1
-1-
Date: September 27, 2001
EXHIBIT 2
SUBSCRIPTION AGREEMENT
TO: CEDARA SOFTWARE CORP.
The undersigned (the "PURCHASER") hereby irrevocably subscribes for and
agrees to purchase from Cedara Software Corp. (the "CORPORATION"), on the terms
and conditions set forth in this subscription agreement, 4,000,000 common shares
in the capital of the Corporation (the "SHARES" and individually a "SHARE").
Each Share will be issued at a price of US.$1.875 per Share.
CONDITIONS OF PURCHASE
The Purchaser acknowledges that the Corporation's obligation to sell the
Shares to the Purchaser is subject to, among other things, the conditions that:
(a) the Purchaser executes and returns to the Corporation all documents
required by applicable legislation and The Toronto Stock Exchange for
delivery on behalf of the Purchaser;
(b) all necessary regulatory approvals being obtained by the Corporation
prior to the Closing;
(c) the sale of the Shares is exempt from the requirement to file a
prospectus and the requirement to deliver an offering memorandum under
applicable securities legislation relating to the sale of the Shares
or the Corporation shall have received such orders, consents or
approvals as may be required to permit such sale without the
requirement of filing a prospectus or delivering an offering
memorandum; and
(d) the representations and warranties of the Purchaser remain true and
correct as at the Closing.
DELIVERY AND PAYMENT
The Purchaser agrees that the following shall be delivered to the
Corporation prior to the Closing:
(a) one completed and duly signed copy of this subscription agreement;
(b) all other documentation as may be required by applicable securities
legislation and The Toronto Stock Exchange, including a duly completed
Private Placement Questionnaire and Undertaking in the form annexed
hereto as Schedule "A"; and
2
-2-
(c) a certified cheque, bank draft or evidence of a wire transfer in
Canadian funds to the Corporation representing the aggregate purchase
price payable by the Purchaser for the Shares. The entire subscription
price for the Shares must be paid at the time of subscription.
Delivery of the Shares by the Corporation and payment for the Shares by the
Purchaser shall be completed at a closing (the "Closing") to be held on the
first business day following receipt of approval from the Toronto Stock Exchange
of the issuance of the Shares contemplated hereby or at such time and place as
may be mutually agreed upon by the Corporation and the Purchaser, provided that
the Closing is held no later than on the day mandated by The Toronto Stock
Exchange for the closing of the issuance of the Shares contemplated hereby.
The Corporation agrees that it shall deliver certificates representing the
Shares at the Closing for delivery against payment of the subscription price. If
the Purchaser chooses not to attend the Closing to receive the Share
certificates, then the Purchaser shall deliver such certificates to the
undersigned at the address set forth below promptly after the Closing.
PURCHASER'S REPRESENTATIONS AND WARRANTIES
The Purchaser represents, warrants and covenants to the Corporation that:
(a) it (A) is an Accredited Investor, as defined in Paragraph 6 of
Schedule "B" hereto, and (B) is aware that any sale of Shares to it
will be made in reliance on a private placement exemption from
registration under the UNITED STATES SECURITIES ACT OF 1933, as
amended (the "U.S. Securities Act");
(b) it is purchasing the Shares for its own account and not with a view to
any resale, distribution or other disposition of the Shares in
violation of the United States federal, state or any other securities
laws;
(c) if it decides to offer, sell or otherwise transfer any of the Shares
it will not offer, sell or otherwise transfer any of such securities,
directly or indirectly, unless (i) the sale is to the Corporation; or
(ii) the sale is made outside the United States in compliance with the
requirements of Rule 904 of Regulation S under the U.S. Securities
Act; or (iii) the sale is made within the United States pursuant to
the exemption from registration under the U.S. Securities Act provided
by Rule 144 thereunder, if available, and in compliance with any
applicable state securities laws;
(d) it has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of its investment
in the Shares and is able to bear the economic risks of such
investment;
(e) it has had access to such information concerning the Corporation as it
has considered necessary in connection with its investment decision to
acquire the Shares, including without limitation the information
available through SEDAR, (xxx.xxxxx.xxx) which the Corporation is
required to file as a consequence of being publicly listed in Canada;
3
-3-
(f) it consents to the Corporation making a notification on its records or
giving instructions to any transfer agent of the Shares in order to
implement the restriction on transfer set forth and described herein;
(g) the address set forth below is the true and correct address of the
place of business of the Purchaser at which it received and accepted
the offer to purchase the Shares;
(h) it has been independently advised as to and is aware of the
