SUBSCRIPTION AGREEMENT
To: EXTERLAND CORPORATION
Dear Sirs:
Re: Sale of Common Shares
We hereby confirm your purchase, subject to the terms and conditions set forth
herein, of 350,000 common shares ("Common Shares") in the capital stock of
Micromem Technologies Inc. (the "Corporation") from the Corporation, at a price
of (US.) $3.00 per share (collectively, the "Purchased Shares") being an
aggregate purchase price of $1,050,000 (the "Purchase Price").
(one million, fifty thousand U.S. dollars)
In connection with your purchase, we enclose Schedule A, with respect to closing
instructions, registration and payment, which we request that you complete, sign
and return to us along with an executed copy of this commitment letter by 12:00
p.m. on April 30, 1999.
You acknowledge and agree that you have not received or been provided with an
offering memorandum or similar document and that your decision to enter into
this agreement and purchase the number of Common Shares agreed to be purchased
by you has not been made upon any verbal or written representation as to fact or
otherwise made by or on behalf of us or any other person and that your decision
is based entirely upon information concerning the Corporation which is publicly
available. You further acknowledge and agree that we assume no responsibility or
liability of any nature whatsoever for the accuracy or adequacy of any such
publicly available information or as to whether all information concerning the
Corporation required to be disclosed by it has been generally disclosed. You
further acknowledge and agree that we have not engaged in any independent
investigation with respect to the Corporation or any such matter.
Conditions of Closing
The Corporation's Obligation to sell the Purchased Shares to you is subject to
the condition that you execute and return to us all relevant documentation
required by applicable securities legislation and policy statements, as the sale
of Purchased Shares from the Corporation to you will not be qualified by a
prospectus. You are purchasing the Purchased Shares as principal for your own
account and not for the benefit of or as agent for any other beneficial
purchaser who is acquiring Purchased Shares as principal for its own account.
You agree to
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comply with the Securities Act (Ontario) and Regulations and all other relevant
securities legislation and policies concerning any resale of the Purchased
Shares.
Closing
Delivery and payment for the purchased Shares shall be completed at the offices
of the Corporation, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx, XXX-0X0 at
12:00 p.m., (Toronto time), on any date from and including May 5, 1999, as may
be selected by the Corporation on not less than 24 hours' notice to you provided
that the closing may be extended to any date after May 5, 1999 as may be
mutually agreed upon by the Corporation and you (such completion date being the
"Closing Date"). We will notify you in advance of the Closing Date.
A single share certificate representing the Purchased shares will be available
for delivery in Toronto, Ontario against delivery to the Corporation in the
manner specified in Schedule A of the amount of the Purchase Price in freely
transferable Canadian funds for the Purchased Shares purchased by you on the
Closing Date.
Costs
Each party shall be responsible for his/her/its own expenses associated with the
transactions contemplated herein including without limitation legal, accounting
and other advisory fees.
Prospectus Exemptions
The sale and delivery of the Purchased Shares by the Corporation to you are
conditional upon such sale being exempt from the prospectus filing requirements
of any applicable statute relating to the sale of such shares.
Representations and Warranties
By your acceptance of this letter, you represent and warrant to the Corporation
(which representations and warranties shall survive closing) that:
(a) (i) you are purchasing the Purchased Shares as principal for your
own account, and not for the benefit of any other person; and
(ii) the purchaser was not created or established solely to acquire
securities, or to permit purchases of securities without a
prospectus, in reliance on an exemption form the prospectus
requirements of applicable securities legislation;
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(b) you, the beneficial purchaser, will execute and deliver all
documentation as may be required by applicable Canadian securities
legislation and policy statements to permit the purchase of the
Purchased Shares hereunder on the terms as set forth herein;
(c) the Purchased Shares are being acquired by you for investment only and
not with a view to resale or distribution; and
(d) you are not a related party with respect to the Corporation as such
term is defined in the Securities Act (Ontario) and the Rules
thereunder.
This agreement is governed by the laws of Ontario. By your acceptance of this
letter below, you irrevocably attorn to the jurisdiction of the courts of
Ontario. All references to currency are to the currency of the United States of
America unless otherwise referenced. This agreement constitutes the entire
agreement among the parties hereto and supersedes all prior negotiations,
agreements and understandings. This agreement may not be amended except by
written instrument duly executed by the parties hereto.
