifies that it and, if applicable, the Disclosed Principal, is a legalresident in the jurisdiction(s) set out under “Subscriber’s Residential or Head Office Address” or “Address of Disclosed Principal”, valid and binding obligation as applicable, on page one of this Agreement which address is the residence or principal place of business of the Subscriber, enforceable against or Disclosed Principal, as the Subscriber in accordance with its terms; and
(iv) case may be, and that such address was not obtained or used solely for the execution and delivery purpose of this Subscription Agreement by the Subscriber will not result in the violation of, or constitute a default under, or conflict with or cause the acceleration of any obligation of the Subscriber under (a) any contract to which the Subscriber is a party or by which it is bound; (b) any provision of the constating documents of acquiring the Subscriber; or (c) any judgment, decree, order or award of any court, government body or arbitrator having jurisdiction over the Subscriber’s Common Shares;
(c) the Subscriber is a resident in or otherwise subject to the securities laws of the province or territory of Canada set forth on the second page of this Subscription Agreement, and if the Subscriber is acting as agent for a disclosed principal, the disclosed principal is resident in or otherwise subject to the securities laws of province or territory set out on the second page of this Subscription Agreement;
(d) if the Subscriber is purchasing the Units as trustee or agent (including, for greater certainty, a portfolio manager or comparable advisor) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such purchase on behalf of such principal, to agree to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and the Subscriber acknowledges that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units for whom the Subscriber may be acting;
(e) the Subscriber is not a “non-Canadian” as that expression is defined in the Investment Canada Act (Canada);
(f) the Subscriber is not a “non resident”, a partnership other than a “Canadian partnership”, a “tax shelter” or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within the meaning of the Tax Act;
(g) the Subscriber and any disclosed principal for whom the Subscriber is contracting hereunder iseither:
(i) an “accredited investor,” as such term is defined in National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) and, in Ontario, in Section 73.3 of the Securities Act (Ontario), and has concurrently executed and delivered a Representation Letter and the Exhibit thereto in the form attached as Schedule “A” to this Subscription Agreement; or
(ii) not an individual or resident in Alberta, is purchasing the Units Subscriber’s Common Shares as principal for its own account and not for the benefit of any other person or is deemed under the Acts to be purchasing the Subscriber’s Common Shares as principal, and in either case is purchasing the Subscriber’s Common Shares for investment only and not with a view to the resale or distribution of all or any of the Subscriber’s Common Shares; or
(ii) purchasing the Subscriber’s Common Shares as agent for a disclosed principal (the “Disclosed Principal”) and is not deemed under the Acts to be purchasing the Subscriber’s Common Shares as principal, and it is duly authorized to enter into this Agreement and to execute and deliver all documentation in connection with the purchase on behalf of such Disclosed Principal, who is purchasing as principal for its own account and not for the benefit of any other person and for investment only and not with a view to the resale or distribution of all or any of the Subscriber’s Common Shares and in its capacity as agent, the Subscriber is acting in compliance with all applicable securities and other laws;
(d) the Subscriber, if not a resident of Canada, certifies that neither it nor the Disclosed Principal, if applicable, is resident in Canada and acknowledges that:
(i) no securities commission or similar regulatory authority or other entity has reviewed or passed on the merits of the Common Shares;
(ii) there is no government or other insurance covering the Common Shares;
(iii) there are risks associated with the purchase of the Common Shares;
(iv) there are restrictions on the Subscriber’s or the Disclosed Principal’s ability to resell the Common Shares and it is the responsibility of the Subscriber or the Disclosed Principal to find out what those restrictions are and to comply with them before selling the Common Shares; and
(v) the Issuer has advised the Subscriber that the Issuer is relying on an Exemption from the requirements to provide the Subscriber with a prospectus and to sell securities through a person registered to sell securities under the B.C. Act and, as a consequence of acquiring Common Shares pursuant to such Exemption, certain protections, rights and remedies provided by the B.C. Act, including statutory rights of rescission or damages, will not be available to the Subscriber or the Disclosed Principal;
