Exhibit 4.30
SUBSCRIPTION AGREEMENT
ISSUER: Pine Valley Mining Corporation (TSXV: PVM)
(the "Company" or "Pine Valley")
ISSUE: Common shares ($0.90 per Share)
NUMBER OF SHARES SUBSCRIBED FOR: 3,333,334
TOTAL PURCHASE PRICE: $3,000,000.60
NAME AND ADDRESS OF PURCHASER:
Name: Address:
------------------------------ --------------------------------
(Street Address)
--------------------------------
(City and Province or Country)
--------------------------------
(Postal Code)
ALTERNATE REGISTRATION INSTRUCTIONS FOR CERTIFICATES: If other than in the name
of the Purchaser:
Name: Address:
------------------------------ --------------------------------
(Street Address)
--------------------------------
(City and Province or Country)
--------------------------------
(Postal Code)
DELIVERY INSTRUCTIONS: The name and address (including contact name and
telephone number) of the person to whom the certificate representing the Shares
is to be delivered, if other than the Purchaser:
Name: Address:
------------------------------ --------------------------------
(Street Address)
--------------------------------
(City and Province or Country)
--------------------------------
(Postal Code)
PLACE A "O"OR "X" IN THE SPACES PROVIDED BELOW TO INDICATE IF THE SUBSCRIBER IS
AN 'INSIDER' OF PINE VALLEY OR A MEMBER OF THE 'PRO GROUP' AS SUCH TERMS ARE
DEFINED IN THE POLICIES OF THE TSX VENTURE EXCHANGE.
Insider of Pine Valley [ ] Pro Group member [ ]
DISCLOSE HERE THE PURCHASER'S CURRENT DIRECT AND INDIRECT HOLDINGS OF SHARES IN
THE CAPITAL OF THE COMPANY BEFORE GIVE EFFECT TO THE PRESENT SUBSCRIPTION:
_____________________ SHARES.
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SUBSCRIPTION INSTRUCTIONS
1. Carefully review and consider the terms and conditions of this
Subscription Agreement.
2. If you wish to proceed with a subscription for Shares, then you must
complete all applicable portions of the Subscription Agreement, and
deliver a completed and executed copy of this Subscription Agreement to:
PINE VALLEY MINING CORPORATION
c/o Suite 3000
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
ATTENTION: ▇. ▇▇▇▇▇▇▇▇▇, PRESIDENT (Fax: ▇▇▇.▇▇▇.▇▇▇▇)
no later than noon (Vancouver time) on May 5, 2004.
3. Complete the face page of this Subscription Agreement, including the
sections requiring you to disclosed Insider and Pro Group Status, and your
current holdings of shares of the Company.
4. The Purchaser must complete, sign, and return with this Subscription
Agreement: (i) a completed accredited investor certificate in the form
attached as Schedule A to this Subscription Agreement;(ii) a
Representation Letter in the form attached as Schedule C to this
Subscription Agreement; and Exhibit 1 to Schedule C.
5. Corporate (non-individual) purchasers must either complete and return with
their Subscription Agreement a completed Form 4C TSX Venture Exchange
Corporate Placee Registration, a copy of which is attached as Schedule B
to this Subscription Agreement, or confirm to the Company that they
already have a current Form 4C on file with the TSX Venture Exchange and
provide a copy of such previously filed form.
6. Retain copies of all documents for your records.
WARNING: YOUR SUBSCRIPTION AGREEMENT MAY BE REJECTED AND YOU MAY BE EXCLUDED
FROM THIS PRIVATE PLACEMENT IF YOU FAIL TO PROPERLY COMPLETE AND RETURN YOUR
SUBSCRIPTION AGREEMENT AND ANY SUPPORTING DOCUMENTS REQUIRED IN CONNECTION WITH
YOUR SUBSCRIPTION.
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TO: PINE VALLEY MINING CORPORATION
AND TO: THE DIRECTORS THEREOF
1. SUBSCRIPTION. The undersigned (the "Purchaser") hereby tenders to Pine Valley
Mining Corporation (the "Company") this subscription offer which, upon
acceptance by the Company, will constitute an agreement of the Purchaser to
subscribe for, take up, purchase and pay for and, on the part of the Company, to
issue and sell to the Purchaser, the number of Shares (as defined below) set out
on page 1 hereof (the "Purchaser's Shares") at the price (the "Purchase Price")
of $0.90 per Share all on the terms and subject to the conditions set forth in
this Subscription Agreement (as defined below).
