SUBSCRIPTION AGREEMENT FOR FLOW-THROUGH SHARES
CANADA
- AB, BC, MB, ON, SK
INSTRUCTIONS:
To
properly complete this Subscription Agreement:
(1)
|
All
subscribers must complete all boxes on this face page and page 2
to this
face page and sign this face page.
|
(2)
|
All
subscribers must complete and sign Exhibit 1.
|
(3)
|
If
the subscriber is a
fully managed account,
please complete the "Name of Subscriber" below in the following format:
"Account____ by [insert name of adviser, trust company or trust
corporation]".
|
(4)
|
All
completed documents should be returned to TD Securities Inc.,
00
Xxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxx Xxxxxx; Telephone (000) 000-0000; Fax (000) 000-0000;
E-mail - xxxx.xxxxxx@xxxxxxxxxxx.xxx, no
later than June 30, 2006.
|
This
agreement is comprised of 12 pages (not including Exhibit
1).
TO:
|
CanWest
Petroleum Corporation (the "Corporation")
|
AND
TO:
|
Oilsands
Quest Inc. ("OQI")
|
AND
TO:
|
TD
Securities Inc., CIBC World Markets Inc., X. X. Xxxxxx & Company Ltd.
and Xxxxxx & Co. Limited (collectively, the
"Agents")
|
The
undersigned (hereinafter referred to as the "Subscriber")
hereby irrevocably subscribes for and agrees to purchase the number of common
shares of the Corporation to be issued on a "flow-through" basis pursuant to
the
Income
Tax Act
(Canada) ("Flow-Through
Shares")
set forth below for the aggregate subscription price set forth below (the
"Aggregate
Flow-Through Subscription Price"),
representing a subscription price of $6.60 per Flow-Through Share, upon and
subject to the adjustments, terms and conditions set forth in "Terms and
Conditions of Subscription for Flow-Through Shares of CanWest Petroleum
Corporation" attached hereto (together with the face pages and Exhibit 1 hereto,
the "Subscription
Agreement").
(Name
of Subscriber - please print)
By:
(Authorized Signature) (Official Capacity or Title - please print) (Please
print name of individual whose signature appears
above
if different than the name of the subscriber printed
above.)
(Subscriber's Address) (Telephone
Number)
(Email Address)
(Social
Insurance Number, Federal Corporate Tax Account
Number
or Tax Shelter ID Number)
|
Number
of Flow-Through Shares:
|
|
Aggregate
Flow-Through Subscription Price:
|
||
If
the Subscriber is signing as agent for a principal pursuant to
paragraph
6(f), complete the following and ensure that Exhibit 1 is completed
in respect of each such principal:
(Name
of Principal)
(Principal's Address) (Principal's
Social Insurance Number, Federal
Corporate Tax
Accnount
Number or Tax Shelter ID
Number)
|
||
Register
the Flow-Through Shares as set forth below:
(Name) (Account reference, if applicable) (Address) |
Deliver
the Flow-Through Shares as set forth below:
(Name)
(Account reference, if applicable) (Contact Name) (Address)
|
(SUBSCRIBERS
MUST ALSO COMPLETE THE SECOND PAGE OF THIS FACE
PAGE)
CANADA
- AB, BC, MB, ON, SK
Subscriber's
Present Holdings:
The
Subscriber represents that securities of the Corporation presently
owned
(beneficially, directly or indirectly) by the Subscriber are as
follows
(please
indicate "nil" if you do not currently own any securities of the
Corporation):
|
|
Type
of Securities Presently Owned
|
Number
or Amount
|
ACCEPTANCE:
The Corporation hereby accepts the subscription as set forth above on the terms
and conditions contained in this Subscription Agreement and the Corporation
represents and warrants to the Subscriber that the representations and
warranties made by the Corporation to the Agents in the Agency Agreement (as
defined herein) are true and correct in all material respects as of the Closing
Date (as defined herein) (save and except as waived by the Agents) and that
the
Subscriber is entitled to rely thereon.
,
2006
CANWEST
PETROLEUM CORPORATION
By:
__________________________________________________
|
Subscription
No:
|
ACCEPTANCE:
OQI hereby agrees to be bound by the joint and several indemnification
provisions set forth in paragraph 9(f) of this Subscription Agreement and OQI
represents and warrants to the Subscriber that the representations and
warranties made by OQI to the Agents in the Agency Agreement are true and
correct in all material respects as of the Closing Date (save and except as
waived by the Agents) and that the Subscriber is entitled to rely
thereon.
,
0000
XXXXXXXX
QUEST INC.
By:
__________________________________________________
|
-2-
CANADA
- AB, BC, MB, ON, SK
TERMS
AND CONDITIONS OF SUBSCRIPTION FOR
FLOW-THROUGH
SHARES OF CANWEST PETROLEUM CORPORATION
Terms
of the Offering
1. The
Subscriber acknowledges (on its own behalf and, if applicable, on behalf of
each
person on whose behalf the Subscriber is contracting) that this subscription
is
subject to rejection or allotment by the Corporation in whole or in part and
is
effective only upon acceptance by the Corporation. If this subscription is
rejected or allotted in whole or in part, the Subscriber acknowledges that
the
unused portion of the Aggregate Flow-Through Subscription Price will be promptly
returned to the Subscriber without interest or deduction.
2. The
Subscriber acknowledges (on its own behalf and, if applicable, on behalf of
each
person on whose behalf the Subscriber is contracting) that the Flow-Through
Shares
subscribed for by it hereunder form part of a larger issuance and sale by the
Corporation of 5,684,900 Flow-Through Shares at a subscription price of $6.60
per Flow-Through Share (subject to adjustment as provided in paragraph 4 hereof)
for aggregate gross proceeds of $37,520,340 (the "Offering").
3. The
Subscriber acknowledges (on its own behalf and, if applicable, on behalf of
each
person on whose behalf the Subscriber is contracting) that the gross proceeds
of
the Offering will be used by the Corporation immediately after the Closing
Date
(as hereinafter defined) to subscribe for common shares of OQI issued on a
flow-through basis and OQI will renounce to the Corporation an amount of
Qualifying Expenditures (as hereinafter defined) equal to the Commitment Amount
(as hereinafter defined).
4. The
Subscriber acknowledges (on its own behalf and, if applicable, on behalf of
each
person on whose behalf the Subscriber is contracting) that the Corporation
is
not currently a reporting issuer in any jurisdiction of Canada. If the
Corporation does not become a reporting issuer in the Province of Alberta on
or
before 5:00 p.m. on the sixtieth day following the Closing Date (the
"Adjustment
Date")
then
at 5:01 p.m. (Calgary time) on the Adjustment Date, the subscription price
per
Flow-Through Share will be reduced to $6.00 per Flow-Through Share and such
reduction in price shall be satisfied by the Corporation forthwith issuing
to
the Subscriber 0.1 of a Flow-Through Share for each Flow-Through Share
subscribed for by the Subscriber pursuant to the terms of this Subscription
Agreement and certificates representing such Flow-Through Shares will be
registered and delivered as specified on the face page of this Subscription
Agreement. In no event shall fractional Flow-Through Shares be issued in
connection with the adjustment referred to in this paragraph 4 or payment made
in lieu thereof. All fractional Flow-Through Shares shall be rounded down to
the
nearest whole number of Flow-Through Shares.
