EXHIBIT 4.110
This is page 1 of 16 pages of a subscription agreement and related appendixes,
schedules and forms. Collectively, these pages together are referred to as the
"Subscription Agreement".
XXXXXX GOLD CORP.
SUBSCRIPTION AGREEMENT
INSTRUCTIONS TO PURCHASER
1. All purchasers complete all the information in the boxes on page 2 and
sign where indicated with an "X".
2. If you are an "accredited investor" in British Columbia or Ontario,
then complete the "Accredited Investor Questionnaire" that starts on
page 5. The purpose of the questionnaire is to determine whether you
meet the standards for participation in a private placement under
section 2.3 of National Instrument 45-106.
3. If you are not an individual (that is, the Purchaser is a corporation,
partnership, trust or entity other than an individual or if you are a
portfolio manager), then complete and sign the "Corporate Placee
Registration Form" (Form 4C) that starts on page 8.
Page 2 of 16
PRIVATE PLACEMENT
SUBSCRIPTION AGREEMENT
TO: XXXXXX GOLD CORP. (the "Issuer"), of Vancouver, B.C.
Subject and pursuant to the terms set out in the Terms on pages 3 to 4, the
General Provisions on pages 10 to 16 and the other schedules and appendixes
incorporated by reference, the Purchaser hereby irrevocably subscribes for, and
on Closing will purchase from the Issuer, the following securities at the
following price:
SUBSCRIPTION AND SUBSCRIBER INFORMATION
PLEASE PRINT ALL INFORMATION (OTHER THAN SIGNATURES), AS APPLICABLE, IN THE
SPACE PROVIDED BELOW
Number of Units: X $0.15
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(Name of Subscriber)
=
Account Reference (if applicable):
_______________________________________ Aggregate Subscription Price:
By: ___________________________________ ---------------------------------------
Authorized Signature (the "SUBSCRIPTION PRICE")
By signing, the Purchaser agrees to disclosure of all information contained
herein to the Exchange and the collection, use and disclosure of the information
contained herein for the purposes described in Appendix 6B of the Exchange Rules
or as otherwise identified by the Exchange from time to time.
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(Official Capacity or Title - if the Subscriber is not an individual)
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(Name of individual whose signature appears above if different
than the name of the subscriber printed above.)
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(Subscriber's Address, including Municipality and Province)
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(Telephone Number) (Email Address)
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IF THE SUBSCRIBER IS SIGNING AS AGENT FOR A PRINCIPAL (BENEFICIAL PURCHASER) AND
IS NOT PURCHASING AS TRUSTEE OR AGENT FOR ACCOUNTS FULLY MANAGED BY IT, COMPLETE
THE FOLLOWING:
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(Name of Principal)
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(Principal's Address)
NUMBER AND KIND OF SECURITIES OF THE CORPORATION HELD, DIRECTLY (Subscriber's
Address, including Municipality and Province) OR INDIRECTLY, IF ANY:
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ACCOUNT REGISTRATION INFORMATION:
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(Name)
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(Account Reference, if applicable)
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(Address, including Postal Code)
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DELIVERY INSTRUCTIONS AS SET FORTH BELOW:
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(Name)
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(Account Reference, if applicable)
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(Address)
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(Contact Name) (Telephone Number)
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The Company hereby accepts the subscription for Units as set
forth herein (including all applicable schedules) this ___ day of
April, 2006.
XXXXXX GOLD CORP.
Per: --------------------------------------------------------------
Authorized Signing Officer
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1. State whether Subscriber is an insider of the Corporation:
Yes [_] No [_]
2. State whether Subscriber is a member of the Pro Group:
Yes [_] No [_]
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By signing this acceptance, the Issuer agrees to be bound by the Terms on pages
3 to 4, the General Provisions on pages 10 to 16 and the other schedules and
appendixes incorporated by reference.
Page 3 of 16
Subscription Agreement (with related appendixes, schedules and forms)
TERMS
REFERENCE DATE OF THIS AGREEMENT March 30, 2006 (the "Agreement Date")
THE OFFERING
THE ISSUER XXXXXX GOLD CORP.