2. DEFINITIONS. In this Subscription Agreement, unless the context otherwise
requires:
(a) "Applicable Securities Laws" means, with respect to any jurisdiction or
person, the securities legislation, rules, policies, instruments,
notices and orders of such jurisdiction or applicable to that person,
as the case may be;
(b) "B.C. Accredited Investor" means a person who qualifies as an
"accredited investor" within the meaning of and as defined in
Multilateral Instrument 45-103 - Capital Raising Exemptions in effect
in British Columbia, and has signed and returned the certificate set
out at Schedule A to this Subscription Agreement;
(c) "business day" means a day on which the Exchange is open for trading;
(d) "Closing" means the completion of the Private Placement;
(e) "Closing Date" means May 11, 2004 or such other date as the Company may
determine provided such date is not prior to, or more than ten days
after, receipt by the Company of TSXV Conditional Acceptance, and
provided that such date must be no later than May 31, 2004;
(f) "Exchange" means the TSX Venture Exchange;
(g) "Exemptions" means the exemptions from the registration and prospectus
or equivalent requirements under Applicable Securities Laws;
(h) "Private Placement" means the offering and sale of the Shares pursuant
to the terms and conditions of this Subscription Agreement;
(i) "Purchaser" means the purchaser of Shares offered by the Company as
identified on the first page hereof;
(j) "Shares" means Common shares without par value in the capital of the
Company (and each one is referred to herein as a "Share");
(k) "Subscription Agreement" means this subscription agreement between the
Purchaser and the Company in respect of the purchase and sale of Shares
and includes all schedules attached hereto, as they may be amended or
supplemented from time to time; and
(l) "TSXV Conditional Acceptance" means acceptance by the Exchange of the
Private Placement, subject to filing copies of relevant documents and
paying applicable fees.
3. PURCHASER'S REPRESENTATIONS AND WARRANTIES. The Purchaser represents and
warrants to the Company, as representations and warranties that are true as of
the date of this offer and will be true as of the date of this Subscription
Agreement and as of the Closing Date, that:
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(a) if an individual, the Purchaser 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 Purchaser;
(b) if the Purchaser is not an individual, then:
(i) the Purchaser is a valid and subsisting corporation and is in
good standing under the laws of the jurisdiction of its
incorporation;
(ii) the Purchaser has the 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 Purchaser and is a legal, valid and binding
obligation of the Purchaser, enforceable against the Purchaser;
and
(iv) the execution and delivery of this Subscription Agreement by the
Purchaser will not result in the violation of, or constitute a
default under, or conflict with or cause the acceleration of any
obligation of the Purchaser under (A) any contract to which the
Purchaser is a party or by which it is bound; (B) any provision
of the constating documents of the Purchaser; or (C) any
judgment, decree, order or award of any court, government body
or arbitrator having jurisdiction over the Purchaser;
(c) RESIDENCE. The Purchaser is a resident of the Province of Ontario.
(d) GENERAL PURCHASER QUALIFICATIONS. Regardless of the Purchaser's
jurisdiction of residence, the Purchaser is a B.C. Accredited Investor
(Note: a resident of any jurisdiction may qualify as a "B.C. Accredited
Investor" See the definition of "B.C. Accredited Investor" above and
the requirements in Schedule A.);
(e) ONTARIO PURCHASER QUALIFICATIONS. The Purchaser is resident in or
otherwise subject to applicable securities laws of Ontario, it is an
"accredited investor" as defined in Ontario Securities Commission Rule
45-501 entitled "Exempt Distributions" promulgated under the Securities
Act (Ontario), and has concurrently executed and delivered a
Representation Letter in the form attached as Schedule C to this
Subscription Agreement and has initialled in Exhibit 1 thereto
indicating that the Purchaser satisfies one of the categories of
"accredited investor" set forth in such definition;
(f) ABSENCE OF ADVERTISEMENT. The offer and sale to the Purchaser of the
Purchaser's Shares was not made through an advertisement of the Shares
in printed media of general and regular paid circulation, radio or
television or any other form of advertisement;
(g) NO UNDISCLOSED INFORMATION. The Purchaser's Shares are not being
purchased by the Purchaser as a result of any material information
concerning the Company that has not been publicly disclosed, and the
Purchaser's decision to tender this offer and acquire the Purchaser's
Shares has not been made as a result of any verbal or written
representation as to fact or otherwise made by or on behalf of the
Company or any other person, but is based entirely upon currently
available public information concerning the Company.
(h) INVESTMENT SUITABILITY. The Purchaser, and any beneficial purchaser for
whom or which it is acting has such knowledge and experience in
financial and business affairs as to be capable of evaluating the
merits and risks of the investment hereunder in the Purchaser's Shares
and is able to bear the economic risk of loss of such investment.