5. The
Corporation will use its commercially reasonable best efforts to cause: (i)
the
Flow-Through Shares to be included in a shelf registration statement filed
with
the U.S. Securities and Exchange Commission registering the Flow-Through Shares
for resale by the Subscriber; (ii) such shelf registration statement to be
declared effective as soon as practicable, but no later than six months from
the
Closing Time (as hereinafter defined); and (iii) such shelf registration
statement to remain effective, subject to reasonable blackout periods, until
the
date that is 2 years following the Closing Date.
Representations,
Warranties and Covenants by Subscriber
6. The
Subscriber (on its own behalf and, if applicable, on behalf of each person
on
whose behalf the Subscriber is contracting) represents, warrants and covenants
to the Corporation, OQI and the Agents and their respective counsel (and
acknowledges that the Corporation, OQI and the Agents, and their respective
counsel, are relying thereon) both at the date hereof and at the Closing Time
(as defined herein) that:
(a)
|
it
acknowledges that the Corporation is not currently a reporting issuer
in
any jurisdiction and that the applicable "hold period" under applicable
securities laws will not commence to run until the Corporation becomes
a
reporting issuer in a jurisdiction of Canada and that it will only
be able
to resell the Flow-Through Shares in accordance with limited exemptions
under applicable securities legislation and regulatory policy and
it
agrees that any certificates representing the Flow-Through will bear
a
legend indicating that the resale of such securities is restricted
pursuant to applicable securities legislation;
and
|
-3-
CANADA
- AB, BC, MB, ON, SK
(b)
|
it
has been independently advised as to restrictions with respect to
trading
in the Flow-Through Shares imposed by applicable securities laws,
confirms
that no representation (written or oral) has been made to it by or
on
behalf of the Corporation, OQI or the Agents with respect thereto,
acknowledges that it is aware of the characteristics of the Flow-Through
Shares and the risks relating to an investment therein;
and
|
(c)
|
it
has not received or been provided with, nor has it requested, nor
does it
have any need to receive, any offering memorandum, any prospectus,
sales
or advertising literature, or any other document (other than an annual
report, annual information form, interim report, information circular
or
any other continuous disclosure document, other than an offering
memorandum, the content of which is prescribed by statute or regulation)
describing or purporting to describe the business and affairs of the
Corporation which has been prepared for delivery to, and review by,
prospective purchasers in order to assist it in making an investment
decision in respect of the Flow-Through
Shares;
and
|
(d)
|
it
has not become aware of any advertisement in printed media of general
and
regular paid circulation (or other printed public media), radio,
television or telecommunications or other form of advertisement (including
electronic display) with respect to the distribution of the Flow-Through
Shares; and
|
(e)
|
unless
it is purchasing under paragraph 6(f) or (g), it is purchasing the
Flow-Through Shares as principal for its own account, not for the
benefit
of any other person, for investment only and not with a view to the
resale
or distribution of all or any of the Flow-Through Shares,
it is resident in or otherwise subject to applicable securities laws
of
the jurisdiction set out as the "Subscriber's Address" on the face
page
hereof and it is an "accredited investor", as such term is defined
in
National Instrument 45-106 - "Prospectus and Registration Exemptions"
("NI
45-106")
promulgated under the securities legislation of all of the provinces
of
Canada (other than Quebec), it was not created or used solely to
purchase
or hold securities as an "accredited investor" as described in paragraph
(m) of the definition of "accredited investor" in NI 45-106 and has
concurrently
executed and delivered a Representation Letter in the form attached
as
Exhibit 1 to this Subscription Agreement and has initialed in
Appendix "A" thereto indicating that the Subscriber satisfies (and
will satisfy at the Closing Time) one of the categories of "accredited
investor" set forth in such definition;
and
|
(f)
|
if
it is purchasing the Flow-Through Shares and is acting as agent for
one or
more disclosed principals, each of such principals is purchasing
as
principal for its own account, not for the benefit of any other person,
for investment only, and not with a view to the resale or distribution
of
all or any of the Flow-Through
Shares,
and
|
(i)
|
each
of such principals complies with paragraph 6(e) hereof and the
Subscriber acknowledges the Corporation is required by law to disclose
to
certain regulatory authorities the identity of each beneficial purchaser
of Flow-Through
Shares
for whom it may be acting, it is resident in the jurisdiction set
out as
the "Subscriber's Address" and each beneficial purchaser is resident
in
the jurisdiction set out as the "Principal's Address";
and
|
(ii)
|
if
it is not an individual, it pre-existed the offering of the Flow-Through
Shares and has a bona
fide
business purpose other than the investment in the Flow-Through Shares
and
was not created, formed or established solely or primarily to acquire
securities, or to permit purchases of securities without a prospectus,
in
reliance on an exemption from the prospectus requirements of applicable
securities legislation; and
|
(g)
|
if
it is a resident of or otherwise subject to applicable securities
laws of
any
jurisdiction other than the Provinces of Alberta, British Columbia,
Manitoba, Ontario or Saskatchewan, it
is resident in the jurisdiction set out as the "Subscriber's address",
it
is an "accredited investor" as such term is defined in NI 45-106
and
has
concurrently executed and delivered a Representation Letter in the
form
attached as Exhibit 1 to this Subscription Agreement and has initialed
in
Appendix "A" thereto indicating that the Subscriber satisfies (and
will
satisfy at the Closing Time) one of the categories of "accredited
investor" set forth in such definition and,
it, or any beneficial purchaser for whom it is acting, complies with
the
requirements of all applicable securities legislation in the jurisdiction
of its residence and will provide such evidence of compliance with
all
such matters as the Corporation, OQI or the Agents may request;
and
|
-4-
CANADA
- AB, BC, MB, ON, SK
(h)
|
it
is purchasing the Flow-Through Shares pursuant to paragraph 6(e),
(f) or
(g), and:
|
(i)
|
the
Flow-Through Shares have not been offered to the Subscriber in the
United
States and the Subscriber and the individuals making the order to
purchase
the Flow-Through Shares and executing and delivering this Subscription
Agreement on behalf of the Subscriber were not in the United States
when
the order was placed and this Subscription Agreement was executed
and
delivered; and
|
(ii)
|
it
is not a U.S. person (a "U.S. Person") (as defined in Regulation
S under
the United States Securities Act of 1933, as amended (the "U.S. Securities
Act"), 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 corporation organized or incorporated under the laws
of the
United States and any partnership or corporation if organized or
incorporated under the laws of any foreign jurisdiction and formed
by a
U.S. Person principally for the purpose of investing in securities
not
registered under the U.S. Securities Act, unless it is organized
or
incorporated and owned by "accredited investors" (as such term is
defined
in Rule 501(a) of Regulation D under the U.S. Securities Act) who
are not
