MICROMEM TECHNOLOGIES INC. SUBSCRIPTION AGREEMENT FOR UNITS
SUBSCRIPTION
AGREEMENT FOR UNITS
1. Subscription
The
undersigned (the "Purchaser") hereby irrevocably subscribes for and agrees
to
purchase (the "Subscription Agreement"), on and subject to the terms and
conditions set forth herein from Micromem Technologies Inc. (the
"Corporation") such number of units of the Corporation (a "First Unit") as
set
forth in section 24 hereof (collectively the "Purchased Units") at a price
of
US$0.60 per First Unit (the "Subscription Price").
2. Description
of First Units
Each
First Unit shall consist of one common share of the Corporation (a "Common
Share") and one warrant (a "First Warrant") each First Warrant exercisable
for
one unit (a "Second Unit") at a price of US$0.60 per Second Unit at any time
during the 12 months following the date of issuance of the First Warrants.
Each
Second Unit shall consist of one Common Share (a "First Warrant Share") and
one
warrant (a "Second Warrant"), each Second Warrant exercisable for one Common
Share (a "Second Warrant Share") at a price of US$0.60 per Second Warrant Share
at any time during the period extending 24 months following the issuance of
the
First Unit to such Purchaser. Hereinafter a First Warrant and a Second Warrant
may collectively be referred to as a "Warrant" and a First Warrant Share and
a
Second Warrant Share may collectively be referred to as a "Warrant
Share".
3. Payment
The
aggregate amount payable by the Purchaser in respect of the Purchased Units
shall be paid on the Closing Date and shall be made by certified cheque, wire
transfer or bank draft drawn on a Canadian chartered bank, and payable to the
Corporation or payable in such other manner as may be specified by the
Corporation.
All
dollar amounts referred to herein are US dollars.
4. Conditions
of Closing
The
Purchaser must complete, sign and return one executed copy of this Subscription
Agreement to the Corporation as soon as possible, and, in any event, no later
than 12:00 noon (Toronto time) on ________, 200_ or such other time, date and/or
place as the Corporation may advise.
As
a
condition of Closing (as hereinafter defined), the Corporation must obtain
any
necessary approvals from all appropriate regulatory bodies in respect of the
issue of the First Units. The Purchaser agrees to promptly execute and deliver
all such documents and other instruments as any such regulatory body may
require.
In
addition, the Purchaser shall agree to provide all other documentation, if
any,
required by the securities laws of the jurisdiction which the Purchaser is
resident.
If
any
regulatory body objects to the subscription by the Purchaser for the Purchased
Units, the Corporation may, in its sole and absolute discretion, terminate
this
Subscription Agreement by providing written notice to the Purchaser of the
Corporation's intention to do so and returning the Purchaser's subscription
funds, and, upon providing such written notice, the Corporation will be released
from any further obligations hereunder including, without limiting the
generality of this foregoing, the obligation to issue the Purchased Units to
the
Purchaser.
5. Facsimiled
Subscriptions
The
Corporation will be entitled to rely on delivery by facsimile of an executed
copy of this Subscription Agreement, and acceptance by the Corporation of such
facsimile copy will be legally effective to create a valid and binding agreement
between the Purchaser and the Corporation in accordance with the terms
hereof.
6. Closing
Delivery
and payment for the First Units will be completed (the "Closing") at the offices
of the Corporation in Toronto, Ontario at 10:00 a.m. (Toronto time) (the
"Closing Time") on or before _________, 200_ (the "Closing Date") or such
earlier or later dates or times as the Corporation and the Purchaser may agree.
This executed Subscription Agreement is open for acceptance in whole or in
part
by the Corporation at any time prior to the Closing Time. Confirmation of
acceptance or rejection of a subscription will be forwarded to the Purchaser
by
the Corporation promptly after acceptance or rejection has been made. If this
subscription is rejected in whole and if the Purchaser has delivered a certified
cheque or bank draft representing the Subscription Price for the Purchased
Units, then such cheque or bank draft will be promptly returned to the Purchaser
without interest. If this subscription is accepted only in part and the
Purchaser has delivered a certified cheque or bank draft as aforesaid, a cheque
representing the portion of the Subscription Price for that portion of the
Purchaser’s subscription for First Units which is not accepted will be promptly
returned to the Purchaser without interest.