(e) if the Subscriber or the Disclosed Principal is resident in Canada, the Subscriber or the Disclosed Principal for which it is acting, as the case may be:
(i) is an Accredited Investor, by virtue of the fact that the Subscriber or such Disclosed Principal, as the case may be, falls within one or more of the sub-paragraphs of the definition of Accredited Investor set out in Appendix II, (the Subscriber having checked the sub-paragraph(s) applicable to the Subscriber or such Disclosed Principal, as the case may be), and neither the Subscriber nor the Disclosed Principal has been created or is being used solely to purchase or hold the Common Shares as an Accredited Investor as described in subparagraph (m) of Appendix II; or
(ii) is purchasing sufficient amount Common Shares so that the aggregate acquisition cost of the Subscriber’s Common Shares to the Subscriber (or if the Subscriber is purchasing for such Units a Disclosed Principal, to the Disclosed Principal) is not less than $150,000 paid in cash at the time of the distribution issuance of the Common Shares, and the Subscriber or the Disclosed Principal was not created, or created and is used, not being used solely to purchase or hold securities the Subscriber’s Common Shares in reliance on the prospectus exemption from the prospectus requirement set out in subsection section 2.10 of NI National Instrument 45-106;; or
(hf) if the Subscriber or the Disclosed Principal is a resident outside of Canada and the United States, each of the Subscriber and the Disclosed Principal, if applicable:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the “permitted client”, as such term is defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103Authorities”) having application in the jurisdiction in which the Subscriber and wishes the Disclosed Principal, if applicable, is resident (the “International Jurisdiction”) which would apply to waive the Manageracquisition of the Subscriber’s Common Shares, if any;
(ii) is purchasing the Subscriber’s Common Shares pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable, the Subscriber, and the Disclosed Principal, if applicable, is permitted to purchase the Subscriber’s Common Shares under the applicable securities laws of the Authorities in the International Jurisdiction without the need to rely on any exemption;
(iii) confirms that the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Subscriber’s Common Shares; and
(iv) confirms that the purchase of the Subscriber’s Common Shares by the Subscriber does not trigger:
(A) an obligation to prepare and file a registration statement, prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) continuous disclosure reporting obligations under sections 13.3 of NI 31-103the Issuer in the International Jurisdiction; and the Subscriber will, if requested by the Issuer, deliver to the Issuer, a certificate or opinion of local counsel from the International Jurisdiction which confirms the matters referred to in (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably, and comply with such other requirements as the Issuer may reasonably require;
(g) (i) unless the Subscriber has completed and signed Schedule “B” to this Subscription Agreement;delivered the U.S. Accredited Investor Certificate attached as Appendix III hereto (in which case the Subscriber makes the representations, warranties and covenants therein):
(iA) if neither the Subscriber is an individual relying on paragraph (j)nor Disclosed Principal, (k) or (l) of the “accredited investor” definition in NI 45-106, the subscriber has completed and signed the risk acknowledgement form, Form 45-106F9, attached as Schedule “F” to this Subscription Agreement;
(j) the Subscriber has read the Offering Memorandum and is aware of the characteristics of the Units and of their speculative nature, as well as of the fact that they may only be transferred with the prior written consent of the Manager, and such transfer will generally not be permitted, and that the Subscriber shall not knowingly transfer his, her or its Units in whole or in part without the approval of the Manager and will do so only in accordance with Applicable Securities Laws;
(k) the decision to enter into this Subscription Agreement and to purchase the Units has not been based upon any verbal or written representation or documentation as to fact or otherwise made by or on behalf of the Manager, its affiliates or the Fund except as set forth in the Offering Memorandum;
(l) the Subscriber has not received, read nor been otherwise exposed to any advertising in respect of the Units;
(m) the Units are being purchased for investment only and not with a view to resale or distribution and will not be resold or otherwise transferred or disposed of except in accordance with the provisions of the applicable securities legislation and the regulations, rules and policies thereunder;
(n) the Subscriber has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of its investment and is able to bear the economic risk of loss of its investment;
