SUBSCRIPTION AGREEMENT (for Ontario, Alberta and British Columbia and Non- Canadian/Non-U.S. Subscribers)
EXHIBIT
4.21
(for
Ontario, Alberta and British Columbia and Non-Canadian/Non-U.S.
Subscribers)
A
completed and originally executed copy of this subscription agreement must
be
delivered or transmitted by facsimile ((000) 000-0000) by no later than 12:00
noon (Toronto time) on September 9, 2005 to ADB Systems International Ltd.
(Attention: Xxxx
Xxxx).
TO:
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ADB
Systems International Ltd. (the “Corporation”)
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AND
TO:
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PowerOne
Capital Markets Limited (the “Agent”)
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RE:
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Sale
of secured subordinate convertible debentures convertible into units
consisting of one common share in the capital of the Corporation
and one
common share purchase warrant exercisable into one common share in
the
capital of the Corporation.
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Details
of Subscription
The
undersigned (the “Subscriber”)
hereby irrevocably subscribes, subject to the terms and conditions set forth
in
this subscription agreement, for secured subordinate convertible debentures
(the
“Debentures”)
of the Corporation with the following specific purchase instructions. The
particulars of the Debentures and the securities issuable upon conversion of
the
Debentures (together with certain other material covenants and acknowledgements)
are set out in Schedules “A” and “B” to this subscription agreement and certain
representations and warranties to be made by the Subscriber so that the
Corporation can ensure compliance with applicable securities laws are set out
in
Schedule “C” to this subscription agreement, all of which form part of and are
hereby incorporated as part of this subscription agreement.
Ontario
Subscribers:
Complete
and sign both the Ontario Resident Exemption Certificate and the Ontario
Accredited Investor Certificate - Schedule “D”.
Alberta
and British Columbia Subscribers:
If
you are an “accredited investor”, complete and sign the Accredited Investor
Certificate - Schedule “E”.
OR
If
you are relying on the “family, friends and business associates” exemption,
complete and sign the Family, Friends and Business Associates Certificate -
Schedule “E”.
Non
Canadian and Non U.S. Subscribers:
Complete
and sign the Offshore Subscriber Certificate - Schedule “F”.
Please
print all information (other than signatures), as applicable, in the spaces
provided below.
Principal
Amount of Debentures Subscribed for (to be issued at
par):____________________________________________________________________________________________
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Subscriber
Details
_______________________________________________________________
Name
of Subscriber
By:______________________________________________________________________
Authorized
Signature
________________________________________________________________ Official
Capacity or Title (if Subscriber is not an individual)________________________________________________________________
Name
of individual whose signature appears above if different from name
of
Subscriber
printed above
|
Registration
Instructions
(if different from name of Subscriber and address set out
in
the box to the left):
________________________________________________________________________
Name
________________________________________________________________________
In
Trust For, if applicable
Account
Reference, if applicable
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
Address,
including postal code
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_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
Address
of Subscriber, including province and postal code
Telephone
Number:__________________________________________________________
Fax
Number:_______________________________________________________________
E-mail
Address:_____________________________________________________________
|
Delivery
Instructions
(if different from name of Purchaser and address set out in the
box
to the left):
________________________________________________________________________
Name
________________________________________________________________________ Account
Reference, if applicable________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
Address,
including province and postal code
|
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Disclosed
Principal (please complete if purchasing as agent or trustee for
a
disclosed principal
Name
of
Principal:____________________________________________________________
Principal’s
Address:__________________________________________________________
(Street
Address)
___________________________________________________
(City
and Province)
___________________________________________________
(Postal
Code)
|
The
Subscriber acknowledges its consent and request that this subscription agreement
(including all schedules hereto) and all other documents evidencing or relating
in any way to its purchase of Debentures be drawn up in the English language
only. Nous
reconnaissons par les présentes avoir consenti et demandé à ce que la présente
convention de souscription (et les annexes s’y rapportant) et tous les autres
documents faisant foi ou se rapportant de quelque manière à notre souscription
soient rédigés en anglais seulement.
IN
WITNESS WHEREOF
the Subscriber has executed, or caused its duly authorized representative to
execute, this subscription agreement on this
day of
,
2005.
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Signature
of Subscriber (if an individual)
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Name
of Subscriber (if an individual)
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Per:
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Name
of Subscriber (if an individual)
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(signature
of authorized representative)
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Name
and Title of Authorized
Representative
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ACCEPTANCE
The
foregoing is acknowledged, accepted and agreed to this
day of
,
2005.
SCHEDULE
“A”
This
is Schedule “A” to the subscription agreement relating to the purchase of
Debentures of ADB Systems International Ltd.
TERMS
OF THE OFFERING
1. Offering.
Secured subordinate convertible debentures (the “Debentures”)
of the Corporation subscribed for hereunder form part of a larger sale by the
Corporation (the “Offering”)
of a maximum of $1,120,000 principal amount of Debentures. The Offering is
being
effected contemporaneously with a non-brokered offering of up to $80,000
principal amount of Debentures to purchasers in the United States. The Offering
is being made on a best efforts private placement basis.
The
Debentures will bear simple interest at an annual rate of 11% of the principal
amount of the Debentures outstanding from time to time, payable (i) for interest
owing in respect of the first 12 months following the Closing Date (as defined
herein) (the “Initial
Period”)
calculated and payable in arrears upon the earlier of Conversion (as defined
below) of the Debentures or the date which is 12 months following the Closing
Date; and (ii) on the earlier of Conversion of the Debentures or the fifth
anniversary of the Closing Date (the “Maturity Date”)
for interest owing in respect of the period commencing on the date that is
twelve months and one day following the Closing Date, and ending on the fifth
anniversary of the Closing Date (the “Subsequent
Period”).
Interest owing in respect of the Initial Period is payable in full by the
issuance of a number of Common Shares calculated pursuant to the following
formula:
A÷B,
where:
A=
the accrued interest payable (in dollars); and
B=
the volume weighted average trading price of the Common Shares over the 20
day
trading period ending at the close of business on the day prior to the date
on
which the interest payment is due, reduced by the maximum percentage discount
permitted by the Toronto Stock Exchange,
provided
that the maximum aggregate number of Common Shares issuable pursuant to the
above-noted calculation is 974,199 and in the event the Corporation is obligated
to, and cannot, issue any further Common Shares over and above 974,199, it
shall
satisfy the balance of the interest payment owing in cash by paying the amount
calculated as (i) the total amount of accrued interest payable, less (ii) the
value of the Common Shares issued in satisfaction of interest
payments.
Interest
owing in respect of the Subsequent Period is payable in cash upon the earlier
of
i) Conversion (as defined below); or ii) the Maturity Date.
Interest
will continue to accrue until paid. At any time up to and including the Maturity
Date, all or any portion of the principal amount of the Debentures outstanding
from time to time will be convertible (“Conversion”),
at the option of the holder, provided that the holder complies with the notice
provision therefor, into units of securities of the Corporation (“Units”)
at a conversion price of $0.15 per Unit (the “Conversion
Price”),
subject to adjustments for stock splits, consolidations, other capital
reorganizations, extraordinary dividends or distributions among other
anti-dilution provisions providing adjustments for events that will affect
all
security holders equally.
Each
Unit will consist of one common share in the capital of the Corporation (a
“Common
Share”)
and one Common Share purchase warrant (a “Warrant”).
Each Warrant will entitle the holder to acquire one Common Share at an exercise
price of $0.20 per share, and will be exercisable at any time prior to the
fifth
anniversary of the Closing Date.
The
material terms of the Offering, the Debentures and the Underlying Securities
(as
hereinafter defined) are set out in this schedule and in Schedule “B” to this
subscription agreement.
The
foregoing description of the Debentures is a summary only and the Subscriber
acknowledges that the definitive terms and conditions of the Debentures sold
under the Offering will be set forth in the Debenture Certificates (as
hereinafter defined).
2. Definitions.
In this subscription agreement and the schedules to this subscription agreement
the defined terms set out in the first page of this subscription agreement
or as
set out in Section 1 above shall apply and, unless the context otherwise
requires:
“Agency
Agreement” means the agreement to be entered into between the Corporation and
the Agent with regard to the terms of the Offering.
“Applicable
Securities Laws”
means the applicable securities laws of the Provinces of Ontario, Alberta and
British Columbia and each other relevant jurisdiction and the regulations and
rules made and forms prescribed thereunder, together with all applicable
instruments, published policy statements, blanket orders, notices, rulings
and
rules of the Ontario Securities Commission, the Alberta Securities Commission
and the British Columbia Securities Commission, and each other securities
regulatory authority having competent jurisdiction;
“Business
Day”
means a day other than a Saturday, Sunday or statutory or banking holiday in
Toronto, Ontario;
“Closing
Date”
means on or about September 9, 2005, or such other date or dates as the
Corporation and Agent may agree;
“Closing
Time”
means 10:00 a.m. (Toronto time) on the Closing Date, or such other time on
the
Closing Date as the Corporation and Agent may agree;
“Corporation’s
Information Record”
means any statement contained in any press release, material change report,
financial statements or other document of the Corporation which has been or
is
publicly disseminated, whether pursuant to any Applicable Securities Laws or
otherwise, prior to the Closing Time;
“Hold
Period”
means four months and one day from the Closing Date and in the case of a
purchaser who is an insider of the Issuer for the purposes of the Securities
Act (Ontario)
means 6 months form the Closing Date;
“including”
means including without limitation;
“material”
means material in relation to the Corporation;
“material
change”
means any change in the business, operations, assets, liabilities, ownership
or
capital of the Corporation, on a consolidated basis, that would reasonably
be
expected to have a significant effect on the market price or value of the Common
Shares and includes a decision to implement such a change made by the board
of
directors of the Corporation or by senior management of the Corporation who
believe that confirmation of the decision by the board of directors is
probable;
“material
fact”
means any fact that significantly affects or would reasonably be expected to
have a significant effect on the market price or value of the Common
Shares;
“Material
Subsidiaries”
means the material direct or indirect subsidiaries of the Corporation, being,
ADB Systemer ASA (Norway), ADB Systems USA, Inc. (Delaware), and ADB Systems
International Limited (Ireland);
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“misrepresentation”
means an untrue statement of material fact, or an omission to state a material
fact that is required to be stated or that is necessary to make a statement
not
misleading in the light of the circumstances in which it was made;
“Debenture
Certificates”
means the definitive certificates representing the Debentures;
“Purchasers”
means those persons who subscribe for Debentures under the Offering, including
the Subscriber;
“Regulation
S”
means Regulation S under the U.S.