Certificates
for the securities comprising the First Units will be available for delivery
against payment of the aggregate Subscription Price for the First Units by
the
Purchaser in freely tradable US funds.
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7. Prospectus
Exemptions
The
Purchaser (on his or its own behalf or on behalf of others for whom he or it
is
contracting hereunder), acknowledges and agrees that the sale and delivery
of
the Purchased Units to the Purchaser (or to others for whom he or it is
contracting hereunder) is conditional upon such sale being exempt from the
requirements under applicable securities legislation requiring the filing of
a
prospectus in connection with the distribution of the First Units or the
delivery of an offering memorandum (as defined in the applicable securities
legislation), or upon the issuance of such rulings, orders, consents or
approvals as may be required to permit such sale without the requirement of
filing a prospectus or delivering an offering memorandum.
The
Purchaser (on
his
or its own behalf or on behalf of others for whom he or it is contracting
hereunder)
acknowledges and agrees that:
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(a)
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the
Purchaser (or others for whom he or it is contracting hereunder)
has not
received, nor has he or it requested, nor does it have any need to
receive, a prospectus or any offering memorandum, or any other document
(other than financial statements, interim financial statements or
any
other document, the content of which is prescribed by statute or
regulation) describing the business and affairs of the Corporation
which
has been prepared for delivery to, and reviewed by, prospective purchasers
in order to assist he or it in making an investment decision in respect
of
the Purchased Units;
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(b)
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the
Purchaser’s decision to execute this Subscription Agreement and purchase
the Purchased Units (on
his or its own behalf or on behalf of others for whom he or it is
contracting hereunder)
has not been based upon any verbal or written representations as
to fact
or otherwise made by or on behalf of the Corporation and that its
decision
(or the decision of others for whom it is contracting hereunder)
is based
entirely upon information concerning the Corporation contained in
documents the content of which is prescribed by statute or
regulation;
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(c)
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the
sale of the Purchased Units was not accompanied by any advertisement
in
printed media of general and regular paid circulation, radio, television,
the Internet or any other form of electronic media;
and
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(d)
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the
Purchaser (or others for whom he or it is contracting hereunder)
has been
advised to consult its own legal advisors with respect to trading
in the
securities comprising the First Units and to resale restrictions
imposed
by applicable securities legislation in the jurisdiction in which
it
resides, that no representation has been made respecting the applicable
hold periods or other resale restrictions applicable to such securities,
that the Purchaser (or others for whom he or it is contracting hereunder)
is solely responsible (and the Corporation is not in any way responsible)
for compliance with applicable resale restrictions and that the Purchaser
is aware that he or it (or others for whom he or it is contracting
hereunder) may not be able to resell such securities except in accordance
with limited exemptions under applicable securities legislation and
regulatory policy.
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The
Purchaser understands that all certificates representing the Purchased Units
and
all certificates issued in exchange therefor or in substitution or transfer
thereof shall bear a legend respecting restrictions on transfer as required
under applicable securities laws.
The
Purchaser agrees that the Corporation may be required by law or otherwise to
disclose to regulatory authorities the identity of the Purchaser and each
beneficial purchaser of First Units for whom the Purchaser may be
acting.