THE OFFERING The offering consists of non
flow-through units (the "Units") at a
price of $0.15 per Unit and
flow-through units at a price of
$0.15.
PURCHASED SECURITIES The "Purchased Securities" herein are
Units. Each Unit consists of one
previously unissued non flow-through
common share, as presently
constituted (a "Share") and one share
purchase warrant (a "Warrant") of the
Issuer. Each Warrant will entitle the
holder, on exercise, to purchase one
additional common share of the Issuer
(a "Warrant Share") for a period of
two years from the date of issue of
the warrant at a price of CAD $0.20
per Warrant Share.
PRICE CAD $0.15 per Unit
WARRANTS The Warrants will be issued and
registered in the name of the
purchasers or their nominees.
The Warrants will be
non-transferable.
The certificates representing the
Warrants will, among other things,
include provisions for the
appropriate adjustment in the class,
number and price of the Warrant
Shares issued upon exercise of the
Warrants upon the occurrence of
certain events, including any
subdivision, consolidation or
reclassification of the Issuer's
common shares, the payment of stock
dividends and the amalgamation of the
Issuer.
The issue of the Warrants will not
restrict or prevent the Issuer from
obtaining any other financing, or
from issuing additional securities or
rights, during the period within
which the Warrants may be exercised.
SELLING JURISDICTIONS The Units may be sold in British
Columbia, Ontario and in certain
"offshore" jurisdictions outside
Canada and the United States (the
"Selling Jurisdictions") in
accordance with the provisions of
this Subscription Agreement.
EXEMPTIONS The Offering will be made in
accordance with the "Accredited
Investor" exemption from the
prospectus requirements (section 2.3
of National Instrument 45-106) or the
"Family, Friends and Business
Associates" exemption from the
prospectus requirements (section 2.5
of National Instrument 45-106).
Page 4 of 16
RESALE RESTRICTIONS AND LEGENDS (ALL The Securities will be subject
to a four month hold period that
starts to PURCHASERS) run on Closing.
The Purchaser acknowledges that the
certificates representing the
Securities will bear the following
legends:
"UNLESS PERMITTED UNDER
SECURITIES LEGISLATION, THE
HOLDER OF THE SECURITIES
SHALL NOT TRADE THE
SECURITIES BEFORE [date that
is four months and a day
after the Closing.]."
"Without prior written
approval of the TSX Venture
Exchange and compliance with
all applicable securities
legislation, the securities
presented by this
certificate may not be sold,
transferred, hypothecated or
otherwise traded on or
through the facilities of
the TSX Venture Exchange or
otherwise in Canada or to or
for the benefit of a
Canadian resident until
[insert the date following
the fourth month after the
distribution]."
Purchasers are advised to consult
with their own legal counsel or
advisors to determine the resale
restrictions that may be applicable
to them.
CLOSING DATE The closing of the Offering (the
"Closing") will take place in one or
more Closings, at the discretion of
the Issuer. The Closing will take
place within 5 days after approval by
the TSX Venture Exchange, unless
otherwise agreed between the Issuer
and the Purchaser.
ADDITIONAL DEFINITIONS In the Subscription Agreement, the
following words have the following
meanings unless otherwise indicated:
(a) "Securities" means the
Shares, the Warrants and the
Warrant Shares;
(b) "Warrants" includes the
certificates representing
the Warrants.
THE ISSUER
JURISDICTION OF ORGANIZATION The Issuer is incorporated under the
laws of the British Columbia.
AUTHORIZED CAPITAL The authorized capital of the Issuer
consists of an unlimited number of
common shares without par value.
STOCK EXCHANGE LISTINGS Shares of the Issuer are listed on
the TSX Venture Exchange (the
"Exchange").
"SECURITIES LEGISLATION APPLICABLE TO The "Securities Legislation
THE ISSUER" Applicable to the Issuer" are the
SECURITIES ACT (British Columbia) and
the SECURITIES ACT (Alberta) and the
"Commissions with Jurisdiction over
the Issuer" are the British Columbia
Securities Commission and the Alberta
Securities Commission.
