EXHIBIT 99.4
THIS PRIVATE PLACEMENT 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 PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
(THE "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.
THE SECURITIES TO WHICH THIS SUBSCRIPTION AGREEMENT RELATES ARE SUBJECT TO A
HOLD PERIOD IN ALL OF THE PROVINCES OF CANADA AND MAY NOT BE TRADED IN ANY OF
THE PROVINCES OF CANADA EXCEPT AS PERMITTED BY APPLICABLE SECURITIES
LEGISLATION.
PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
(Foreign/Overseas Subscribers Resident in Ontario)
TO: XxxxxxXxxxx.xxx, (the "Company")
000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx
PURCHASE OF SHARES
1. SUBSCRIPTION
1.1 The undersigned, Standard Radio Inc. (the "Subscriber") hereby
irrevocably subscribes for and agrees to purchase on the basis of the
representations and warranties and subject to the terms and conditions
set forth herein:
(a) 1,388,888 common shares (the "Shares") in the capital of the
Company at a price of US$1.80 per Share (the "Offering Price")
(such subscription and agreement to purchase being the
"Subscription"), for the total purchase price of US$2,500,000
(the "Subscription Proceeds"), which is tendered herewith; and
(b) one common stock purchase warrant for US$100 (the "Warrant"),
which is also tendered herewith, said Warrant entitling the
Subscriber to purchase 277,778 shares of common stock of the
Company (the "Warrant Shares") at an exercise price per share
equal to US$2.25 (125% of the Offering Price).
1.2 The Company hereby irrevocably 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 and the Warrant.
1.3 Subject to the terms hereof, the Subscription will be effective upon
its acceptance by the Company.
2. SUBSEQUENT FINANCINGS
2.1 The Offering Price will be subject to the adjustment in circumstances
where Yorkton Securities Inc. facilitates a private placement of
equity securities of the Company with gross proceeds of a minimum of
US $7,500,000 (the "Yorkton Financing") on or before December 31, 2000
at a price per common share less than the Offering Price (the "Yorkton
Price"), in which case the Company shall issue to the Subscriber that
number of additional shares as is equal to the difference between (i)
the number shares determined by dividing US$2,500,000 by the Yorkton
Price and (ii) 1,388,888; and in such case the exercise price of the
Warrants will be adjusted to 125% of the Yorkton Price.
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3. OTHER CONDITIONS
3.1 Contingent upon, and concurrent with the closing of the Yorkton
Financing, the Subscriber will invest a further US $2,500,000 in
securities of the Company at a price per share equal to the lesser of
the Offering Price or the Yorkton Price (the "Further Investment").
3.2 On or before the Closing Date, and as a condition of closing, Xxxxxxx
Xxxxxxxx and the Subscriber shall enter into a subscription agreement
whereby Xxxxxxx Xxxxxxxx shall sell to the Subscriber or its nominee
1,250,000 shares of the Company at a price per share of $0.02 as to
1,000,000 shares on Closing with such sale to occur contemporaneously
with the Closing and as to 250,000 shares on closing of the Further
Investment, with such subscription agreement to be in a form
satisfactory to the parties and containing the terms customary for
this type of agreement.
3.3 In consideration of the Subscriber entering into this Subscription
Agreement, the Company shall waive all fees and expenses otherwise
payable to it by the Subscriber under the existing co-marketing
agreement between the parties with respect to the Subscriber's current
radio stations for a period of 3 years, with such waiver being subject
to being extended thereafter for such period as the Subscriber
continues to hold 2% or more of the issued and outstanding shares of
the Company and such co-marketing agreement shall be deemed to be
amended effective as at the date of this Subscription Agreement.
4. PAYMENT
4.1 The Subscription Proceeds must accompany this Subscription and shall
be paid by wire transfer as per instructions previously provided by
the Company.
5. DOCUMENTS REQUIRED FROM SUBSCRIBER
5.1 The Subscriber must complete, sign and return to the Company two (2)
executed copies of this Subscription Agreement.
5.2 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,
stock exchanges and applicable law in respect of the transactions
contemplated by this Subscription Agreement.
6. CLOSING
6.1 Closing of the offering of the Shares (the "Closing") shall occur on
September 6, 2000, or on such other date as may be agreed to by the
parties (the "Closing Date").
7. ACKNOWLEDGEMENTS OF SUBSCRIBER
The Subscriber acknowledges and agrees that:
(a) the Shares have not been registered under the 1933 Act, or under
any state securities or "blue sky" laws of any state of the
United States, and, unless so registered, may not be offered or
sold in the United States or, directly or indirectly, to U.S.