8. Representations,
Warranties and Covenants of the Purchaser
The
Purchaser hereby represents, warrants and covenants to the Corporation (on
his
or its own behalf and, if applicable, on behalf of those for whom the Purchaser
is contracting hereunder) to and with the Corporation (which representations,
warranties and covenants shall survive Closing), and acknowledges that the
Corporation is relying upon such representations, warranties and covenants
in
issuing the Purchased Units, that:
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if
the Purchaser is a resident of the Province of Ontario, the
Purchaser:
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(i)
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in
the case of a purchase by the Purchaser of the Purchased Units as
principal for its own account and not for the benefit of any other
person,
the Purchaser is purchasing the Purchased Units as principal for
its own
account, and not for the benefit of any other person or company,
for
investment purposes only and not with a view to the resale or distribution
of all or any of the Purchased Units, and this Subscription Agreement has
been authorized, executed and delivered by, and constitutes a legal,
valid
and binding agreement of the undersigned,
and:
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(A)
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(ii)
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in
the case of the purchase by the Purchaser of the Purchased Units
as agent
for a disclosed principal, each beneficial purchaser of the Purchased
Units for whom the Purchaser is acting is purchasing as principal
for its
own account and not for the benefit of any other person; the Purchaser
is
an agent with due and proper authority to execute this Subscription
Agreement and all other documentation in connection with the purchase
of
the Purchased Units on behalf of the beneficial purchaser; and this
Subscription Agreement has been duly authorized, executed and delivered
by
or on behalf of, and constitutes the legal, valid and binding agreement
of, the disclosed principal; and the beneficial
purchaser:
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(A)
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(iii)
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in
the case of the purchase by the Purchaser of the Purchased Units
as
trustee or as agent or as portfolio manager or portfolio advisor
(as such
terms are defined under applicable securities laws) for a principal
which
is undisclosed or identified by account number only, this Subscription
Agreement has been duly authorized, executed and delivered by, and
constitutes a legal, valid and binding agreement of, the undersigned
acting in such capacity, and:
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(A)
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the
beneficial purchaser of the Purchased Units for whom the Purchaser
is
acting is an individual or corporation and is purchasing as principal
for
its own account, and not for the benefit of any other person,
and
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(I)
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is
an "accredited investor", as such term is defined in Ontario Securities
Commission Rule 45-501 (if subject to the securities legislation
of the
province of Ontario), or as such term is defined in Multilateral
Instrument 45-103 (if subject to the securities legislation of the
Province of Alberta);
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and
the
Purchaser is a trustee or agent with due and proper authority to execute this
agreement and all other documentation in connection with the subscription and
purchase of the Purchased Units on behalf of the beneficial
purchaser;
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(b)
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if
the Purchaser is resident of the Province of Ontario, the Purchaser
has
duly completed and signed the Certificate of Ontario Accredited Investor
in the form attached hereto as Schedule I (if subject to the securities
legislation of the province of Ontario) and the contents of the applicable
questionnaire are true and correct as of the date hereof and will
be true
and correct as of the date of the issue and sale of the Purchased
Units.
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(c)
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the
Purchaser has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an
investment in the First Units and that he or it is able to bear the
economic risk of such investment for an indefinite period of time.
The
Purchaser is purchasing the Purchased Units for the Purchaser’s own
account, for investment purposes only and not with a view to any
resale or
distribution thereof and the Purchaser does not have any contracts,
understandings, agreements or arrangements with any person or entity
to
sell, transfer or grant a participation interest with respect to
any of
the Purchased Units;
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(d) if
the
Purchaser is a resident of a jurisdiction other than Canada, the Purchaser
hereby represents and warrants to the Corporation as follows, such
representations and warranties to survive the Purchaser's purchase of the
Purchased Units:
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(1) If
a
natural person, the Purchaser is: a bona fide resident of the state set forth
on
the signature page of this Subscription Agreement as the home address of such
Purchaser; over 21 years of age; and legally competent to execute this
Subscription Agreement and to carry out his obligations hereunder and thereunder
in accordance with the terms and provisions hereof and thereof. If an entity,
the Purchaser has full power and authority to execute and deliver this
Subscription Agreement and to carry out its obligations hereunder and thereunder
in accordance with the terms and provisions hereof and thereof; and the
execution, delivery and performance of this Subscription Agreement and the
consummation of the transactions contemplated hereby and thereby have been
duly
authorized by all requisite corporate or other necessary action on the part
of
the Purchaser.
(2) This
Subscription Agreement constitutes a valid and legally binding obligation of
the
Purchaser, enforceable against the Purchaser in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization and other similar laws now or hereafter in effect relating to
creditors' rights generally.