Securities Act;
“TSX”
means the Toronto Stock Exchange;
“Underlying
Securities”
means the Common Shares and Warrants comprising the Units issuable upon the
exercise of the conversion rights under the Debentures;
“United
States”
means the United States as that term is defined in Regulation S;
“U.S.
Person”
means a U.S. Person as that term is defined in Regulation S;
“U.S.
Securities Act”
means the Securities
Act of 1933,
as amended, of the United States of America; and
“Warrants
Shares”
means the Common Shares issuable upon exercise of the Warrants.
3. Currency.
All dollar amounts referred to in this subscription agreement and the schedules
thereto are expressed in Canadian funds.
4. Representations
and Warranties of the Corporation.
By its execution of this agreement, the Corporation hereby agrees that the
Purchasers shall have the benefit of the following provisions to be set forth
in
the Agency Agreement on the same basis as if the Purchasers were parties to
the
Agency Agreement and direct beneficiaries of such provisions:
(a) the
representations and warranties made by the Corporation to the Agent and the
Purchasers as purchasers of the Debentures;
(b) the
covenants of the Corporation in favour of the Agent and the Purchasers as
purchasers of the Debentures; and
(c) the
conditions precedent to the Offering,
to
the extent that such representations, warranties, covenants and conditions
precedent have not been varied, amended, altered or waived, in whole or in
part,
by the Agent in the manner provided for in the Agency Agreement, which
representations, warranties, covenants and conditions are hereby incorporated
by
reference such that they form an integral part of this subscription agreement
and all of which shall survive the Closing Date for a period of two years,
notwithstanding the completion of the purchase of the Debentures. In the event
of a conflict between the provisions of this subscription agreement and the
provisions of the Agency Agreement, the provisions of the Agency Agreement
shall
prevail.
In
addition, the
Corporation hereby represents and warrants for the benefit of the Purchasers
as
follows:
(a) the
Corporation is (and will be at the Closing Time) a reporting issuer in the
Provinces of Ontario, Alberta and British Columbia, and is in compliance with
all material obligations under Applicable Securities Laws of such
jurisdictions;
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(b) the
Corporation has been duly incorporated
and
organized and is validly subsisting under the laws of the Province
of Ontario
and has all requisite corporate power and authority to own its assets and to
carry on its business as currently conducted;
(c) each
of the Material Subsidiaries has been duly incorporated and organized and is
validly subsisting under the laws of its jurisdiction of incorporation and
has
all requisite corporate power and authority to carry on its business as now
conducted and to own, lease and operate its properties and assets;
(d) the
Corporation and
each of the Material Subsidiaries
is conducting its business in material compliance with all applicable laws,
rules and regulations of each jurisdiction in which its business is carried
on
and is duly licensed, registered or qualified in all jurisdictions in which
it
owns, leases or operates its property or carries on business to enable its
business to be carried on as now conducted and its property and assets to be
owned, leased and operated and all such licences, registrations and
qualifications are and will at the Closing Time be valid, subsisting and in
good
standing, except in respect of matters which do not and will not result in
any
adverse material change in respect of the Corporation, and except for the
failure to be so qualified or the absence of any such license, registration
or
qualification which does not and will not have a material adverse effect on
the
assets or properties, business, results of operations, prospects or condition
(financial or otherwise) of the Corporation and its subsidiaries, on a
consolidated basis;
(e) the
Corporation has all required corporate power and authority to enter into and
carry out the provisions of this subscription agreement and the transactions
contemplated hereby and all necessary corporate action has been taken or will
have been taken prior to the Closing Time by the Corporation to duly authorize
the execution and delivery of this subscription agreement and such other
agreements and instruments and the consummation of the transactions contemplated
thereby and so as to validly create, issue and deliver the Debentures subscribed
thereby and to validly create and irrevocably allot for issuance the Underlying
Securities and Warrant Shares;
(f) neither
the Corporation nor
any of its Material Subsidiaries
is in default or in breach in any material respect of, and the execution and
delivery of this subscription agreement by the Corporation, the performance
and
compliance with the terms of this subscription agreement, the issue and sale
of
the Debentures, and the issue of the Underlying Securities and Warrant Shares
will not result in any breach of, or be in conflict with or constitute a default
under, or create a state of facts which, after notice or lapse of time, or
both,
would constitute a default either directly or indirectly under any term or
provision of the constating documents, by-laws or resolutions of the Corporation
or
any of the Material Subsidiaries or
any material mortgage, note, indenture, contract, agreement, instrument, lease
or other document to which any of them is a party or by which any of them is
bound;
(g) the
Common Shares issuable upon exercise of the conversion rights under its
Debentures and the Warrant Shares, if and when issued in accordance with the
Debentures and Warrants, as applicable, will be validly issued and outstanding
as fully paid and non-assessable;
and
the Warrants
issuable upon exercise of the conversion rights under its Debentures, if and
when issued, will be validly issued;
(h) no
approval, authorization, consent or other order of, and no filing, registration
or recording with, any governmental authority is required by the Corporation
in
connection with the execution and delivery or with the performance by the
Corporation of this subscription agreement except in compliance with and the
rules of the TSX;
(i) to
the best of the Corporation’s knowledge, information and belief, no portion of
the Corporation’s Information Record contained a misrepresentation as at its
date of public dissemination;
(j) there
has been no adverse material change in relation to the Corporation since June
30, 2005, and no adverse material fact exists in relation to the Corporation
or
its securities which, in either case, has not been generally disclosed or
disclosed in the Corporation’s Information Record;
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(k) this
subscription agreement and all other agreements required in connection with
the
issue and sale of the Debentures have been or will be, at or prior to the
Closing Time, duly authorized, executed and delivered by the Corporation and
will be valid and binding obligations of the Corporation enforceable in
accordance with their respective terms (except as the enforceability thereof
may
be limited by (i) bankruptcy, insolvency or similar laws affecting creditors’
rights generally, (ii) general equitable principles or (iii) limitations under
applicable law in respect of rights of indemnity, contribution and waiver of
contribution); and
(l) the
Corporation intends that the net proceeds of the Offering will be used
substantially in the manner specified in Schedule “B” hereto.
(m) Forthwith
after the Closing, the Corporation shall file such forms and documents as may
be
required under the Applicable Securities Laws relating to the Offering and
any
further documents as may be required by any applicable regulatory authority
which, without limiting the generality of the foregoing, shall include a Form
45-501F1 as prescribed by the Securities
Act
(Ontario) and a Form 45-103F4 as prescribed by Multilateral Instrument
45-103.
5. Reliance
upon Representations, Warranties and Covenants of the
Corporation.
The Corporation further agrees that, by delivering the Debentures to the
Subscriber, the Corporation will be representing and warranting that the
representations, warranties and covenants contained in this subscription
agreement and the Agency Agreement are true as at the Closing Time with the
same
force and effect as if they had been made by the Corporation at the Closing
Time
and that they will survive the purchase by the Subscriber of the Debentures
and
continue in full force and effect for a period of two (2) years following the
Closing Date notwithstanding any subsequent disposition by the Subscriber of
the
Debentures or the Underlying Securities or Warrant Shares.
6. Closing
of Purchase.
The Subscriber acknowledges and agrees that delivery of and payment for the
Debentures will be completed at the offices of the
Corporation at
10:00 a.m. (Toronto time) on the Closing Date. On the Closing Date the gross
proceeds from the Offering, less the commission payable to the Agent described
in Section 16 of this subscription agreement and certain of the Agent’s costs
and expenses, will be released to the Corporation.
7. Payment
and Delivery.
The Subscriber agrees to deliver, prior to the Closing Time, his or her duly
completed and executed subscription agreement (including Schedule “D” and
Schedules “E”or “F”); and payment for the principal amount of Debentures
subscribed for under this subscription agreement, to either :
(a)
the Corporation at 000 Xxx Xxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx X0X 0X0,
(Attention: Xxxx Xxxx), (fax number: (000) 000-0000), in which case payment
shall be made in in the form of either (i) a certified cheque or bank draft
payable to “ADB Systems International Ltd.”; (ii) wire transfer in Canadian
funds to the Corporation; or (iii) in the case of Subscribers that have
entered into certain loan agreements with the Corporation and have deposited
cheques in connection therewith, a direction to the Corporation and discharge
of
loan providing instructions to apply the specified amount of the loan held
by
the Corporation as payment; or
(b) the
Agent at The Exchange Tower, 000 Xxxx Xxxxxx Xxxx, Xxxxx 0000, XX Xxx 00,
Xxxxxxx, Xxxxxxx X0X 0X0 (Attention: Xxxx Xxxx) (fax number (000)
000-0000), in which case payment shall be made in the form of a certified cheque
or bank draft payable to "Xxxxxxx and Xxxx LLP in trust" or wire transfer of
Canadian funds to “Xxxxxxx and Xxxx LLP in trust”.
