KIRKLAND LAKE GOLD INC. SUBSCRIPTION AND PURCHASE AGREEMENT
XXXXXXXX LAKE GOLD INC.
SUBSCRIPTION AND PURCHASE AGREEMENT
TO: | XXXXXXXX LAKE GOLD INC. (the “Corporation”) |
AND TO: | OCTAGON CAPITAL CORPORATION AND |
XXXXXXXXXX CANADA INC. (the “Agents”) |
The undersigned (the “Purchaser”) hereby irrevocably subscribes for and agrees to purchase from the Corporation, pursuant to the terms and conditions of this Subscription Agreement and in the Agency Agreement (as hereinafter defined), that number of common shares (the “Common Shares”) of the Corporation set out in subparagraph 18(a). The Common Shares form part of a larger offering (the “Offering”) of up to 2,625,000 Common Shares (the “Purchased Common Shares”) to be issued and sold by the Corporation at a price of $1.80 per Common Share. A copy of the term sheet (the “Term Sheet”) outlining the terms and conditions of the Offering is attached hereto as Schedule “A”. In the event of any inconsistency between the provisions of Schedule “A” and this Subscription Agreement, the provisions of this Subscription Agreement shall prevail.
The Common Shares will be subject to a hold period under each of the Securities Laws and the policies of the TSX Venture Exchange (the “Exchange”) of four months from the Closing Date and the certificates evidencing such securities will bear legends to that effect. Consequently, the Common Shares may only be resold during such four month period in accordance with appropriate statutory exemptions from the prospectus requirements of the Securities Laws or if appropriate consents or discretionary orders have been obtained, and if the consent of the Exchange has been obtained. Purchasers are advised to consult their own legal advisors in this regard.
1. Defined Terms
The following capitalized terms used in this Subscription Agreement have the following meanings:
“Agency Agreement” means the agency agreement to be entered into between the Corporation and the Agents pursuant to which the Agents will agree to act as the Corporation’s agents, on a “best efforts” basis in connection with the Offering;
“business day” means any day except Saturday, Sunday or a statutory holiday in Toronto, Ontario;
“Closing” means the closing on the Closing Date of the transaction of purchase and sale in respect of the Common Shares as contemplated by this Subscription Agreement and the Agency Agreement;
“Closing Date” means December 30, 2002, or such other date as agreed to by the Agents and the Corporation;
- 2 -
“Securities Laws” means the securities laws, regulations and rules, and the blanket rulings and policies and written interpretations of, and multilateral or national instruments adopted by, the Securities Regulators of all of the Selling Jurisdictions or, as the context may require, any one or more of the Selling Jurisdictions;
“Securities Regulators” means the securities commissions or other securities regulatory authorities of all of the Selling Jurisdictions or the relevant Selling Jurisdiction as the context so requires;
“Selling Jurisdictions” means the Provinces of Ontario, British Columbia and Alberta and such other provinces in Canada that are agreed to between the Corporation and the Agents and “Selling Jurisdiction” means, in the case of any purchaser, the Province of Canada in which such purchaser is resident; and
“Subscription Agreement” means the agreement resulting from the acceptance by the Corporation of the Purchaser’s offer constituted hereby.
2. Delivery and Payment
The Purchaser shall cause the following to be delivered to Octagon Capital Corporation, 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx X0X 0X0, Attention: Xxx Xxxxxxxxxxx as soon as possible and, in any event, not later than 12:00 noon (Toronto time) on December 23, 2002:
(a) | a completed and duly executed copy of
this Subscription Agreement; |
|
(b) | if the purchaser is not an individual
or carries on business as a portfolio manager in a jurisdiction inside
or outside Canada, a completed and duly executed Corporate Placee Registration
Form in the form attached hereto as Schedule “B”; |
|
(c) | if the Purchaser is resident in the
Province of Ontario or otherwise subject to the Securities Laws of the
Province of Ontario, a completed and duly executed Accredited Investor
Certificate in the form attached hereto as Schedule “C”; |
|
(d) | if the purchaser is resident in the
Province of Alberta or in the Province of British Columbia or otherwise
subject to the Securities laws of the Province of Alberta or the Province
of British Columbia and purchasing Common Shares as an “accredited
investor” pursuant to Multilateral Instrument 45-103 - Capital
Raising Exemptions, a completed and duly executed Accredited Investor
Certificate in the form attached hereto as Schedule “D”; |
|
(e) | all other documentation as may be required
by the Securities Laws; and |
|
(f) | unless other arrangements acceptable
to the Agents are made, a certified cheque or bank draft made payable
to Octagon Capital Corporation on or before the Closing Date (or such
other date as the Agents may advise) in same day freely transferable |
- 3 -
Canadian funds at par in Toronto, representing the aggregate purchase price payable by the Purchaser for the Common Shares. |
3. Closing
Delivery of and payment for the Common Shares will be completed at the offices of the Corporation’s counsel, X’Xxxxx & Company , Suite 1880 Royal Centre, 0000 Xxxx Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxx Xxxxxxxx at 12:00 noon (Toronto time) on the Closing Date, all in accordance with the Agency Agreement.