4. RELIANCE UPON REPRESENTATIONS AND WARRANTIES. The Purchaser acknowledges that
the foregoing representations and warranties are made by it with the intent that
they may be relied upon by the Company and its legal counsel in determining its
eligibility or (if applicable) the eligibility of others on whose behalf it is
contracting hereunder to purchase Shares under Applicable Securities Laws. The
Purchaser further agrees that, by accepting the Purchaser's Shares, at the
Closing, it will be representing and warranting that the foregoing
representations and warranties are true as at the Closing and will survive the
completion of the sale of the Purchaser's Shares. The Company and its legal
counsel will be entitled to rely on the representations and warranties of the
Purchaser contained herein.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. By accepting this offer the
Company represents and warrants to the Purchaser as follows:
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(a) the Company has been duly incorporated and organized and is a valid and
subsisting Company under the laws of the Province of British Columbia,
and is duly qualified to carry on business in the Province of British
Columbia and in each other jurisdiction, if any, wherein the carrying
out of the activities contemplated makes such qualifications necessary;
(b) the Company is a reporting issuer under the securities laws of each of
British Columbia and Alberta;
(c) the Shares will, upon issue and delivery, be validly issued as fully
paid and non-assessable;
(d) the Company has filed all forms, reports, documents and information
required to be filed by it, whether pursuant to Applicable Securities
Laws or otherwise, with the Exchange (or one of its predecessors) or
the applicable securities regulatory authorities (the "Disclosure
Documents")
(e) as of the time the Disclosure Documents were filed with the applicable
securities regulators and on SEDAR (System for Electronic Document
Analysis and Retrieval) (or, if amended or superseded by a filing prior
to the date of this Subscription Agreement, then on the date of such
filing): (i) each of the Disclosure Documents complied in all material
respects with the requirements of the Applicable Securities Laws; and
(ii) none of the Disclosure Documents contained any untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(f) the financial statements of the Company contained in the Disclosure
Documents: (i) complied as to form in all material respects with the
published rules and regulations under the Applicable Securities Laws;
(ii) were reported in accordance with Canadian generally accepted
accounting principles applied on a basis consistent with that of the
preceding periods; and (iii) present fairly the consolidated financial
position of the Company and its subsidiaries, if any, as of the
respective dates thereof and the consolidated results of operations of
the Company and its subsidiaries, if any, for the periods covered
thereby;
(g) the outstanding Shares are listed and posted for trading on the
Exchange;
(h) the Company has the corporate capacity and authority to execute and
deliver this Subscription Agreement and to observe and perform its
obligations hereunder;
(i) the Company has taken all necessary corporate action to authorize the
execution, delivery and performance of this Subscription Agreement,
and, upon acceptance by the Company, this Subscription Agreement will
be a legal, valid and binding obligation of the Company enforceable
against the Company;
(j) no order to cease trading in the securities of the Company, nor
prohibiting the sale of such securities, is in effect against the
Company or its directors, officers or promoters, and to the best of the
Company's knowledge no investigations or proceedings for such purposes
are pending or threatened that might give rise to such an order;
(k) there is no ongoing action, suit, proceeding, or claim, nor, to the
best of the Company's knowledge, is there any application, complaint or
investigation pending or threatened, before any court, regulatory body,
governmental or non-governmental body against the Company, and the
Company is not subject to any judgment, order, writ, injunction, decree
or award of any governmental authority to which it is subject; and
(l) the Company has not made an assignment in bankruptcy nor has a receiver
been appointed in respect of the Company's assets, and, to the best of
the Company's knowledge, no proceedings have been commenced against the
Company or are threatened to be commenced, that could result in the
Company making an assignment in bankruptcy or a receiver being
appointed in respect of the Company's assets.
6. RELIANCE UPON REPRESENTATIONS, AND WARRANTIES. The Company acknowledges that
the foregoing representations and warranties are made by it with the intent that
they may be relied upon by the Purchaser. The Company further agrees that, at
the Closing, it will be representing and warranting that the foregoing
representations and warranties are true as at the Closing and will survive the
completion of the sale of the Purchaser's Shares. The Purchaser will be
6
entitled to rely on the representations and warranties of the Company contained
herein and the Company will indemnify and hold harmless the Purchaser and its
legal counsel for any losses, claims, costs, expenses, damages or liabilities
they may suffer or incur which are caused by or arise from, directly or
indirectly, their reliance thereon.
7. ACKNOWLEDGEMENTS AND COVENANTS OF THE PURCHASER. The Purchaser hereby
acknowledges and agrees that:
(a) this subscription is irrevocable, unconditional and non-transferable;
(b) no prospectus has been filed by the Company with any of the securities
regulatory authorities of Canada or the United States or in any
International Jurisdiction in connection with the issuance of the
Purchaser's Shares, no securities commission or similar regulatory
authority has reviewed or passed on the merits of the Shares, and there
is no government or other insurance covering the Shares;
(c) the Shares are being offered in reliance on Exemptions and, as a result
of the Purchaser acquiring the Shares pursuant to those same
Exemptions:
(i) certain protections rights and remedies provided by the
Applicable Securities Laws, including statutory rights of
rescission or damages, will not be available to the Purchaser;
(ii) the Purchaser may not receive information that might otherwise
be required to be provided to the Purchaser under Applicable
Securities Laws; and
(iii) the Company is relieved from certain obligations that would
otherwise apply under Applicable Securities Laws;
(d) the Purchaser will notify the Company immediately of any change in any
representation, warranty or other information relating to the Purchaser
set forth herein which takes place prior to the Closing;
(e) Bull, Housser & ▇▇▇▇▇▇ has acted as legal counsel to the Company in
connection with this Subscription Agreement and has not acted for the
Purchaser, and the Purchaser is, in no way, relying on any advice
sought from or given by Bull, Housser & ▇▇▇▇▇▇ in connection with this
Subscription Agreement;
(f) the Purchaser is responsible for obtaining such legal advice as the
Purchaser considers appropriate in connection with the execution,
delivery and performance by the Purchaser of this Subscription
Agreement and the transactions contemplated hereby;
(g) the Purchaser has conducted its own investigation with respect to the
Company and the Shares and has received all information that it
believes is necessary or appropriate in connection with its purchase of
the Shares;
(h) there are risks associated with the purchase of the Shares; and
(i) the Company may make a notation on its records or give instructions to
any transfer agent of the Shares in order to implement the restrictions
on transfer set forth and described herein.
8. COVENANTS OF THE COMPANY. The Company covenants and agrees with the Purchaser
as follows:
(a) the Company will take all steps reasonably necessary to obtain the
final consent of the Exchange to the Private Placement and will comply
with all other regulatory requirements, requirements of the Exchange
and requirements of all Applicable Securities Laws to the offering and
sale of Shares to the Purchaser on a "private placement" basis as
contemplated hereby; and
(b) the Company will promptly comply with all filing and other requirements
of Applicable Securities Laws.