The
Subscriber agrees to deliver, prior to the Closing Time, such other
documents as may be required pursuant to the terms of this subscription
agreement.
8. Conditions
of Closing. This
subscription is subject to acceptance by the Corporation (as described below)
and the receipt of consents from certain prior investors. The Offering is
conditional upon, among other things, the Corporation obtaining TSX approval
and
the Underlying Securities not being subject to a hold period of more than four
months and one day from the Closing Date and the Common Shares being freely
tradable on the TSX following the expiration of such hold period.
A-5
The
Subscriber acknowledges and agrees that the obligations of the Corporation
hereunder are conditional on the accuracy of the representations and warranties
of the Subscriber contained in this subscription agreement as of the date of
this subscription agreement, and as of the Closing Time as if made at and as
of
the Closing Time, and the fulfillment of the following additional conditions
as
soon as possible and in any event not later than the Closing Time unless other
arrangements acceptable to the Corporation have been made:
(a) the
Corporation shall have received all necessary approvals and consents, including
all necessary regulatory approvals and consents (including the approval of
the
TSX) required for the completion of the transaction contemplated by this
subscription agreement;
(b) the
representations and warranties of the Corporation contained herein being true
and correct as of the Closing Time with the same force and effect as if made
at
and as of the Closing Time after giving effect to the transactions contemplated
hereby;
(c) the
Corporation having complied with all covenants, and satisfied all terms and
conditions contained herein to be complied with and satisfied by the Corporation
at or prior to the Closing;
(d) the
Agent not having previously terminated its obligations in connection with the
Offering pursuant to the Agency Agreement; and
(e) the
Subscriber having completed this subscription agreement in full and having
paid
the principal amount of the Debentures subscribed for hereunder to the
Corporation or the Agent in the manner contemplated in this subscription
agreement.
If,
at the Closing Time, the terms and conditions contained herein have been
complied with or waived by the Agent, this completed subscription agreement
has
been delivered to the Corporation and accepted by the Corporation and, unless
other arrangements acceptable to the Corporation have been made, the
aggregate subscription
proceeds representing the principal amount of Debentures subscribed for
hereunder have been paid in accordance with Section 7 hereof, unless other
arrangements have been made with the Corporation, Debenture Certificates
endorsed by the Corporation representing Debentures subscribed for hereunder
will be available for delivery to the Subscriber in Toronto, Ontario at the
Closing Time.. The Corporation will deliver such Debenture Certificates to
the
address set out for delivery on page 2
of this subscription agreement promptly after the closing of its
Offering.
9. Acceptance
or Rejection.
The Corporation will have the right to accept or reject in its sole discretion
(in whole or in part) this subscription at any time at or prior to the Closing
Time, and the right is reserved to the Corporation to allot to any Purchaser
less than the principal amount of Debentures subscribed for. If this
subscription is rejected in whole, any cheques or other forms of payment
delivered to the Corporation or the Agent representing the principal amount
of
the Debentures subscribed for will be promptly returned to the Subscriber
without interest or deduction. If this subscription is accepted only in part,
a
cheque representing any refund of the principal amount of the Debentures for
that portion of the subscription for the Debentures which is not accepted,
will
be promptly delivered to the Subscriber without interest or deduction. The
Subscriber acknowledges and agrees that the acceptance of this subscription
agreement will be conditional upon the sale of the Debentures to the Subscriber
being exempt from any prospectus and registration requirements of Applicable
Securities Laws. The Corporation or the Agent will be deemed to have accepted
this subscription agreement upon the delivery at closing of the Debenture
Certificate referred to in Section 8 above in accordance with the provisions
hereof.
10. Information
and Documents.
The Subscriber acknowledges that pursuant to Applicable Securities Laws, the
Subscriber may be required to file a report with a Securities Commission in
the
required form within 10 days of each disposition of all or any of the Debentures
purchased hereunder or any of the Underlying Securities issued upon the exercise
of the conversion rights under such Debentures and, if so required, the
Subscriber, undertakes to file the required report. Neither the Corporation
nor
the Agent are in any way responsible for such filings or the payment of any
related fees.
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11. Resale
Restrictions.
The Subscriber understands and acknowledges that the Debentures and in certain
circumstances the Underlying Securities and Warrant Shares will be subject
to
certain resale restrictions under Applicable Securities Laws and the Subscriber
agrees to comply with such restrictions. Subscribers are advised to consult
their own legal advisors in this regard and no representations have been made
to
the Subscriber by the Corporation or the Agent with respect to such matters.
The
Subscriber also acknowledges that it has been advised to consult its own legal
advisors with respect to applicable resale restrictions and that it is solely
responsible for complying with such restrictions (the Corporation and the Agent
are not in any manner responsible for ensuring compliance by the Subscriber
with
such restrictions).
12. No
Revocation.
The Subscriber agrees that this offer is made for valuable consideration and
may
not be withdrawn, cancelled, terminated or revoked by the Subscriber.
13. Indemnity.
The Subscriber agrees to indemnify and hold harmless the Corporation, the Agent
and their respective directors, officers, employees, agents, advisers and
shareholders from and against any and all loss, liability, claim, damage and
expense whatsoever (including, 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, warranty or
covenant of the Subscriber contained herein or in any document furnished by
the
Subscriber to the Corporation or Agent 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 herein or in any document
furnished by the Subscriber to the Corporation or Agent in connection
herewith.
14. Authorizations.
The
Subscriber, on its behalf and (if applicable) on behalf of others for whom
it is
contracting hereunder (each of whom has provided all necessary authorizations),
hereby:
(a) irrevocably
authorizes the Agent to negotiate and settle the form of any agreement to be
entered into in connection with the Offering and to vary, amend, alter or waive,
on its own behalf and on behalf of the Purchasers of Debentures, in whole or
in
part, or extend the time for compliance with, any of the Closing conditions
in
such manner and on such terms and conditions as the Agent may determine, acting
reasonably, without in any way affecting our obligations or the obligations
of
such others hereunder; provided, however, that the Agent shall not vary, amend,
alter or waive any such condition where to do so would result in a material
adverse change to any of the material attributes of the Debentures, Underlying
Securities or the Warrant Shares described herein;
(b) irrevocably
authorizes the Agent to negotiate, settle and enter into on behalf of the
Subscriber a pari passu agreement (the "Pari Passu Agreement")
to be entered into among the Agent (on behalf of
all purchasers of Debentures, including the Subscriber (collectively,
the "Purchasers")) and the Corporation pursuant to which, inter
alia, (i) any security held in favour of and/or on behalf of
the Purchasers (the "Security") shall rank pari passu; and (ii) the
Agent shall act for and on behalf of the Purchasers in respect of the
Security. The Subscriber further agrees to indemnify the Agent, and its
directors and officers against all losses, claims, costs, expenses, damages
or
liabilities which any of them may suffer or incur arising out of or connected
with the performance by the Agent of its duties under the Pari Passu Agreement,
except to the extent that such losses, claims, costs, expenses, damages or
liabilities are attributable to the gross negligence, fraud or wilful
misconduct of the Agent. Notwithstanding any other provision hereof or of the
Pari Passu Agreement, this indemnity shall survive any removal or resignation
of
the Agent as agent of the Purchasers under the Pari Passu Agreement, and
the discharge and/or termination of any of its duties thereunder;
and
(c) irrevocably
authorize the Agent, in its sole discretion: (i) to act as its representative
at
the Closing and to execute on its behalf, and (if applicable) such others on
whose behalf it is contracting hereunder, all Closing receipts and documents
as
may be required; (ii) to complete, or correct any errors or omissions in, any
form or document provided by the Subscriber; (iii) to approve any opinions,
certificates or other documents delivered at the Closing; (iv) to receive on
the
Subscriber’s behalf, and (if applicable) such others, Debenture Certificates;
and (v) to exercise any rights of termination contained in the Agency
Agreement.
A-7
15. 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.
16. Compensation,
Expenses and Reimbursement Entitlements of Agent.
The Subscriber understands that, in connection with the Offering, the Agent
will
receive from the Corporation aggregate commissions equal to 8% of the gross
proceeds of the Offering. The Subscriber further understands that as additional
compensation for its services in connection with the Offering, the Agent will
receive a number of compensation warrants (the “Compensation Warrants”) that is
equal to 10% of the total number of Units issuable upon conversion of the
principal amount of Debentures sold under the Offering. Each Compensation
Warrant is exercisable at a price of $0.15 for a period of five years from
the
Closing Date to acquire one Unit.
17. Miscellaneous.
(a) The
agreement resulting from the acceptance of this subscription agreement by the
Corporation contains the whole agreement between the parties hereto in respect
of the subject matter hereof and there are no warranties, representations,
terms, conditions or collateral agreements, express, implied or statutory,
other
than as expressly set forth herein and in any amendments hereto.
(b) All
representations, warranties, agreements and covenants made or deemed to be
made
by the Subscriber in this subscription agreement will survive the execution
and
delivery, and acceptance, of this subscription agreement and the closing of
the
Offering.
(c) Time
shall be of the essence of this subscription agreement.
(d) This
subscription agreement and the rights and obligations of the parties hereunder
will be governed by and construed according to the laws of the Province of
Ontario and the laws of Canada applicable therein.
(e) This
subscription agreement may be executed in any number of counterparts, each
of
which when delivered, either in original or facsimile form, shall be deemed
to
be an original and all of which together shall constitute one and the same
document.
(f) All
costs and expenses (including, without limitation, the fees and disbursements
of
legal counsel) incurred in connection with this subscription agreement and
the
transactions herein contemplated shall be paid and borne by the party incurring
such costs and expenses.