(3) The
execution, delivery and performance by the Purchaser of this Subscription
Agreement and the transactions contemplated hereby will not constitute a breach
of any term or provision of, or a default under, (i) any outstanding indenture,
mortgage, loan agreement or other similar contract or agreement to which the
Purchaser or any of the Purchaser's affiliates is a party or by which the
Purchaser or any such affiliate or its or their property is bound, (ii) if
the
Purchaser is a corporation or other legal entity, its certificate or articles
of
incorporation or by-laws or other constituent documents, (iii) any law, rule
or
regulation, or (iv) any order, writ, judgment or decree having applicability
to
it.
(4) No
consent, license, approval or authorization of any governmental body, authority,
bureau or agency is required on the part of the Purchaser or any of the
Purchaser's affiliates in connection with the execution, delivery and
performance of this Subscription Agreement or the consummation of the
transactions contemplated hereby.
(5) The
Purchaser has received all other materials relating to the Corporation, the
terms and conditions of the offering and any other matters relating to the
offering which the Purchaser has requested. The Purchaser has had the
opportunity to ask questions of representatives of the Corporation concerning
the finances, operations, business and prospects of the Corporation, and the
Corporation has answered all inquiries that the Purchaser or his or her
representatives have put to it relating to such matters and the offering.
(6)
The
Purchaser has such knowledge and experience in finance, securities, investments
and other business matters so as to be able to protect his interests in
connection with this transaction, and his investment in the Corporation is
not
material when compared to his total financial capacity.
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(7) The
Purchaser understands the various risks of an investment in the Corporation
and
can afford to bear such risks, including, but not limited to, the risks of
losing his entire investment. The Purchaser is aware that the purchase of the
Purchased Units is a speculative investment involving a high degree of risk
and
that there is no guarantee that the Purchaser will realize any gain from this
investment, and that the Purchaser could lose the total amount of the
Subscriber's investment.
(8) The
Purchaser has no need for liquidity of his investment in the Corporation and
can
afford to hold the Purchased Units(s) for which he has subscribed for a
substantial period of time.
(9) The
Purchaser is fully aware that an investment in the Corporation involves
significant risks which he may have to bear for an indefinite period of time
because the Purchased Units have not been registered under the Securities Act
of
1933 (the "33 Act") or under the securities laws of any state and, therefore,
cannot be resold unless they are subsequently so registered or an exemption
from
such registration is available and he is acquiring the Purchased Units for
investment and not with a view to resale or distribution thereof.
(10) The
Purchaser qualifies as an “Accredited Investor” as that term is defined in
Section 501(a) of Regulation D promulgated under the 33 Act. The Purchaser
acknowledges that it has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of making an
investment in the Corporation.
(11) The
Purchaser understands that the Purchased Units are being offered and sold under
an exemption from registration provided for in Regulation D promulgated under
Section 4(2) of the 33 Act and under similar exemption under certain state
securities laws, and that this transaction has not been reviewed by, passed
on
or submitted to any federal or state agency or self-regulatory organization
where an exemption is being relied upon.
(12) The
First
Units hereby subscribed for will be acquired by the Purchaser for his own
account (or, if the Purchaser is a natural person, for the account of such
natural person and his spouse either in joint tenancy, tenancy by the entirety
or tenancy in common), for investment and not with a view to the distribution
thereof.