9. RESALE RESTRICTIONS. The Purchaser understands and acknowledges that the
Purchaser's Shares will be subject to certain resale restrictions under
Applicable Securities Laws, and that certificates representing the Shares will
bear certain legends to that effect. The Purchaser also acknowledges that it has
been advised to consult its own legal advisors with
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respect to applicable resale restrictions and that it is solely responsible (and
the Company is not in any manner responsible) for complying with such
restrictions.
10. PAYMENT OF PURCHASE PRICE. Concurrent with the delivery of the certificates
representing the Purchaser's Shares, the Purchaser will deliver to the Company
or its agent, in Canadian funds, the aggregate Purchase Price for the
Purchaser's Shares in the form of a bank draft or certified cheque.
11. EXPENSES. The Purchaser will be responsible for its own expenses incurred in
connection with the issue and sale of the Purchaser's Shares.
12. CLOSING OF PURCHASE. The Closing will be completed by the Purchaser paying
the aggregate Purchase Price in accordance with Section 10. Coincident with
receipt of the aggregate Purchase Price delivered in accordance with this
Subscription Agreement, the Company will deliver to the Purchaser the
certificates representing the Purchaser's Shares registered in accordance with
the Purchaser's written instructions. The Purchaser acknowledges that
participation in the offering is subject to the acceptance of this Subscription
Agreement by the Company, the bank draft or certified cheque, as applicable,
representing payment of the Purchase Price for the Purchaser's Shares being
honoured upon presentation for payment, and TSXV Conditional Acceptance.
13. FURTHER ASSURANCES. The Purchaser will, promptly upon request by the
Company, provide the Company with such information and execute and deliver to
the Company such additional undertakings, questionnaires and other documents as
the Company may request in connection with the issue and sale of the Shares. The
Purchaser acknowledges and agrees that such undertakings, questionnaires and
other documents, when executed and delivered by the Purchaser, will form part of
and will be incorporated into this Subscription Agreement with the same effect
as if each constituted a representation and warranty or covenant of the
Purchaser hereunder in favour of the Company. The Purchaser consents to the
filing of such undertakings, questionnaires and other documents as may be
required to be filed with any stock exchange or securities regulatory authority
in connection with the transactions contemplated hereby.
14. INDEMNITY. The Purchaser agrees to indemnify and hold harmless the Company
and its respective directors, officers, employees, advisers and shareholders
from and against any and all loss, liability, claim, damage and expense
whatsoever (including, but not limited to, any and all fees, costs and expenses
whatsoever reasonably incurred in investigating, preparing or defending against
any claim, law suit, administrative proceeding or investigation whether
commenced or threatened) arising out of or based upon any representation or
warranty of the Purchaser contained herein or in any document furnished by the
Purchaser to the Company in connection herewith being untrue in any material
respect or any breach or failure by the Purchaser to comply with any covenant or
agreement made by the Purchaser herein or in any document furnished by the
Purchaser to the Company in connection herewith.
15. MODIFICATION. Neither this Subscription Agreement, nor any provision hereof,
will be modified, changed, discharged or terminated except by an instrument in
writing signed by the party against whom any waiver, change, discharge or
termination is sought.
16. ASSIGNMENT. Neither party will be permitted to assign this Subscription
Agreement, nor any rights or obligations hereunder, without the prior written
consent of the other party hereto. Any purported assignment without such consent
is not binding or enforceable against any party hereto.
17. TIME OF THE ESSENCE. Time will be of the essence of each provision of this
Subscription Agreement. If TSXV Conditional Acceptance has not been received
from the Exchange within 10 days from the date of acceptance hereof by the
Company, notwithstanding the other provisions of this Subscription Agreement, or
the Closing does not occur by the latest Closing Date permitted by the terms of
this Subscription Agreement, then this Subscription Agreement will be deemed to
have terminated and will be of no further force and effect.
18. MISCELLANEOUS. The agreement resulting from the acceptance of this offer by
the Company contains the whole agreement between the Company and the Purchaser
in respect of the subject matter hereof and there are no warranties,
representations, terms, conditions or collateral agreements, express, implied or
statutory, other than as expressly set forth herein and in any amendments
hereto. This Subscription Agreement may be executed in any number of
counterparts, each of which when delivered, either in original or facsimile
form, will be deemed to be an original and all of which together will constitute
one and the same document.
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19. ENUREMENT. This Subscription Agreement enures to the benefit of and binds
the parties and their respective heirs, executors, administrators, successors
and permitted assigns.
20. CURRENCY. Except as otherwise specifically provided, all references in this
Subscription Agreement to amounts of money are expressed in Canadian dollars.
21. DELIVERY BY FAX. Any party may deliver an executed copy of this Subscription
Agreement by fax but that party will immediately dispatch by delivery in person
to the other parties an originally executed copy of this Subscription Agreement.