(g) This
subscription agreement shall be construed and enforced in accordance with,
and
the rights of the parties shall be governed by, the laws of the province of
Ontario and the laws of Canada applicable therein. Any and all disputes arising
under this subscription agreement, whether as to interpretation, performance
or
otherwise, shall be subject to the non-exclusive jurisdiction of the courts
of
the province of Ontario and each of the parties hereto hereby irrevocably
attorns to the jurisdiction of the courts of such province.
18. Notices.
(a) Any
notice, direction or other instrument required or permitted to be given to
any
party hereto shall be in writing and shall be sufficiently given if delivered
personally, or transmitted by facsimile tested prior to transmission to such
party, as follows:
(i)
in the case of the Corporation to:
000
Xxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx
X0X
0X0
A-8
Attention: Xxxx
Xxxx
Fax: 000-000-0000
(ii)
in the case of the Agent to:
PowerOne
Capital Markets Limited
The
Exchange Tower, 000 Xxxx Xxxxxx Xxxx
Xxxxx
0000, X.X. Xxx 00
Xxxxxxx,
Xxxxxxx
X0X
0X0
Attention: Xxxxxxxx
XxXxxx
Fax:
000-000-0000
(iii)
in the case of the Subscriber, at the address specified on the face page
hereof.
(b) Any
such notice, direction or other instrument, if delivered personally, shall
be
deemed to have been given and received on the day on which it was delivered,
provided that if such day is not a Business Day then the notice, direction
or
other instrument shall be deemed to have been given and received on the first
Business Day next following such day and if transmitted by fax, shall be deemed
to have been given and received on the day of its transmission, provided that
if
such day is not a Business Day or if it is transmitted or received after the
end
of normal business hours then the notice, direction or other instrument shall
be
deemed to have been given and received on the first Business Day next following
the day of such transmission.
(c) Any
party hereto may change its address for service from time to time by notice
given to each of the other parties hereto in accordance with the foregoing
provisions.
A-9
SCHEDULE
“B”
This
is Schedule “B” to the subscription agreement relating to the purchase of
Debentures of ADB Systems International Ltd. (the “Corporation”).
Capitalized terms used but not defined in this schedule are intended to have
the
meanings ascribed thereto, as applicable, on the first page of this subscription
agreement and sections 1 and 2 of Schedule “A” to this subscription
agreement
Summary
of Proposed Terms
Offering
of Secured Subordinate Convertible Debentures
by
way of Private Placement
Issuer:
|
ADB
Systems International Ltd.
(“ADB” or
the “Corporation”)
|
Offered
Securities:
|
Secured
subordinate convertible debentures (the “Debentures”) to be issued at par
in integral multiples of $1,000. At any time up to and including
the
Maturity Date (as defined below), all or any portion of the principal
amount of the Debentures will be convertible (“Conversion”) into one unit
(a “Unit”) at the option of the holder at a conversion price of $0.15 per
Unit, subject to adjustments for any stock splits, consolidations,
or
other capital reorganizations, extraordinary dividends or distributions
among
other anti-dilution provisions providing adjustment for events
that will
affect all security holders equally (the
“Conversion Price”). Each Unit is to consist of one common share (“Common
Share”) and one common share purchase warrant (“Warrant”). Each Warrant is
exercisable into one Common Share for a period of five years from
the
Closing Date at an exercise price of $0.20.
|
Size
of Offering:
|
The
total funding size is expected to be $1,200,000, consisting of
the
following:
|
The
Offering of $1,120,000 principal amount of Debentures, or such
other
amount as shall be agreed upon by ADB and the Agent.
|
|
The
Offering shall be effected contemporaneously with a non-brokered
offering
of up to $80,000 principal amount of Debentures to purchasers resident
in
the United States (the “US Offering”).
|
|
Interest:
|
Interest
payable on the Debentures shall be simple interest calculated at
11% per
annum and payable as follows:
|
(a)
interest owing in respect of the period commencing on the Closing
Date and
ending on the date that is twelve months following the Closing
Date shall
be calculated and payable in arrears upon the earlier of (i) Conversion;
and (ii) the date which is 12 months following the Closing Date,
and such
interest shall be satisfied by the issuance of the number of Common
Shares
calculated on the basis of:
|
|
A÷B,
where:
|
|
A
= the amount of accrued interest payable, in dollars; and
|
|
B
= the volume weighted average trading price of the Common Shares
over the
20 day trading period ending at the close of business on the day
prior to
the date on which the interest payment is due, reduced by the maximum
percentage discount permitted by the Toronto Stock Exchange,
|
provided
that the maximum aggregate number of common shares issuable pursuant
to
the above-noted calculation is 974,199 and in the event the Corporation
is
obligated to, and cannot, issue any further Common Shares over
and above
974,199, it shall satisfy the balance of the interest payment owing
in
cash by paying the amount calculated as (i) the total amount of
accrued
interest payable, less (ii) the value of the Common Shares issued
in
satisfaction of interest payments; and
|
|
(b)
interest owing in respect of the period commencing on the date
that is
twelve months and one day following the Closing Date and ending
on the
date that is five years following the Closing Date shall be calculated
and
payable in cash upon the earlier of (i) Conversion; or (ii) the
Maturity Date.
|
|
Security:
|
The
Debentures will provide general security over the Corporation’s assets.
Such security will be subordinate to the liabilities of the Corporation
to
current secured creditors, but will rank in priority over all unsecured
liabilities of the Corporation.
|
Agreements:
|
Secured
Subordinate Convertible Debenture, Warrant Certificate, Agency
Agreement,
Security Agreement, Subscription Agreement.
|
Maturity
Date:
|
Five
years from the Closing Date (as defined below).
|
Resale
Restrictions:
|
The
Corporation will be a “reporting issuer” on the Closing Date, such that it
is expected that the Debentures, Common Shares, Warrants and common
shares
issuable upon the exercise of the Warrants, will be subject to
a
restricted period expiring four months and one day following the
Closing
Date.
|
Form
of Offering:
|
Best
efforts private placement to accredited investors in Ontario under
OSC
Rule 45-501 or in such other jurisdictions in Canada, and outside
North
America as the Corporation and the Agent shall agree, under equivalent
rules.
|
The
Offering shall be effected contemporaneously with the US
Offering.
|
|
Agent:
|
PowerOne
Capital Markets Limited. The Agent shall have the right to include
other
investment dealers in the selling group at the Agent's
discretion.
|
Conditions:
|
The
Agent’s obligation to proceed with the Offering is conditional on: (i)
the
Agent being satisfied, in its sole discretion, with its due diligence
review of the Corporation; (ii) execution of definitive documentation;
(iii) no material adverse change occurring in the business of the
Corporation; and (iv) satisfactory market conditions. The Corporation
shall allow the Agent and its representatives to conduct all due
diligence
investigations which the Agent may reasonably require to fulfil
its
obligations as agent.
|
Black-Out
Period:
|
Subject
to certain exceptions, ADB will not issue nor announce the issuance
of any
of its common shares or other securities at an effective price
below $0.15
per share for a period ending six months from the Closing Date,
and ADB’s
executive officers and directors and their respective associates
will
enter into standstill arrangements for a period ending six months
from the
Closing Date.
|
Closing
Date:
|
September
9, 2005 or such other date or dates as the Agent and the Corporation
may
agree (the “Closing Date”).
|
B-2
Agent’s
Commission:
|
8%
of gross proceeds of the Offering. For greater certainty, the parties
agree that the Agent is neither acting as agent nor entitled to
any
commission or Compensation Warrants (as defined below) in connection
with
the US Offering.
|
Compensation
Warrants:
|
The
Agent shall receive a number of compensation warrants (the “Compensation
Warrants”) that is equal to 10% of the total number of Units issuable upon
conversion of the principal amount of Debentures sold under the
Offering.
Each Compensation Warrant is exercisable at a price of $0.15 for
a period
of five years from the Closing Date to acquire one
Unit.
|
Right
of First Refusal:
|
The
Agent shall have a 6 month right of first refusal.
|
Agency
Agreement:
|
The
Agent and the Corporation shall prior to the Closing Date negotiate,
in
good faith, an agency agreement which shall incorporate the terms
and
conditions hereof and contain such additional representations,
warranties
and covenants and indemnity and contribution provision conditions
customary for transactions of this
nature.
|
B-3
SCHEDULE
“C”
SUBSCRIBER’S
REPRESENTATIONS AND WARRANTIES
This
is Schedule “C” to the subscription agreement relating to the purchase of
Debentures of ADB Systems International Ltd. (the “Corporation”). Capitalized
terms used but not defined in this schedule are intended to have the meanings
ascribed thereto, as applicable, on the first page of this subscription
agreement and sections 1 and 2 of Schedule “A” to this subscription
agreement.
By
executing this subscription agreement, the Subscriber represents and warrants
to
the Corporation, which representations and warranties are true as of the date
of
this subscription agreement and will be true as of the Closing Date,
that:
1.
|
Representations
and Warranties
|
(a)
|
Authorization
and Effectiveness.
If the Subscriber is a corporation, the Subscriber is a valid and
subsisting corporation, has the necessary corporate capacity and
authority
to execute and deliver this subscription agreement and to observe
and
perform its covenants and obligations hereunder and has taken all
necessary corporate action in respect thereof. If the Subscriber
is a
partnership, syndicate or other form of unincorporated organization,
the
Subscriber has the necessary legal capacity and authority to execute
and
deliver this subscription agreement and to observe and perform its
covenants and obligations hereunder and has obtained all necessary
approvals in respect thereof. If the Subscriber is a natural person,
he or
she has obtained the age of majority and is legally competent to
execute
this subscription agreement and to take all actions required pursuant
thereto.
|
Whether
the Subscriber is a natural person or a corporation, partnership or other
entity, upon acceptance by the Corporation, this subscription agreement will
constitute a legal, valid and binding contract of the Subscriber, and any
beneficial purchaser for whom it is purchasing, enforceable against the
Subscriber and any such beneficial purchaser in accordance with its
terms.