END OF TERMS
Page 5 of 16
ACCREDITED INVESTOR QUESTIONNAIRE
(Capitalized terms not specifically defined in this Questionnaire have the
meaning ascribed to them in the Subscription Agreement to which this Schedule is
attached.)
In connection with the execution of the Subscription Agreement to which this
Schedule is attached, the undersigned (the "Purchaser") represents and warrants
to the Issuer that:
IF I AM AN INDIVIDUAL (THAT IS, A NATURAL PERSON AND NOT A CORPORATION,
PARTNERSHIP, TRUST OR OTHER ENTITY), THEN I SATISFY ONE OR MORE OF THE
CATEGORIES INDICATED BELOW (PLEASE PLACE AN "X" ON THE APPROPRIATE LINES):
____ Category 1 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, where "financial assets"
means cash, securities, or a contract of
insurance, a deposit or an evidence of a
deposit that is not a security for the
purposes of securities legislation and
"related liabilities" means (i) liabilities
incurred or assumed for the purpose of
financing the acquisition or ownership of
financial assets, or (ii) liabilities that
are secured by financial assets
____ Category 2 an individual whose net income before taxes
exceeded $200,000 in each of the two most
recent calendar years or whose net income
before taxes combined with that of a spouse
exceeded $300,000 in each of the two most
recent calendar years and who, in either
case, reasonably expects to exceed that net
income level in the current calendar year
____ Category 3 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
registered under one or both of the
SECURITIES ACT (Ontario) or the SECURITIES
ACT (Newfoundland and Labrador)
____ Category 4 an individual registered or formerly
registered under the securities legislation
of a jurisdiction of Canada as a
representative of a person referred to in
Category 3
____ Category 5 an individual who, either alone or with a
spouse, has net assets of at least
$5,000,000
____ Category 6 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 and British
Columbia
____ Category 7 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
Page 6 of 16
IF THE PURCHASER IS NOT AN INDIVIDUAL (THAT IS, THE PURCHASER IS A CORPORATION,
PARTNERSHIP, TRUST OR OTHER ENTITY OTHER THAN AN INDIVIDUAL), THEN THE PURCHASER
SATISFIES ONE OR MORE OF THE CATEGORIES INDICATED BELOW (PLEASE PLACE AN "X" ON
THE APPROPRIATE LINES):
INSTITUTIONAL INVESTORS
____ Category 8 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
____ Category 9 An association governed by the COOPERATIVE
CREDIT ASSOCIATION S ACT (Canada) or a
central cooperative credit society for which
an order has been made under section 473(1)
of that Act, or 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 of Canada, or a
bank named in Schedule I, II or III of the
BANK Act (Canada)
____ Category 10 the Business Development Bank of Canada
incorporated under the BUSINESS DEVELOPMENT
BANK OF CANADA ACT (Canada)
____ Category 11 a subsidiary of any person referred to in
Categories 9 or 10, 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
____ Category 12 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
____ Category 13 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
GOVERNMENT ORGANIZATIONS
____ Category 14 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
____ Category 15 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
intermunicipal management board in Quebec
____ Category 16 any national, federal, state, provincial,
territorial or municipal government of or in
any foreign jurisdiction, or any agency of
that government
OTHER CORPORATIONS, PARTNERSHIPS, TRUSTS & CHARITIES
____ Category 17 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
____ Category 18 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
Page 7 of 16
____ Category 19 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]of National Instrument 45-106, or
(iii) a person described in paragraph (i) or
(ii) that acquires or acquired securities
under section 2.8 [INVESTMENT FUND
REINVESTMENT] of National Instrument 45-106
____ Category 20 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, as issued a receipt
____ Category 21 an investment fund that is advised by a
person registered as an advisor or a person
that is exempt from registration as an
advisor
____ Category 22 any entity organized in a foreign
jurisdiction that is analogous to any of the
entities referred to in Category 3 and
Categories 9 through 12 in form and function
The statements made in this Questionnaire are true and accurate to the best of
my information and belief and I will promptly notify the Issuer of any changes
in the answers.