natural persons, estates or trusts) and is not purchasing the Flow-Through
Shares on behalf of, or for the account or benefit of, a person in
the
United States or a U.S. Person; and
|
(i)
|
it
is aware that the Flow-Through Shares have not been and will not
be
registered under the U.S. Securities Act or the securities laws of
any
state and that these securities are not being offered or sold in
the
United States, it understands that the Flow-Through Shares are "restricted
securities" as defined in Rule 144 under the U.S. Securities Act
and
agrees that if it decides to offer, sell or otherwise transfer the
Flow-Through Shares, such shares may only be offered, sold or otherwise
transferred in accordance with the provisions of Regulation S under
the
U.S. Securities Act, pursuant to registration under the U.S. Securities
Act, or pursuant to an available exemption from registration under
the
U.S. Securities Act and applicable State securities laws and it agrees
not
to engage in hedging transactions with regard to the Flow-Through
Shares
unless in compliance with the U.S. Securities Act; and it acknowledges
that the certificates representing the Flow-Through Shares (and all
certificates issued in exchange therfor or in substitution thereof)
will
bear a legend to the effect that transfer is prohibited except in
accordance with the provisions of Regulation S, pursuant to registration
under the U.S. Securities Act, or pursuant to an available exemption
from
registration under the U.S. Securities Act and applicable State securities
laws, and that hedging transactions involving the securities may
not be
conducted unless in compliance with the U.S. Securities Act, until
such
time as such legend is no longer required under applicable requirements
of
the U.S. Securities Act or applicable state securities laws;
and
|
(j)
|
it
acknowledges that:
|
(i)
|
no
securities commission or similar regulatory authority has reviewed
or
passed on the merits of the Flow-Through Shares;
and
|
(ii)
|
there
is no government or other insurance covering the Flow-Through Shares;
and
|
(iii)
|
there
are risks associated with the purchase of the Flow-Through Shares;
and
|
(iv)
|
there
are restrictions on the Subscriber's ability to resell the Flow-Through
Shares and it is the responsibility of the Subscriber to find out
what
those restrictions are and to comply with them before selling the
Flow-Through Shares; and
|
(v)
|
the
Corporation has advised the Subscriber that the Corporation is relying
on
an exemption from the requirements to provide the Subscriber with
a
prospectus and to sell securities through a person or company registered
to sell securities under the Securities Act (Alberta) and other applicable
securities laws and, as a consequence of acquiring securities pursuant
to
this exemption, certain protections, rights and remedies provided
by the
Securities Act (Alberta) and other applicable securities laws, including
statutory rights of rescission or damages, will not be available
to the
Subscriber; and
|
-5-
CANADA
- AB, BC, MB, ON, SK
(k)
|
if
a corporation, partnership, unincorporated association or other entity,
it
has the power, authority and legal capacity to enter into and be
bound by
this Subscription Agreement and take all action pursuant hereto and
further certifies that all necessary approvals of directors, shareholders
or otherwise have been given and obtained;
and
|
(l)
|
if
an individual, it is of the full age of majority and is legally competent
to execute and deliver this Subscription Agreement and take all action
pursuant hereto; and
|
(m)
|
the
entering into of this Subscription Agreement and the completion of
the
transactions contemplated hereby will not result in a violation of
any of
the terms or provisions of any law applicable to the Subscriber,
or if the
Subscriber is not a natural person, any of the Subscriber's constating
documents, or any agreement to which the Subscriber is a party or
by which
it is bound; and
|
(n)
|
if
the Subscriber is a body corporate, it is duly incorporated and validly
subsisting under the laws of its jurisdiction of incorporation;
and
|
(o)
|
this
Subscription Agreement has been duly and validly authorized, executed
and
delivered by and constitutes a legal, valid, binding and enforceable
obligation of the Subscriber; and
|
(p)
|
in
the case of a subscription by it for Flow-Through Shares acting as
agent
for a disclosed principal, it is duly authorized to execute and deliver
this Subscription Agreement and all other necessary documentation
in
connection with such subscription on behalf of such principal and
this
Subscription Agreement has been duly authorized, executed and delivered
by
or on behalf of, and constitutes a legal, valid and binding agreement
of,
such principal; and
|
(q)
|
it
has such knowledge 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 investments or, where it is not purchasing
as
principal, each beneficial purchaser is able to bear the economic
risk of
loss of its investment; and
|
(r)
|
the
Subscriber confirms that neither the Corporation, OQI, the Agents
nor any
of their representative directors, employees, officers or affiliates,
have
made any representations (written or oral) to the Subscriber: (i)
regarding the future value of the Flow-Through Shares; (ii) that
any
person will resell or repurchase the Flow-Through Shares; or (iii)
that
any person will refund the purchase price of the Flow-Through Shares
other
than as provided in this Subscription Agreement;
and
|
(s)
|
except
for the representations and warranties made by the Corporation to
the
Agents in the Agency Agreement, it has relied solely upon publicly
available information relating to the Corporation and not upon any
verbal
or written representation as to fact or otherwise made by or on behalf
of
the Corporation, OQI or the Agents, such publicly available information
having been delivered to the Subscriber without independent investigation
or verification by the Agents, and agrees that the Agents and the
counsel
to the Agents assume no responsibility or liability of any nature
whatsoever for the accuracy, adequacy or completeness of the publicly
available information or as to whether all information concerning
the
Corporation required to be disclosed by the Corporation has been
generally
disclosed and acknowledges that the Corporation's counsel, OQI's
counsel
and the counsel to the Agents are acting as counsel to the Corporation,
OQI and the Agents respectively, and not as counsel to the Subscriber;
and
|
(t)
|
it
understands that the Flow-Through Shares are being offered for sale
only
on a "private placement" basis and that the sale and delivery of
the
Flow-Through Shares is conditional upon such sale being exempt from
the
requirements under applicable securities laws as to the filing of
a
prospectus or delivery of an offering memorandum 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 offering
memorandum and, as a consequence (i) it is restricted from using
most of
the civil remedies available under securities legislation; (ii) it
may not
receive information that would otherwise be required to be provided
to it
under securities legislation; and (iii) the Corporation is relieved
from
certain obligations that would otherwise apply under securities
legislation; and
|
(u)
|
if
required by applicable securities legislation, regulations, rules,
policies or orders 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 Flow-Through Shares
(including, without limitation, a Representation Letter in the form
attached as Exhibit 1); and
|
-6-
CANADA
- AB, BC, MB, ON, SK
(v)
|
it
undertakes and agrees that it will not offer or sell the Flow-Through
Shares
in
the United States unless such securities are registered under the
U.S.