(b)
|
Residence.
The Subscriber or any beneficial purchaser on whose behalf the Subscriber
is acting hereunder is a resident of, or otherwise subject to, the
jurisdiction referred to under “Name and Address of Subscriber” on the
first page of this subscription agreement, which address is the residence
or place of business of the Subscriber or such beneficial purchaser
and
has not been created or used solely for the purpose of acquiring
Debentures, and neither the Subscriber or such beneficial
purchaser:
|
(i)
|
is
(or is purchasing Debentures for the account or benefit of) a U.S.
Person;
|
(ii)
|
was
offered the Debentures in the United States;
and
|
(iii)
|
executed
or delivered this agreement in the United
States.
|
(c)
|
Investment
Intent.
The Subscriber on its own behalf and on behalf of any beneficial
purchaser
on whose behalf the Subscriber is acting hereunder is acquiring Debentures
to be held for investment only and not with a view to resale or
distribution.
|
(d)
|
Prospectus
Exemptions.
The Subscriber or any beneficial purchaser on whose behalf the Subscriber
is acting hereunder acknowledges and agrees that the sale and delivery
of
the Debentures to the Subscriber is conditional upon such sale being
exempt from the requirements under Applicable Securities Laws requiring
the filing of a prospectus in connection with the distribution of
the
Debentures and as a result, certain rights and remedies provided
by
Applicable Securities Laws (including statutory rights of rescission
or
damages) will not be available to the Subscriber or any beneficial
purchaser on whose behalf the Subscriber is acting
hereunder.
|
(e)
|
Offering
Documents.
The Subscriber has not received, nor does the Subscriber need to
receive,
any document purporting to describe the business and affairs of the
Corporation that has been prepared for delivery to and review by
prospective investors (including a prospectus or offering memorandum)
so
as to assist those investors to make an investment decision in respect
of
securities being sold in a distribution of securities of the
Corporation.
|
(f)
|
No
Solicitation or Advertising.
The Subscriber on its own behalf and on behalf of any beneficial
purchaser
on whose behalf the Subscriber is acting hereunder acknowledges that
it
has not purchased the Debentures as a result of any 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 other telecommunications
(including electronic display), or any seminar or meeting whose attendees
have been invited by any general solicitation or general
advertising.
|
(g)
|
No
Undisclosed Information.
The Debentures are not being purchased by the Subscriber as a result
of
any material information concerning the Corporation that has not
been
publicly disclosed and the Subscriber’s decision to tender this offer and
acquire Debentures has not been made as a result of any verbal or
written
representation as to fact or otherwise made by or on behalf of the
Corporation or the Agent, or any other person and is based entirely
upon
the currently available public information concerning the
Corporation.
|
(h)
|
Investment
Suitability.
The Subscriber and any beneficial purchaser on whose behalf the Subscriber
is acting hereunder have such knowledge and experience in financial
and
business affairs as to be capable of evaluating the merits and risks
of
the investment hereunder in Debentures (and the Underlying Securities
and
Warrant Shares in respect thereof) and are able to bear the economic
risk
of loss of such investment. The Subscriber and any beneficial purchaser
on
whose behalf the Subscriber is acting hereunder acknowledge and agree
that
the Subscriber and such beneficial purchaser are responsible for
obtaining
such legal advice as the Subscriber or such beneficial purchaser
considers
appropriate in connection with the execution, delivery and performance
by
the Subscriber of this agreement and the transactions contemplated
hereunder.
|
(i)
|
Subscription
Agreement.
The Subscriber on its own behalf and on behalf of any beneficial
purchaser
on whose behalf the Subscriber is acting hereunder has read and
understands the contents of this agreement (including the Schedules
hereto) and agrees to be legally bound
hereby.
|
(j)
|
No
Conversion or Transfer of Debentures, Underlying Securities or Warrant
Shares in U.S.
The Subscriber on its own behalf and on behalf of any beneficial
purchaser
on whose behalf the Subscriber is acting hereunder acknowledges that
the
Debentures, Underlying Securities and Warrant Shares may not be offered,
sold or otherwise transferred to persons in the United States or
to U.S.
Persons and may not be exercised in the United States or by or on
behalf
of a U.S. Person and the Subscriber and such beneficial purchaser
understand that certificates representing the Debentures, Underlying
Securities and Warrant Shares issued to it will so
indicate.
|
(k)
|
Ontario
Subscriber.
If the Subscriber or any beneficial purchaser on whose behalf the
Subscriber is acting hereunder is a resident of Ontario, the Subscriber
or
its disclosed principal is an “accredited investor” within the meaning of
Ontario Securities Commission Rule 45-501 - Exempt Distributions
and falls
within one or more of the sub-paragraphs of the definition of “Accredited
Investor” set out in Appendix I to Schedule “D” hereto or is purchasing
pursuant to paragraph (b) of Schedule D, and the Subscriber or such
beneficial purchaser has concurrently executed and delivered to the
Corporation a certificate in the form attached as Appendix I to Schedule
“D” (the Subscriber having checked the applicable
subparagraph(s)).
|
(l)
|
Alberta
or British Columbia Subscriber.
If the Subscriber or any beneficial purchaser on whose behalf the
Subscriber is acting hereunder is a resident of Alberta or British
Columbia, the Subscriber or the disclosed principal for which it
is
acting, as the case may be, is an “accredited investor” as defined in
Multilateral Instrument 45-103, by virtue of the fact that the Subscriber
or
|
C-2
such disclosed principal, as the case may be, falls within one or more of the subparagraphs of the definition of “accredited investor” set out in Schedule “E” hereto (the Subscriber having checked the applicable subparagraph(s)) or the Subscriber otherwise falls within one or more of the subparagraphs of the “Family, Friends and Business Associates Certificate” attached as Appendix I to Schedule “E” (the Subscriber having checked the applicable subparagraph(s)). |
(m)
|
If
the Subscriber, or any beneficial purchaser for whom it is acting,
is not
a person resident in Canada, the subscription for the Debentures
by the
Subscriber, or such beneficial purchaser, does not contravene any
of the
applicable securities legislation in the jurisdiction in which the
Subscriber or such beneficial purchaser resides and does not give
rise to
any obligation of the Corporation or the Agent to prepare and file
a
prospectus or similar document or to register the Debentures or to
be
registered with or to file any report or notice with any governmental
or
regulatory authority.
|
(n)
|
The
execution and delivery of this subscription agreement, the performance
and
compliance with the terms hereof, the subscription for the Debentures
and
the completion of the transactions described herein by the Subscriber
will
not result in any material breach of, or be in conflict with or constitute
a material default under, or create a state of facts which, after
notice
or lapse of time, or both, would constitute a material default under
any
term or provision of the constating documents, by-laws or resolutions
of
the Subscriber, the Applicable Securities Laws or any other laws
applicable to the Subscriber, any agreement to which the Subscriber
is a
party, or any judgment, decree, order, statute, rule or regulation
applicable to the Subscriber.
|
(o)
|
The
Subscriber is subscribing for the Debentures as principal for its
own
account and not for the benefit of any other person (within the meaning
of
Applicable Securities Laws) and not with a view to the resale or
distribution of all or any of the Debentures, Underlying Securities
or
Warrant Shares or if it is not subscribing as principal, it acknowledges
that the Corporation and/or the Agent may be required by law to disclose
to certain regulatory authorities the identity of each beneficial
purchaser of the Debentures for whom it is
acting.
|
(p)
|
In
the case of a subscription for the Debentures by the Subscriber acting
as
trustee or agent (including, for greater certainty, a portfolio manager
or
comparable adviser) for a principal, the Subscriber is duly authorized
to
execute and deliver this subscription agreement and all other necessary
documentation in connection with such subscription on behalf of each
such
beneficial purchaser, each of whom is subscribing as principal for
its own
account, not for the benefit of any other person and not with a view
to
the resale or distribution of the Debentures, Underlying Securities
or
Warrant Shares, and this subscription agreement has been duly authorized,
executed and delivered by or on behalf of and constitutes a legal,
valid
and binding agreement of, such principal, and the Subscriber acknowledges
that the Corporation and/or the Agent may be required by law to disclose
the identity of each beneficial purchaser for whom the Subscriber
is
acting.
|
(q)
|
In
the case of a subscription for the Debentures by the Subscriber acting
as
principal, this subscription agreement has been duly authorized,
executed
and delivered by, and constitutes a legal, valid and binding agreement
of,
the Subscriber. This subscription agreement is enforceable in accordance
with its terms against the Subscriber and any beneficial purchasers
on
whose behalf the Subscriber is
acting.
|
(r)
|
Other
than the Agent, there is no person acting or purporting to act in
connection with the transactions contemplated herein who is entitled
to
any brokerage or finder’s fee. If any person establishes a claim that any
such fee or other compensation is payable in connection with this
subscription for the Debentures, the Subscriber covenants to indemnify
and
hold harmless the Corporation and the Agent with respect thereto
and with
respect to all costs reasonably incurred in the defence
thereof.
|
(s)
|
The
Subscriber is not, with respect to the Corporation or any of its
affiliates, a control person (as defined in Applicable Securities
Laws).
|
C-3
(t)
|
If
required by Applicable Securities Laws or the Corporation, the Subscriber
will execute, deliver and file or assist the Corporation in filing
such
reports, undertakings and other documents with respect to the issue
of the
Debentures, Underlying Securities or Warrant Shares as may be required
by
any securities commission, stock exchange or other regulatory
authority.
