THIS PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT (THE "SUBSCRIPTION AGREEMENT")
RELATES TO AN OFFERING OF SECURITIES IN AN OFFSHORE TRANSACTION TO PERSONS WHO
ARE NOT U.S. PERSONS (AS DEFINED HEREIN) PURSUANT TO REGULATION S UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT").
NONE OF THE SECURITIES TO WHICH THIS SUBSCRIPTION AGREEMENT RELATES HAVE BEEN
REGISTERED UNDER THE 1933 ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO
REGISTERED, NONE MAY BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED
STATES OR TO U.S. PERSONS (AS DEFINED HEREIN) EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF REGULATION S UNDER THE 1933 ACT, PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE 1933 ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
1933 ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS.
UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF SECURITIES TO WHICH
THIS SUBSCRIPTION AGREEMENT RELATES MUST NOT TRADE THE SECURITIES BEFORE THE
DATE THAT IS 4 MONTHS AND A DAY AFTER THE LATER OF (1) OCTOBER 16, 2014, AND (2)
THE DATE THE ISSUER BECAME A REPORTING ISSUER IN ANY PROVINCE OR TERRITORY OF
CANADA.
PRIVATE PLACEMENT SUBSCRIPTION
FOR NON U.S. SUBSCRIBERS
EMPIRE GLOBAL CORP.
PRIVATE PLACEMENT
INSTRUCTIONS TO SUBSCRIBER
COMPLETE the information on page 2 of this Subscription Agreement.
FAX a copy of page 2 of this Subscription Agreement to EMPIRE GLOBAL CORP.,
attention of the CEO at 905.738.0807.
COURIER the originally executed copy of the entire Subscription Agreement to
EMPIRE GLOBAL CORP., to
EMPIRE GLOBAL CORP.
000 Xxxxxxxx Xx., Xxxx Xxxxx 000
Xxxxxxx, Xxxxxxx Xxxxxx X0X 0X0
EMPIRE GLOBAL CORP.
PRIVATE PLACEMENT
The Subscriber hereby irrevocably subscribes for, and on Closing will purchase
from Empire Global Corp (the "Company"), the following securities at a price of
US $1.00 per Share:
USD $2,669,000
(Two Million, Six Hundred and Sixty Nine Thousand United States Dollars)
Number of Common Shares: 2,669,000
(Two Million, Six Hundred and Sixty Nine Thousand)
EXECUTED by the Subscriber this 16 day of October, 2014. By executing this
Agreement, the Subscriber certifies that the Subscriber and any beneficial
purchaser for whom the Subscriber is acting is resident in the jurisdiction
shown as the "Address of the Subscriber". The address of the Subscriber will be
accepted by the Company as a representative as to the address of residency for
the Subscriber.
----------------------------------- -------------------------------------
WITNESS: EXECUTION BY SUBSCRIBER/AGENT:
----------------------------------- -------------------------------------
Signature of witness Signature of Subscriber/Agent
----------------------------------- -------------------------------------
Name of witness Name of Subscriber or Agent (please print)
----------------------------------- -------------------------------------
Signature of witness Signature of Subscriber/Agent
----------------------------------- -------------------------------------
Name of witness Name of Subscriber or Agent (please print)
ACCEPTED this ___ day of October, 2014.
EMPIRE GLOBAL CORP.
Per: /s/ Xxxxxxx Xxxxxxxxxx
----------------------------------- -------------------------------------
Xxxxxxx Xxxxxxxxxx, X.Xx. Address of Subscriber (residence)
Chairman and CEO
By signing this acceptance, the Company agrees to be bound by all
representations, warranties, covenants and agreements set out herein.
This Subscription Agreement may be executed in any number of counterparts, each
of which, when so executed and delivered, shall constitute an original and all
of which together shall constitute one instrument. Delivery of an executed copy
of this Subscription Agreement by electronic facsimile transmission or other
means of electronic communication capable of producing a printed copy will be
deemed to be execution and delivery of this Subscription Agreement as of the
date hereinafter set forth.
PAYMENT INSTRUCTIONS
The subscription price may be paid in United States currency by certified cheque
or bank draft.