restrictions with respect to trading in the Shares pursuant to the
securities laws, regulations, rules, published policy statements,
rulings and orders of securities regulatory authorities applicable to
the Corporation or the Purchaser's purchase hereunder (the "Securities
Laws") and any applicable stock exchanges;
(i) the Shares may not be sold in Canada or to Canadian residents unless,
in addition to the requirements of paragraph (c)(ii), if applicable,
the sale is made pursuant to an available exemption from the
prospectus and registration requirements under the securities
legislation in the Canadian purchaser's province or territory of
residence or the required "hold" period has expired since the
acquisition by the Purchaser of the securities to be sold;
(j) the Purchaser, and any purchaser for whom the Purchaser is acting,
will comply with all applicable Securities Laws and with the rules and
policies of any applicable stock exchanges concerning the purchase of,
the holding of and resale restrictions on the Shares;
(k) if required by applicable Securities Laws 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 Shares as may be required;
(l) the Purchaser's place of business is in the jurisdiction set forth in
its address in this subscription agreement;
(m) the Purchaser is capable of assessing its proposed investment
hereunder as a result of the Purchaser's financial or investment
experience, understands that an investment in the Corporation involves
a high risk and a substantial risk of loss, and is able to bear the
economic loss of its investment;
(n) this subscription agreement has been duly and validly authorized,
executed and delivered by and upon acceptance by the Corporation will
constitute a legal, valid and binding agreement of the Purchaser
enforceable in accordance with its terms;
(o) the Corporation has not made any representation to the Purchaser
regarding the intention of the Corporation to list the Shares on any
stock exchange or to make arrangements to have the Shares quoted for
trading;
(p) it is responsible for obtaining such legal advice as it considers
necessary in connection with the execution, delivery and performance
by it of this subscription agreement and the transactions contemplated
herein and it represents and warrants
4
-4-
that such execution, delivery and performance shall not contravene any
applicable laws of the jurisdiction in which it is resident; and
(q) the purchase of the Shares by the Purchaser hereunder is not a
transaction in which any director or officer of the Corporation, or
any beneficial owner of securities carrying more than 10% of the
voting rights attaching to all outstanding voting securities of the
Corporation, has a direct or indirect beneficial interest.
PURCHASER'S ACKNOWLEDGEMENTS
The Purchaser acknowledges that:
(a) none of the Shares have been, or will be, registered under the U.S.
Securities Act or the securities laws of any state, and that the
Shares are being offered in a transaction not requiring registration
under the U.S. Securities Act;
(b) no agency, governmental authority, regulatory body, stock exchange or
other entity (including, without limitation, the United States
Securities and Exchange Commission or any state securities commission)
has made any finding or determination as to the merit for investment
of, nor have any such agencies or governmental authorities made any
recommendation or endorsement with respect to the Shares;
(c) the purchase of the Shares has not been made through, or as a result
of, and the distribution of the Shares is not being accompanied by, a
general solicitation or advertisement including 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;
(d) the Shares are being offered for sale only on a "private placement"
basis;
(e) the representations and warranties and covenants contained in this
subscription agreement are made by it with the intent that they may be
relied upon by the Corporation in determining its eligibility to
purchase the Shares, and the Purchaser hereby agrees to indemnify the
Corporation against all losses, claims, costs, expenses and damages or
liabilities which they may suffer or incur caused or arising from
their reliance thereon. The Purchaser further agrees that by accepting
the Shares the Purchaser shall be representing and warranting that the
foregoing representations and warranties are true as at the Closing
with the same force and effect as if they had been made by the
Purchaser at the Closing and that they shall survive the purchase by
the Purchaser of the Shares and shall continue in full force and
effect notwithstanding any subsequent disposition by it of the Shares;
(f) the sale and delivery of the Shares to the Purchaser is conditional
upon such sale being exempt, under applicable Securities Laws or upon
the issuance of such orders, consents or approvals as may be required
to permit such sale without the requirement of filing a prospectus or
delivering an offering memorandum, from
5
-5-
the requirement to file a prospectus and the requirement to deliver an
offering memorandum;
(g) upon the original issuance thereof, and until such time as the same is
no longer required under applicable requirements of the U.S.