Persons, as that term is defined in Regulation S under the 1933
Act ("Regulation S"), except in accordance with the provisions of
Regulation S, 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;
(b) 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 or otherwise
made by or on behalf of the Company and such decision is based
entirely upon a review of any public information which has been
filed by the Company with the Securities and Exchange Commission
("SEC") in compliance, or intended compliance, with applicable
securities legislation. If the Company has presented a business
plan to the Subscriber, the Subscriber acknowledges that the
business plan may not be achieved or be achievable;
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(c) by execution hereof the Subscriber has waived the need for the
Company to communicate its acceptance of the purchase of the
Shares pursuant to this Subscription Agreement provided such
acceptance occurs before September 6, 2000;
(d) 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 or they may
suffer as a result of the Subscriber's failure to correctly
complete this Subscription Agreement;
(e) it 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 representation or warranty of the Subscriber
contained herein or in any document furnished by the Subscriber
to the Company in connection herewith being untrue in any
material respect or any breach or failure by the Subscriber to
comply with any covenant or agreement made by the Subscriber to
the Company in connection therewith;
(f) it has been advised to consult its own legal, tax and other
advisors with respect to the merits and risks of an investment in
the Shares and with respect to applicable resale restrictions and
it is solely responsible (and the Company is not in any way
responsible) for compliance with applicable resale restrictions;
(g) it 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;
(h) the Shares may not 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 Restricted Period (as defined herein);
(i) neither the SEC nor any other securities commission or similar
regulatory authority has reviewed or passed on the merits of the
Shares;
(j) the issuance and sale of the Shares to the Subscriber will not be
completed if it would be unlawful;
(k) 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;
(l) the Company has advised the Subscriber that the Company is
relying on an exemption from the requirements to provide the
Subscriber with a prospectus to sell the Shares and, as a
consequence of acquiring the Shares pursuant to such exemption,
certain protections, rights and remedies provided by the
securities legislation of Ontario, including statutory rights of
rescission or damages, will not be available to the Subscriber;
(m) that the Company is not a reporting issuer in any of the
Provinces of Canada and therefore resale of any of the Securities
in Canada is restricted except pursuant to an exemption from
applicable securities legislation; and
(n) this Subscription Agreement is not enforceable by the Subscriber
unless it has been accepted by the Company.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SUBSCRIBER
8.1 The Subscriber hereby represents and warrants to and covenants with
the Company (which representations, warranties and covenants shall
survive the Closing) that:
(a) it is not a U.S. Person;
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(b) it is not acquiring the Shares for the account or benefit of,
directly or indirectly, any U.S. Person;
(c) it is acquiring the Shares for investment only and not with a
view to resale or distribution 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;
(d) it 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;
(e) the Subscriber is a resident of Ontario and is acquiring the
Shares as principal pursuant to the exemption from the prospectus
requirements available under Section 72(1)(d) of the SECURITIES
ACT (Ontario) (the "Ontario Act") and the Subscriber is
purchasing sufficient Shares so that the acquisition cost is not
less than $150,000;
(f) the Subscriber 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;
(g) 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 any law applicable to, or
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;
(h) 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;
(i) it is not an underwriter of, or dealer in, the common shares of
the Company, nor is the Subscriber participating, pursuant to a
contractual agreement or otherwise, in the distribution of the
Shares;
(j) it understands and agrees that none of the Shares have been
registered under the 1933 Act, or under any state securities or
"blue sky" laws of any state of the United States, and, unless so
registered, may not be offered or sold in the United States or,
directly or indirectly, to U.S. Persons except in accordance with
the provisions of Regulation S, 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;
(k) it understands and agrees that offers and sales of any of the
Shares prior to the expiration of a period of one year after the
date of original issuance of the Shares (the "Restricted Period")
shall only be made in compliance with the safe harbor provisions
set forth in Regulation S, pursuant to the registration
provisions of the 1933 Act or an exemption therefrom, and that
all offers and sales after the Restricted Period shall be made
only in compliance with the registration provisions of the 1933
Act or an exemption therefrom;
(l) it agrees not to engage in any hedging transactions involving the
Shares unless such transactions are in compliance with the
provisions of the 1933 Act;
(m) it understands and agrees that the Company will refuse to
register any transfer 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 the registration requirements of the
1933 Act;
(n) it (i) is able to fend for itself in the Subscription; (ii) has
such knowledge and experience in business matters as to be
capable of evaluating the merits and risks of its prospective
investment in the Shares; and (iii) has the ability to bear the
economic risks of its prospective investment and can afford the
complete loss of such investment;
(o) it understands and agrees that the Company and others will rely
upon the truth and accuracy of the acknowledgments,
representations and agreements contained in sections 7 and 8
hereof and agrees that if any of
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such acknowledgments, representations and agreements are no
longer accurate or have been breached, it shall promptly notify
the Company;
(p) it 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;
(q) the Subscriber is not aware of any advertisement of any of the
Shares; and
(r) 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 are or will be listed and posted for
trading on any stock exchange or automated dealer quotation
system other than the NASDAQ Small Cap Market or that
application has been made to list and post any of the
Shares of the Company on any other stock exchange or
automated dealer quotation system.
8.2 In this Subscription Agreement, the term "U.S. Person" shall have the
meaning ascribed thereto in Regulation S.
9. ACKNOWLEDGEMENT AND WAIVER
9.1 The Subscriber has acknowledged that the decision to purchase the
Shares was solely made on the basis of publicly available information.