Please make the certified cheque or bank draft payable to "Xxxxx Winter LLP, in
trust" and deliver it to:
Xxxxx Winter LLP
000 Xxxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxxx X. Xxxxx
Alternatively, please wire transfer immediately available funds to
Xxxxx Winter LLP as follows:
Bank: Royal Bank of Canada
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Tel: (000) 000-0000
Transit #: 06012
Account #: XXXX553
ABA #: 021 000 21
Swift Code: XXXXXXX0
Name of Account: Xxxxx Winter LLP
THIS PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT (THE "SUBSCRIPTION AGREEMENT")
RELATES TO AN OFFERING OF SECURITIES IN AN OFFSHORE TRANSACTION TO PERSONS WHO
ARE NOT U.S. PERSONS (AS DEFINED HEREIN) PURSUANT TO REGULATION S UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT").
NONE OF THE SECURITIES TO WHICH THIS SUBSCRIPTION AGREEMENT RELATES HAVE BEEN
REGISTERED UNDER THE 1933 ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO
REGISTERED, NONE MAY BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED
STATES OR TO U.S. PERSONS (AS DEFINED HEREIN) EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF REGULATION S UNDER THE 1933 ACT, PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE 1933 ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
1933 ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS.
UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF SECURITIES TO WHICH
THIS SUBSCRIPTION AGREEMENT RELATES MUST NOT TRADE THE SECURITIES BEFORE THE
DATE THAT IS 4 MONTHS AND A DAY AFTER THE LATER OF (1) OCTOBER 16, 2014, AND (2)
THE DATE THE ISSUER BECAME A REPORTING ISSUER IN ANY PROVINCE OR TERRITORY OF
CANADA.
PRIVATE PLACEMENT SUBSCRIPTION
(Non U.S. Subscribers Only)
TO: EMPIRE GLOBAL CORP. (the "Company")
000 Xxxxxxxx Xx. Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Purchase of Shares
1. SUBSCRIPTION
1.1 The undersigned (the "Subscriber") hereby irrevocably subscribes for and
agrees to purchase the number of common shares of the Company's common
stock (the "Shares") as set out on page 2 of this Subscription Agreement at
a price of US$ 1.00 per Share (such subscription and agreement to purchase
being the "Subscription"), for the total subscription price as set out on
page 2 of this Subscription Agreement (the "Subscription Proceeds"), which
Subscription Proceeds are tendered herewith, on the basis of the
representations and warranties and subject to the terms and conditions set
forth herein.
1.2 The Company hereby agrees to sell, on the basis of the representations and
warranties and subject to the terms and conditions set forth herein, to the
Subscriber the Shares. Subject to the terms hereof, the Subscription
Agreement will be effective upon its acceptance by the Company. This
offering is not subject to any minimum or maximum offering.
1.3 Unless otherwise provided, all dollar amounts referred to in this
Subscription Agreement are in lawful money of the United States of America.
2. PAYMENT
2.1 The Subscription Proceeds shall be paid to the Company by the Subscriber at
the closing of the transactions contemplated in this Agreement by wire
transfer of immediately available funds.
2.2 [Intentionally deleted.]
2.3 At Closing, the Subscriber shall complete, sign and return to the Company
an executed copy of this Subscription Agreement, including the attached
completed Questionnaire.
2.4 The Subscriber shall complete, sign and return to the Company as soon as
possible, on request by the Company, any documents, questionnaires, notices
and undertakings as may be required by regulatory authorities, and
applicable law.
3. CLOSING
3.1 Closing of the purchase and sale of the Shares shall occur on or before
October 16, 2014, or on such other date as may be determined by the
written mutual agreement of the Company and the Subscriber (the "Closing
Date"). The Subscriber acknowledges that Shares may be issued to other
subscribers under this offering (the "Offering") before or after the
Closing Date. The Company, may, at its discretion, elect to close the
Offering in one or more closings, in which event the Company may agree with
one or more subscribers (including the Subscriber hereunder) to complete
delivery of the Shares to such subscriber(s) against payment therefore at
any time on or prior to the Closing Date.