Securities Act or applicable state securities laws, certificates
representing the Shares, and all certificates issued in exchange
therefor or in substitution thereof, shall bear the following legend:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933 AS AMENDED (THE "U.S.
SECURITIES ACT"), AND MAY BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED ONLY (A) TO THE COMPANY, (B) OUTSIDE THE UNITED
STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE U.S.
SECURITIES ACT, OR (C) WITHIN THE UNITED STATES PURSUANT TO THE
EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER, IF AVAILABLE, AND IN COMPLIANCE
WITH ANY APPLICABLE STATE SECURITIES LAWS."
"THE PRESENCE OF THIS LEGEND MAY IMPAIR THE ABILITY OF THE HOLDER
HEREOF TO EFFECT GOOD DELIVERY OF THE SECURITIES REPRESENTED
HEREBY ON A CANADIAN STOCK EXCHANGE. PROVIDED THAT THE COMPANY IS
A "FOREIGN ISSUER" WITHIN THE MEANING OF REGULATION S AT THE TIME
OF SALE, A CERTIFICATE WITHOUT A LEGEND MAY BE OBTAINED FROM THE
REGISTRAR AND TRANSFER AGENT IN CONNECTION WITH A SALE OF THE
SECURITIES REPRESENTED HEREBY UPON DELIVERY OF THIS CERTIFICATE
AND AN EXECUTED DECLARATION, IN A FORM SATISFACTORY TO THE
REGISTRAR AND TRANSFER AGENT AND THE COMPANY, TO THE EFFECT THAT
SUCH SALE IS BEING MADE IN ACCORDANCE WITH RULE 904 OF REGULATION
S UNDER THE U.S. SECURITIES ACT."
provided, that if the Shares are being sold outside the United States in
compliance with the requirements of Rule 904 of Regulation S under the U.S.
Securities Act, and provided that the Corporation is a "foreign issuer"
within the meaning of Regulation S at the time of sale, the legends may be
removed by providing a declaration to the registrar and transfer agent, to
the following effect (or as the Corporation may prescribe from time to
time):
"The undersigned (A) acknowledges that the sale of the securities
of Cedara Software Corp. (the "Company") to which this
declaration relates is being made in reliance on Rule 904 of
Regulation S under the UNITED STATES SECURITIES ACT OF 1933, as
6
-6-
amended (the "U.S. Securities Act") and (B) certifies that (1)
the undersigned is not an affiliate of the Company as that term
is defined in the U.S. Securities Act, (2) the offer of such
securities was not made to a person in the United States and
either, (a) at the time the buy order was originated, the buyer
was outside the United States, or the seller and any person
acting on its behalf reasonably believe that the buyer was
outside the United States or (b) the transaction was executed on
or through the facilities of The Toronto Stock Exchange and
neither the seller nor any person acting on its behalf knows that
the transaction has been prearranged with a buyer in the United
States, (3) neither the seller nor any affiliate of the seller
nor any person acting on their behalf has engaged or will engage
in any directed selling efforts in the United States in
connection with the offer and sale of such securities, (4) the
sale is bona fide and not for the purpose of "washing off" the
resale restrictions imposed because the securities are
"restricted securities" (as such term is defined in Rule
144(a)(3) under the U.S. Securities Act), (5) the seller does not
intend to replace the securities sold in reliance on Rule 904 of
the U.S. Securities Act with fungible unrestricted securities,
and (6) the contemplated sale is not a transaction, or part of a
series of transactions which, although in technical compliance
with Regulation S, is part of a plan or scheme to evade the
registration provisions of the U.S. Securities Act. Terms used
herein have the meanings given to them by Regulation S."
and, provided further, that if any such Shares are being sold pursuant to Rule
144 under the U.S. Securities Act, the legend may be removed by delivery to the
registrar and transfer agent of an opinion of counsel of recognized standing
reasonably satisfactory to the Corporation, that such legend is no longer
required under applicable requirements of the U.S. Securities Act or state
securities laws.