(13) the
Purchaser (A) will not sell or otherwise dispose of the Purchased Units or
the
Warrant Shares, except in accordance with applicable Canadian and US securities
laws; and (B) if the Purchaser sells or otherwise disposes of the Purchased
Units or the Warrant Shares to a person other than a resident of Canada during
the period referred to herein, such person covenants to obtain from such
purchaser a covenant as provided for herein and the Corporation shall have
no
obligation to register any purported sale or disposition in violation of this
Subscription Agreement and any such sale or disposition shall be null and void
and of no further force and effect;
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(f)
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as
the Purchased Units are subject to resale restrictions under applicable
Canadian provincial and US securities legislation and may be subject
to
the securities legislation of any other jurisdiction in which the
Purchaser resides, the Purchaser shall comply with all relevant securities
legislation concerning any resale of the Purchased Units (and the
Corporation is not in any way responsible for such compliance) and
shall
consult with his or its own legal advisors with respect to such
compliance. The Purchaser understands and agrees that the certificates
evidencing the Purchased Units will bear an appropriate legend evidencing
the restricted nature of the First
Units;
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(g)
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the
Purchaser will execute and deliver within the applicable time periods
all
documentation as may be required by applicable Canadian and US securities
legislation, regulations, rules and policies to permit the purchase
of the
Purchased Units on the terms herein set
forth;
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(h)
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if
required by applicable securities legislation, policy or order of a
securities regulatory authority, stock exchange or other regulatory
authority, the Purchaser will execute, deliver, file and otherwise
assist
the Corporation in filing such reports, undertakings and other documents
with respect to the issuance of the Purchased Units as may be
required;
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the
Purchaser is not a "control person" of the Corporation as defined
in the
Securities
Act
(Ontario) and the corresponding provision of the applicable securities
legislation of the other provinces of Canada and will not become
a
“control person” of the Corporation by virtue of the acquisition of the
Purchased Units subscribed for pursuant to this agreement and does
not
intend to act in concert with any other person to form a control
group;
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(j)
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the
Purchaser is capable of assessing the proposed investment as a result
of
the Purchaser’s financial or investment experience or as a result of
advice received from a registered person other than the Corporation
or an
affiliate thereof, and is able to bear the economic loss of its
investment;
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(k)
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the
Purchaser acknowledges that the investment in the securities of the
Corporation may have tax consequences to the Purchaser under applicable
law, which the Purchaser is solely responsible for determining. The
Purchaser acknowledges and agrees that the Purchaser is responsible
for
obtaining his or its own legal and tax advice;
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no
person has made any written or oral representation to the
Purchaser:
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| (i) |
that
any person will resell or repurchase the Purchased
Units;
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that
any person will refund the purchase price of the Purchased Units
other
than as provided in this Subscription Agreement;
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relating
to the future price or value of the Purchased Units;
or
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that
the Common Shares will be listed and posted for trading on a stock
exchange or that application has been made to list and post the Common
Shares for trading on a stock
exchange.
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9. Representations
and Warranties of the Corporation
The
Corporation hereby represents and warrants and covenants to the Corporation,
and
acknowledges that the Purchaser is relying on such representations and
warranties in agreeing to purchase the Purchased Units, that:
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(a)
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the
Corporation has been duly incorporated and organized and validly
subsists
under the laws of the jurisdiction of its incorporation, and has
all
requisite power and authority, as the case may be, to, and is qualified
to, carry on its business as now conducted and to own or lease its
properties and assets in all jurisdictions in which it currently
carries
on business and/or owns or leases its properties and assets and the
Corporation has all requisite power and authority to execute and
deliver
the Subscription Agreement, the Registration Rights Agreement and
to
perform its obligations hereunder and
thereunder;
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(b)
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the
Corporation has conducted and is conducting its business in compliance
in
all material respects, with all applicable laws, statutes, by-laws,
rules
and regulations of each jurisdiction in which its business is carried
on
and holds all material licenses, registrations, permits, consents
or
qualifications required in order to enable its business to be carried
on
as now conducted, and all such licenses, registrations, permits,
consents
and qualifications are valid and subsisting and in good standing
in all
respects;
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(c)
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the
Corporation has not committed an act of bankruptcy or is insolvent,
has
proposed a compromise or arrangement to its creditors generally,
has had a
petition for a receiving order in bankruptcy filed against it, has
made a
voluntary assignment in bankruptcy, has taken any proceedings with
respect
to a compromise or arrangement, has taken any proceedings to have
itself
declared bankrupt, wound-up or dissolved, has taken any proceedings
to
have a receiver appointed to any of its property or has had any execution
or distress become enforceable or become levied upon any of its
properties;
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(d)