The Purchaser acknowledges that the Common Shares will be available for delivery upon Closing against payment of the amount of the aggregate purchase price for the Common Shares provided that the Purchaser has satisfied the requirements of paragraph 2 hereof and the Corporation has accepted this Subscription Agreement.
Each of the Agents is hereby appointed as the Purchaser’s agent to represent the Purchaser at the Closing for the purposes of all closing matters and deliveries of documents and Common Shares and are hereby authorized by the Purchaser, for and on behalf of the Purchaser, to extend such time periods and modify or waive such conditions as may be contemplated herein or in the Agency Agreement or, in their absolute discretion, as they deem appropriate; provided, however, that the Agents shall not take any action that would reasonably be expected to be detrimental to the Purchaser. Without limiting the generality of the foregoing, each of the Agents is specifically and exclusively authorized to waive any representations and warranties, covenants or conditions for purchasers contained in the Agency Agreement. In addition, the Purchaser acknowledges that the Agents are entitled to exercise or not to exercise, in their absolute discretion, the rights of termination in the Agency Agreement on and subject to the terms and conditions contained therein.
It is a condition of Closing, among other things, that all documents required to be completed and signed in accordance with paragraph 2 hereof be received prior to the Closing Date and that all Exchange approvals are received. It is also a condition of Closing, among other things, that the Corporation be a “qualifying issuer” (as such term is defined in Multilateral instrument 45-102 – Resale of Securities) prior to Closing.
4. Purchaser’s Acknowledgements
The Purchaser acknowledges and agrees (on its own behalf and, if applicable, on behalf of each beneficial purchaser for whom the Purchaser is contracting hereunder) with the Corporation and the Agents (which acknowledgements and agreements shall survive the Closing) that:
(a) | the sale and delivery of the Common Shares is conditional
upon such sale being exempt from the prospectus filing requirements
and the requirement to deliver an offering memorandum or similar document
in connection with the distribution of the Common Shares under the Securities
Laws or upon the issuance of such orders, consents or approvals as may
be required to permit such sale without the requirement of filing a
prospectus or similar document; |
- 4 -
(b) | the Common Shares are subject to resale
restrictions under the Securities Laws and policies of the Exchange and
are otherwise subject to all of the terms, conditions and provisions of
the Agency Agreement and the Purchaser (and, if applicable, others for
whom it is contracting hereunder) will comply with all relevant Securities
Laws and policies of the Exchange concerning any resale of the Common
Shares and will consult with its legal advisors or counsel to the Corporation
with respect to complying with all restrictions applying to such resale; |
|
(c) | the purchase of the Common Shares has
not been made through or as a result of, and the distribution of the Common
Shares is not being accompanied by, any advertisement, including, without
limitation, in printed public media, radio, television or telecommunications,
including electronic display or as part of a general solicitation; |
|
(d) | no prospectus or offering memorandum
within the meaning of the Securities Laws has been delivered to the Purchaser
(and, if applicable, others for whom it is contracting hereunder) in connection
with the Offering; |
|
(e) | in purchasing the Common Shares, the
Purchaser (and, if applicable, others for whom it is contracting hereunder)
has relied solely upon the Term Sheet, publicly available information
relating to the Corporation and this Subscription Agreement and not upon
any verbal or written representation as to any fact or otherwise made
by or on behalf of the Corporation or the Agents or any employee, agent
or affiliate thereof or any other person associated therewith. The Agents
assume no responsibility or liability of any nature whatsoever for the
accuracy or adequacy of the publicly available information upon which
the Purchaser’s investment decision has been made or as to whether
all information concerning the Corporation required to be disclosed by
the Corporation has been disclosed. The Purchaser, on its own behalf and
on behalf of others for whom the Purchaser is contracting hereunder, has
acknowledged that the decision to purchase the Common Shares was made
on the basis of currently available public information; |
|
(f) | the Common Shares are being offered
for sale on a “private placement” basis; |
|
(g) | the Purchaser is solely responsible
for obtaining such legal advice and tax advice as it considers appropriate
in connection with the execution, delivery and performance by it of this
Subscription Agreement and the transactions contemplated hereunder; |
|
(h) | in accepting this Subscription Agreement,
the Corporation is relying upon the representations and warranties and
acknowledgements of the Purchaser set out herein including, without limitation,
in connection with determining the eligibility of the Purchaser or (if
applicable) the eligibility of others on whose behalf the Purchaser is
contracting hereunder to purchase Common Shares under the Securities Laws.