GENERAL
Each of the Corporation and the Purchaser acknowledges that:
(a) time shall, in all respects, be of the essence hereof;
(b) all references herein to "US$" are to lawful money of the United
States;
(c) the headings contained herein are for convenience only and shall not
affect the meaning or interpretation hereof;
(d) this subscription agreement constitutes the only agreement between the
parties with respect to the subject matter hereof and shall supersede
any and all prior negotiations and understandings. This subscription
agreement may be amended or modified in any respect by written
instrument only;
7
-7-
(e) the terms and provisions of this subscription agreement shall be
binding upon and enure to the benefit of the Purchaser and the
Corporation and their respective successors and assigns; provided
that, except as herein provided, this subscription agreement shall not
be assignable by any party without the written consent of the others;
(f) the Corporation shall be entitled to rely on delivery of a facsimile
copy of this executed subscription agreement, and acceptance by the
Corporation of such facsimile shall be legally effective to create a
valid and binding agreement between the Purchaser and the Corporation
in accordance with the terms hereof; and
(g) this agreement shall be governed by and construed in accordance with
the laws of the Province of Ontario and the laws of Canada applicable
therein.
SUBSCRIPTION PARTICULARS
(a) The aggregate number of Shares being subscribed for is 4,000,000
(b) The aggregate price of the Shares being subscribed for is US$7.5
million
(c) The Shares are to be registered in the name of:
Analogic Corporation
-----------------------------------------------------------------------
0 Xxxxxxxxxx Xxxxx
-----------------------------------------------------------------------
Xxxxxxx, XX 00000
-----------------------------------------------------------------------
(d) The certificate representing the Shares is to be delivered to:
Xxxx X. Xxxxxxxxx, Senior Vice President and Chief Financial Officer
-----------------------------------------------------------------------
at its office at:
Analogic Corporation
-----------------------------------------------------------------------
0 Xxxxxxxxxx Xxxxx, Xxxxxxx, XX 00000
-----------------------------------------------------------------------
8
-8-
ANALOGIC CORPORATION
Per: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and Chief
Executive Officer
Address of Purchaser
Analogic Corporation
----------------------------------------
0 Xxxxxxxxxx Xxxxx
----------------------------------------
Xxxxxxx, XX 00000
----------------------------------------
This subscription agreement is accepted by the Corporation as of September
27, 2001.
CEDARA SOFTWARE CORP.
Per: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
And Corporate Secretary
SCHEDULE "A"
THE TORONTO STOCK EXCHANGE
PRIVATE PLACEMENT QUESTIONNAIRE AND UNDERTAKING
To be completed by each proposed private placement purchaser of listed
securities or securities which are convertible into listed securities.
QUESTIONNAIRE
1. DESCRIPTION OF TRANSACTION
(a) Name of Issuer of the Securities
Cedara Software Corp.
(b) Number and Class of Securities to be Purchased
4,000,000 common shares.
9
-9-
(c) Purchase Price: US.$1.875 per common share for an aggregate purchase
price of US$7.5 million
(d) Penalty
None.