Dated _______________ 2006.
X_______________________________________________________
Signature of individual (if Purchaser IS an individual)
X_______________________________________________________
Authorized signatory (if Purchaser is NOT an individual)
________________________________________________________
Name of Purchaser (PLEASE PRINT)
________________________________________________________
Name of authorized signatory (PLEASE PRINT)
________________________________________________________
Official capacity of authorized signatory (PLEASE PRINT)
Page 8 of 16
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) with the Exchange.
1. Placee Information:
(a) Name:
_____________________________________________________
(b) Complete Address:
_____________________________________________________
(c) Jurisdiction of Incorporation or Creation:
_____________________________________________________
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
Page 9 of 16
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
----------------------- ---------------- ----------------------- ---------------
----------------------- ---------------- ----------------------- ---------------
----------------------- ---------------- ----------------------- ---------------
----------------------- ---------------- ----------------------- ---------------
----------------------- ---------------- ----------------------- ---------------
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).
Dated at ________________ on _________________.
X_______________________________________________________
(Name of Purchaser - PLEASE PRINT)
X_______________________________________________________
(Authorized Signature)
________________________________________________________
(Official Capacity -PLEASE PRINT)
________________________________________________________
(Name of individual whose signature appears above -
PLEASE PRINT)
THIS IS NOT A PUBLIC DOCUMENT
Page 10 of 16
GENERAL PROVISIONS
1. DEFINITIONS
1.1 In the Subscription Agreement (including the first (cover)
page, the Terms on pages 3 to 4, the General Provisions on
pages 10 to 16 and the other schedules and appendixes
incorporated by reference), the following words have the
following meanings unless otherwise indicated:
(a) "1933 Act" means the United States Securities Act of
1933, as amended;
(c) "Applicable Legislation" means the Securities
Legislation Applicable to the Issuer (as defined on
page 4) and all legislation incorporated in the
definition of this term in other parts of the
Subscription Agreement, together with the regulations
and rules made and promulgated under that legislation
and all administrative policy statements, blanket
orders and rulings, notices and other administrative
directions issued by the Commissions;
(e) "Closing" means the completion of the sale and
purchase of the Purchased Securities;
(f) "Closing Date" has the meaning assigned in the Terms;
(g) "Commissions" means the Commissions with Jurisdiction
over the Issuer (as defined on page 4) and the
securities commissions incorporated in the definition
of this term in other parts of the Subscription
Agreement;
(h) "Exchange" has the meaning assigned in the Terms;
(i) "Final Closing" means the last closing under the
Private Placement;
(j) "General Provisions" means those portions of the
Subscription Agreement headed "General Provisions"
and contained on pages 10 to 16;
(l) "Offering Memorandum" means any offering memorandum
prepared by the Issuer in connection with the Private
Placement, as it may be amended from time to time;
(n) "Private Placement" means the offering of the
Purchased Securities on the terms and conditions of
this Subscription Agreement;
(o) "Purchased Securities" has the meaning assigned in
the Terms;
(r) "Regulation S" means Regulation S promulgated under
the 1933 Act;
(s) "Regulatory Authorities" means the Commissions and
the Exchange;
(u) "Securities" has the meaning assigned in the Terms;
(v) "Subscription Agreement" means the first (cover)
page, the Terms on pages 3 to 4, the General
Provisions on pages 10 to 16 and the other schedules
and appendixes incorporated by reference; and
(w) "Terms" means those portions of the Subscription
Agreement headed "Terms" and contained on pages 3 to
4.
Page 11 of 16
1.2 In the Subscription Agreement, the following terms have the
meanings defined in Rule 902 of Regulation S: "Directed
Selling Efforts", "Foreign Issuer", "Substantial U.S. Market
Interest", "U.S. Person" and "United States".