The Purchaser hereby agrees to notify the Corporation immediately of any
change in any |
- 5 -
representation, warranty,
covenant or other information relating to the Purchaser or the beneficial
purchaser contained in this Subscription Agreement which takes place prior
to Closing; |
|||
(i) | the Common Shares are subject
to the terms, conditions and provisions of this Subscription Agreement
(including the schedules hereto), the constating documents of the Corporation
and the Agency Agreement and that copies of such documents, once executed,
will be made available to the Purchaser upon request; |
||
(j) | no person has made any written
or oral representations: |
||
(i) |
that any person will resell or repurchase
the Common Shares; |
||
(ii) |
that any person will refund the purchase
price of the Common Shares; |
||
(iii) |
as to the future price or value of the
Common Shares; or |
||
(iv) |
that the Common Shares will be listed
and posted for trading on any stock exchange or that application has been
made therefor; |
||
(k) | the certificates evidencing
the Common Shares will bear legends regarding restrictions on transfer
as required by applicable Securities Laws and policies of the Exchange; |
||
(l) | no securities commission
or similar regulatory authority has reviewed or passed on the merits of
the Common Shares; |
||
(m) | there is no government or
other insurance covering the Common Shares; |
||
(n) | there are risks associated
with the purchase of the Common Shares; |
||
(o) | there are restrictions on
the Purchaser’s ability to resell the Common Shares and it is the
responsibility of the Purchaser to find out what those restrictions are
and to comply with them before selling the Common Shares; |
||
(p) | the Corporation has advised
the Purchaser that the Corporation is relying on an exemption from the
requirements to provide the Purchaser with a prospectus and to sell securities
through a person or company registered to sell securities under the Securities
Act (British Columbia) and the Securities Laws and, as a consequence
of acquiring Common Shares pursuant to this exemption, certain protections,
rights and remedies provided by the Securities Act (British Columbia)
and the Securities Laws, including statutory rights of rescission or damages,
will not be available to the Purchaser; |
- 6 -
(q) | because the Purchaser is not purchasing
the Common Shares under a prospectus, the Purchaser will not have the
civil remedies that would otherwise be available to the Purchaser; |
|
(r) | an investment in the Common Shares by
the Purchaser is a highly speculative investment involving significant
risks and the Purchaser should not purchase Common Shares unless they
are able to sustain the loss of their entire investment; and |
|
(s) | an understanding of the risks involved
in an investment in a resource based company requires specialized knowledge
of the industry. To the extent that the Purchaser does not have such specialized
knowledge, the Purchaser is responsible for obtaining such advice and
from such experts and advisors that it considers appropriate. Neither
the Agents nor the Company will provide, nor be in any way responsible
for providing, the Purchaser with any advice or information in this respect. |
5. Conditions of Closing
The Purchaser acknowledges and agrees that as the sale of the Common Shares will not be qualified by a prospectus, such sale is subject to the condition that it (or, if applicable, any others for whom it is contracting hereunder) sign and return to the Corporation and/or the Agents all relevant documentation required by the Securities Laws. The Purchaser acknowledges and agrees that the Agents and/or the Corporation may be required to provide the Securities Regulators and the Exchange with a list setting forth the identities of the beneficial purchasers of the Common Shares (on a confidential basis, except in the Province of British Columbia). Notwithstanding that the Purchaser may be purchasing Common Shares as agent on behalf of an undisclosed principal, the Purchaser agrees to provide, on request, particulars as to the identity of such undisclosed principal as may be required by the Agents and/or the Corporation in order to comply with the foregoing.