4. ACKNOWLEDGEMENTS OF SUBSCRIBER
4.1 The Subscriber acknowledges and agrees that:
(a) none of the Shares have been registered under the Securities Act of
1933, as amended (the "1933 Act"), or under any state securities or
"blue sky" laws of any state of the United States, and are being
offered only in a transaction not involving any public offering within
the meaning of the 1933 Act, and, unless so registered, may not be
offered or sold in the United States or to U.S. Persons (as defined
herein), except pursuant to an effective registration statement under
the 1933 Act, or pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the 1933 Act, and in
each case only in accordance with applicable state and provincial
securities laws;
(b) the Company will refuse to register any transfer of any of the Shares
not made in accordance with the provisions of Regulation S, pursuant
to an effective registration statement under the 1933 Act or pursuant
to an available exemption from, or in a transaction not subject to,
the registration requirements of the 1933 Act;
(c) the decision to execute this Subscription Agreement and purchase the
Shares agreed to be purchased hereunder has not been based upon any
oral or written representation as to fact, other than as set out
herein, or otherwise made by or on behalf of the Company and such
decision is based solely upon a review of publicly available
information related to the Company and information regarding the
Company provided by the Company to the Subscriber (the "Company
Information");
(d) the Subscriber and the Subscriber's advisor(s) have had a reasonable
opportunity to review the Company Information and to ask questions of
and receive answers from the Company regarding the Offering, and to
obtain additional information, to the extent possessed or obtainable
without unreasonable effort or expense, necessary to verify the
accuracy of the information contained in the Company Information, or
any other document provided to the Subscriber;
(e) the books and records of the Company were available upon reasonable
notice for inspection, subject to certain confidentiality
restrictions, by the Subscriber during reasonable business hours at
its principal place of business and that all documents, records and
books pertaining to this Offering have been made available for
inspection by the Subscriber, the Subscriber's attorney and/or
advisor(s);
(f) the Company is entitled to rely on the representations and warranties
and the statements and answers of the Subscriber contained in this
Subscription Agreement and the Subscriber will hold harmless the
Company from any loss or damage it may suffer as a result of the
Subscriber's failure to correctly complete this Subscription
Agreement;
(g) the Subscriber will indemnify and hold harmless the Company and, where
applicable, its respective directors, officers, employees, agents,
advisors and shareholders from and against any and all loss,
liability, claim, damage and expense whatsoever (including, but not
limited to, any and all fees, costs and expenses whatsoever reasonably
incurred in investigating, preparing or defending against any claim,
lawsuit, administrative proceeding or investigation whether commenced
or threatened) arising out of or based upon any acknowledgment,
representation or warranty of the Subscriber contained herein being
untrue in any material respect or any material breach or failure by
the Subscriber to comply with any covenant or agreement made by the
Subscriber to the Company in connection therewith;
(h) the Subscriber has been advised to consult the Subscriber's own legal,
tax and other advisors with respect to the merits and risks of an
investment in the Shares and with respect to the applicable resale
restrictions;
(i) the Subscriber has not acquired the Shares as a result of, and will
not itself engage in, any "directed selling efforts" (as defined in
Regulation S under the 0000 Xxx) in the United States in respect of
any of the Shares which would include any activities undertaken for
the purpose of, or that could reasonably be expected to have the
effect of, conditioning the market in the United States for the resale
of any of the Shares; provided, however, that the Subscriber may sell
or otherwise dispose of any of the Shares pursuant to registration of
any of the Shares pursuant to the 1933 Act and any applicable state
securities laws or under an exemption from such registration
requirements and as otherwise provided herein;
(j) the Subscriber is outside the United States when receiving and
executing this Subscription Agreement and is acquiring the Shares as
principal for its own account, for investment purposes only, and not
with a view to, or for, resale, distribution or fractionalization
thereof, in whole or in part, and no other person has a direct or
indirect beneficial interest in such Shares;
(k) none of the Shares may be offered or sold to a U.S. Person or for the
account or benefit of a U.S. Person (other than a distributor) prior
to the end of the expiration of a period of one year after the date of
original issuance of the Shares;
(l) the statutory and regulatory basis for the exemption claimed for the