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the
authorized capital of the Corporation consists of an unlimited number
of
Common Shares and, as at the date of the hereof the number of shares
of
Common Stock reflected in the Corporation's most recent SEC filings
reflects the number of shares of Common Stock currently issued and
outstanding as fully paid and
non-assessable;
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(e)
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there
is not any other instrument or document to which the Corporation
is a
party or by which it is bound, and which imposes restriction upon,
or
impediment to, the declaration or payment of dividends by the
Corporation;
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(f)
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the
execution and delivery of this Subscription Agreement and the Registration
Rights Agreement and the performance of the transaction contemplated
hereunder and thereunder, the issuance of the First Units at the
Closing
Time, and compliance by the Corporation with the other provisions
of this
Subscription Agreement to be complied with by it, will not at the
Closing
Time:
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(i)
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create
a state of facts which, after notice or lapse of time or both, will
result
in a breach of or default under, and will not conflict
with:
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(A)
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any
of the terms, conditions or provisions of the articles, by-laws or
resolutions of the shareholders, directors or any committee of directors
of the Corporation or any indenture, agreement or instrument to which
the
Corporation is a party or by which it or they are contractually bound;
or
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(B)
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any
statute, rule, regulation, by-law or law applicable to the Corporation
,
including, without limitation, Canadian Securities Laws, or any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over the Corporation ;
or
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(ii)
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give
rise to any lien, charge or claim in or with respect to the properties
or
assets now owned or hereafter acquired by the Corporation or the
acceleration of or the maturity of any debt or other obligation under
any
indenture, mortgage, lease, agreement or instrument binding or affecting
any of them or any of their
properties;
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(g)
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Each
of this Subscription Agreement and the Registration Rights Agreement
has
been or will be upon the execution thereof, duly authorized, executed
and
delivered by the Corporation and constitutes or will constitute when
executed, a legal, valid and binding obligation of the Corporation
enforceable against it in accordance with its respective terms, except
that: (i) the enforcement thereof may be limited by bankruptcy, insolvency
and other laws affecting the enforcement of creditors' rights generally;
(ii) rights of indemnity, contribution and waiver of contribution
thereunder may be limited under applicable law; and (iii) equitable
remedies, including, without limitation, specific performance and
injunctive relief, may be granted only in the discretion of a court
of
competent jurisdiction;
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(h)
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upon
completion of all of the transactions contemplated in this Agreement:
(i)
the Common Shares and Warrants comprising the First Units, and the
Warrant
Shares upon exercise of the Warrants, will have been validly authorized
and issued by the Corporation; (ii) the Common Shares, and the Warrant
Shares upon exercise of the Warrants, will be duly issued as fully
paid
and non-assessable and none of such securities will have been issued
in
violation of or subject to any pre-emptive rights or other contractual
rights to purchase securities issued by the Corporation;
and
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(i)
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the
Corporation is the legal and beneficial owner of, has good and marketable
title to, and possesses all of the assets material to its business
free
and clear of any encumbrances (other than leased equipment used in
the
ordinary course of business).
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10. Prior
Agreement
This
Agreement sets forth all of the terms, conditions and agreements of the parties
relating to the subject matter hereof and supersedes any and all prior
agreements.
11. Restricted
Rights of Action
The
Purchased Units are being purchased pursuant to an exemption from the
requirement to prepare and file, and provide the Purchaser with a prospectus
under applicable securities legislation and the Purchaser is aware that as
a
consequence:
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(a)
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the
Purchaser is restricted from using most of the civil remedies available
under applicable securities
legislation;
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(b)
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no
securities commission or similar regulatory authority has reviewed
or
passed on the merits of the
Offering;
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(c)
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there
are risks associated with the purchase of the Purchased
Units;
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(d)
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the
Purchaser may not receive information that would otherwise be required
to
be provided to the Purchaser under applicable securities legislation;
and
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(e)
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the
Corporation is relieved from certain obligations that would otherwise
apply under applicable securities legislation;
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12. Costs
The
Purchaser acknowledges and agrees that all costs and expenses incurred by the
Purchaser (including any fees and disbursements of any special counsel retained
by the Purchaser) relating to the sale of the Purchased Units to the Purchaser
shall be borne by the Purchaser. The Corporation acknowledges and agrees that
all costs and expenses incurred by the Corporation (including any fees and
disbursements of any counsel retained by the Corporation) relating to the sale
of the Purchased Units to the Purchasers shall be borne by the
Corporation.