1.3 In the Subscription Agreement, unless otherwise specified,
currencies are indicated with the ISO 4217 currency code so
that, as examples, Canadian dollars are indicated with the
prefix "CAD", United States dollars are indicated with the
prefix "USD", British pounds sterling are indicated with the
prefix "GBP" and the euro is indicated with the prefix "EUR".
1.4 In the Subscription Agreement, other words and phrases that
are capitalized have the meaning assigned in the Subscription
Agreement.
2. REPRESENTATIONS AND WARRANTIES OF PURCHASER
2.1 ACKNOWLEDGEMENTS CONCERNING OFFERING
The Purchaser acknowledges that:
(a) no securities commission or similar regulatory
authority has reviewed or passed on the merits of the
Securities;
(b) there is no government or other insurance covering
the Securities;
(c) there are risks associated with the purchase of the
Securities;
(d) there are restrictions on the Purchaser's ability to
resell the Securities and it is the responsibility of
the Purchaser to find out what those restrictions are
and to comply with them before selling the
Securities;
(e) the Issuer has advised the Purchaser that the Issuer
is relying on an exemption from the requirements to
provide the Purchaser with a prospectus and to sell
securities through a person registered to sell
securities under the Applicable Legislation and, as a
consequence of acquiring securities pursuant to this
exemption, certain protections, rights and remedies
provided by the Applicable Legislation, including
statutory rights of rescission or damages, will not
be available to the Purchaser;
(f) no prospectus has been filed by the Issuer with the
Commissions in connection with the issuance of the
Purchased Securities, the issuance is exempted from
the prospectus and registration requirements of the
Applicable Legislation and:
(i) the Purchaser is restricted from using most
of the civil remedies available under the
Applicable Legislation;
(ii) the Purchaser may not receive information
that would otherwise be required to be
provided to the Purchaser under the
Applicable Legislation; and
(iii) the Issuer is relieved from certain
obligations that would otherwise apply under
the Applicable Legislation;
(g) the Purchaser acknowledges that the Securities have
not been registered under the 1933 Act and may not be
offered or sold in the United States unless
registered under the 1933 Act and the securities laws
of all applicable states of the United States or an
exemption from such registration requirements is
available, and that the Issuer has no obligation or
present intention of filing a registration statement
under the 1933 Act in respect of the Purchased
Securities or any of the Securities;
Page 12 of 16
(h) the Purchaser acknowledges that the Warrants have not
been registered under the 1933 Act and may not be
exercised by or on behalf of a person in the United
States unless the Warrant and the underlying Warrant
Shares have been registered under the 1933 Act and
the securities laws of all applicable states of the
United States or an exemption from such registration
requirements is available;
(i) the Purchaser acknowledges that certificates
representing the Warrants, as well as all
certificates issued in exchange for or in
substitution of the foregoing, until such time as is
no longer required under the applicable requirements
of the 1933 Act or applicable state securities laws,
will bear, on the face of such certificate, the
following legend:
"THIS WARRANT AND THE SECURITIES DELIVERABLE UPON
EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"U.S. SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES. THIS WARRANT MAY NOT BE
EXERCISED BY OR ON BEHALF OF A PERSON IN THE UNITED
STATES UNLESS THE WARRANT AND THE UNDERLYING
SECURITIES HAVE BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT AND THE APPLICABLE SECURITIES
LEGISLATION OF ANY SUCH STATE OR AN EXEMPTION FROM
SUCH REGISTRATION REQUIREMENTS IS AVAILABLE. "UNITED
STATES" AND "U.S. PERSON" ARE AS DEFINED BY
REGULATION S UNDER THE U.S. SECURITIES ACT."
(j) the Purchaser acknowledges that the Warrants are
non-transferable.