(o) the Subscriber is aware of the characteristics of the Units, of the nature and extent of personal liability and of the risks associated with an investment in the Units;
(p) the Subscriber is aware that there are securities and tax laws applicable to the holding and disposition of the Units and has obtained independent legal and tax advice and is not relying solely upon the information from the Fund, the Manager or, where applicable, their officers, trustees, directors, employees or agents;
(q) the Subscriber has been independently advised as to, and is aware of, the resale restrictions under Applicable Securities Laws with respect to the Units and acknowledges receipt of a written notice of the legend restriction notation applicable to the resale of the Units;
(r) the acknowledgments contained in any forms or documents delivered by the Subscriber under applicable securities laws are true and correct as of the date of execution of this Subscription Agreement, and will be true and correct as of the closing of the purchase and sale of the Units, and fully and truly state those facts necessary for the Fund to be entitled to rely on the relevant exemptions from the prospectus requirements within the meaning of Applicable Securities Laws of the province or territory of residence of the Subscriber;
(s) the Subscriber is not a “U.S. Person” (as that term is defined in Regulation S promulgated under the United States Securities Act of 1933, as amended, which definition includes, but is not limited to, an individual resident in the United States, an estate or trust of which any executor or administrator or trustee, respectivelyif any, is a U.S. Person and any partnership or company organized or incorporated under is purchasing the laws of the United States) and is not acquiring the Units Common Shares for the account of or benefit of of, a U.S. Person or a person in the United States;
(tB) the offer to purchase the Subscriber’s Common Shares was not made to the Subscriber acknowledges that the Units may not be offeredor Disclosed Principal, soldif any, resold or otherwise transferred to persons in the United States or to U.S. Persons (as such term is defined in Regulation S to the United States Securities Act of 1933, as amended)States;
(uC) at the Subscriber is not a designated beneficiary within the meaning of Part XII.2 of the Tax Act;
(v) the Subscriber is not a “financial institution” (as defined in Subsection 142.2 of the Tax Act) (a “Financial Institution”) or, if the Subscriber is a Financial Institution, the Subscriber has advised the Manager in writing that the Subscriber is a Financial Institution prior to the date of acceptance of time the Subscriber’s subscription for UnitsCommon Shares was executed and delivered to the Issuer, the Subscriber (or the Subscriber’s authorized signatory, if it is an entity) was outside the United States;
(wD) the Subscriber represents current structure of this transaction and warrants all transactions and activities contemplated hereunder is not a scheme to avoid the registration requirements of the 1933 Act;
(E) it undertakes and agrees that it will not offer or sell the Common Shares in the United States unless such securities are registered under the 1933 Act and the securities laws of all applicable states of the United States or an exemption from such registration requirements is available, and further that it will not resell the Shares except in accordance with the provisions of applicable securities legislation, regulations, rules, policies and orders and stock exchange rules;
(F) it will not engage in hedging transactions with regard to the Shares unless conducted in compliance with the 1933 Act;
(G) it acknowledges that the Subscriber is not named on or blocked by Corporation will refuse to register any transfer of any of the following lists Shares not made in accordance with the provisions of Regulation S under the 1933 Act, pursuant to registration under the 1933 Act, or pursuant to an available exemption from registration under the 1933 Act;
(H) the “Prohibited Lists”Common Shares have not been registered under the 1933 Act and are "restricted securities" as defined under Rule 144 and may be resold only if:
(1) promulgated the sale is to the Issuer;
(2) the sale is made outside the United States in a transaction meeting the requirements of Rule 904 of Regulation S (or such successor rule or regulation then in effect), if available, and in compliance with applicable state securities laws;
(3) the sale is made pursuant to an exemption from the registration requirements under the 1933 Act provided by Rule 144 thereunder, if available, and in accordance with any applicable state securities laws;
(4) the sale is a transaction that does not require registration under the 1933 Act or any applicable state securities laws, and it has prior to such sale furnished to the Issuer an opinion of counsel to that effect reasonably satisfactory to the Issuer; or
(5) the sale is pursuant to an effective registration statement under the 1933 Act;