22. SEVERABILITY. Each provision of this Subscription Agreement is several. If
any provision of this Subscription Agreement is or becomes illegal, invalid or
unenforceable in any jurisdiction, the illegality, invalidity or
unenforceability of that provision will not affect: (a) the legality, validity
or enforceability of the remaining provisions of this Subscription Agreement, or
(b) the legality, validity or enforceability of that provision in any other
jurisdiction, except that if: (c) on the reasonable construction of this
Subscription Agreement as a whole, the applicability of the other provision
presumes the validity and enforceability of the particular provision, the other
provision will be deemed also to be invalid or unenforceable, and (d) as a
result of the determination by a court of competent jurisdiction that any part
of this Subscription Agreement is unenforceable or invalid and, as a result of
this Section, the basic intentions of the parties in this Subscription Agreement
are entirely frustrated, the Company and the Purchaser will use all reasonable
efforts to amend, supplement or otherwise vary this Subscription Agreement to
confirm their mutual intention in entering into this Subscription Agreement.
23. GOVERNING LAW AND VENUE. This Subscription Agreement, any amendment,
addendum or supplement hereto, and all other documents relating hereto will be
governed by and construed in accordance with the laws of the Province of British
Columbia, and the federal laws of Canada applicable therein, governing contracts
made and to be performed wholly therein, and without reference to its principles
governing the choice or conflict of laws. The parties hereto irrevocably attorn
and submit to the exclusive jurisdiction of the courts of the Province of
British Columbia, sitting in the City of Vancouver, with respect to any dispute
related to or arising from this Subscription Agreement.
IN WITNESS WHEREOF the undersigned has executed this Subscription Agreement on
this ______ day of _________________________, 2004.
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Signature of Purchaser Name of Purchaser
(if an individual) (if not an individual)
Per:
------------------------------------- ----------------------------------
Name of Purchaser (if an individual) Authorized Signatory
----------------------------------
Title
9
ACCEPTANCE
The Company hereby accepts the above subscription and the Company warrants and
covenants to the Purchaser that the representations and warranties made by the
Company in this Subscription Agreement are true and correct in all material
respects as of this date and that the Purchaser will have the benefit of and be
entitled to rely on such representations and warranties.
DATED this ____ day of _____________, 2004.
PINE VALLEY MINING CORPORATION
Per:
------------------------------------
Authorized Signing Officer
SCHEDULE A
CERTIFICATE OF ACCREDITED INVESTOR (BRITISH COLUMBIA / ALBERTA)
In connection with the purchase of Shares of Pine Valley Mining Corporation (the
"Company"), the undersigned Purchaser hereby represents, warrants and certifies
to the Company that the Purchaser is an accredited investor within the meaning
of Multilateral Instrument 45-103 - Capital Raising Exemptions in effect in
British Columbia and Alberta in the category indicated below:
[▇▇▇▇ appropriate box]
[ ] (a) a Canadian financial institution, or an authorized foreign bank
listed in Schedule III of the Bank Act (Canada);
[ ] (b) the Business Development Bank of Canada incorporated under the
Business Development Bank of Canada Act (Canada);
[ ] (c) an association under the Cooperative Credit Associations Act
(Canada) located in Canada;
[ ] (d) a subsidiary of any person or company referred to in paragraphs (a)
to (c), if the person or company owns all of the voting securities
of the subsidiary, except the voting securities required by law to
be owned by directors of that subsidiary;
[ ] (e) a person or company registered under the securities legislation of a
jurisdiction of Canada as an adviser or dealer, other than a limited
market dealer registered under the Securities Act (Ontario) or the
Securities Act (Newfoundland and Labrador);
[ ] (f) an individual registered or formerly registered under the securities
legislation, or under the securities legislation of another
jurisdiction of Canada, as a representative of a person or company
referred to in paragraph (e);
[ ] (g) the government or Canada or a province, or any crown corporation or
agency of the government of Canada or a province;
[ ] (h) a municipality, public board or commission in Canada;
[ ] (i) any national, federal, state, provincial, territorial or municipal
government of or in any foreign jurisdiction, or any instrumentality
or agency of that government;
[ ] (j) a pension fund that is regulated by either the Office of the
Superintendent of Financial Institutions (Canada) or a provincial
pension commission or similar regulatory authority;
[ ] (k) a registered charity under the Income Tax Act (Canada);
[ ] (l) an individual who, either alone or jointly with a spouse,
beneficially owns, directly or indirectly, financial assets(1)
having an aggregate realizable value that before taxes, but net of
any related liabilities, exceeds $1,000,000;
[ ] (m) an individual whose net income before taxes exceeded $200,000 in
each of the two most recent years or whose net income before taxes
combined with that of a spouse exceeded $300,000 in each of the two
most recent years and who, in either case, reasonably expects to
exceed that net income level in the current year;
[ ] (n) a corporation, limited partnership, limited liability partnership,
trust or estate, other than a mutual fund or non-redeemable
investment fund, that had net assets of at least $5,000,000 as shown
on its most recently prepared financial statements;
[ ] (o) a mutual fund or non-redeemable investment fund that, in the local
jurisdiction, distributes its securities only to persons or
companies that are accredited investors;
[ ] (p) a mutual fund or non-redeemable investment fund that, in the local
jurisdiction, distributes its securities under a prospectus for
which the regulator has issued a receipt;
[ ] (q) an entity organized in a foreign jurisdiction that is analogous to
any of the entities referred to in paragraphs (a) through (e) and
paragraph (j) in form and function; or
[ ] (r) a person or company in respect of which all of the owners of
interests, direct or indirect, legal or beneficial, are persons or
companies that are accredited investors.