2. DETAILS OF PURCHASER
(a) Name of Purchaser Analogic Corporation
(b) Address of Purchaser 0 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
(c) Names and addresses of persons having a greater than 10% beneficial
interest in the Purchaser
Xxxxxxx X. Xxxxxx Charitable Remainder Unitrust, 0 Xxxxxxxxxx Xxxxx,
Xxxxxxx, XX 00000
X. Xxxx Price, 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000
3. RELATIONSHIP TO ISSUER
(a) Is the Purchaser, or any person named in response to 2(c) above, an
insider of the issuer for the purposes of the SECURITIES ACT (Ontario)
(before giving effect to this private placement)? If so, state the
capacity in which the purchaser qualifies as an insider
NO
(b) If the answer to (a) is "no", are the Purchaser and the issuer
controlled by the same person or company? If so, give details
NO
4. DEALINGS OF PURCHASER IN SECURITIES OF THE ISSUER
Give details of all trading by the Purchaser, as principal, in the
securities of the issuer (other than debt securities which are not convertible
into equity securities), directly or indirectly, within the 60 days preceding
the date hereof
NONE
10
-10-
UNDERTAKING
TO: The Toronto Stock Exchange
The undersigned has subscribed for and agreed to purchase, as principal,
the securities described in Item 1 of this Private Placement Questionnaire and
Undertaking. The undersigned undertakes not to sell or otherwise dispose of any
of the said securities so purchased or any securities derived therefrom for a
period of six months from the date of the closing of the transaction described
herein or for such period as is prescribed by applicable securities laws,
whichever is longer, without the prior consent of The Toronto Stock Exchange and
any other regulatory body having jurisdiction.
DATED AT Peabody, MA USA ANALOGIC CORPORATION
--------------------
(Name of Purchaser - please print)
this 27th day of September, 2001 /s/ Xxxxxx X. Xxxxxx
----------------------------------
(Authorized Signature)
President & CEO
---------------
(Official Capacity - please print)
(please print here name of individual whose signature appears above, if
different from name of purchaser printed above)
11
-11-
SCHEDULE "B"
DEFINITION OF ACCREDITED INVESTOR
"Accredited Investor" means any person who comes within any of the
following categories:
1. Any natural person whose individual net worth, or joint net worth with that
person's spouse, at the time of his purchase exceeds US$1,000,000;
2. Any natural person who had an individual income in excess of US$200,000 in
each of the two most recent years or joint income with that person's spouse
in excess of US$300,000 in each of those years and has a reasonable
expectation of reaching the same income level in the current year;
3. Any entity in which all of the equity owners are accredited investors;
4. Any bank as defined in Section 3(a)(2) of the U.S. Securities Act or any
savings and loan association or other institution as defined in Section
3(a)(5)(A) of the U.S. Securities Act whether acting in its individual or
fiduciary capacity; any broker dealer registered pursuant to Section 15 of
the Securities Exchange Act of 1934; any insurance company as defined in
Section 2(13) of the U.S. Securities Act; any investment company registered
under the Investment Company Act of 1940 or a business development company
as defined in section 2(a)(48) of that Act; any Small Business Investment
Company licensed by the U.S. Small Business Administration under Section
301(c) or (d) of the Small Business Investment Act of 1958; any plan
established and maintained by a state, its political subdivisions, or any
agency or instrumentality of a state or its political subdivisions, for the
benefit of its employees, if such plan has total assets in excess of
US$5,000,000; any employee benefit plan within the meaning of the Employee
Retirement Income Security Act of 1974, if the investment decision is made
by a plan fiduciary, as defined in Section 3(21) of such Act, which is
either a bank, savings and loan association, insurance company, or
registered investment adviser, or if the employee benefit plan has total
assets in excess of US$5,000,000, or, if a self-directed plan, with
investment decisions made solely by persons that are accredited investors;
5. Any private business development company as defined in Section 202(a)(22)
of the Investments Advisers Act of 1940;
6. Any organization described in section 501(c)(3) of the Internal Revenue
Code, corporation, Massachusetts or similar business trust, or partnership,
not formed for the specific purpose of acquiring the securities offered,
with total assets in excess of US$5,000,000;
7. Any director, executive officer, or general partner of the issuer of the
securities being offered or sold, or any director, executive officer, or
general partner of a general partner of that issuer; and
12
-12-
8. Any trust with total assets in excess of US$5,000,000, not formed for the
specific purpose of acquiring the securities offered, whose purchase is
directed by a sophisticated person, being defined as a person who has such
knowledge and experience in financial and business matters that he or she
is capable of evaluating the merits and risks of the prospective
investment.