(I) while the Issuer has agreed to file the Registration Statement (as described in the Registration Rights Agreement) and cause it to be declared effective by the Department of Foreign Affairs SEC, there is no assurance that the Issuer will be able to cause the Registration Statement to be declared effective by the SEC, and International Trade Canada (DFAIT)if the Registration Statement is not declared effective by the SEC, or the Department of Public Safety Common Shares may not be resold by the Subscriber, except pursuant to an exemption contained under applicable securities laws, which may not be available, and Emergency Preparedness of Canada (DPSEP):if the Registration Statement is not declared effective, the Common Shares remain “restricted securities” under the 1933 Act;
(iJ) for the List of Names subject period under the 1933 Act when the Common Shares are “restricted securities” as defined in Rule 144 under the 1933 Act, each certificate representing such security shall bear the following legend: THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”). THESE SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) TO THE COMPANY, (B) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE 1933 ACT, (C) IN COMPLIANCE WITH THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE 1933 ACT PROVIDED BY RULE 144 THEREUNDER, IF AVAILABLE, AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, OR (D) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE LAWS, AND THE HOLDER HAS, PRIOR TO SUCH SALE, FURNISHED TO THE COMPANY AN OPINION OF COUNSEL OR OTHER EVIDENCE OF EXEMPTION, IN EITHER CASE REASONABLY SATISFACTORY TO THE COMPANY. DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE “GOOD DELIVERY” IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES IN CANADA. THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTION WITH REGARD TO THIS SECURITY, EXCEPT AS PERMITTED BY THE 1933 ACT.
(K) it acknowledges that it has been advised to consult its own legal advisors with respect to applicable resale restrictions and that it is solely responsible (and the Regulations Establishing a List of Entities made under subsection 83.05(1Issuer is not in any manner responsible) of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspxfor complying with such restrictions;
(ii) the List of Names subject to the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000; or
(iii) the List of Names subject to the United Nations Al-Qaida and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525.
(x) the Subscriber acknowledges and agrees that the Manager has provided herein certain lists adopted or published by applicable governmental authorities for the convenience of the Subscriber and that because these lists are subject to change from time to time, it is the responsibility of the Subscriber to ensure that the lists are current as of the time this Subscription Agreement is executed and that each representation made by the Subscriber is true and correct as of the date of the Subscription Agreement;
(y) to the best of the Subscriber’s knowledge the money that the Subscriber seeks to invest is not derived from any criminal enterprise or proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada);
(z) the investment portfolio and trading procedures of the Fund is proprietary to the Fund and the Manager and all information relating to such investment portfolio and trading procedures shall be kept confidential by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Manager; and
(aa) the Subscriber will execute and deliver all documentation as may be required by applicable securities laws or by the FundDisclosed Principal, as the case may be, to permit acknowledges that the purchase Common Shares have not been registered under the 1933 Act or the securities laws of any state of the Units United States, that the Common Shares may not be offered or sold, directly or indirectly, in the United States or to a U.S. Person except pursuant to registration under the terms herein set forth 1933 Act and the securities laws of all applicable states or available exemptions therefrom, and the Issuer has no obligation or present intention of filing a registration statement under the 1933 Act in respect of any of the Common Shares, and they are not purchasing the Common Shares as a result of and have not engaged in any Directed Selling Efforts;
(iii) the Subscriber will deliver such releases or other documents for income tax and other purposesthe Disclosed Principal, if anyapplicable, as from time to time may be required by the Manager. The representationswill not offer, warranties, covenants and acknowledgements sell or otherwise transfer any of the Common Shares in the United States or to, or for the benefit or account of, a U.S. Person except pursuant to registration under the 1933 Act and the securities laws of all applicable states or available exemptions therefrom; and