Securities Act and the securities laws of all applicable states of
the
United States or an exemption from such registration requirements
is
available; and
|
(w)
|
it
will not resell the Flow-Through
Shares
except in accordance with the provisions of applicable securities
legislation and stock exchange rules;
and
|
(x)
|
the
acquisition of the Flow-Through Shares hereunder by the Subscriber
will
not result in the Subscriber becoming a "control person", as defined
under
applicable securities laws; and
|
(y)
|
the
Subscriber does not act jointly or in concert with any other person
or
company for the purposes of acquiring securities of the Corporation;
and
|
(z)
|
the
Subscriber acknowledges that the Corporation may complete additional
equity financings in the future which may have a dilutive effect
on the
Subscriber's shareholdings in the Corporation;
and
|
(aa)
|
the
funds representing the Aggregate Flow-Through Subscription Price
which
will be advanced by the Subscriber hereunder will not represent proceeds
of crime for the purposes of the Proceeds
of Crime (Money Laundering) and Terrorist Financing Act
(Canada) and the Subscriber acknowledges that the Corporation or
the
Agents may in the future be required by law to disclose the Subscriber's
name and other information relating to this Subscription Agreement
and the
Subscriber's subscription hereunder, on a confidential basis, pursuant
to
the Proceeds
of Crime (Money Laundering) and Terrorist Financing Act
(Canada) and to the best of the Subscriber's knowledge (i) none of
the
subscription funds to be provided by the Subscriber (A) have been
or will
be derived from or related to any activity that is deemed criminal
under
the law of Canada, the United States of America, or any other
jurisdiction, or (B) are being tendered on behalf of a person or
entity
who has not been identified to the Subscriber, and (ii) it shall
promptly
notify the Corporation and the Agents if the Subscriber discovers
that any
of such representations ceases to be true, and to provide the Corporation
and the Agents with appropriate information in connection therewith;
and
|
(bb)
|
it
acknowledges that this Subscription Agreement and the Exhibit hereto
require the Subscriber (or any beneficial purchaser for whom the
Subscriber is contracting) to provide certain personal information
to the
Corporation and the Agents. Such information is being collected by
the
Corporation, OQI and the Agents for the purposes of completing the
offering of Flow-Through Shares, which includes, without limitation,
determining the Subscriber's (or any beneficial purchaser for whom
the
Subscriber is contracting) eligibility to purchase the Flow-Through
Shares
under applicable securities legislation, preparing and registering
any
certificates representing Flow-Through Shares to be issued to the
Subscriber and completing filings required by any stock exchange
or
securities regulatory authority or by the Canada Revenue Agency (the
"CRA").
The Subscriber's (or any beneficial purchaser for whom the Subscriber
is
contracting) personal information may be disclosed by the Corporation,
OQI
or the Agents to: (a) stock exchanges or securities regulatory authorities
or the CRA, (b) the Corporation's registrar and transfer agent, and
(c)
any of the other parties involved in the offering, including legal
counsel
to the Corporation, OQI and the Agents. By executing this Subscription
Agreement, the Subscriber (or any beneficial purchaser for whom the
Subscriber is contracting) consents to the foregoing collection,
use and
disclosure of the Subscriber's (or any beneficial purchaser for whom
the
Subscriber is contracting) personal information. The Subscriber (or
any
beneficial purchaser for whom the Subscriber is contracting) also
consents
to the filing of copies or originals of any of the Subscriber's (or
any
beneficial purchaser for whom the Subscriber is contracting) documents
described in Section 11 below as may be required to be filed with
any
stock exchange or securities regulatory authority or the CRA in connection
with the transactions contemplated hereby. Without limiting the generality
of the foregoing, the Subscriber (or any beneficial purchaser for
whom the
Subscriber is contracting) (if resident in the Province of Ontario)
further acknowledges that: (a) the Corporation will deliver to the
Ontario
Securities Commission (the "OSC")
the Subscriber's (or any beneficial purchaser for whom the Subscriber
is
contracting) full name, residential address and telephone number,
the
number of Flow-Through Shares purchased by the Subscriber (or any
beneficial purchaser for whom the Subscriber is contracting) hereunder,
the total purchase price paid by the Subscriber (or any beneficial
purchaser for whom the Subscriber is contracting) hereunder, the
exemption
under applicable securities laws relied upon in respect of the
Subscriber's (or any beneficial purchaser for whom the Subscriber
is
contracting) purchase of Flow-Through Shares hereunder and the date
the
Flow-Through Shares subscribed for hereunder were distributed to
the
Subscriber (or any beneficial purchaser for whom the Subscriber is
contracting); (b) the information set forth in (a) immediately above
is
being collected indirectly by the OSC under the authority granted
to it
under securities legislation for the purposes of the administration
and
enforcement of the securities legislation of Ontario; and (c) the
title,
business address and telephone number of the public official in Ontario
who can answer questions about the OSC's indirect collection of the
information is as follows: Administrative Assistant to the Director
of
Corporate Finance, Xxxxx 0000, Xxx 0000 Xxxxx Xxxxxx Xxxx, Xxxxxxx,
Xxxxxxx, X0X 0X0, Telephone (000) 000-0000. The Subscriber (or any
beneficial purchaser for whom the Subscriber is contracting) (if
resident
in the Province of Ontario) hereby authorizes the indirect collection
of
the information set forth in (a) immediately above by the OSC;
and
|
-7-
CANADA
- AB, BC, MB, ON, SK
(cc)
|
the
Subscriber acknowledges that it has been encouraged to obtain independent
legal, income tax and investment advice with respect to its subscription
for the Flow-Through Shares and accordingly, has had the opportunity
to
acquire an understanding of the meanings of all terms contained herein
relevant to the Subscriber for purposes of giving representations,
warranties and covenants under this Subscription
Agreement.
|
Matters
Relating to the Flow-Through Shares
7. In
addition to other terms defined herein, for the purposes of paragraphs 7, 8,
9
and 10 hereof, the following words and phrases have the following
meanings:
(a)
|
"Act"
means the
Income Tax Act
(Canada), together with any and all regulations promulgated thereunder,
as
amended from time to time;
|
(b)
|
"Canadian
Exploration Expense(s)"
or "CEE"
means Canadian exploration expense described in paragraphs (a), (d)
or (f)
of the definition of "Canadian exploration expense" in
subsection 66.1(6) of the Act or that would be described in
paragraph (h) of such definition if the reference therein to
"paragraphs (a) to (d) and (f) to (g.1)" were a reference to
"paragraphs (a), (d) or (f)", excluding amounts which are prescribed
to constitute "Canadian exploration and development overhead expense"
under the Act, the amount of any assistance described in
paragraph 66(12.6)(a) of the Act and any expense described in
paragraph 66(12.6)(b.1) of the
Act;
|
(c)
|
"Commitment
Amount"
means the Aggregate Flow-Through Subscription Price indicated on
the
face-page of this Subscription
Agreement;
|
(d)
|
"Expenditure
Period"
means the period commencing on the date of acceptance by the Corporation
of this Subscription Agreement and ending on the earlier of the date
on
which the Commitment Amount has been fully expended in accordance
with the
terms hereof, and December 31,
2007;
|
(e)
|
"Principal
Business Corporation"
means a principal-business corporation as defined in subsection 66(15)
of
the Act; and
|
(f)
|
"Qualifying
Expenditures"
means expenses that are CEE on the date that they are incurred or
are
deemed to be incurred.