13. Governing
Law
This
Subscription Agreement is governed by the laws of the Province of Ontario and
the federal laws of Canada applicable therein. The Purchaser, in his personal
or
its corporate capacity, as the case may be, and, if applicable, on behalf of
each beneficial purchaser for whom the Purchaser is acting, irrevocably attorns
to the jurisdiction of the courts of the Province of Ontario.
14. Survival
All
warranties, representations, covenants and agreements herein contained or
contained in any documents submitted pursuant to this Agreement and in
connection with the transactions herein contemplated shall survive the Closing
and continue in full force and effect for the benefit of the Purchaser and
the
Corporation for a period of two years from the Closing Date and shall not be
limited or prejudiced by any investigation made by or on behalf of the Purchaser
or the Corporation in connection with transactions herein contemplated or
otherwise.
15. Assignment
This
Subscription Agreement is not transferable or assignable by the parties
hereto.
16. Counterparts
This
Subscription Agreement may be executed in counterparts and delivered via
facsimile transmission, each of which shall be deemed to be an original and
all
of which shall constitute one and the same document.
17. English
Language
We,
the
undersigned, hereby acknowledge that we have consented and requested that all
documents evidencing or relating in any way to the sale of the First Units
be
drawn up in the English language only.
12
18. Severability
In
the
event that any provision of this Subscription Agreement is deemed to be void
or
unenforceable in whole or in part, it shall be deemed not to affect or impair
the validity of any other provision of this Subscription Agreement and such
void
or unenforceable provision shall be severable from this Subscription
Agreement.
19. Modification
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.
20. No
Revocation
The
Purchaser, on its own behalf and, if applicable, on behalf of others from whom
he or it is contracting hereunder, agrees that this offer is made for valuable
consideration and may not be withdrawn, cancelled, terminated or revoked by
the
Purchaser.
21. Time
of the Essence
Time
shall, in all respects, be of the essence hereof.
22. Headings
The
headings contained herein are for convenience only and shall not affect the
meaning or interpretation hereof.
23. Singular
and Plural, etc.
Where
the
context so requires, words importing the singular number include the plural
and
vice versa, and words importing gender shall include the masculine, feminine
and
neutral genders.
24. Subscription
Particulars
Subscription.
The
aggregate number of the First Units being subscribed for is_____ at a price
equal to US$0.60 per First Unit, the aggregate price of the First Units being
subscribed for is $_____.
Registration.
The
First Units are to be registered in the name of:
13
Delivery.
The
certificates representing the First Units are to be delivered to:
(name)
(address)
(contact name and number)
|
DATED
as
of the ___ day of _________, 200_.
|
|
Name of Purchaser (please type or print) |
|
|
(Signature of
Xxxxxxxxx)
|
|
(Xxxxxxx
xx Xxxxxxxxx)
|
00
00. Acceptance
The
Corporation hereby accepts the above-mentioned offer to purchase First
Units.
DATED
as of
this ___ day of ________, 200_.