(iv) the Subscriber contained in this Subscription Agreement shall survive and the completion Disclosed Principal, if applicable, has not purchased the Common Shares as a result of any form of General Solicitation or General Advertising, and the purchase and sale of the Units Common Shares was not accompanied by any advertisement in printed media of general and regular paid circulation including printed public media, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio, television or telecommunications, including electronic display and the Subscriber. The Subscriber acknowledges and agrees that the representations, warranties and covenants given Internet or any seminar or meeting whose attendees have been invited by the Subscriber to and in favour of the Fund and the Manager shall be deemed to be repeated and reconfirmed as at the date of any subsequent subscription for Units made by the Subscriber General Solicitation or reinvestment of distributions made by the Fund unless a new subscription agreement is executed.General Advertising;
Appears in 1 contract
Samples: Subscription Agreement (Stockgroup Information Systems Inc)
Representations, Warranties, Covenants and Acknowledgements of the Subscriber. 4.1 The SubscriberSubscriber acknowledges, on its own behalf and on behalf of any disclosed principal for whom the Subscriber is contracting under this Subscription Agreement, hereby represents, warrants, acknowledges warrants and covenants to and with the Manager Issuer as at the date given above and to at the Fund Closing that:
(a) the Subscriber agrees to:
(i) complete, sign and deliver to the Issuer the Issuer’s exemption certificate attached hereto as Appendix I and, if an individualOntario or Alberta Subscriber, the Subscriber is Schedules 1 and 2 of the age of majority and has the capacity and competence to enter into and be bound by this Subscription Agreement and all other agreements contemplated hereby and this Subscription Agreement constitutes a legal, valid and binding agreement enforceable against the Subscriber in accordance with its terms;Appendix 1.
(b) if the Subscriber acknowledges that:
(i) no securities commission or similar regulatory authority has reviewed or passed on the merits of the Securities;
(ii) there is no government or other insurance covering the Securities;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Subscriber’s ability to resell the Securities and it is the responsibility of the Subscriber to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Subscriber that the Issuer is relying on an incorporated entityexemption from the requirements to provide the Subscriber with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Subscriber;
(c) no prospectus has been filed by the Issuer with any of the Commissions in connection with the issuance of the Securities, such issuance is exempted from the prospectus requirements of the Acts and that:
(i) the Subscriber is a valid and subsisting corporation and is in good standing restricted from using most of the civil remedies available under the laws of the jurisdiction of its incorporationActs;
(ii) the Subscriber has may not receive information that would otherwise be required to be provided to it under the corporate capacity and authority to execute and deliver this Subscription Agreement and to observe and perform its obligations hereunder;Acts; and
(iii) this Subscription Agreement has been duly authorized, executed and delivered by the Subscriber and Issuer is a legal, valid and binding obligation of relieved from certain obligations that would otherwise apply under the Subscriber, enforceable against the Subscriber in accordance with its terms; and
(iv) the execution and delivery of this Subscription Agreement by the Subscriber will not result in the violation of, or constitute a default under, or conflict with or cause the acceleration of any obligation of the Subscriber under (a) any contract to which the Subscriber is a party or by which it is bound; (b) any provision of the constating documents of the Subscriber; or (c) any judgment, decree, order or award of any court, government body or arbitrator having jurisdiction over the SubscriberActs;
(cd) the Subscriber is a resident in or otherwise subject to the securities laws of the province or territory of Canada jurisdiction set forth out under “subscriber’s address” on the second page of this Subscription Agreement, and if the Subscriber is acting as agent for a disclosed principal, the disclosed principal is resident in or otherwise subject to the securities laws of province or territory set out on the second page of this Subscription Agreement;
(d) if the Subscriber is purchasing the Units as trustee or agent (including, for greater certainty, a portfolio manager or comparable advisor) for a principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such purchase on behalf of such principal, to agree to the terms and conditions contained herein and therein and to make the representations, warranties, acknowledgments and covenants made herein and therein, and the Subscriber acknowledges that the Fund is required by law to disclose, on a confidential basis, to certain regulatory authorities, the identity of such beneficial purchaser of Units for whom the Subscriber may be acting;