In the event that the purchase of the Common Shares pursuant to the provisions of this Subscription Agreement does not occur, the Subscription Agreement will be returned to the Purchaser, together with any payment that has been made in respect of the Common Shares, and the obligations of the parties hereto shall thereupon terminate.
6. Acceptance of Offer to Purchase
The acceptance by the Corporation of the Purchaser’s irrevocable offer to purchase the Common Shares shall constitute an agreement by the Corporation with the Purchaser that the Purchaser shall have, in respect of such Common Shares the benefits of the representations, warranties and covenants of the Corporation made by the Corporation and the conditions of Closing not waived by the Agents contained in the Agency Agreement.
- 7 -
7. Representations, Warranties and Covenants
The Purchaser hereby represents, warrants, and covenants (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) to the Corporation and the Agents (which representations, warranties and covenants shall survive the Closing) that:
(a) | if the purchase by the Purchaser
of Common Shares hereunder is subject to the securities legislation of
the Province of Ontario, the Purchaser is an “accredited investor”,
as such term is defined in Ontario Securities Commission Rule 45-501 –
Exempt Distributions, is purchasing the Common Shares as principal
and has properly completed and executed the Accredited Investor Certificate
attached to this Subscription Agreement as Schedule “C”; |
|||
(b) | if the purchase by the Purchaser
of Common Shares hereunder is subject to the securities legislation of
any of the Provinces of Alberta or British Columbia: |
|||
(i) |
in the case of a purchase
by the Purchaser of Common Shares as principal for its own account, for
investment only, and not for the benefit of any other person or with a
view to resale or distribution of all or any of the Common Shares, the
Purchaser is: |
|||
(1) |
(A) |
a bank listed in Schedule I or II of
the Bank Act (Canada) or the Business Development Bank of Canada
incorporated under the Business Development Bank of Canada Act (Canada),
or a subsidiary of such entity where such entity beneficially owns all
of the voting securities of such subsidiary, or |
||
(B) |
if the purchase by the Purchaser of
Common Shares hereunder is subject to the securities legislation of the
Province of Alberta, a loan corporation, trust corporation, treasury branch
or credit union or a subsidiary of such an entity where such entity owns
beneficially all of the voting securities of that subsidiary, or an insurance
company licensed under the Insurance Act (Alberta) or a subsidiary
of such insurance company where such insurance company owns beneficially
all of the voting securities of the subsidiary, and |
|||
(C) |
if the purchase by the Purchaser of
Common Shares hereunder is subject to the securities legislation of the
Province of British Columbia, (I) an insurance company authorized to carry
on insurance business under the Financial Institutions Act (British
Columbia), (II) a credit union authorized to carry on business under the
Financial Institutions Act (British Columbia); (III) a trust company
authorized under the Financial Institutions Act (British Columbia)
to carry on deposit business; (IV) a corporation that is a subsidiary
of a bank to which the Bank Act (Canada) applies and is a loan
company to which the Trust and Loan Companies Act (Canada) applies;
or (V) a subsidiary of a person referred to in clauses (I) to (IV) where
such person owns beneficially all of the voting securities of the subsidiary,
except the voting securities required by law to be owned by directors
of that subsidiary, or |
- 8 -
(2) |
is recognized or designated as an exempt purchaser
under applicable securities legislation and, if a resident of or otherwise
subject to the securities legislation of the Province of Alberta is not
an individual; or |
||||
(3) |
is purchasing a sufficient number of Common Shares
such that the aggregate acquisition cost to the Purchaser of such Common
Shares is not less than $97,000; or |
||||
(ii) |
in the case of the purchase
by the Purchaser of Common Shares as agent for a disclosed principal,
each beneficial purchaser of the Common Shares for whom the Purchaser
is acting is purchasing as principal for its own account and not for the
benefit of any other person for investment only and not with a view to
resale or distribution of all or any of the Common Shares and the Purchaser
is an agent with due and proper authority to execute this Subscription
Agreement and all other documentation in connection with the purchase
of the Common Shares on behalf of the beneficial purchaser and this Subscription