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1 Financial assets means cash and securities.
The Purchaser acknowledges that the Company is relying on this
Certificate to determine its suitability as a purchaser of Shares of the
Company. The Purchaser agrees that the representations and warranties contained
herein will survive any issuance of the Shares.
Certified this _____________ day of _______________________, 2004.
Purchaser:
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Signature:
------------------------------
Name and Title of Signatory
(if applicable)
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SCHEDULE B
[LOGO - TSX VENTURE EXCHANGE]
FORM 4C
CORPORATE PLACEE REGISTRATION FORM
Where subscribers to a Private Placement are not individuals, the following
information about the placee must be provided. This Form will remain on file
with the Exchange. The corporation, trust, portfolio manager or other entity
(the "Placee") need only file it on one time basis, and it will be referenced
for all subsequent Private Placements in which it participates. If any of the
information provided in this Form changes, the Placee must notify the Exchange
prior to participating in further placements with Exchange listed companies. If
as a result of the Private Placement, the Placee becomes an Insider of the
Issuer, Insiders of the Placee are reminded that they must file a Personal
Information Form (2A) or, if applicable, Declarations, with the Exchange.
1. Placee Information:
(a) Name:
----------------------------------------------------------
(b) Complete Address:
------------------------------------------------------------
------------------------------------------------------------
(c) Jurisdiction of Incorporation or Creation:
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2. (a) Is the Placee purchasing securities as a portfolio manager
(Yes/No)? __________
(b) Is the Placee carrying on business as a portfolio manager outside of
Canada (Yes/No)? __________
3. If the answer to 2(b) above was "Yes", the undersigned certifies that:
(a) It is purchasing securities of an Issuer on behalf of managed
accounts for which it is making the investment decision to purchase
the securities and has full discretion to purchase or sell
securities for such accounts without requiring the client's express
consent to a transaction;
(b) it carries on the business of managing the investment portfolios of
clients through discretionary authority granted by those clients (a
"portfolio manager" business) in ____________________
[jurisdiction], and it is permitted by law to carry on a portfolio
manager business in that jurisdiction;
(c) it was not created solely or primarily for the purpose of purchasing
securities of the Issuer;
(d) the total asset value of the investment portfolios it manages on
behalf of clients is not less than $20,000,000; and
(e) it has no reasonable grounds to believe, that any of the directors,
senior officers and other insiders of the Issuer, and the persons
that carry on investor relations activities for the Issuer has a
beneficial interest in any of the managed accounts for which it is
purchasing
4. If the answer to 2(a). above was "No", please provide the names and
addresses of control persons of the Placee:
NAME CITY PROVINCE OR STATE COUNTRY
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The undersigned acknowledges that it is bound by the provisions of applicable
Securities Law, including provisions concerning the filing of insider reports
and reports of acquisitions (See for example, sections 87 and 111 of the
Securities Act (
British Columbia) and sections 176 and 182 of the Securities Act
(Alberta).
ACKNOWLEDGEMENT - PERSONAL INFORMATION
"Personal Information" means any information about an identifiable individual,
and includes information contained in sections 1, 2 and 4, as applicable, of
this Form.
The undersigned hereby acknowledges and agrees that it has obtained the express
written consent of each individual to:
(a) the disclosure of Personal Information by the undersigned to the Exchange
(as defined in Appendix 6B) pursuant to this Form; and
(b) the collection, use and disclosure of Personal Information by the Exchange
for the purposes described in Appendix 6B or as otherwise identified by
the Exchange, from time to time.
Dated at on .
-------------------------------- -------------------------------
-----------------------------------------
(Name of Purchaser - please print)
-----------------------------------------
(Authorized Signature)
-----------------------------------------
(Official Capacity - please print)
-----------------------------------------
(please print name of individual whose
signature appears above)
THIS IS NOT A PUBLIC DOCUMENT
SCHEDULE C
REPRESENTATION LETTER
(FOR ONTARIO ACCREDITED INVESTORS)
TO:
PINE VALLEY MINING CORPORATION (THE "COMPANY")
In connection with the purchase of common shares ("SHARES") of the Company by
the undersigned subscriber or, if applicable, the principal on whose behalf the
undersigned is purchasing as agent (the "SUBSCRIBER" for the purposes of this
Schedule C), the Subscriber hereby represents, warrants, covenants and certifies
to the Company that:
1. The Subscriber is resident in Ontario or is otherwise subject to applicable
securities laws of the Province of Ontario;
2. The Subscriber is purchasing the Shares as principal for its own account;
3. The Subscriber is an "accredited investor" within the meaning of Ontario
Securities Commission Rule 45-501 promulgated under the Securities Act (Ontario)
by virtue of satisfying the indicated criterion as set out in Exhibit 1 to this
Representation Letter; and
4. Upon execution of this Schedule C by the Subscriber, this Schedule C will be
incorporated into and form a part of the Subscription Agreement.
Dated: _______________________, 2004
Print name of Subscriber
By:
-------------------------------------
Signature
-----------------------------------------
Print name of Signatory (if different
from Subscriber)
-----------------------------------------
Title
IMPORTANT: PLEASE INITIAL THE APPLICABLE PROVISION IN
EXHIBIT 1 ON THE NEXT PAGES
EXHIBIT 1
TO SCHEDULE C
NOTE: THE SUBSCRIBER MUST INITIAL BESIDE THE APPLICABLE PORTION OF THE
DEFINITION BELOW.