(e) the Subscriber is not a “non-Canadian” as that expression is defined in the Investment Canada Act (Canada);
(f) the Subscriber is not a “non resident”, a partnership other than a “Canadian partnership”, a “tax shelter” or a “tax shelter investment”, or a Person an interest in which is a “tax shelter investment” or in which a “tax shelter investment” has an interest, within the meaning of the Tax Act;
(g) the Subscriber and any disclosed principal for whom the Subscriber is contracting hereunder is:
(i) an “accredited investor,” as such term is defined in National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) and, in Ontario, in Section 73.3 of purchasing the Securities Act (Ontario), and has concurrently executed and delivered a Representation Letter and the Exhibit thereto in the form attached as Schedule “A” to this Subscription Agreement; or
(ii) not an individual or resident in Alberta, is purchasing the Units as principal for its own account and not for the benefit of any other person or is deemed under the Acts to be purchasing the Securities as principal, and in either case is purchasing the Securities for investment only and not with a sufficient amount so that view to the aggregate acquisition cost for such Units is not less than $150,000 paid in cash at the time resale or distribution of all or any of the distribution Securities subscribed for hereunder;
(f) if the Subscriber is resident outside of Canada and the Subscriber was not createdUnited States, the Subscriber:
(i) is knowledgeable of, or has been (or understands that it should be) independently advised as to the applicable securities laws of the International Jurisdiction;
(ii) is used, solely purchasing the Securities pursuant to purchase or hold securities in reliance on the exemption exemptions from the prospectus requirement set out and registration requirements under the applicable securities laws of the International Jurisdiction or, if such is not applicable, the Subscriber is permitted to purchase the Securities under the applicable securities laws of the International Jurisdiction without the need to rely on any exemption; and
(iii) the applicable securities laws of the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Regulatory Authority in subsection 2.10 the International Jurisdiction in connection with the issue and sale or resale of NI 45-106the Securities subscribed for hereunder;
(g) no person has made to the Subscriber any written or oral representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading on a stock exchange or that application has been made to list and post any of the Securities for trading on a stock exchange;
(h) if the Subscriber is acknowledges that the Securities have not been registered under the 1933 Act or the securities laws of any state of the United States, that the Securities may not be offered or sold, directly or indirectly, in the United States except pursuant to registration under the 1933 Act and the securities laws of all applicable states or available exemptions therefrom, and that the Issuer has no obligation or present intention of filing a “permitted client”, as such term is defined registration statement under the 1933 Act in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”) and wishes to waive respect of any of the Manager’s obligations under sections 13.3 of NI 31-103, the Subscriber has completed and signed Schedule “B” to this Subscription AgreementSecurities;
(i) if the Subscriber acknowledges that as a Special Warrant holder and until the Automatic Conversion, he/she is an individual relying on paragraph (j), (k) or (l) not a shareholder of the “accredited investor” definition in NI 45-106Issuer. The Special Warrants do confer upon a Special Warrant holder any right or interest whatsoever as a Shareholder of the Company, including, but not limited to, the subscriber has completed and signed right to vote at, to receive notice of, or to attend, meetings of shareholders or any other proceedings of the risk acknowledgement formCompany, Form 45-106F9, attached nor entitle the holder to any right or interest in respect thereof except as Schedule “F” to this Subscription Agreementherein expressly provided;
(j) the Subscriber has read the Offering Memorandum and is aware of the characteristics of the Units and of their speculative nature, as well as of the fact that they may only be transferred with the prior written consent of the Manager, and such transfer will generally not be permitted, and that the Subscriber shall not knowingly transfer his, her or its Units in whole or in part without the approval of the Manager and will do so only in accordance with Applicable Securities Lawsa U.S. Person;
(k) the Subscriber acknowledges and agrees that the offer to purchase Special Warrants was not made to the Subscriber when the Subscriber was in the United States, and at the time the Subscriber’s subscription for Special Warrants was executed and delivered to the Issuer, the Subscriber was not a U.S. Person and was outside the United States and that:
(i) the Subscriber is not and will not be purchasing the Securities for the account or benefit of any U.S. Person or person in the United States;
(ii) the current structure of this transaction and all transactions and activities contemplated hereunder is not a scheme to avoid the registration requirements of the 1933 Act; and
(iii) the Subscriber has no intention to distribute either directly or indirectly any of the Securities in the United States, except in compliance with the 1933 Act;
(l) the offer made by this subscription is irrevocable and requires acceptance by the Issuer which will be conditional upon the sale of Special Warrants to the Subscriber being exempt from the prospectus and registration requirements under applicable relevant securities legislation;
(m) the Issuer will have the right to accept this subscription offer in whole or in part and the acceptance of this subscription offer will be conditional upon the sale of Special Warrants to the Subscriber being exempt from the prospectus and registration requirements under applicable relevant securities legislation; if less than all of the subscription offer is accepted, the rejected portion of the Subscription Proceeds will be returned, without interest or deduction;
(n) 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 an individual is of full age of majority, 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 given to authorize the execution of this Agreement on behalf of the Subscriber;
(o) the entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which it is or may be bound or, to the Subscriber’s knowledge, any law applicable to the Subscriber;
(p) this Agreement has been duly executed and delivered by the Subscriber and constitutes a legal, valid and binding obligation of the Subscriber enforceable against the Subscriber, subject to applicable bankruptcy, insolvency, reorganization and other laws of general application limiting the enforcement of creditors’ rights generally and the fact that specific performance is an equitable remedy available in the discretion of a court;
(q) the Subscriber has been advised to consult its own legal advisors in connection with the execution, delivery and performance by it of this Agreement and the completion of the transactions contemplated hereby;
(r) the Subscriber has been advised to consult its own financial advisors and obtain income tax advice with respect to this subscription;
(s) the Subscriber is able to bear the economic risk of the potential loss of its investment hereunder;
(t) if required by applicable securities legislation, policy or order or by any securities commission, stock exchange or other regulatory authority, the Subscriber will execute, deliver, file and otherwise assist the Issuer in filing, such reports, undertakings and other documents with respect to the issue of the Shares as may be required;
(u) the Subscriber has been provided with an offering memorandum in connection with the sale of the Special Warrants hereunder but no other document purporting to describe the business and affairs of the Issuer which has been prepared for review by prospective purchasers to assist in making an investment decision in respect of the Special Warrants, and the Subscriber’s decision to subscribe for the Special Warrants was not based upon, and the Subscriber has not relied upon, any oral or written representations as to facts made by or on behalf of the Issuer other than those expressly made by the Issuer in this Agreement and the Offering Memorandum. The Subscriber’s decision to enter into this Subscription Agreement and to purchase the Units has not been Special Warrants from the Issuer is based upon any verbal or written representation or documentation as to fact or otherwise made by or entirely on behalf of publicly available information concerning the ManagerIssuer, its affiliates or the Fund except as set forth in the Offering Memorandum;
(l) the Subscriber has not received, read nor been otherwise exposed to any advertising in respect of the Units;
(m) the Units are being purchased for investment only Memorandum and not with a view to resale or distribution and will not be resold or otherwise transferred or disposed of except in accordance with the provisions of the applicable securities legislation and the regulations, rules and policies thereunder;
(n) the Subscriber has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of its investment and is able to bear the economic risk of loss of its investment;
(o) the Subscriber is aware of the characteristics of the Units, of the nature and extent of personal liability and of the risks associated with an investment in the Units;
(p) the Subscriber is aware that there are securities and tax laws applicable to the holding and disposition of the Units and has obtained independent legal and tax advice and is not relying solely upon the information from the Fund, the Manager or, where applicable, their officers, trustees, directors, employees or agents;