|
8. The
Corporation hereby represents and warrants to the Subscriber (on its own behalf
and, if applicable, on behalf of each person on whose behalf the Subscriber
is
contracting) and acknowledges that the Subscriber is relying thereon
that:
(a)
|
the
Corporation has the full corporate right, power and authority to
enter
into this Subscription Agreement, to issue the Flow-Through Shares
and to
incur and renounce to the Subscriber, Qualifying Expenditures in
an amount
equal to the Commitment Amount; and
|
-8-
CANADA
- AB, BC, MB, ON, SK
(b)
|
as
at the date hereof, the Corporation has no reason to believe that
it will
be unable to incur Qualifying Expenditures during the Expenditure
Period
in an amount equal to the Commitment Amount, that it will be unable
to
renounce to the Subscriber effective on or before December 31, 2006
Qualifying Expenditures in an amount equal to the Commitment Amount
or to
expect any reduction of such amount by virtue of subsection 66(12.73)
of
the Act; and
|
(c)
|
the
incurring and renunciation of Qualifying Expenditures to the Subscriber
pursuant hereto, does not and will not constitute a breach of or
default
under the constating documents of the Corporation or any law, regulation,
order or ruling applicable to the Corporation or any agreement, contract
or indenture to which the Corporation is a party or by which it is
bound;
and
|
(d)
|
the
Corporation is, and at all material times will be, a Principal Business
Corporation; and
|
(e)
|
upon
issuance pursuant to the provisions hereof, the Flow-Through Shares
will
be "flow-through shares" as defined in subsection 66(15) of the Act
and will not constitute "prescribed shares" for the purpose of
Regulation 6202.1 of the Act assuming that there are no agreements,
arrangements, obligations or undertakings as contemplated by such
provisions in respect of the Flow-Through Shares to which, or in
respect
of which, the Corporation is not a party or in respect of which the
Corporation has no knowledge; and
|
(f)
|
the
Corporation is related to OQI within the meaning of the Act, and
will be
related to OQI at all times during the Expenditure
Period.
|
9. The
Corporation covenants and agrees with the Subscriber:
(a)
|
to
keep proper books, records and accounts of all Qualifying Expenditures
and
all transactions affecting the Commitment Amount and the Qualifying
Expenditures, and, upon reasonable notice, to provide reasonable
access to
such books, records and accounts for review by or on behalf of the
Subscriber at the Subscriber's sole expense; and
|
(b)
|
to
incur (or be deemed to incur pursuant to subsection 66(12.61) of
the Act),
during the Expenditure Period, Qualifying Expenditures in such amount
as
enables the Corporation to renounce to the Subscriber, Qualifying
Expenditures in an amount equal to the Commitment Amount effective
on or
before December 31, 2006; and
|
(c)
|
to
renounce to the Subscriber, effective on or before December 31, 2006,
Qualifying Expenditures incurred (or deemed to be incurred) during
the
Expenditure Period as required under the Act in an amount equal to
the
Commitment Amount; and
|
(d)
|
to
deliver to the Subscriber within the time periods required by the
Act, and
in any event not later than March 31, 2007, a statement setting forth
the
aggregate amounts of such Qualifying Expenditures renounced to the
Subscriber; and
|
(e)
|
that
all Qualifying Expenditures renounced to the Subscriber pursuant
to this
Subscription Agreement will be Qualifying Expenditures incurred by
the
Corporation that, but for the renunciation to the Subscriber, the
Corporation would be entitled to deduct in computing its income for
the
purposes of Part I of the Act; and
|
(f)
|
that
the Corporation will not reduce the amount renounced to the Subscriber
hereunder and, in the event the Minister reduces the amount renounced
to
the Subscriber hereunder pursuant to subsection 66(12.73) of the
Act
(except as a result of any amendment to the Act) or if the Corporation
fails to renounce Qualifying Expenditures to the Subscriber in an
amount
or amounts which in aggregate are equal to the Commitment Amount
and with
an effective date or dates of not later than December 31, 2006, the
Corporation and OQI shall jointly and severally indemnify the Subscriber
and pay in settlement thereof to the Subscriber an amount equal to
the
amount of any tax payable under the Act (and under any corresponding
provincial tax legislation) by the Subscriber as a consequence of
such
failure to renounce or such reduction, as the case may be, by the
later of
April 15, 2007 and the date on which the amount of tax so payable
by the
Subscriber is determined; and
|
-9-
CANADA
- AB, BC, MB, ON, SK
(g)
|
that
the Corporation will maintain its status as a Principal Business
Corporation throughout the Expenditure Period;
and
|
(h)
|
to
file all prescribed forms required under the Act or any corresponding
provincial tax legislation with respect to the issuance of the shares
as
"flow-through shares" as defined in subsection 66(15) of the Act
or that
are necessary to renounce Qualifying Expenditures equal to the Commitment
Amount to the Subscriber effective on or before December 31, 2006 and
to provide the Subscriber with a copy of all such forms as are required
to
be provided thereto, all on a timely basis; and
|
(i)
|
that
the Corporation will not be subject to the provisions of subsection
66(12.67) of the Act in a manner which impairs its ability to renounce
Qualifying Expenditures to the Subscriber in an amount equal to the
Commitment Amount; and
|
(j)
|
that
the Corporation has not and will not enter into transactions, take
deductions or make any tax elections or designations which would
otherwise
reduce its cumulative Qualifying Expenditures to an extent which
would
preclude a renunciation of Qualifying Expenditures hereunder in an
amount
equal to the Commitment Amount effective on or before December 31,
2006; and
|
(k)
|
that
in the event that the Corporation cannot renounce to Subscribers
Qualifying Expenditures equal to 100% of the Commitment Amount, the
Corporation shall renounce such lesser amount as is permitted and,
to the
extent the Corporation has incurred expenses which are capable of
renunciation, but which are not Qualifying Expenditures, the Corporation
shall, if agreed to by the Subscriber, renounce such expenses to
the
Subscriber, without any prejudice to any other rights the Subscriber
may
have under this Subscription
Agreement.
|
10. The
Subscriber covenants, agrees and represents and warrants to the Corporation
that:
(a)
|
neither
the Subscriber, nor the beneficial purchaser, as the case may be,
has or
will knowingly enter into any agreement or arrangement which will
cause
the Flow-Through Shares to be or become "prescribed shares" for purposes
of the Act; and
|
(b)
|
it
(and each beneficial purchaser for whom it is acting) deals at arm's
length with the Corporation within the meaning of the Act and will
continue to deal at arm's length with the Corporation to and including
January 1, 2008.
|
Closing
11. The
Subscriber agrees to deliver to TD Securities Inc.,
00 Xxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx X0X 0X0 Attention: Xxxx
Xxxxxx,
not
later than 4:00 p.m. (Calgary time) on June 30, 2006: (a) this duly completed
and executed Subscription Agreement; (b) a fully executed and completed
Representation Letter in the form of Exhibit 1;
and
(c) a certified cheque or bank draft payable to TD Securities Inc. for the
Aggregate Flow-Through Subscription Price or payment of the same amount in
such
other manner as is acceptable to the Agents.