offer and sale of the Shares, although in technical compliance with
Regulation S, would not be available if the offering is part of a plan
or scheme to evade the registration provisions of the 1933 Act;
(m) none of the Shares are listed on any stock exchange or automated
dealer quotation system and no representation has been made to the
Subscriber that any of the Shares will become listed on any stock
exchange or automated dealer quotation system;
(n) neither the SEC nor any other securities commission or similar
regulatory authority has reviewed or passed on the merits of any of
the Shares;
(o) no documents in connection with this Offering have been reviewed by
the SEC or any state securities administrators;
(p) there is no government or other insurance covering any of the Shares;
and
(q) this Subscription Agreement is not enforceable by the Subscriber
unless it has been accepted by the Company, and the Subscriber
acknowledges and agrees that the Company reserves the right to reject
any subscription for any reason.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SUBSCRIBER
5.1 The Subscriber hereby represents and warrants to and covenants with the
Company (which representations, warranties and covenants shall survive the
Closing Date) that:
(a) the Subscriber is not a U.S. Person (as defined herein);
(b) the Subscriber is not acquiring the Shares for the account or benefit
of, directly or indirectly, any U.S. Person (as defined herein);
(c) the Subscriber is resident in the jurisdiction set out on page 2 of
this Subscription Agreement
(d) the Subscriber:
(i) is knowledgeable of, or has been independently advised as to,
the applicable securities laws of the securities regulators
having application in the jurisdiction in which the Subscriber
is resident (the "International Jurisdiction") which would apply
to the acquisition of the Shares,
(ii) is purchasing the Shares pursuant to exemptions from prospectus
or equivalent requirements under applicable securities laws of
the International Jurisdiction or, if such is not applicable,
the Subscriber is permitted to purchase the Shares under the
applicable securities laws of the securities regulators in the
International Jurisdiction without the need to rely on any
exemptions,
(iii) acknowledges that the applicable securities laws of the
authorities in the International Jurisdiction do not require the
Company to make any filings or seek any approvals of any kind
whatsoever from any securities regulator of any kind whatsoever
in the International Jurisdiction in connection with the issue
and sale or resale of any of the Shares, and
(iv) acknowledges that the acquisition of the Shares by the
Subscriber does not trigger:
A. any obligation to prepare and file a prospectus or similar
document with respect to such purchase in the International
Jurisdiction, or
B. any continuous disclosure reporting obligation of the
Company in the International Jurisdiction;
(e) the Subscriber is acquiring the Shares as principal for investment
only and not with a view to, or for, resale, distribution or
fractionalization thereof, in whole or in part, and, in particular, it
has no intention to distribute either directly or indirectly any of
the Shares in the United States or to U.S. Persons (as defined
herein);
(f) the Subscriber is outside the United States when receiving and
executing this Subscription Agreement;
(g) the Subscriber understands and agrees not to engage in any hedging
transactions involving any of the Shares unless such transactions are
in compliance with the provisions of the 1933 Act and in each case
only in accordance with applicable state securities laws;
(h) the Subscriber acknowledges that it has not acquired the Shares as a
result of, and will not itself engage in, any "directed selling
efforts" (as defined in Regulation S under the 0000 Xxx) in the United
States in respect of any of the Shares which would include any
activities undertaken for the purpose of, or that could reasonably be
expected to have the effect of, conditioning the market in the United
States for the resale of any of the Shares; provided, however, that
the Subscriber may sell or otherwise dispose of any of the Shares
pursuant to registration of any of the Shares pursuant to the 1933 Act
and any applicable state securities laws or under an exemption from
such registration requirements and as otherwise provided herein;
(i) the Subscriber has the legal capacity and competence to enter into and
execute this Subscription Agreement and to take all actions required
pursuant hereto and, if the Subscriber is a corporation, it is duly
incorporated and validly subsisting under the laws of its jurisdiction
of incorporation and all necessary approvals by its directors,
shareholders and others have been obtained to authorize execution and
performance of this Subscription Agreement on behalf of the
Subscriber;
(j) the entering into of this Subscription Agreement and the transactions
contemplated hereby do not result in the violation of any of the terms
and provisions of the constating documents of, the Subscriber, or of
any agreement, written or oral, to which the Subscriber may be a party