|
(u)
|
The
Subscriber acknowledges that no representation has been made respecting
the applicable hold periods imposed by the Applicable Securities
Laws or
other resale restrictions applicable to the Debentures, Underlying
Securities or Warrant Shares which restrict the ability of the Subscriber
(or others for whom it is contracting hereunder) to resell such
securities, that the Subscriber (or others for whom it is contracting
hereunder) is solely responsible to find out what these restrictions
are
and the Subscriber is solely responsible (and neither the Corporation
nor
the Agent is in any way responsible) for compliance with applicable
resale
restrictions and the Subscriber is aware that it (or beneficial purchasers
for whom it is contracting hereunder) may not be able to resell such
securities except in accordance with limited exemptions under the
Applicable Securities Laws and other applicable
laws.
|
(v)
|
No
person has made any written or oral
representations:
|
(i)
|
that
any person will resell or repurchase the Debentures, Underlying Securities
or the Warrant Shares;
|
(ii)
that
any person will refund the purchase price of the Debentures; or
(iii)
|
as
to the future price or value of the Debentures, Underlying Securities
or
the Warrant Shares.
|
(w)
|
The
Subscriber, on its own behalf and, if applicable, on behalf of others
for
whom it is acting hereunder, acknowledges and agrees as
follows:
|
(i)
|
No
securities commission, agency, governmental authority, regulatory
body,
stock exchange or other regulatory body has reviewed or passed on
the
merits of the Debentures, Underlying Securities or the Warrant
Shares.
|
(ii)
|
The
Subscriber’s ability to transfer the Debentures, Underlying Securities and
Warrant Shares is limited by, among other things, Applicable Securities
Laws.
|
(iii)
|
The
certificates representing the Debentures will bear, as of the Closing
Date, legends substantially in the following form and with the necessary
information inserted:
|
UNLESS
PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT
TRADE THE SECURITY BEFORE <INSERT DATE THAT IS FOUR (4) MONTHS AND ONE (1)
DAY AFTER CLOSING DATE>.”
(iv)
|
In
the event that holders of Debentures convert such Debentures and/or
exercise the Warrants prior to the expiry of the hold periods applicable
to the Underlying Securities, the Underlying Securities and/or Warrant
Shares, as applicable, will bear legends substantially in the following
form and with the necessary information
inserted:
|
“UNLESS
PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT
TRADE THE SECURITY BEFORE <INSERT DATE THAT IS FOUR (4) MONTHS AND ONE (1)
DAY AFTER CLOSING DATE>.
(v)
|
In
addition, the Common Shares (and Warrant Shares, if applicable) will
also
bear a legend substantially in the following
form:
|
C-4
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE LISTED ON THE TORONTO STOCK
EXCHANGE (THE “TSX”); HOWEVER THE SAID SECURITIES CANNOT BE TRADED THROUGH THE
FACILITIES OF THE TSX SINCE THEY ARE NOT FREELY TRANSFERABLE, AND CONSEQUENTLY
ANY CERTIFICATE REPRESENTING SUCH SECURITIES IS NOT “GOOD DELIVERY” IN
SETTLEMENT OF TRANSACTIONS ON THE TSX.”
(vi)
|
There
is no government or other insurance covering the Debentures, Underlying
Securities or the Warrant Shares.
|
(vii)
|
There
are risks associated with the purchase of the Debentures, Underlying
Securities and/or the Warrant
Shares.
|
(viii)
|
the
Agent and its directors, officers, employees, agents and representatives
do not assume any responsibility or liability of any nature whatsoever
for
the accuracy or adequacy of the Corporation’s Information Record or as to
whether all information concerning the Corporation required to be
disclosed by it has been generally
disclosed;
|
(ix)
|
Xxxxxxx
and Xxxx LLP is acting as counsel to the Agent and not as counsel
to the
Purchasers.
|
2.
|
Reliance
Upon Representations, Warranties and Covenants.
The Subscriber acknowledges that the representations and warranties
contained herein are made by the Subscriber with the intention that
they
may be relied upon by the Corporation in determining the Subscriber’s
eligibility to purchase Debentures under Applicable Securities Laws.
The
Subscriber agrees that by accepting delivery of the Debentures on
the
Closing Date, the Subscriber will be representing and warranting
that the
foregoing representations and warranties are true and correct as
at the
Closing Time with the same force and effect as if they had been made
by
the Subscriber at the Closing Time and that they will survive the
purchase
by the Subscriber of Debentures and will continue in full force and
effect
notwithstanding any subsequent disposition by the Subscriber of such
Debentures.
|
3.
|
Personal
Information.
The Subscriber acknowledges and consents to the fact that the Corporation
and the Agent are collecting the Subscriber’s personal information for the
purpose of fulfilling this subscription agreement. The subscriber
further
acknowledges and consents to the fact that the Corporation and/or
the
Agent may be required by Applicable Securities Laws to provide the
applicable regulatory authorities with any personal information provided
by the Subscriber in accordance with and for the purposes required
under
Applicable Securities Laws.
|
C-5
SCHEDULE
“D”
CERTIFICATES
ONTARIO
RESIDENTS ONLY
Complete
both of the two following certificates:
ONTARIO
RESIDENT EXEMPTION CERTIFICATE
The
Subscriber (on its own behalf and, if applicable, on behalf of each person
on
whose behalf the Subscriber is acting hereunder) represents, warrants and
covenants to the Corporation and the Agent and acknowledges that the Corporation
and the Agent, and their counsel, are relying thereon that: [Initial
or place a checkmark in the box to the left of each applicable item; choose
only
one of item (a) or (b) below and choose only one sub item in (a) or
(b)]:
|
(a)
|
the
Subscriber is resident in Ontario and falls within one or more of
the
categories described in the sub-paragraphs of the definition of
“accredited investor” as such term is defined in Ontario Securities
Commission Rule 45-501 (“Rule
45-501”)
and has completed the Ontario Accredited Investor Certificate attached
hereto as Appendix I, and:
|
|
|
(i)
|
if
purchasing the securities as principal, the Subscriber is an “accredited
investor” (as such term is defined in Rule 45-501), is purchasing the
securities as principal for its own account and not for the benefit
of any
other person, it is purchasing for investment only and not with a
view to
resale or distribution and no other person, corporation, firm or
other
organization has a beneficial interest in the said securities being
purchased; or
|
|
|
(ii)
|
if
purchasing the securities as agent for a principal disclosed on the
cover
page of this subscription agreement, the Subscriber is an agent or
trustee
of such disclosed principal and such disclosed principal for whom
the
Subscriber is acting is an “accredited investor”, is purchasing the
securities as principal for its own account and not for the benefit
of any
other person, and is purchasing for investment only and not with a view to
resale or distribution and no other person, corporation, firm or
other
organization has a beneficial interest in the said securities being
purchased;
OR
|
|
|
(b)
|
the
Subscriber is resident in Ontario and is purchasing the securities
for a
principal or principals which is or are undisclosed or identified
by
account number only and the Subscriber is:
|
|
|
(i)
|
a
portfolio adviser (as such term is defined in Rule 45-501) and is
purchasing the securities for one or more managed accounts (as defined
in
Rule 45-501); or
|
|
|
(ii)
|
a
trust corporation registered under the Loan
and Trust Corporations Act (Ontario)
or under the Trust
and Loan Companies Act
(Canada) or under comparable legislation in any jurisdiction and
is
purchasing the securities for an account that is fully managed by
such
trust company.
|
APPENDIX
I
ONTARIO
ACCREDITED INVESTOR CERTIFICATE
The
Subscriber hereby represents, warrants and certifies to Corporation and the
Agent that the Subscriber (or its disclosed principal) is an “accredited
investor” as defined in Rule 45-501 by virtue of being: [check
appropriate boxes]
Accredited
Investors
|
(a)
|
a
bank listed in Schedule I or II of the Bank
Act (Canada),
or an authorized foreign bank listed in Schedule III of the Bank
Act
(Canada);
|
|
(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
(Ontario) or under the Trust
and Loan Corporations 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 of Canada;
|
|
(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 Securities
Act
(Ontario) or securities legislation in another jurisdiction of Canada
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;
|
|
(o)
|
an
individual who has been granted registration under the Securities
Act
(Ontario) or securities legislation in another jurisdiction of Canada
as a
representative of a person or company referred to in paragraph (g),
whether or not the individual’s registration is still in
effect;
|
D-2
|
(p)
|
a
promoter of the Corporation or an affiliated entity of a promoter
of the
Corporation;
|
|
(q)
|
a
spouse, parent, brother, sister, grandparent or child of an officer,
director or promoter of the Corporation;
|
|
(r)
|
a
person or company that, in relation to the Corporation, 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 Securities
Act
(Ontario);
|
|
(s)
|
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;
|
|
(t)
|
a
person or company that is recognized by the Ontario Securities Commission
as an accredited investor, pursuant to a discretionary order of the
Ontario Securities Commission;
|
|
(u)
|
a
mutual fund or non-redeemable investment fund that, in Ontario,
distributes its securities only to persons or companies that are
accredited investors;
|
|
(v)
|
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 as defined in the Securities
Act
(Ontario) or, if it has ceased distribution of its securities, has
previously distributed securities in this manner;
|
|
(w)
|
a
fully managed account if it is acquiring a security that is not a
security
of a mutual fund or non-redeemable investment fund;
|
|
(x)
|
an
account that is fully managed by a trust corporation registered under
the
Loan
and Trust Corporations Act
(Ontario) or under the Loan
and Trust Companies Act
(Canada) or under comparable legislation in any other
jurisdiction;
|
|
(y)
|
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; or
|
|
(z)
|
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.
|
For
the purposes hereof, the following terms shall have the following
meanings:
“company”
means any corporation, incorporated association, incorporated syndicate or
other
incorporated organization.