12. The
sale
of the Flow-Through Shares pursuant to this Subscription Agreement will be
completed at the offices of Xxxxxxx Xxxxx llp,
the
Corporation's counsel, in Calgary, Alberta at 10:00 a.m. (Calgary time) or
such other time as the Corporation, OQI and the Agents may agree (the
"Closing
Time")
on
July 5, 2006 or such other date as the Corporation, OQI and the Agents may
agree
(the "Closing
Date").
At
the Closing Time, the Agents shall deliver to the Corporation all completed
subscription agreements, including this Subscription Agreement, and the
aggregate subscription amount against delivery by the Corporation of the
certificates representing the Flow-Through Shares.
13. The
Corporation, OQI and the Agents shall be entitled to rely on delivery of a
facsimile copy of executed subscriptions, and acceptance by the Corporation
of
such facsimile subscriptions shall be legally effective to create a valid and
binding agreement between the Subscriber and the Corporation in accordance
with
the terms hereof. In addition, this Subscription Agreement may be executed
in
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one and the same document.
-10-
CANADA
- AB, BC, MB, ON, SK
General
14. The
Subscriber agrees that the representations, warranties and covenants of the
Subscriber herein will be true and correct both as of the execution of this
Subscription Agreement and as of the Closing Time and will survive the
completion of the issuance of the Flow-Through Shares. The representations,
warranties and covenants of the Subscriber herein are made with the intent
that
they be relied upon by the Corporation, OQI and the Agents and their respective
counsel in determining the eligibility of a purchaser of Flow-Through Shares
and
the Subscriber (on its own behalf and, if applicable, on behalf of each person
on whose behalf the Subscriber is contracting) agrees to indemnify and hold
harmless the Corporation, OQI and the Agents and their
respective affiliates, shareholders, directors, officers, partners, employees,
legal counsel and agents,
from and
against all losses, claims, costs, expenses and damages or liabilities
whatsoever which any of them may suffer or incur which are caused or arise
from
a breach thereof. The Subscriber undertakes to immediately notify the
Corporation at CanWest Petroleum Corporation, x/x Xxxxxxxx Xxxxx Xxx., Xxxxx
0000, 000 - 00xx Xxxxxx X.X., Xxxxxxx, XX, X0X 0X0, Attention:
Xxxxxx Xxxxxx (Fax Number: (000)
000-0000)
and the
Agents at TD Securities Inc.,
00 Xxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx X0X 0X0, Attention:
Xxxx Xxxxxx (Fax Number: (000) 000-0000), of any change in any statement or
other information relating to the Subscriber set forth herein which takes place
prior to the Closing Time.
15. The
Subscriber acknowledges that the Agents have agreed to offer the Flow-Through
Shares on a "private placement" basis and, in connection therewith, the
Corporation, OQI and the Agents have entered into, or will enter into prior
to
the Closing Date, an agreement (the "Agency
Agreement")
pursuant to which the Agents, in connection with the issue and sale of the
Flow-Through Shares, will receive from the Corporation a commission on the
gross
proceeds of the Offering of 5.5%. The Subscriber hereby irrevocably authorizes
TD Securities Inc. to: (a) act as its representative at the closing and to
execute in its name and on its behalf all closing receipts and documents
required; (b) complete or correct any errors or omissions in any form or
document, including this Subscription Agreement, provided by the Subscriber;
(c) receive on its behalf certificates representing the Flow-Through Shares
purchased under this Subscription Agreement; (d) approve any opinions,
certificates or other documents addressed to the Subscriber; (e) waive, in
whole or in part, any representations, warranties, covenants or conditions
for
the benefit of the Subscriber and contained in the Agency Agreement; and (f)
exercise any rights of termination contained in the Agency
Agreement.
16. The
Subscriber acknowledges and agrees that all costs incurred by the Subscriber
(including any fees and disbursements of any special counsel retained by the
Subscriber) relating to the purchase of the Flow-Through Shares by the
Subscriber shall be borne by the Subscriber.
17. By
acceptance of this Subscription Agreement, the Corporation agrees that the
Subscriber is directly entitled to the benefit of all representations and
warranties of the Corporation made by the Corporation to the Agents in the
Agency Agreement.
18. By
acceptance of this Subscription Agreement, OQI agrees that the Subscriber is
directly entitled to the benefit of all representations and warranties of OQI
made by OQI to the Agents in the Agency Agreement.
19. The
obligations of the parties hereunder are subject to all required regulatory
approvals being obtained.
20. The
Subscriber acknowledges that it has consented to and requested that all
documents evidencing or relating in any way to the sale of the Flow-Through
Shares be drawn up in the English language only. Le
soussigné reconna t par les présentes avoir consenti et exigé que tous les
documents faisant foi ou se repportant de quelque manière à la vente de ces
actions soient rédigés en anglais seulement.
21. The
contract arising out of this Subscription Agreement and all documents relating
thereto shall be governed by and construed in accordance with the laws of the
Province of Alberta and the federal laws of Canada applicable therein. The
parties irrevocably attorn to the exclusive jurisdiction of the courts of the
Province of Alberta. Time shall be of the essence hereof.
22. This
Subscription Agreement represents the entire agreement of the parties hereto
relating to the subject matter hereof and there are no representations,
covenants or other agreements relating to the subject matter hereof except
as
stated or referred to herein.
-11-
CANADA
- AB, BC, MB, ON, SK
23. The
terms
and provisions of this Subscription Agreement shall be binding upon and enure
to
the benefit of the Subscriber and the Corporation and their respective heirs,
executors, administrators, successors and assigns; provided that, except for
the
assignment by a Subscriber who is acting as nominee or agent to the beneficial
owner and as otherwise herein provided, this Subscription Agreement shall not
be
assignable by any party without prior written consent of the other parties.
24. The
Subscriber, on its own behalf and, if applicable, on behalf of others for whom
it is contracting hereunder, agrees that this subscription is made for valuable
consideration and may not be withdrawn, cancelled, terminated or revoked by
the
Subscriber, on its own behalf and, if applicable, on behalf of others for whom
it is contracting hereunder.
25. Subject
to Section 15, neither this Subscription Agreement nor any provision hereof
shall 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.
26. The
invalidity, illegality or unenforceability of any provision of this Subscription
Agreement shall not affect the validity, legality or enforceability of any
other
provision hereof.
27. The
headings used in this Subscription Agreement have been inserted for convenience
of reference only and shall not affect the meaning or interpretation of this
Subscription Agreement or any provision hereof.
28. The
covenants, representations and warranties contained herein shall survive the
closing of the transactions contemplated hereby. In this Subscription Agreement
(including attachments), references to "$" are to Canadian dollars.