ACCREDITED INVESTOR - (defined in Ontario Securities Commission Rule 45-501)
means:
______ (a) a bank listed in Schedule I or II of the Bank Act (Canada), or an
authorized foreign bank listed in Schedule III of the Bank Act
(Canada);
______ (b) the Business Development Bank incorporated under the Business
Development Bank Act (Canada);
______ (c) a loan corporation or trust corporation registered under the Loan
and Trust Corporations Act (Ontario) or under the Trust and Loan
Companies Act (Canada), or under comparable legislation in any other
jurisdiction;
______ (d) a co-operative credit society, credit union central, federation of
caisses populaires, credit union or league, or regional caisse
populaire, or an association under the Cooperative Credit
Associations Act (Canada), in each case, located in Canada;
______ (e) a company licensed to do business as an insurance company in any
jurisdiction;
______ (f) a subsidiary entity of any person or company referred to in
paragraph (a), (b), (c), (d) or (e), where the person or company
owns all of the voting shares of the subsidiary entity;
______ (g) a person or company registered under the Securities Act (Ontario) or
securities legislation in another jurisdiction as an adviser or
dealer, other than a limited market dealer;
______ (h) the government of Canada or of any jurisdiction, or any crown
corporation, instrumentality or agency of a Canadian federal,
provincial or territorial government;
______ (i) any Canadian municipality or any Canadian provincial or territorial
capital city;
______ (j) any national, federal, state, provincial, territorial or municipal
government of or in any foreign jurisdiction, or any instrumentality
or agency thereof;
______ (k) a pension fund that is regulated by either the Office of the
Superintendent of Financial Institutions (Canada) or a provincial
pension commission or similar regulatory authority;
______ (l) a registered charity under the Income Tax Act (Canada);
______ (m) an individual who beneficially owns, or who together with a spouse
beneficially own, financial assets having an aggregate realizable
value that, before taxes but net of any related liabilities, exceeds
$1,000,000;
______ (n) an individual whose net income before taxes exceeded $200,000 in
each of the two most recent years or whose net income before taxes
combined with that of a spouse exceeded $300,000 in each of those
years and who, in either case, has a reasonable expectation of
exceeding the same net income level in the current year;
______ (o) an individual who has been granted registration under the Securities
Act (Ontario) or securities legislation in another jurisdiction as a
representative of a person or company referred to in paragraph (g),
whether or not the individual's registration is still in effect;
______ (p) a promoter of the issuer or an affiliated entity of a promoter of
the issuer;
______ (q) a spouse, parent, brother, sister, grandparent or child of an
officer, director or promoter of the issuer;
______ (r) a person or company that, in relation to the issuer, is an
affiliated entity or a person or company referred to in clause (c)
of the definition of distribution in subsection 1(1) of the
Securities Act (Ontario);
______ (s) an issuer that is acquiring securities of its own issue;
______ (t) a company, limited liability company, limited partnership, limited
liability partnership, trust or estate, other than a mutual fund or
non-redeemable investment fund, that had net assets of at least
$5,000,000 as reflected in its most recently prepared financial
statements;
______ (u) a person or company that is recognized by the Ontario Securities
Commission as an accredited investor;
______ (v) a mutual fund or non-redeemable investment fund that, in Ontario,
distributes its securities only to persons or companies that are
accredited investors;
______ (w) a mutual fund or non-redeemable investment fund that, in Ontario,
distributes its securities under a prospectus for which a receipt
has been granted by the Director (as defined in the Securities Act
(Ontario)), or, if it has ceased distribution of its securities, has
previously distributed its securities in this manner;
______ (x) a fully managed account if it is acquiring a security that is not a
security of a mutual fund or non-redeemable investment fund;
______ (y) an account that is fully managed by a trust corporation registered
under the Loan and Trust Corporations Act (Ontario) or under the
Trust and Loan Companies Act (Canada), or under comparable
legislation in any other jurisdiction;
______ (z) an entity organized outside of Canada that is analogous to any of
the entities referred to in paragraphs (a) through (g) and paragraph
(k) in form and function; or
______ (aa) a person or company in respect of which all of the owners of
interests, direct or indirect, legal or beneficial, are persons or
companies that are accredited investors.
NOTE: THE SUBSCRIBER MUST INITIAL BESIDE THE APPLICABLE PORTION OF THE ABOVE
DEFINITION.