“control
person”
means any person, company or combination of persons or companies holding a
sufficient number of any securities of the Corporation to affect materially
the
control of the Corporation, but any holding of any persons, company or
combination of persons or companies holding more than 20 per cent of the
outstanding voting securities of the Corporation, in the absence of evidence
to
the contrary, shall be deemed to affect materially the control of the
Corporation.
“director”
where used in relation to a person, includes a person acting in a capacity
similar to that of a director of a company.
“entity”
means a company, syndicate, partnership, trust or unincorporated
organization.
“financial
assets”
means cash, securities, or any contract of insurance or deposit or evidence
thereof that is not a security for the purposes of the Securities
Act
(Ontario).
D-3
“fully
managed account”
means an investment portfolio account of a client established in writing with
a
portfolio adviser who makes investment decisions for the account and has full
discretion to trade in securities of the account without requiring the client’s
express consent to a transaction.
“individual”
means a natural person, but does not include a partnership, unincorporated
association, unincorporated organization, trust or a natural person in his
or
her capacity as trustee, executor, administrator or other legal personal
representative.
“mutual
fund”
includes an issuer whose primary purpose is to invest money provided by its
security holders and whose securities entitle the holder to receive on demand,
or within a specified period after demand, an amount computed by reference
to
the value of a proportionate interest in the whole or in a part of the net
assets, including a separate fund or trust account, of the issuer of the
securities.
“non-redeemable
investment fund”
means an issuer
(a)
|
whose
primary purpose is to invest money provided by its
securityholders;
|
(b)
|
that
does not invest for the purpose of exercising effective control,
seeking
to exercise effective control, or being actively involved in the
management of the issuers in which it invests, other than other mutual
funds or non-redeemable investment funds;
and
|
(c)
|
is
not a mutual fund.
|
“officer”
means the chair, any vice-chair of the board of directors, the president, any
vice-president, the secretary, the assistant secretary, the treasurer, the
assistant treasurer, and the general manager of a company, and any other person
designated an officer or a company by by-law or similar authority, or any
individual acting in a similar capacity on behalf of the
Corporation.
“person”
means an individual, partnership, unincorporated association, unincorporated
syndicate, unincorporated organization, trust, trustee, executor, administrator,
or other legal representative.
“portfolio
adviser”
means (a) a portfolio manager; or (b) a broker or investment dealer exempted
from registration as an adviser under subsection 148(1) of the Regulation to
the
Securities Act (Ontario) if that broker or investment dealer is not exempt
from
the by-laws or regulations of the Toronto Stock Exchange or the Investment
Dealers’ Association of Canada referred to in that subsection.
“promoter”
means (a) a person or company who, acting alone or in conjunction with one
or
more other persons, companies or a combination thereof, directly or indirectly,
has taken the initiative in founding, organizing or substantially reorganizing
the business of the Corporation, or (b) a person or company who, in connection
with the founding, organizing or substantial reorganizing of the business of
the
Corporation, directly or indirectly, received in consideration of services
or
property, or both services and property, 10 per cent or more of any class of
securities of the Corporation or 10 percent or more of the proceeds from the
sale of any class of securities of a particular issue, but a person or company
who receives such securities or proceeds either solely as underwriting
commissions or solely in consideration of property shall not be deemed a
promoter within the meaning of this definition if such person or company does
not otherwise take part in founding, organizing, or substantially reorganizing
the business.
“related
liabilities”
means liabilities incurred or assumed for the purpose of financing the
acquisition or ownership of financial assets and liabilities that are secured
by
financial assets.
“spouse”,
in relation to an individual, means another individual to whom that individual
is married, or another individual of the opposite sex or the same sex with
whom
that individual is living in a conjugal relationship outside
marriage.
D-4
For
the purposes of the foregoing:
(a)
|
a
person or company is considered to be an affiliated entity of another
person or company if one is a subsidiary entity of the other, or
if both
are subsidiary entities of the same person or company, or if each
of them
is controlled by the same person or
company.
|
(b)
|
a
person or company is considered to be controlled by a person or company
if
|
(i)
|
in
the case of a person or company,
|
(A)
|
voting
securities of the first mentioned person or company carrying more
than 50
percent of the votes for the election of directors are held, otherwise
than by way of security only, by or for the benefit of the other
person or
company, and
|
(B)
|
the
votes carried by the securities are entitled, if exercised, to elect
a
majority of the directors of the first-mentioned person or
company;
|
(ii)
|
in
the case of a partnership that does not have directors, other than
a
limited partnership, the second-mentioned person or company holds
more
than 50 percent of the interests in the partnership;
or
|
(iii)
|
in
the case of a limited partnership, the general partner is the
second-mentioned person or company;
and
|
(c)
|
a
person or company is considered to be a subsidiary entity of another
person or company if
|
(i)
|
it
is controlled by,
|
(A)
|
that
other, or
|
(B)
|
that
other and one or more persons or companies each of which is controlled
by
that other, or
|
(C)
|
two
or more persons or companies, each of which is controlled by that
other;
or
|
(d)
|
it
is a subsidiary entity of a person or company that is the other’s
subsidiary entity.
|
The
foregoing representations contained in this certificate are true and accurate
as
of the date hereof and will be true and accurate as of the Closing Date. If
any
such representations shall not be true and accurate prior to the Closing Date,
the Subscriber shall give immediate notice to the Corporation.
D-5
EXECUTED
by the Subscriber at
this
day of
,
2005.
If
a corporation, partnership or other entity:
|
If
an individual:
|
||
______________________________________________________________________________
|
______________________________________________________________________________
|
||
(Print
Name of Subscriber)
|
(Print
Name)
|
||
______________________________________________________________________________
|
______________________________________________________________________________
|
||
(Signature
of Authorized
Signatory)
|
(Signature)
|
||
______________________________________________________________________________
|
______________________________________________________________________________
|
||
(Name
and Position of Authorized Signatory)
|
(Jurisdiction
of Residence)
|
||
______________________________________________________________________________
|
______________________________________________________________________________
|
||
(Jurisdiction
of Residence)
|
(Print
Name of Witness)
|
||
______________________________________________________________________________
|
______________________________________________________________________________
|
||
(Signature
of Witness)
|
D-6
SCHEDULE
“E”
CERTIFICATE
ALBERTA
AND BRITISH COLUMBIA RESIDENTS ONLY
Complete
one of the two following certificates (as applicable):
ACCREDITED
INVESTOR CERTIFICATE
If
the Subscriber is a resident of, or the purchase and sale of securities to
the
Subscriber is otherwise subject to the securities legislation of, Alberta or
British Columbia, the Subscriber hereby represents, warrants and certifies
to
the Corporation and the Agent that the Subscriber (and, if applicable, any
disclosed principal for whom it is acting) is an “accredited investor” as
defined in Section 1.1 of Multilateral Instrument 45-103 (Capital Raising
Exemptions), by virtue of being:
[Check
appropriate item]
|
(a)
|
a
Canadian financial institution, or an authorized foreign bank listed
in
Schedule III of the Bank
Act
(Canada);
|
|
(b)
|
the
Business Development Bank of Canada incorporated under the Business
Development Bank of Canada Act
(Canada);
|
|
(c)
|
an
association under the Cooperative
Credit Associations Act
(Canada) located in Canada or a central cooperative credit society
for
which an order has been made under subsection 473(1) of that
Act;
|
|
(d)
|
a
subsidiary of any person or company referred to in paragraphs (a)
to (c),
if the person or company owns all of the voting securities of the
subsidiary, except the voting securities required by law to be owned
by
directors of that subsidiary;
|
|
(e)
|
a
person or company registered under the securities legislation of
a
jurisdiction of Canada, as an adviser or dealer, other than a limited
market dealer registered under the Securities
Act
(Ontario) or the Securities
Act
(Newfoundland and Labrador);
|
|
(f)
|
an
individual registered or formerly registered under the securities
legislation of a jurisdiction of Canada, as a representative of a
person
or company referred to in paragraph (e);
|
|
(g)
|
the
government of Canada or a jurisdiction of Canada, or any crown
corporation, agency or wholly owned entity of the government of Canada
or
a jurisdiction of Canada;
|
|
(h)
|
a
municipality, public board or commission in Canada;
|
|
(i)
|
any
national, federal, state, provincial, territorial or municipal government
of or in any foreign jurisdiction, or any agency of that
government;
|
|
(j)
|
a
pension fund that is regulated by either the Office of the Superintendent
of Financial Institutions (Canada) or a pension commission or similar
regulatory authority of a jurisdiction of Canada;
|
|
(k)
|
an
individual who, either alone or with a spouse, beneficially owns,
directly
or indirectly, financial assets having an aggregate realizable value
that
before taxes, but net of any related liabilities, exceeds
$1,000,000;
|
|
(l)
|
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 the two most recent years
and
who, in either case, reasonably expects to exceed that net income
level in
the current year;
|
|
(m)
|
a
person or company, other than a mutual fund or non-redeemable investment
fund, that, either alone or with a spouse, has net assets of at least
$5,000,000, and unless the person or company is an individual, that
amount
is shown on its most recently prepared financial
statements;
|
|
(n)
|
a
mutual fund or non-redeemable investment fund that, in the local
jurisdiction, distributes its securities only to persons or companies
that
are accredited investors;
|
|
(o)
|
a
mutual fund or non-redeemable investment fund that, in the local
jurisdiction, is distributing or has distributed its securities under
one
or more prospectuses for which the regulator has issued
receipts;
|
|
(p)
|
a
trust company or trust corporation registered or authorized to carry
on
business under the Trust
and Loan Companies Act (Canada)
or under comparable legislation in a jurisdiction of Canada or a
foreign
jurisdiction, trading as a trustee or agent on behalf of a fully
managed
account;
|
|
(q)
|
a
person or company trading as agent on behalf of a fully managed account
if
that person or company is registered or authorized to carry on business
under the securities legislation of a jurisdiction of Canada or a
foreign
jurisdiction as a portfolio manager or under an equivalent category
of
adviser or is exempt from registration as a portfolio manager or
the
equivalent category or adviser;
|
|
(r)
|
a
registered charity under the Income
Tax Act
(Canada) that, in regard to the trade, has obtained advice from an
eligibility adviser or other adviser registered to provide advice
on the
securities being traded;
|
|
(s)
|
an
entity organized in a foreign jurisdiction that is analogous to any
of the
entities referred to in paragraphs (a) through (e) and paragraph
(j) in
form and function; or
|
|
(t)
|
a
person or company in respect of which all of the owners of interests,
direct or indirect, legal or beneficial, except the voting securities
required by law to be owned by directors, are persons or companies
that
are accredited investors.