Agreement has been duly authorized, executed and delivered by or on behalf
of, and constitutes the legal, valid and binding agreement of, the disclosed
principal, and each such beneficial purchaser: |
||||
(1) |
is recognized or designated as an exempt purchaser
under applicable securities legislation and, if resident of or otherwise
subject to the securities legislation of the Province of Alberta is not
an individual; or |
||||
(2) |
is purchasing a sufficient number of Common Shares
such that the aggregate acquisition cost to the Purchaser of such Common
Shares is not less than $97,000; or |
||||
(iii) |
in the case of the purchase by the Purchaser of Common
Shares as trustee or as agent for a principal which is undisclosed or
identified by account number only, this Subscription Agreement has been
duly authorized, executed and delivered by, and constitutes a legal, valid
and binding agreement of, the undersigned acting in such capacity, and |
||||
(1) | (A) |
if the purchase by the
Purchaser of Common Shares hereunder is subject to the securities legislation
of the Province of Alberta, the Purchaser is: |
|||
(aa) |
a trust corporation as defined in such
securities legislation, and any amendments thereto, trading as a trustee
or an agent for accounts that are fully managed by the Purchaser, or |
||||
(bb) |
(x) a portfolio manager or (y) a person
or a company that is exempt from registration as a portfolio manager under
applicable securities legislation, in either case trading as agent for
accounts that are fully managed by the Purchaser which Common Shares have
an aggregate acquisition cost of not less than $97,000; and |
- 9 -
(B) | if the purchase by the Purchaser
of Common Shares hereunder is subject to the securities legislation of
the Province of British Columbia, the Purchaser is: |
||||
(aa) |
an insurance company authorized to carry
on insurance business under the Financial Institutions Act (British Columbia)
or a trust company authorized under the Financial Institutions Act (British
Columbia) to carry on deposit business, in each case, that is purchasing
the Common Shares as an agent or trustee for accounts that are fully managed
by it; or |
||||
(bb) |
a trust company or insurance company
authorized under the laws of a province or territory other than British
Columbia to carry on business in that province or territory, and the Purchaser
is purchasing the Common Shares as an agent or trust for accounts that
are fully managed by it, which Common Shares have an aggregate acquisition
cost of not less than $97,000; or |
||||
(cc) |
a portfolio manager that is registered
or exempted from registration as a portfolio manager under such legislation
or under the law of a province or territory other than British Columbia
and the Purchaser is purchasing the Common Shares as an agent for accounts
that are fully managed by it, which Common Shares have an aggregate acquisition
cost of not less than $97,000; |
||||
provided that, as used herein
an account is “fully managed” by the Purchaser only if the Purchaser
makes the investment decisions for the account and has fully discretion
to purchase or sell securities for the account without requiring the client’s
express consent to a transaction; or |
|||||
(2) | each beneficial purchaser
of the Common Shares for whom the Purchaser is acting is purchasing as
principal for its own account, and not for the benefit of any other person,
for investment only and not with a view to resale or distribution of the
Common Shares, and |
||||
(A) |
is purchasing a sufficient number of
Common Shares such that the beneficial purchaser’s aggregate acquisition
cost of such Common Shares is not less than $97,000, or |
||||
(B) |
is recognized or designated as an exempt
purchaser under applicable securities legislation and, if resident of
or otherwise subject to the securities legislation of the Province of
Alberta is not an individual; and |
||||
(iv) | in the case of any purchase
referred to in section 7(b)(i)(3), 7(b)(ii)(2) or 7(b)(iii)(2)(A) above,
if the Purchaser or any beneficial purchaser on whose behalf the Purchaser
is purchasing, is not an individual and is a corporation, partnership,
party, trust, fund, association or other organized group of persons, it
was not created and is not being used primarily to permit a group of individual
to purchase securities without a prospectus, or each of the individuals
who form part of this group is |
- 10 -
purchasing Common Shares having an aggregate
acquisition cost to such individual of not less than $97,000; or |
||||
(v) | the Purchaser is an “accredited
investor”, as such term is defined in Multilateral Instrument 45-103