If the foregoing is in accordance with your understanding, please sign and
return the enclosed copy of this letter as soon as possible, to evidence the
binding agreement between you and the Corporation.
Yours very truly,
MICROMEM TECHNOLOGIES INC.
Per: /s/ Xxxx XxXxxxxxx
-----------------------
Name: Xxxx XxXxxxxxx
Title: Exec. V.P.
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To: Micromem Technologies Inc.
We accept the foregoing and agree to be bound by the terms thereof and, without
limitation, further agree that Micromem Technologies Inc. may rely upon the
covenants, representations and warranties contained therein as if it were a
contracting party.
We, the undersigned, hereby acknowledge that we have consented and requested
that all documents evidencing or relating in any way to the sale of the
Purchased Shares be drawn up in the English language only.
EXTERLAND CORPORATION
(full legal name or purchaser)
c/o Intel Trust XX
Xxxxx Elvezia 4
--------------------------------
(xxxxxx xxxxxxx)
0000 Xxxxxx (Xxxxxxxxxxx)
--------------------------------
(city, province)
/s/ Xxxxxx Xxxxxxx
--------------------------------
(signature)
President
--------------------------------
(position)
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Schedule A
To: Micromem Technologies Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X-0X0
Attention: Xx. Xxx Xxxx. Chairman
---------------------------------
Dear Sirs:
Re: Purchase of Common Shares
-----------------------------
We acknowledge receipt of your letter of April 27,1999.
1. Representation at Closing - complete either (a), (b) or (c).
(a) We authorize Xxxxx X. Xxxxx to represent us at the closing of
the above sale at the offices of Micromem Technologies Inc.,
at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx, at 10:00
a.m. on April 30th, 1999, or on such other date as may be
determined to be the Closing Date, and appoint X. X. Xxxxx to
be our agent and attorney to deliver on our behalf payment for
the shares referred to in section 4, to receive delivery of a
certificate representing such securities and to execute and
deliver a receipt thereto and any other instrument or document
required in connection with the purchase and sale of the said
securities.
Yes |XX| No |_|
(b) We intend to have another representative at the closing.
Yes |_| No |XX|
Our representative, which we hereby appoint as our agent and
attorney with the powers as set forth in section 1(a) above,
will be:
(c) We plan to be present at the closing.
Yes |XX| No |_|
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2. Method of Payment - complete (a) _________________ has been appointed
to represent you at closing in section 1(a) above. Otherwise, complete
(b).
Payment in the amount of (U.S.) $3.00 per share will be made as
follows:
Check one
(a) a bank draft or certified cheque payable in U.S. _____
funds to ________ arrive at the offices of _______,
Toronto, Ontario (Attention: __________ ) at or before
[10:00 a.m.] on 19, or on such other date as may be
determined to be the Closing Date (in which event
Limited will deliver its certified cheque at closing on
your behalf);
(b) a bank draft or certified cheque payable in U.S. X
funds to and presented at the closing by us or our ------
representative named in section I (b) above.
(c) wire transfer of the funds to our legal counsel in X
Toronto, Ontario and presented at the closing by ------
us or our representative named in section 1(b) above.
3. Delivery - please deliver the certificates representing ownership of
the shares to:
4. Registration - registration of the single certificate which is to be
delivered at closing should be made as follows:
* If this item is left blank, the share certificate will be registered in
the name of the purchaser as it appears on page one of the agreement to
which this Schedule A is attached.
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5. We acknowledge that we will deliver to our legal counsel, Xxxxx Xxxxx,
Barrister & Solicitor, no later than 10:00 am. on _______1999, or on
such other date as may be determined to be the Closing Date, all such
additional completed forms in respect of our purchase of securities of
Micromem Technologies Inc. as may be required for filing with the
appropriate securities and regulatory authorities.
Date: EXTERLAND CORPORATION
(name of purchaser)
by: /s/ Xxxxxx Xxxxxxx
----------------------------------
(signature)
President
----------------------------------
(position)