|
As
used in this certificate, the following terms have the following
meanings:
“eligibility
adviser”
means an investment dealer equivalent category of registration, registered
under
the securities legislation of the jurisdiction of a purchaser and authorized
to
give advice with respect to the type of security being distributed;
“financial
assets”
means cash and securities;
“fully
managed account”
means an account for which a person or company makes investment decisions if
that person or company has full discretion to trade in securities for the
account without requiring the client’s express consent to a
transaction;
“non-redeemable
investment fund”
means an issuer
(a)
where contributions of security holders are pooled for investment,
(b)
where security holders do not have day-to-day control over the management and
investment decisions of the issuer, whether or not they have the right to be
consulted or to give directions, and
E-2
(c)
whose securities do not entitle the security holder to receive on demand, or
within a specified period after demand, an amount computed by reference to
the
value of a proportionate interest in the whole or in part of the net assets
of
the issuer; and
“related
liabilities”
means: (a) liabilities incurred or assumed for the purpose of financing the
acquisition or ownership of financial assets, or (b) liabilities that are
secured by financial assets.
E-3
APPENDIX
I
FAMILY,
FRIENDS AND BUSINESS ASSOCIATES CERTIFICATE
If
the Subscriber is a resident of, or the purchase and sale of securities to
the
Subscriber is otherwise subject to the securities legislation of Alberta or
British Columbia, the Subscriber hereby represents, warrants and certifies
to
the Corporation and the Agent that the Subscriber (and, if applicable, any
disclosed principal for whom it is acting) is either:
[Check
appropriate item]
|
(a)
|
a
director, senior officer or control person of the Corporation, or
of an
affiliate of the Corporation; or
|
|
(b)
|
a
spouse, parent, grandparent, brother, sister or child of a director,
senior officer or control person of the Corporation, or of an affiliate
of
the Corporation; or
|
|
(c)
|
a
parent, grandparent, brother, sister or child of a director, senior
officer or control person of the Corporation, or of an affiliate
of the
Corporation; or
|
|
(d)
|
a
close business associate of a director, senior officer or control
person
of the Corporation, or of an affiliate of the Corporation;
or
|
|
(e)
|
a
close personal friend of a director, senior officer or control person
of
the Corporation, or of an affiliate of the Corporation;
or
|
|
(f)
|
a
founder of the Corporation or a spouse, parent, grandparent, brother,
sister, child, close personal friend or close business associate
of a
founder of the Corporation; or
|
|
(g)
|
a
parent, grandparent, brother, sister or child of the spouse of a
founder
of the Corporation; or
|
|
(h)
|
a
person or company of which a majority of the voting securities are
beneficially owned
by, as a majority of the directors are, persons or companies described
in
sections (a) to (g); or
|
|
(i)
|
a
trust or estate of which all of the beneficiaries or a majority of
the
trustees are persons or companies described in paragraphs (a) to
(g).
|
As
used in this certificate, the following terms have the following
meanings:
A
“close
personal friend”
is an individual who has known a director, senior officer or control person
of
the Corporation for a sufficient period of time to be in a position to assess
the capabilities and trustworthiness of the director, senior officer or control
person. An individual is not a close personal friend solely because the
individual is a member of the same organization, association or religious group.
An individual is not a close personal friend solely because the individual
is a
client, customer or former client or customer (e.g. an individual is not a
close
personal friend of a registrant or former registrant simply because the
individual is a client or former client of that registrant or former
registrant). The relationship between the subscriber and the director, senior
officer or control person of the Corporation must be direct (e.g. the exemption
is not available for a close personal friend of a close personal friend of
the
director, senior officer or control person of the Corporation); and
A
“close
business associate”
is an individual who has had sufficient prior business dealings with a director,
senior officer or control person of the Corporation to be in a position to
assess the capabilities and trustworthiness of the director, senior officer
or
control person. A casual business associate or a person introduced or solicited
for the purpose of purchasing securities is not a close business associate.
An
individual is not a close business associate solely because the individual
is a
client, customer or former client or customer (e.g. an individual is not a
close
business associate of a registrant or former registrant simply because the
individual is a client or former client of that registrant or former
registrant). The relationship between the subscriber and the director, senior
officer or control
E-4
person
of the Corporation must be direct (e.g. the exemption is not available for
a
close business associate of a close business associate of the director, senior
officer or control person of the Corporation ).
A
“founder”,
in respect of the Corporation, means a person or company who,
(a)
acting alone, in conjunction or in concert with one or more other persons or
companies, directly or indirectly, takes the initiative in founding, organizing
or substaintially reorganizing the business of the Corporation, and
(b)
at the time of the proposed trade, is actively involved in the business of
the
Corporation.
E-5
The
foregoing representations contained in this certificate are true and accurate
as
of the date hereof and will be true and accurate as of the Closing Date. If
any
such representations shall not be true and accurate prior to the Closing Date,
the Subscriber shall give immediate notice to the Corporation.
EXECUTED
by the Subscriber at
this
day of
,
2005.
If
a corporation, partnership or other entity:
|
If
an individual:
|
||
______________________________________________________________________________
|
______________________________________________________________________________
|
||
(Print
Name of Subscriber)
|
(Print
Name)
|
||
______________________________________________________________________________
|
______________________________________________________________________________
|
||
(Signature
of Authorized Signatory)
|
(Signature)
|
||
______________________________________________________________________________
|
______________________________________________________________________________
|
||
(Name
and Position of Authorized Signatory)
|
(Jurisdiction
of Residence)
|
||
______________________________________________________________________________
|
______________________________________________________________________________
|
||
(Jurisdiction
of Residence)
|
(Print
Name of Witness)
|
||
______________________________________________________________________________
|
______________________________________________________________________________
|
||
(Signature
of Witness)
|
E-6
SCHEDULE
“F”
OFFSHORE
SUBSCRIBER CERTIFICATE
NON-CANADIAN
SUBSCRIBERS
(OTHER
THAN U.S SUBSCRIBERS)
We,
on our own behalf and (if applicable) on behalf of others for whom we are
contracting hereunder, represent, warrant, covenant and certify to and with
the
Corporation and the Agent (and acknowledge that the Corporation and the Agent
are relying thereon) that we are, and (if applicable) any beneficial subscriber
for whom we are contracting hereunder is, a resident of, or otherwise subject
to, the securities legislation of a jurisdiction other
than Canada or the United States,
and:
(a)
|
we
are, and (if applicable) any other subscriber for whom we are contracting
hereunder, is:
|
(i)
|
subscriber
that is recognized by the securities regulatory authority in the
jurisdiction in which we are, and (if applicable) any other subscriber
for
whom we are contracting hereunder is resident or otherwise subject
to the
securities laws of such jurisdiction, as an exempt subscriber and
are
purchasing the Debentures as principal for our, or (if applicable)
each
such other subscriber’s, own account, and not for the benefit of any other
person, for investment only and not with a view to resale or distribution;
or
|
(ii)
|
a
subscriber which is purchasing Debentures pursuant to an exemption
from
any prospectus or securities registration requirements (particulars
of
which are enclosed herewith) available to the Corporation, and any
such
other subscriber under Applicable Securities Laws of our jurisdiction
of
residence or to which we and any such other subscriber are otherwise
subject to, and we and any such other subscriber shall deliver to
the
Corporation such further particulars of the exemption and our
qualification thereunder as the Corporation may reasonably
request;
|
(b)
|
the
purchase of Debentures by us, and (if applicable) each such other
subscriber, does not contravene any of the Applicable Securities
Laws in
such jurisdiction and does not trigger: (i) any obligation to prepare
and
file a prospectus, an offering memorandum or similar document, or
any
other ongoing reporting requirements with respect to such purchase
or
otherwise; or (ii) any registration or other obligation on the part
of the
Corporation; and
|
(c)
|
we,
and (if applicable) any other subscriber for whom we are contracting
hereunder will not sell or otherwise dispose of any Debentures, Underlying
Securities or Warrant Shares, except in accordance with applicable
Canadian securities laws and in accordance with the rules and regulations
of the TSX, and if we, or (if applicable) such beneficial subscriber
sell
or otherwise dispose of any Debentures, Underlying Securities or
Warrant
Shares to a person other than a resident of Canada, we, and (if
applicable) such beneficial subscriber, will obtain from such subscriber
representations, warranties and covenants in the same form as provided
in
this Schedule “E” or “F” and shall comply with such other requirements as
the Corporation may reasonably
require.
|
Dated
at
this
day of
,
2005.
______________________________________________________________________________
|
|
(Signature
of Subscriber)
|
|
______________________________________________________________________________
|
|
(Print
Name)
|