FOR THE PURPOSES OF THIS SCHEDULE C (INCLUDING EXHIBIT 1):
(a) "COMPANY" means any corporation, incorporated association, incorporated
syndicate or other incorporated organization;
(b) "CONTROL PERSON" means any person, company or combination of persons or
companies holding a sufficient number of any securities of the issuer to affect
materially the control of the issuer, but any holding of any person, company or
combination of persons or companies holding more than 20% of the outstanding
voting securities of the issuer, in the absence of evidence to the contrary,
will be deemed to affect materially the control of the issuer;
(c) "DIRECTOR" where used in relation to a person, includes a person acting in a
capacity similar to that of a director of a company;
(d) "ENTITY" means a company, syndicate, partnership, trust or unincorporated
organization;
(e) "FINANCIAL ASSETS" means cash, securities, or any contract of insurance or
deposit or evidence thereof that is not a security for the purposes of the
Securities Act (Ontario);
(f) "FOREIGN JURISDICTION" means a country other than Canada or a political
subdivision of a country other than Canada;
(g) "FULLY MANAGED ACCOUNT" means an investment portfolio account of a client
established in writing with a portfolio advisor who makes investment decisions
for the account and has full discretion to trade in securities of the account
without requiring the client's express consent to a transaction;
(h) "INDIVIDUAL" means a natural person, but does not include a partnership,
unincorporated association, unincorporated syndicate, unincorporated
organization, trust, or a natural person in his or her capacity as trustee,
executor, administrator or other legal personal representative;
(i) "JURISDICTION" means a province or territory of Canada except where used in
the term "foreign jurisdiction";
(j) "MUTUAL FUND" includes (i) an issuer, (x) whose primary purpose is to invest
money provided by its security holders, and (y) whose securities entitle the
holder to receive on demand, or within a specified period after demand, an
amount computed by reference to the value of a proportionate interest in the
whole or in a part of the net assets, including a separate fund or trust
account, of the issuer, or (ii) an issuer or class of issuers that is designated
as a mutual fund by an order of the Ontario Securities Commission in the case of
a single issuer or otherwise in a regulation which is made for the purposes of
this definition, but does not include an issuer or a class of issuer that is
designated not to be a mutual fund by an order of the Ontario Securities
Commission in the case of a single issuer or otherwise in a regulation which is
made for the purposes of the definition of "mutual fund" under the Securities
Act (Ontario);
(k) "NON-REDEEMABLE INVESTMENT FUND" means an issuer:
(i) whose primary purpose is to invest money provided by its
securityholders;
(ii) that does not invest for the purpose of exercising effective control,
seeking to exercise effective control, or being actively involved in the
management of the issuers in which it invests, other than other mutual
funds or non-redeemable investment funds; and
(iii) that is not a mutual fund;
(l) "OFFICER" means the chair, any vice-chair of the board of directors, the
president, any vice president, the secretary, the assistant secretary, the
treasurer, the assistant treasurer, and the general manager of a company, and
any other person designated an officer of a company by by-law or similar
authority, or any individual acting in a similar capacity on behalf of an issuer
or registrant;
(m) "PERSON" means an individual, partnership, unincorporated association,
unincorporated syndicate, unincorporated organization, trust, trustee, executor,
administrator, or other legal representative;
(n) "PORTFOLIO ADVISER" means
(i) a portfolio manager; or
(ii) a broker or investment dealer exempted from registration as an
adviser under subsection 148(1) of the Regulation made under the
Securities Act (Ontario) if that broker or investment dealer is not exempt
from the by-laws or regulations of the Toronto Stock Exchange or the
Investment Dealers' Association of Canada referred to in that subsection;
(o) "PORTFOLIO MANAGER" means an adviser registered for the purpose of managing
the investment portfolio of clients through discretionary authority granted by
the clients;
(p) "PROMOTER" means (i) a person or company who, acting alone or in conjunction
with one or more other persons, companies or a combination thereof, directly or
indirectly, has taken the initiative in founding, organizing or substantially
reorganizing the business of the issuer, or (ii) a person or company who, in
connection with the founding, organizing or substantial reorganizing of the
business of the issuer, directly or indirectly, receives in consideration of
services or property, or both services and property, 10% or more of any class of
securities of the issuer or 10% or more of the proceeds from the sale of any
class of securities of a particular issue, but a person or company who receives
such securities or proceeds either solely as underwriting commissions or solely
in consideration of property will not be deemed a promoter within the meaning of
the definition of "promoter" under the Securities Act (Ontario) if such person
or company does not otherwise take part in founding, organizing or substantially
reorganizing the business;
(q) "RELATED LIABILITIES" means liabilities incurred or assumed for the purpose
of financing the acquisition or ownership of financial assets and liabilities
that are secured by financial assets; and
(r) "SPOUSE", in relation to an individual, means another individual to whom
that individual is married, or another individual of the opposite sex or the
same sex with whom that individual is living in a conjugal relationship outside
marriage.
AFFILIATED ENTITIES
(a) A person or company is considered to be an affiliated entity of another
person or company if one is a subsidiary entity of the other, or if both are
subsidiary entities of the same person or company, or if each of them is
controlled by the same person or company.
CONTROL
(b) A person or company is considered to be controlled by a person or company
if: (i) in the case of a person or company, (x) voting securities of the first
mentioned person or company carrying more than 50% of the votes for the election
of directors are held, otherwise than by way of security only, by or for the
benefit of, the other person or company, and (y) the votes carried by the
securities are entitled, if exercised, to elect a majority of the directors of
the first-mentioned person or company, (ii) in the case of a partnership that
does not have directors, other than a limited partnership, the second-mentioned
person or company holds more than 50% of the interests in the partnership; or
(iii) in the case of a limited partnership, the general partner is the
second-mentioned person or company.
SUBSIDIARIES
(a) A person or company is considered to be a subsidiary entity of another
person or company if: (i) it is controlled by, (x) that other, or (y) that other
and one or more persons or companies each of which is controlled by that other,
or (z) two or more persons or companies, each of which is controlled by that
other, or (ii) it is a subsidiary entity of a person or company that is the
other's subsidiary entity.
All monetary references are in Canadian Dollars.