or by which the Subscriber is or may be bound;
(k) the Subscriber has duly executed and delivered this Subscription
Agreement and it constitutes a valid and binding agreement of the
Subscriber enforceable against the Subscriber;
(l) the Subscriber has received and carefully read this Subscription
Agreement;
(m) the Subscriber (i) has adequate net worth and means of providing for
its current financial needs and possible personal contingencies, (ii)
has no need for liquidity in this investment, and (iii) is able to
bear the economic risks of an investment in the Shares for an
indefinite period of time, and can afford the complete loss of such
investment;
(n) the Subscriber has the requisite knowledge and experience in financial
and business matters as to be capable of evaluating the merits and
risks of the investment in the Shares and the Company, and the
Subscriber is providing evidence of knowledge and experience in these
matters through the information requested herein;
(o) the Subscriber understands and agrees that the Company and others will
rely upon the truth and accuracy of the acknowledgements,
representations, warranties, covenants and agreements contained in
this Subscription Agreement, and agrees that if any of such
acknowledgements, representations and agreements are no longer
accurate or have been breached, the Subscriber shall promptly notify
the Company;
(p) the Subscriber is aware that an investment in the Company is
speculative and involves certain risks, including the possible loss of
the investment;
(q) the Subscriber is purchasing the Shares for its own account for
investment purposes only and not for the account of any other person
and not for distribution, assignment or resale to others, and no other
person has a direct or indirect beneficial interest is such Shares,
and the Subscriber has not subdivided his interest in the Shares with
any other person;
(r) the Subscriber is not an underwriter of, or dealer in, the shares of
the Company's common stock, nor is the Subscriber participating,
pursuant to a contractual agreement or otherwise, in the distribution
of the Shares;
(s) the Subscriber has made an independent examination and investigation
of an investment in the Shares and the Company and has depended on the
advice of its legal and financial advisors and agrees that the Company
will not be responsible in anyway whatsoever for the Subscriber's
decision to invest in the Shares and the Company;
(t) the Subscriber is not aware of any advertisement of any of the Shares
and is not acquiring the Shares as a result of any form of general
solicitation or general advertising including advertisements,
articles, notices or other communications published in any newspaper,
magazine or similar media or broadcast over radio or television, or
any seminar or meeting whose attendees have been invited by general
solicitation or general advertising;
(u) no person has made to the Subscriber any written or oral
representations:
(i) that any person will resell or repurchase any of the Shares,
(ii) that any person will refund the purchase price of any of the
Shares,
(iii) as to the future price or value of any of the Shares, or
(iv) that any of the Shares will be listed and posted for trading on
any stock exchange or automated dealer quotation system or that
application has been made to list and post any of the Shares of
the Company on any stock exchange or automated dealer quotation
system; and
(v) the Subscriber acknowledges and agrees that the Company shall not
consider the Subscriber's Subscription for acceptance unless the
undersigned provides to the Company, along with an executed copy of
this Subscription Agreement and such other supporting documentation
that the Company or its legal counsel may request to establish the
Subscriber's qualification as a qualified investor.
5.2 In this Subscription Agreement, the term "U.S. Person" shall have the
meaning ascribed thereto in Regulation S promulgated under the 1933 Act and
for the purpose of the Subscription Agreement includes any person in the
United States.
6. ACKNOWLEDGEMENT AND WAIVER
6.1 The Subscriber has acknowledged that the decision to purchase the Shares
was solely made on the Company Information and the representations and
warranties of the Company contained herein.
7. REPRESENTATIONS AND WARRANTIES WILL BE RELIED UPON BY THE COMPANY
7.1 The Subscriber acknowledges that the acknowledgements, representations and
warranties contained herein are made by it with the intention that they may
be relied upon by the Company and its legal counsel in determining the
Subscriber's eligibility to purchase the Shares under applicable securities
legislation, or (if applicable) the eligibility of others on whose behalf
it is contracting hereunder to purchase the Shares under applicable
securities legislation. The Subscriber further agrees that by accepting
delivery of the certificates representing the Shares, it will be
representing and warranting that the acknowledgements representations and
warranties contained herein are true and correct as of the date hereof and
will continue in full force and effect notwithstanding any subsequent
disposition by the Subscriber of such Shares.
8. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF THE COMPANY
8.1 The Company hereby represents and warrants to the Subscriber and
acknowledges that the Subscriber is relying thereon that as of the date on
which this Subscription Agreement is entered into:
(a) the Company is validly subsisting under the laws of Delaware and is
qualified to carry on business in Delaware and in each other
jurisdiction, if any, in respect of which the carrying on of the
activities contemplated hereby make such qualification necessary;
(b) the Company has complied and will comply with all applicable corporate
and securities laws where such rules are applicable to it including,
without limitation, in connection with the offer, sale and issuance of
the Shares to be purchased hereunder, and its continuous disclosure
obligations, in all material respects and there is no material change
that has not been disclosed and there is no material change report
that has been filed under "confidentiality" provisions;
(c) upon acceptance by the Company, this Subscription Agreement shall
constitute a binding obligation of the Company enforceable in
accordance with its terms;
(d) the execution, delivery and performance of this Subscription Agreement
by the Company and the issue of the Shares do not and will not
constitute a breach of or default under the constating documents of
the Company, or any law, regulation, order or ruling applicable to the
Company, or any agreement to which the Company is a party or by which
it is bound;
(e) the Company has the full corporate right, power and authority to enter
into this Subscription Agreement, and to issue the Shares;
(f) the authorized capital of the Company consists of 80,000,000 shares of
common stock each with a par value of $0.0001 and 20,000,000 shares of
preferred stock each with a par value of $0.0001 of which, immediately
prior to the issuance of the Shares, 21,575,800 and no other shares
will be issued and outstanding as fully paid and non-assessable shares
in the capital of the Company;
(g) there is no finder's fee or commission payable by the Company to any
third party with respect to this Subscription Agreement;
(h) upon acceptance by the Company of this Subscription Agreement and upon
receipt by the Company of the Subscription Proceeds, the Shares shall
be validly issued and outstanding as fully paid and non-assessable
common shares in the capital of the Company;
(i) the Company has not and will not, directly or indirectly, engage in
any "directed selling efforts" (as defined in Regulation S under the
0000 Xxx) in the United States in respect of any of the Shares which
would include any activities undertaken for the purpose of, or that
could reasonably be expected to have the effect of, conditioning the
market in the United States for the resale of any of the Shares; and
(j) none of the Company's disclosure documents that are filed and/or
furnished with the SEC contain or will contain, at the time of filing
or furnishing, an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading,
and the Company agrees that the above representations, warranties and covenants
in this Section 8.1 will be true and correct both as of the date on which this
Subscription Agreement is entered into and as of the Closing Date.
8.2 The Company agrees that it will indemnify and hold harmless the Subscriber
and, where applicable, its respective directors, officers, employees,
agents, advisors and shareholders from and against any and all loss,
liability, claim, damage and expense whatsoever (including, but not limited
to, any and all fees, costs and expenses whatsoever reasonably incurred in
investigating, preparing or defending against any claim, lawsuit,
administrative proceeding or investigation whether commenced or threatened)
arising out of or based upon any acknowledgment, representation or warranty
of the Company contained herein being untrue in any material respect or any
material breach or failure by the Company to comply with any covenant or
agreement made by the Company to the Subscriber in connection therewith.
9. RESALE RESTRICTIONS
9.1 The Subscriber acknowledges that any resale of the Shares will be subject
to resale restrictions contained in the securities legislation applicable
to the Subscriber or proposed transferee. The Subscriber acknowledges that
none of the Shares have been registered under the 1933 Act or the
securities laws of any state of the United States. None of the Shares may
be offered or sold in the United States unless registered in accordance
with federal securities laws and all applicable state securities laws or
exemptions from such registration requirements are available.
10. LEGENDING AND REGISTRATION OF SUBJECT SECURITIES
10.1 The Subscriber hereby acknowledges that upon the issuance thereof, and
until such time as the same is no longer required under the applicable
securities laws and regulations, the certificates representing any of the
Shares will bear a legend in substantially the following form:
THE SECURITIES REPRESENTED HEREBY HAVE BEEN OFFERED IN AN OFFSHORE TRANSACTION
TO A PERSON WHO IS NOT A U.S. PERSON (AS DEFINED HEREIN) PURSUANT TO
REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"1933 ACT").
NONE OF THE SECURITIES REPRESENTED HEREBY HAVE BEEN REGISTERED UNDER THE 1933
ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, MAY NOT BE
OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES (AS DEFINED
HEREIN) OR TO U.S. PERSONS EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
REGULATION S UNDER THE 1933 ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE 1933 ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN
EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION,
HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN
COMPLIANCE WITH THE 1933 ACT. "UNITED STATES" AND "U.S. PERSON" ARE AS DEFINED
BY REGULATION S UNDER THE 1933 ACT.
UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST
NOT TRADE THE SECURITY BEFORE THE DATE THAT IS 4 MONTHS AND A DAY AFTER THE
LATER OF (1) OCTOBER 16, 2014, AND (2) THE DATE THE ISSUER BECAME A REPORTING
ISSUER IN ANY PROVINCE OR TERRITORY OF CANADA.
10.2 The Subscriber hereby acknowledges and agrees to the Company making a
notation on its records or giving instructions to the registrar and
transfer agent of the Company in order to implement the restrictions on
transfer set forth and described in this Subscription Agreement.