-12-
CANADA
- AB, BC, MB, ON, SK
EXHIBIT
1
REPRESENTATION
LETTER
TO:
|
CanWest
Petroleum Corporation (the "Corporation")
|
AND
TO:
|
Oilsands
Quest Inc. ("OQI")
|
AND
TO:
|
TD
Securities Inc., CIBC World Markets Inc., X. X. Xxxxxx & Company Ltd.
and Xxxxxx & Co. Limited (collectively, the
"Agents")
|
In
connection with the purchase of common shares of the Corporation to be issued
on
a "flow-through" basis ("Flow-Through
Shares")
by the
undersigned subscriber or, if applicable, the disclosed principal on whose
behalf the undersigned is purchasing as agent (the "Subscriber"
for the
purposes of this Exhibit 1), the Subscriber hereby represents, warrants,
covenants and certifies to the Corporation, OQI and the Agents
that:
1. The
Subscriber is resident in one of the Provinces of British Columbia, Alberta,
Saskatchewan, Manitoba or Ontario or is otherwise subject to applicable
securities laws of one of the Provinces of British Columbia, Alberta,
Saskatchewan, Manitoba or Ontario;
2. The
Subscriber is purchasing the Flow-Through Shares as principal (NOTE: For this
purpose, a trust company or trust corporation described in paragraph (p) in
Appendix "A" to this Representation Letter (other than a trust company or trust
corporation registered under the laws of Xxxxxx Xxxxxx Island that is not
registered or authorized under the Trust
and Loan Companies Act
(Canada)
or under comparable legislation in another jurisdiction of Canada) and a person
described in paragraph (q) in Appendix "A" to this Representation Letter is
deemed to be purchasing as principal);
3. The
Subscriber is (and will be at the Closing Time) an "accredited investor" within
the meaning of National Instrument 45-106 entitled "Prospectus and Registration
Exemptions" by virtue of satisfying the indicated criterion as set out in
Appendix "A" to this Representation Letter; and
4. Upon
execution of this Exhibit 1 by or on behalf of the Subscriber, this
Exhibit 1 shall be incorporated into and form a part of the Subscription
Agreement to which this Exhibit is attached.
Dated:
_________________________, 2006
_____________________________________________
Print
name of Subscriber, or person signing as agent on
behalf
of
Subscriber
By:
_____________________________________________
Signature
_____________________________________________
Print
name of Signatory (if different from Subscriber or agent,
as
applicable)
_____________________________________________
Title
*
If
the Subscriber is a
fully managed account,
please complete in the following format: "Account____ by [insert name of
adviser, trust company or trust corporation]"
**
PLEASE INITIAL THE APPLICABLE PROVISION IN APPENDIX "A" ON THE FOLLOWING PAGES
**
CANADA
- AB, BC, MB, ON, SK
APPENDIX
"A"
TO
EXHIBIT 1
NOTE:
THE INVESTOR MUST INITIAL BESIDE THE APPLICABLE PORTION OF THE DEFINITION
BELOW.
Accredited
Investor
-
(defined in National Instrument 45-106) means:
_________ |
(a)
a
Canadian financial institution, or a Schedule III bank;
or
|
_________ |
(b)
the
Business Development Bank of Canada incorporated under the Business
Development Bank of Canada Act
(Canada); or
|
_________ |
(c)
a
subsidiary of any person referred to in paragraphs (a) or (b), if
the
person owns all of the voting securities of the subsidiary, except
the
voting securities required by law to be owned by directors of that
subsidiary; or
|
_________ |
(d)
a
person registered under the securities legislation of a jurisdiction
of
Canada as an adviser or dealer, other than a person registered solely
as a
limited market dealer under one or both of the Securities
Act
(Ontario) or the Securities
Act
(Newfoundland and Labrador); or
|
_________ |
(e)
an
individual registered or formerly registered under the securities
legislation of a jurisdiction of Canada as a representative of a
person
referred to in paragraph (d); or
|
_________ |
(f)
the
Government of Canada or a jurisdiction of Canada, or any crown
corporation, agency or wholly owned entity of the Government of Canada
or
a jurisdiction of Canada; or
|
_________ |
(g)
a
municipality, public board or commission in Canada and a metropolitan
community, school board, the Comite de gestion de la taxe scolaire
de
l'ile de Montreal or an intermuncipal management board in Quebec;
or
|
_________ |
(h)
any
national, federal, state, provincial, territorial or municipal government
of or in any foreign jurisdiction, or any agency of that government;
or
|
_________ |
(i) a
pension fund that is regulated by either the Office of the Superintendent
of Financial Institutions (Canada) or a pension commission or similar
regulatory authority of a jurisdiction of Canada; or
|
_________ |
(j)
an
individual who, either alone or with a spouse, beneficially owns,
directly
or indirectly, financial assets having an aggregate realizable value
that
before taxes, but net of any related liabilities, exceeds $1,000,000;
or
**Note:
if individual accredited investors wish to purchase through wholly-owned
holding companies or similar entities, such purchasing entities must
qualify under (t) below, which must be initialed.
|
_________ |
(k)
an
individual whose net income before taxes exceeded $200,000 in each
of the
2 most recent calendar years or whose net income before taxes combined
with that of a spouse exceeded $300,000 in each of the 2 most recent
calendar years and who, in either case, reasonably expects to exceed
that
net income level in the current calendar year; or
**Note:
if individual accredited investors wish to purchase through wholly-owned
holding companies or similar entities, such purchasing entities must
qualify under (t) below, which must be initialed.
|
_________ |
(l)
an
individual who, either alone or with a spouse, has net assets of
at least
$5,000,000; or
**Note:
if individual accredited investors wish to purchase through wholly-owned
holding companies or similar entities, such purchasing entities must
qualify under (t) below, which must be
initialed.
|
_________ |
(m) a
person, other than an individual or investment fund, that has net
assets
of at least $5,000,000 as shown on its most recently prepared financial
statements; or
|
_________ |
(n)
an
investment fund that distributes or has distributed its securities
only
to:
(i)
a person that is or was an accredited investor at the time of the
distribution,
(ii)
a person that acquires or acquired securities in the circumstances
referred to in sections 2.10 [Minimum
amount investment],
and 2.19 [Additional
investment in investment funds],
or
(iii)
a person described in paragraph (i) or (ii) that acquires or acquired
securities under section 2.18 [Investment
fund reinvestment];
or
|
_________ |
(o)
an
investment fund that distributes or has distributed securities under
a
prospectus in a jurisdiction of Canada for which the regulator or,
in
Quebec, the securities regulatory authority, has issued a receipt;
or
|
_________ |
(p)
a
trust company or trust corporation registered or authorized to carry
on
business under the Trust
and Loan Companies Act
(Canada) or under comparable legislation in a jurisdiction of Canada
or a
foreign jurisdiction, acting on behalf of a fully managed account
managed
by the trust company or trust corporation, as the case may be;
or
|
_________ |
(q)
a
person acting on behalf of a fully managed account managed by that
person,
if that person:
(i)
is registered or authorized to carry on business as an adviser or
the
equivalent under the securities legislation of a jurisdiction of
Canada or
a foreign jurisdiction, and
(ii)
in Ontario, is purchasing a security that is not a security of an
investment fund; or
|
_________ |
(r)
a
registered charity under the Income
Tax Act
(Canada) that, in regard to the trade, has obtained advice from an
eligibility adviser or an adviser registered under the securities
legislation of the jurisdiction of the registered charity to give
advice
on the securities being traded; or
|
_________ |
(s)
an
entity organized in a foreign jurisdiction that is analogous to any
of the
entities referred to in paragraphs (a) to (d) or paragraph (i) in
form and
function; or
|
_________ |
(t)
a
person in respect of which all of the owners of interests, direct,
indirect or beneficial, except the voting securities required by
law to be
owned by directors, are persons that are accredited
investors;
|
_________ |
(u)
an
investment fund that is advised by a person registered as an adviser
or a
person that is exempt from registration as an adviser;
or
|
_________ |
(v)
a
person that is recognized or designated by the securities regulatory
authority or, except in Ontario and Quebec, the regulator as:
(i)
an accredited investor, or
(ii)
an exempt purchaser in Alberta or British Columbia after National
Instrument 45-106 came into force.