| MICROMEM TECHNOLOGIES INC. | ||
| |
|
|
| By: | ||
|
Authorized Signing Officer |
||
15
SCHEDULE I
CERTIFICATE
OF ONTARIO SUBSCRIBER
| To: |
Micromem
Technologies Inc. (the
"Corporation")
|
In
addition to the representations and warranties set forth in the Subscription
for
Units of the Corporation to which this Certificate is attached, the Subscriber
certifies to the Corporation and ___ (and acknowledges that the Corporation
and
___ are relying thereon) that the Subscriber satisfies (or if the Subscriber
is
purchasing as agent for the beneficial purchaser named under "Subscription
Particulars" in the Subscription Agreement, such beneficial purchaser satisfies)
one or more of the categories of "accredited investor", as defined by Ontario
Securities Commission Rule 45-501 in force in the Province of Ontario because
the Subscriber is (please place an "X" on the appropriate line):
(a)
______ a
bank
listed in Schedule I or II of the Bank Act(Canada), or an authorized foreign
bank listed in Schedule III of that Act;
(b)
______ the
Business Development Bank incorporated under the Business Development Bank
Act
(Canada);
(c)
______ a
loan
corporation or trust corporation registered under the Loan and Trust
Corporations Act or under the Trust and Loan Companies Act (Canada), or under
comparable legislation in any other jurisdiction;
(d)
______ a
co-operative credit society, credit union central, federation of caisses
populaires, credit union or league, or regional caisse populaire, or an
association under the Cooperative Credit Associations Act (Canada), in each
case, located in Canada;
(e)
______ a
company
licensed to do business as an insurance company in any jurisdiction;
(f)
______ a
subsidiary of any company referred to in paragraph (a), (b), (c), (d) or (e),
where the company owns all of the voting shares of the subsidiary;
(g)
______ a
person
or company registered under the Act or securities legislation in another
jurisdiction as an adviser or dealer, other than a limited market
dealer;
(h)
______ the
government of Canada or of any jurisdiction, or any crown corporation,
instrumentality or agency of a Canadian federal, provincial or territorial
government;
(i)
______ any
Canadian municipality or any Canadian provincial or territorial capital city;
(j)
______ any
national, federal, state, provincial, territorial or municipal government of
or
in any foreign jurisdiction, or any instrumentality or agency
thereof;
(k)
______ a
pension
fund that is regulated by either the Office of the Superintendent of Financial
Institutions (Canada) or a provincial pension commission or similar regulatory
authority;
(l)
______ a
registered charity under the Income Tax Act (Canada);
(m)
______ an
individual who beneficially owns, or who together with a spouse beneficially
own, financial assets having an aggregate realizable value that, before taxes
but net of any related liabilities, exceeds $1,000,000;
(n)
______ an
individual whose net income before taxes exceeded $200,000 in each of the two
most recent years or whose net income before taxes combined with that of a
spouse exceeded $300,000 in each of those years and who, in either case, has
a
reasonable expectation of exceeding the same net income level in the current
year;
16
(o)
______ an
individual who has been granted registration under the Act or securities
legislation in another jurisdiction as a representative of a person or company
referred to in paragraph (g), whether or not the individual’s registration is
still in effect;
(p)
______ a
promoter of the issuer or an affiliated entity of a promoter of the issuer;
(q)
______ a
spouse,
parent, grandparent or child of an officer, director or promoter of the
issuer;
(r)
______ a
person
or company that, in relation to the issuer, is an affiliated entity or a person
or company referred to in clause (c) of the definition of distribution in
subsection 1(1) of the Act;
(s)
______ an
issuer
that is acquiring securities of its own issue;
(t)
______ a
company, limited partnership, limited liability partnership, trust or estate,
other than a mutual fund or non-redeemable investment fund, that had net assets
of at least $5,000,000 as reflected in its most recently prepared financial
statements;
(u)
______ a
person
or company that is recognized by the Commission as an accredited
investor;
(v)
______ a
mutual
fund or non-redeemable investment fund that, in Ontario, distributes its
securities only to persons or companies that are accredited
investors;
(w)
______ a
mutual
fund or non-redeemable investment fund that, in Ontario, distributes its
securities under a prospectus for which a receipt has been granted by the
Director;
(x)
______ a
managed
account if it is acquiring a security that is not a security of a mutual fund
or
non-redeemable investment fund;
(y)
______ an
account that is fully managed by a trust corporation registered under the Loan
and Trust Corporations Act;
(z)
______ an
entity
organized outside of Canada that is analogous to any of the entities referred
to
in paragraphs (a) through (g) and paragraph (k) in form and function; and
(aa)
______ a
person
or company in respect of which all of the owners of interests, direct or
indirect, legal or beneficial, are persons or companies that are accredited
investors.
Dated
this ____ day of ____________, ______
_____________________________________________
Name
of
Subscriber (Please Print)
_____________________________________________
Signature
of Subscriber or Authorized Representative
_____________________________________________
Official
Capacity of person signing if other than the Subscriber
_____________________________________________
Name
of
Person Signing if other than the Subscriber (Please Print)
17