The Subscriber hereby waives, to the fullest extent permitted by law,
any rights of withdrawal, rescission or compensation for damages to
which the Subscriber might be entitled in connection with the
distribution of any of the Shares.
10. LEGENDING OF SUBJECT SHARES
10.1 The Subscriber hereby acknowledges that a legend may be placed on the
certificates representing any of the Shares to the effect that the
Shares represented by such certificates are subject to a hold period
and may not be traded until the expiry of such hold period except as
permitted by applicable securities legislation.
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. PIGGYBACK REGISTRATION RIGHTS
11.1 Subject to Sections 11.2 through 11.4, if the Company decides to
register any of its common stock either for its own account or the
account of any of its other security holders, then the Company will:
(a) promptly give written notice of the proposed registration to the
Subscriber, which includes a list of the jurisdictions in which
the Company intends to attempt to qualify such securities under
applicable state securities laws (the "Registered Notice"); and
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(b) include in such registration (and any related qualification or
other compliance filing under applicable state securities laws),
and in any underwriting involved in the registration, all or any
portion of the Shares as are specified in a written request made
by the Subscriber to the Company within 30 days after receipt of
the Registration Notice.
11.2 Section 11.1 does not apply to:
(a) registrations relating solely to employee benefit plans, or
(b) registrations on any form that does not permit secondary sales.
11.3 The registration granted under Section 11.1 will expire upon the
shorter of:
(a) two years after the Closing Date, or
(b) such time as the Subscriber may dispose of all of its Shares it
then owns in a single three month period under Rule 144 of the
SECURITIES ACT.
11.4 Notwithstanding Section 11.1, if the registration described in the
Registration Notice involves an underwriting, then:
(a) the Company shall so advise the Subscriber in the Registration
Notice, and
(b) the Subscriber's rights to registration pursuant to Section 11.1
shall be conditioned upon the Subscriber's participation, and
inclusion of the Shares, in the underwriting as follows:
(i) the Subscriber and the Company (and any other security
holders proposing to distribute their securities through
such underwriting) shall enter into an underwriting
agreement in customary form with the representatives of the
underwriter or underwriters selected for such underwriting
by the Company;
(ii) notwithstanding any other provisions of this Section, if
the representatives of the underwriter or underwriters
determine in good faith that marketing factors make it
advisable to impose a limitation on the number of secondary
shares to be underwritten, the number of such secondary
shares, if any, that may be included in the registration
and underwriting on behalf of such holders, and any other
security holders proposing to distribute their securities
of the Company through such underwriting shall be allocated
in proportion, as nearly as practicable, to the respective
amounts of securities that they had requested to be
included in such registration at the time of filing the
registration statement;
(iii) if the Subscriber disapproves of the underwriting terms, it
may elect to withdraw from the registration by written
notice to the Company and the representatives of the
underwriter or underwriters.
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
Nevada and the federal laws of the United States applicable herein.
The Subscriber, irrevocably attorns to the jurisdiction of the State
of Nevada.
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 notwithstanding the completion of the purchase of the
Shares by the Subscriber pursuant hereto.
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15. ASSIGNMENT
15.1 This Subscription Agreement is not transferable or assignable.
16. EXECUTION
16.1 The Company shall be entitled to rely on delivery by facsimile machine
of an executed copy of this Subscription Agreement and acceptance by
the Company of such facsimile copy shall be equally effective to
create a valid and binding agreement between the Subscriber and the
Company in accordance with the terms hereof.
17. SEVERABILITY
17.1 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.
18. ENTIRE AGREEMENT
18.1 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.
19. NOTICES
19.1 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 8 and notices to the Company
shall be directed to it at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, Attention: The President.
20. COUNTERPARTS
20.1 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.
IN WITNESS WHEREOF the Subscriber has duly executed this Subscription Agreement
as of the date first above mentioned.
DELIVERY INSTRUCTIONS
1. Delivery - please deliver the certificates to:
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2. Registration - registration of the certificates which are to be
delivered at closing should be made as follows:
Standard Radio Inc.
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(name)
0 Xx. Xxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx X0X 0X0
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(address)
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3. The undersigned hereby acknowledges that it will deliver to the
Company all such additional completed forms in respect of the
Subscriber's purchase of the Shares as may be required for filing with
the appropriate securities commissions and regulatory authorities.
Standard Radio Inc.
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(Name of Subscriber - Please type or
print)
/s/ Xxxxx X. Xxxxx
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(Signature and, if applicable, Office)
0 Xx. Xxxxx Xxxxxx Xxxx
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(Address of Subscriber)
Xxxxxxx, Xxxxxxx X0X 0X0
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(City, State or Province, Postal Code of
Subscriber)
Canada
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(Country of Subscriber)
A C C E P T A N C E
The above-mentioned Subscription in respect of the Shares is hereby accepted by
XxxxxxXxxxx.xxx,
DATED at Vancouver, B.C., this 7th day of September, 2000.
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XXXXXXXXXXX.XXX,
Per: /s/ L. Xxxxx Xxxxxx
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Authorized Signatory