|
-2-
CANADA
- AB, BC, MB, ON, SK
For
the purposes hereof:
an
issuer
is an "affiliate"
of
another issuer if
(a)
|
one
of them is the subsidiary of the other,
or
|
(b)
|
each
of them is controlled by the same
person;
|
"bank"
means a
bank named in Schedule I or II of the Bank
Act
(Canada);
"beneficial
ownership"
of
securities by a person has the meaning given thereto under securities laws
of
the applicable province of Canada;
"Canadian
financial institution"
means
(a)
|
an
association governed by the Cooperative
Credit Associations Act
(Canada) or a central cooperative credit society for which an order
has
been made under section 473(1) of that Act,
or
|
(b)
|
a
bank, loan corporation, trust company, trust corporation, insurance
company, treasury branch, credit union, caisse populaire, financial
services cooperative, or league that, in each case, is authorized
by an
enactment of Canada or a jurisdiction of Canada to carry on business
in
Canada or a jurisdiction in Canada;
|
a
person
(first person) is considered to "control"
another
person (second person) if
(a)
|
the
first person, directly or indirectly, beneficially owns or exercises
control or direction over securities of the second person carrying
votes
which, if exercised, would entitle the first person to elect a majority
of
the directors of the second person, unless that first person holds
the
voting securities only to secure an
obligation,
|
(b)
|
the
second person is a partnership, other than a limited partnership,
and
first person holds more than 50% of the interests of the partnership,
or
|
(c)
|
the
second person is a limited partnership and the general partner of
the
limited partnership is the first
person;
|
"director"
means
(a)
|
a
member of the board of directors of a company or an individual who
performs similar functions for a company,
and
|
(b)
|
with
respect to a person that is not a company, an individual who performs
functions similar to those of a director of a
company;
|
"financial
assets"
means
(a)
|
cash,
|
(b)
|
securities,
or
|
(c)
|
a
contract of insurance, a deposit or an evidence of a deposit that
is not a
security for the purposes of securities
legislation;
|
"foreign
jurisdiction"
means a
country other than Canada or a political subdivision of a country other than
Canada;
"fully
managed account"
means
an account of a client for which a person makes the investment decisions if
that
person has full discretion to trade in securities for the account without
requiring the client's express consent to a transaction;
"investment
fund"
means a
mutual fund or non-redeemable investment fund, and, for greater certainty,
in
British Columbia includes an employee venture capital corporation that does
not
have a restricted constitution , and is registered under Part 2 of the
Employee
Investment Act
(British
Columbia), R.S.B.C. 1996 c. 112, and whose business objective is making multiple
investments and a venture capital corporation registered under Part 1 of the
Small
Business Venture Capital Act
(British
Columbia), R.S.B.C. 1996 c.429 whose business objective is making multiple
investments;
-3-
CANADA
- AB, BC, MB, ON, SK
"jurisdiction"
means a
province or territory of Canada except when used in the term "foreign
jurisdiction";
"individual"
means a
natural person, but does not include
(a)
|
a
partnership, unincorporated association, unincorporated syndicate,
unincorporated organization or a trust,
or
|
(b)
|
a
natural person in the person's capacity as trustee, executor,
administrator or other legal
representative;
|
"mutual
fund"
includes an issuer of securities that entitles 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 part of the net assets,
including a separate fund or trust account, of the issuer of the securities,
and, for the purposes of British Columbia securities law, also
includes
(a)
|
an
issuer described in an order that the British Columbia Securities
Commission may make pursuant to section 3.2 of the Securities
Act (British
Columbia); and
|
(b)
|
an
issuer that is in a class of prescribed issuers,
|
but
does
not include an issuer, or a class of issuers, described in an order that the
British Columbia Securities Commission may make under section 3.1 of the
Securities
Act (British
Columbia);
"non-redeemable
investment fund"
means
an issuer,
(a)
|
whose
primary purpose is to invest money provided by its
securityholders,
|
(b)
|
that
does not invest,
|
(A)
|
for
the purpose of exercising or seeking to exercise control of an issuer,
other than an issuer that is a mutual fund or a nonredeemable investment
fund, or
|
(B)
|
for
the purpose of being actively involved in the management of any issuer
in
which it invests, other than an issuer that is a mutual fund or a
non-redeemable investment fund, and
|
(c)
|
that
is not a mutual fund;
|
"person"
includes
(a)
|
an
individual,
|
(b)
|
a
corporation,
|
(c)
|
a
partnership, trust, fund and an association, syndicate, organization
or
other organized group of persons, whether incorporated or not,
and
|
(d)
|
an
individual or other person in that person’s capacity as a trustee,
executor, administrator or personal or other legal
representative;
|
"regulator"
means,
for the local jurisdiction, the Executive Director or Director as defined under
securities legislation of the local jurisdiction;
"related
entity"
means,
for an issuer, a person that controls or is controlled by the issuer or that
is
controlled by the same person that controls the issuer;
-4-
CANADA
- AB, BC, MB, ON, SK
"related
liabilities"
means:
(a)
|
liabilities
incurred or assumed for the purpose of financing the acquisition
or
ownership of financial assets; or
|
(b)
|
liabilities
that are secured by financial
assets;
|
"Schedule
III bank"
means
an authorized foreign bank named in Schedule III of the
Bank
Act
(Canada);
"securities
legislation"
means
the securities act, regulations, rules, blanket rulings and orders of the
applicable province of Canada;
"securities
regulatory authority"
means
the securities commission or similar authority of the applicable province of
Canada;
"spouse"
means
an individual who,
(a)
|
is
married to another individual and is not living separate and apart
within
the meaning of the Divorce
Act (Canada),
from the other individual,
|
(b)
|
is
living with another individual in a marriage-like relationship, including
a marriage-like relationship between individuals of the same gender,
or
|
(c)
|
in
Alberta, is an individual referred to in paragraph (a) or (b), or
is an
adult interdependent partner within the meaning of the Adult
Interdependent Relationships Act (Alberta);
|
"subsidiary"
means
an issuer that is controlled directly or indirectly by another issuer and
includes a subsidiary of that subsidiary; and
"voting
security"
means
any security which:
(a)
|
is
not a debt security; and
|
(b)
|
carries
a voting right either under all circumstances or under some contingency
that has occurred and is
continuing.
|
-5-