2.2 REPRESENTATIONS BY ALL PURCHASERS
The Purchaser represents and warrants to the Issuer that, as at the Agreement
Date and at the Closing:
(a) the Purchaser has received a copy of the Offering
Memorandum, if any;
(b) to the best of the Purchaser's knowledge, the
Securities were not advertised;
(c) no person has made to the Purchaser any written or
oral representations:
(i) that any person will resell or repurchase
the Securities;
(ii) that any person will refund the purchase
price of the Purchased Securities;
(iii) as to the future price or value of any of
the Securities; or
(iv) that any of the Securities will be listed
and posted for trading on a stock exchange
or that application has been made to list
and post any of the Securities for trading
on any stock exchange, other than the
Exchange;
(d) the Purchaser is either:
(i) an accredited investor and has properly
completed and delivered an Accredited
Investor Questionnaire; or
(ii) a person or company who is purchasing the
Securities as principal and is:
(A) a director, executive officer or
control person of the Issuer, or an
affiliate of the Issuer;
Page 13 of 16
(B) a spouse, parent, grandparent,
brother, sister or child of a
director, executive officer or
control person of the Issuer, or of
an affiliate of the Issuer;
(C) a parent, grandparent, brother,
sister or child of the spouse of a
director, executive officer or
control person of the Issuer, or of
an affiliate of the Issuer;
(D) a direct close personal friend of a
director, executive officer or
control person of the Issuer, or of
an affiliate of the Issuer and has
known such person well enough and
for a sufficient period of time to
be in a position to assess the
capabilities and trustworthiness of
that person and is not a close
personal friend solely because the
individual is a relative, a member
of the same organization,
association or religious group nor
because the individual is a client,
customer, former client or former
customer;
(E) a direct close business associate
of a director, executive officer or
control person of the Issuer, or of
an affiliate of the Issuer and has
had sufficient prior business
dealings with such person to be in
a position to assess the
capabilities and trustworthiness of
that person and is not a close
business associate solely because
the individual is a client,
customer, former client or former
customer;
(F) a founder of the Issuer or a
spouse, parent, grandparent,
brother, sister, child, close
personal friend or close business
associate of a founder of the
Issuer provided the friend or
business associate has had
sufficient prior dealings or has
knows such person well enough for a
sufficient period of time to be in
a position to assess the
capabilities and trustworthiness of
the founder and is not a close
personal friend or business
associate solely because the
individual is a relative, a member
of the same organization,
association or religious group nor
because the individual is a client,
customer, former client or former
customer;
(G) a parent grandparent, brother,
sister or child of a spouse of a
founder of the Issuer;
(H) a person of which a majority of the
voting securities are beneficially
owned by, or a majority of the
directors are , persons described
in paragraphs (i) to (vii), or
(I) a trust or estate of which all of
the beneficiaries or a majority of
the trustees or executors are
persons described in paragraphs (a)
to (g);
(e) this subscription has not been solicited in
any other manner contrary to the Applicable
Legislation or the 1933 Act;
(f) the Purchaser is at arm's length (as that
term is customarily defined) with the
Issuer;
(g) the Purchaser (or others for whom it is
contracting hereunder) has been advised to
consult its own legal and tax advisors with
respect to applicable resale restrictions
and tax considerations, and it (or others
for whom it is contracting hereunder) is
solely responsible for compliance with
applicable resale restrictions and
applicable tax legislation;
(h) the Purchaser has no knowledge of a
"material fact" or "material change" (as
those terms are defined in the Applicable
Legislation) in the affairs of the Issuer
that has not been generally disclosed to the
public, except knowledge of this particular
transaction;
(i) the offer made by this subscription is
irrevocable (subject to the Purchaser's
right to withdraw the subscription and to
terminate the obligations as set out in this
Agreement) and requires acceptance by the
Issuer and approval of the Exchange;
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(j) the Purchaser has the legal capacity and
competence to enter into and execute this
Agreement and to take all actions required
pursuant to the Subscription Agreement and,
if the Purchaser is a corporation, it is
duly incorporated and validly subsisting
under the laws of its jurisdiction of
incorporation and all necessary approvals by
its directors, shareholders and others have
been given to authorize execution of this
Agreement on behalf of the Purchaser;
(k) the entering into of this Agreement and the
transactions contemplated hereby will not
result in the violation of any of the terms
and provisions of any law applicable to, or
the constating documents of, the Purchaser
or of any agreement, written or oral, to
which the Purchaser may be a party or by