(q) the Subscriber has been independently advised as to, and is aware of, the resale restrictions under Applicable Securities Laws with respect to the Units and acknowledges receipt of a written notice of the legend restriction notation applicable to the resale of the Units;
(r) the acknowledgments contained in any forms or documents delivered by the Subscriber under applicable securities laws are true and correct as of the date of execution of this Subscription Agreement, and will be true and correct as of the closing of the purchase and sale of the Units, and fully and truly state those facts necessary for the Fund to be entitled to rely on the relevant exemptions from the prospectus requirements within the meaning of Applicable Securities Laws of the province or territory of residence of the Subscriber;
(s) the Subscriber is not a “U.S. Person” (has had access to such additional information, if any, concerning the Issuer as that term is defined it has considered necessary in Regulation S promulgated under connection with its investment decision to acquire the United States Securities Act of 1933, as amended, which definition includes, but is not limited to, an individual resident in the United States, an estate or 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 United States) and is not acquiring the Units for the account of or benefit of a U.S. Person or a person in the United States;
(t) the Subscriber acknowledges that the Units may not be offered, sold, resold or otherwise transferred to persons in the United States or to U.S. Persons (as such term is defined in Regulation S to the United States Securities Act of 1933, as amended);
(u) the Subscriber is not a designated beneficiary within the meaning of Part XII.2 of the Tax Act;Special Warrants; and,
(v) the Subscriber is Subscription Proceeds will not a “financial institution” (as defined in Subsection 142.2 of the Tax Act) (a “Financial Institution”) or, if the Subscriber is a Financial Institution, the Subscriber has advised the Manager in writing that the Subscriber is a Financial Institution prior to the date of acceptance of the Subscriber’s subscription for Units;
(w) the Subscriber represents and warrants that the Subscriber is not named on or blocked by any of the following lists (the “Prohibited Lists”) promulgated by the Department of Foreign Affairs and International Trade Canada (DFAIT), or the Department of Public Safety and Emergency Preparedness of Canada (DPSEP):
(i) the List of Names subject to the Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code (Canada) found at the website of the Office of the Superintendent of Financial Institutions Canada (OSFI) at xxx.xxxx-xxxx.xx.xx/xxx/xx- if/amlc-clrpc/atf-fat/Pages/default.aspx;
(ii) the List of Names subject to the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism found at OSFI website at xxxx://xxx.xxxx- xxxx.xx.xx/xxxx/xxxxx_x.xxxx?XxxxxxXX=000; or
(iii) the List of Names subject to the United Nations Al-Qaida and Taliban Regulations found at OSFI website at xxxx://xxx.xxxx-xxxx.xx.xx/osfi/index_e.aspx?DetailID=525.
(x) the Subscriber acknowledges and agrees that the Manager has provided herein certain lists adopted or published by applicable governmental authorities for the convenience of the Subscriber and that because these lists are subject to change from time to time, it is the responsibility of the Subscriber to ensure that the lists are current as of the time this Subscription Agreement is executed and that each representation made by the Subscriber is true and correct as of the date of the Subscription Agreement;
(y) to the best of the Subscriber’s knowledge the money that the Subscriber seeks to invest is not derived from any criminal enterprise or represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Act (Canada);
(z) the investment portfolio and trading procedures of the Fund is proprietary to the Fund and the Manager and all information relating to such investment portfolio and trading procedures shall be kept confidential by the Subscriber and will not be disclosed to third parties (excluding the Subscriber’s professional advisers) without the written consent of the Manager; and
(aa) the Subscriber will execute and deliver all documentation as may be required by applicable securities laws or by the Fund, as the case may be, to permit the purchase of the Units under the terms herein set forth and the Subscriber will deliver such releases or other documents for income tax and other purposes, if any, as from time to time may be required by the Manager. The representations, warranties, covenants and acknowledgements of the Subscriber contained in this Subscription Agreement shall survive the completion of the purchase and sale of the Units and the Subscriber. The Subscriber acknowledges and agrees that the representations, warranties and covenants given by the Subscriber to and in favour of the Fund and the Manager shall be deemed to be repeated and reconfirmed as at the date of any subsequent subscription for Units made by the Subscriber or reinvestment of distributions made by the Fund unless a new subscription agreement is executed.
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