11. COLLECTION OF PERSONAL INFORMATION
11.1 This Subscription Agreement and the Questionnaire hereto require the
Subscriber to provide certain personal information to the Company and its
legal counsel. Such information is being collected by the Company and its
legal counsel for the purposes of completing this Offering, which
includes, without limitation, determining the Subscriber's eligibility to
purchase the Shares under applicable securities legislation, preparing and
registering certificates representing the Shares to be issued to the
Subscriber and completing filings required by any stock exchange,
securities commission, securities regulatory authority or taxation
authority. Certain securities commissions have been granted the authority
to indirectly collect this personal information pursuant to securities
legislation and this personal information is also being collected for the
purpose of administration and enforcement of securities legislation. In
Ontario, the Administrative Support Clerk of the Ontario Securities
Commission, Xxxxx 0000, Xxx 00, 00 Xxxxx Xxxxxx Xxxx, Xxxxxxx Xxxxxxx,
X0X 0X0, Telephone (000) 000-0000, Facsimile: (000) 000-0000, is the
public official who can answer questions about the indirect collection of
personal information. The Subscriber's personal information may be
disclosed by the Company or its legal counsel to: (a) stock exchanges,
securities commissions or securities regulatory authorities; (b) the
Company's registrar and transfer agent; (c) taxation authorities; and
(d) any of the other parties involved in this Offering, including legal
counsel. In addition, the Company will be providing the following
information to the Ontario Securities Commission and other regulatory
authorities: (a) the full name, residential address and telephone number
of the Subscriber; (b) the number and type of Shares purchased by the
Subscriber; (c) the total purchase price for the Shares; (d) the statutory
exemption relied upon by the Company; and (e) the date of distribution of
the Shares (collectively, the "Information"). By executing this
Subscription Agreement, the Subscriber is deemed to be authorizing and
consenting to the foregoing collection (including the indirect collection
of personal information), use and disclosure of the Subscriber's personal
information and the Information as set forth above. The Subscriber also
consents to the filing of copies or originals of any of the Subscriber's
documents described in this Subscription Agreement, as well as the
Information, as may be required to be filed with any stock exchange,
securities commission or securities regulatory or taxation authority in
connection with the transaction contemplated hereby.
12. COSTS
12.1 The Subscriber acknowledges and agrees that all costs and expenses
incurred by the Subscriber (including any fees and disbursements of any
special counsel retained by the Subscriber) relating to the purchase of
the Shares shall be borne by the Subscriber.
13. GOVERNING LAW
13.1 This Subscription Agreement is governed by the laws of the State of
Delaware and the federal laws of the United States applicable thereto.
The Subscriber, in its personal or corporate capacity and, if applicable,
on behalf of each beneficial purchaser for whom it is acting, irrevocably
attorns to the exclusive jurisdiction of the Courts of the State of
Delaware.
14. SURVIVAL
14.1 This Subscription Agreement, including without limitation the
representations, warranties and covenants contained herein, shall survive
and continue in full force and effect and be binding upon the parties
hereto and their respective heirs, administrators and successors
notwithstanding the completion of the purchase of the Shares by the
Subscriber pursuant hereto.
15. ASSIGNMENT
15.1 This Subscription Agreement is not transferable or assignable.
16. SEVERABILITY
16.1 The invalidity or unenforceability of any particular provision of this
Subscription Agreement shall not affect or limit the validity or
enforceability of the remaining provisions of this Subscription Agreement.
17. ENTIRE AGREEMENT
17.1 Except as expressly provided in this Subscription Agreement and in the
agreements, instruments and other documents contemplated or provided for
herein, this Subscription Agreement contains the entire agreement between
the parties with respect to the sale of the Shares and there are no other
terms, conditions, representations or warranties, whether expressed,
implied, oral or written, by statute or common law, by the Company or by
anyone else.
18. NOTICES
18.1 All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Subscriber shall be
directed to the address on page 2 and notices to the Company shall be
directed to it at the first page of this Subscription Agreement.
19. COUNTERPARTS AND ELECTRONIC MEANS
19.1 This Subscription Agreement may be executed in any number of counterparts,
each of which, when so executed and delivered, shall constitute an
original and all of which together shall constitute one instrument.
Delivery of an executed copy of this Subscription Agreement by electronic
facsimile transmission or other means of electronic communication capable
of producing a printed copy will be deemed to be execution and delivery of
this Subscription Agreement as of the date hereinafter set forth.