which the Purchaser is or may be bound;
(l) this Agreement has been duly executed and
delivered by the Purchaser and constitutes a
legal, valid and binding agreement of the
Purchaser enforceable against the Purchaser;
(m) the Purchaser has been independently advised
as to the applicable hold period imposed in
respect of the Securities by securities
legislation in the jurisdiction in which the
Purchaser resides and confirms that no
representation has been made respecting the
applicable hold periods for the Securities
and is aware of the risks and other
characteristics of the Securities and of the
fact that the Purchaser may not be able to
resell the Securities except in accordance
with the applicable securities legislation
and regulatory policies;
(n) the Purchaser is capable of assessing the
proposed investment as a result of the
Purchaser's financial and business
experience or as a result of advice received
from a registered person other than the
Issuer or any affiliates of the Issuer; and
(o) if required by applicable securities
legislation, policy or order or by any
securities commission, stock exchange or
other regulatory authority, the Purchaser
will execute, deliver, file and otherwise
assist the Issuer in filing, such reports,
undertakings and other documents with
respect to the issue of the Securities as
may be required.
2.3 RELIANCE, INDEMNITY AND NOTIFICATION OF CHANGES
The representations and warranties in the Subscription Agreement (including the
first (cover) page, the Terms on pages 3 to 4, the General Provisions on pages
10 to 16 and the other schedules and appendixes incorporated by reference) are
made by the Purchaser with the intent that they be relied upon by the Issuer in
determining its suitability as a purchaser of Purchased Securities, and the
Purchaser hereby agrees to indemnify the Issuer against all losses, claims,
costs, expenses and damages or liabilities which any of them may suffer or incur
as a result of reliance thereon. The Purchaser undertakes to notify the Issuer
immediately of any change in any representation, warranty or other information
relating to the Purchaser set forth in the Subscription Agreement (including the
first (cover) page, the Terms on pages 3 to 4, the General Provisions on pages
10 to 16 and the other schedules and appendixes incorporated by reference) which
takes place prior to the Closing.
2.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties contained in this Section will survive the
Closing.
3. REPRESENTATIONS AND WARRANTIES OF THE ISSUER
3.1 REPRESENTATIONS AND WARRANTIES OF THE ISSUER
(a) the Issuer is a corporation duly incorporated and
validly subsisting under the laws of British Columbia
and has the corporate power and authority to enter
into this Agreement and complete the transactions
contemplated hereby and to own and lease its
properties and assets and to conduct its business as
currently conducted;
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(b) the Issuer shall do all acts and things necessary to
reserve or set aside sufficient shares in the
treasury of the Issuer to enable it to issue to the
Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and
posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities
of the Issuer nor prohibiting the sale of such
securities has been issued to the Issuer or its
directors, officers or promoters or against any other
companies that have common directors, officers or
promoters and no investigations or proceedings for
such purposes are pending or threatened of which the
Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange
issuer under the SECURITIES ACT (B.C.) and is not in
material default of any of the requirements of the
SECURITIES ACT (B.C.) or the Rules thereunder, or of
any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer
of this Agreement and the transactions herein
contemplated:
(i) have or will have been prior to the Closing
duly authorized by all necessary corporate
action of the Issuer and by all necessary
action of the shareholders thereof;
(ii) do not contravene, conflict with or cause
the Issuer to be in breach or default of its
memorandum or articles, or articles or
by-laws, as the case may be, or of any
resolution of its respective directors or
shareholders, any trust deeds, debenture,
loan agreements or any of its other
agreements or undertakings or any judgement,
decree or order to or by which it is a party
to or is bound;
(g) at the Closing, upon payment of the purchase price,
the Shares shall be duly issued and outstanding as
fully paid and non-assessable, the Warrants shall be
duly granted and enforceable against the Company,
upon exercise of the Warrants and payment of the
exercise price therefore, the Warrant Shares shall be
duly issued and outstanding as fully paid and
non-assessable; and
(h) except as qualified by the disclosure in all
prospectuses, filing statements and press releases
filed with the Commissions or the Exchange or the
Offering Memorandum, if any, (the "Disclosure
Record"), the Company is the beneficial owner of the
properties, business and assets or the interests in
the properties, business or assets referred to in the
Disclosure Record, and the properties are in good
standing under the applicable laws of the
jurisdictions in which they are situated.
3.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties contained in this Section will survive the
Closing.
4. WITHDRAWAL OF SUBSCRIPTION AND CONTRACTUAL RIGHTS
The Purchaser reserves the right to withdraw this subscription and to terminate
its obligations hereunder at any time before Closing.
5. CLOSING
5.1 The Purchaser acknowledges that, although Purchased Securities
may be issued to other purchasers under the Private Placement
concurrently with the Closing, there may be other sales of
Purchased Securities under the Private Placement, some or all
of which may close before or after the Closing. The Purchaser
further acknowledges that there is a risk that insufficient
funds may be raised on the Closing to fund the Issuer's
objectives described in the Offering Memorandum, if any, and
that further closings may not take place after the Closing.
Page 16 of 16
5.2 On or before the end of the fifth business day before the
Closing Date, the Purchaser will deliver to the Issuer the
Subscription Agreement and all applicable schedules and
required forms, duly executed, and payment in full for the
total price of the Purchased Securities to be purchased by the
Purchaser.
5.3 After Closing, the Issuer will deliver to the Purchaser the
certificates representing the Purchased Securities purchased
by the Purchaser registered in the name of the Purchaser or
its nominee.
6. MISCELLANEOUS
6.1 The Purchaser agrees to sell, assign or transfer the
Securities only in accordance with the requirements of
applicable securities laws and any legends placed on the
Securities as contemplated by the Subscription Agreement.
6.2 The Purchaser hereby authorizes the Issuer to correct any
minor errors in, or complete any minor information missing
from any part of the Subscription Agreement and any other
schedules, forms, certificates or documents executed by the
Purchaser and delivered to the Issuer in connection with the
Private Placement.
6.3 The Issuer may rely on delivery by fax machine of an executed
copy of this subscription, and acceptance by the Issuer of
such faxed copy will be equally effective to create a valid
and binding agreement between the Purchaser and the Issuer in
accordance with the terms of the Subscription Agreement.
6.4 Without limitation, this subscription and the transactions
contemplated by this Agreement are conditional upon and
subject to the Issuer's having obtained such regulatory
approval of this subscription and the transactions
contemplated by this Agreement as the Issuer considers
necessary.
6.5 This agreement is not assignable or transferable by the
parties hereto without the express written consent of the
other party to this Agreement.
6.6 Time is of the essence of this Agreement and will be
calculated in accordance with the provisions of the
INTERPRETATION ACT (British Columbia).
6.7 Except as expressly provided in this Agreement and in the
agreements, instruments and other documents contemplated or
provided for in this Agreement, this Agreement contains the
entire agreement between the parties with respect to the
Securities and there are no other terms, conditions,
representations or warranties whether expressed, implied, oral
or written, by statute, by common law, by the Issuer, or by
anyone else.
6.8 The parties to this Agreement may amend this Agreement only in
writing.
6.9 This Agreement enures to the benefit of and is binding upon
the parties to this Agreement and their successors and
permitted assigns.
6.10 A party to this Agreement will give all notices to or other
written communications with the other party to this Agreement
concerning this Agreement by hand or by registered mail
addressed to the address given on page 1.
6.11 This Agreement will be governed by and construed in accordance
with the internal laws of British Columbia (without reference
to its rules governing the choice or conflict of laws), and
the parties hereto irrevocably attorn and submit to the
exclusive jurisdiction of the courts of British Columbia with
respect to any dispute related to this Agreement.
END OF GENERAL TERMS AND SUBSCRIPTION AGREEMENT