– Capital Raising Exemptions, is purchasing the Common Shares
as principal and has properly completed and executed the Accredited Investor
Certificate attached to this Subscription Agreement as Schedule “D”; |
|||
(c) | if the Purchaser is an individual,
the Purchaser has attained the age of majority and is legally competent
to execute this Subscription Agreement and to take all actions required
pursuant hereto and if the Purchaser is not an individual, this Subscription
Agreement has been authorized, executed and delivered by, and constitutes
a legal, valid and binding agreement of the undersigned; |
|||
(d) | neither the Purchaser nor
any party on whose behalf it is acting has been created or is being used
primarily to permit the purchase of the Common Shares without a prospectus
in reliance on an exemption from the prospectus requirements of applicable
Securities Laws; |
|||
(e) | neither the Purchaser nor
any party on whose behalf it is acting is an investment club; |
|||
(f) | either (i) the Purchaser
and each beneficial purchaser for whom it is acting are resident in the
province set out in paragraph 18 of this Subscription Agreement; or (ii)
the Purchaser is resident in the jurisdiction set out in paragraph 18
and is not a citizen or resident of Canada, or a corporation, partnership
or other entity created in or organized under the laws of Canada or any
province or territory thereof (collectively a “Canadian person”)
and such Purchaser is not purchasing the Common Shares for the account
of any Canadian person; |
|||
(g) | as the Common Shares are
subject to resale restrictions under applicable Securities Laws and Exchange
policies, the Purchaser, or in the case of a purchase by the Purchaser
acting as agent for a disclosed principal, each beneficial purchaser shall
comply with all applicable Securities Laws and Exchange policies concerning
any resale of the Common Shares and shall consult with its own legal advisors
with respect to such compliance; |
|||
(h) | the Purchaser (or, if applicable,
others for whom it is contracting hereunder) will execute and deliver
within the applicable time periods all documentation as may be required
by applicable Securities Laws and Exchange policies to permit the purchase
of the Common Shares on the terms herein set forth; |
|||
(i) | if required by applicable
Securities Laws and Exchange policies, the Purchaser will execute, deliver,
file and otherwise assist the Corporation in filing such reports, undertakings
and other documents with respect to the issuance of the Common Shares
as may be required; |
|||
(j) | the Purchaser, whether acting
as principal, trustee or agent, is neither a United States person (as
defined in Rule 902(0) of Regulation S promulgated under the United States
Securities Act of 1933) nor purchasing the Common Shares for the
account of a United States person or for resale |
- 11 -
in the United States and the Purchaser
confirms that the Common Shares have not been offered to the Purchaser
in the United States and that this Subscription Agreement has not been
signed in the United States; |
|||
(k) | if the Purchaser is a resident of or
otherwise subject to the securities legislation of a jurisdiction other
than Canada, the purchase of the Common Shares by such Purchaser does
not contravene the applicable securities legislation in the jurisdiction
in which it is resident and does not trigger (i) any obligation to prepare
and file a prospectus or similar document, or any other report with respect
to such purchase, or (ii) any registration or other obligation on the
part of the Corporation; |
||
(l) | the Purchaser is capable of assessing
the proposed investment as a result of the Purchaser’s financial
or investment experience or as a result of advice received from a registered
person other than the Corporation or an affiliate thereof; |
||
(m) | the Purchaser has such knowledge in
financial and business affairs as to be capable of evaluating the merits
and risks of its investment and it is able to bear the economic risk of
loss of its investment; and |
||
(n) | upon acceptance by the Corporation,
this Subscription Agreement will constitute a valid and legally binding
contract of the Purchaser enforceable against the Purchaser in accordance
with its terms. |
The Purchaser acknowledges and agrees that the foregoing representations and warranties are made by it with the intention that they may be relied upon by the Corporation, the Agents and their respective legal counsel in determining its eligibility or (if applicable) the eligibility of others on whose behalf it is contracting hereunder to purchase the Common Shares under applicable Securities Laws. The Purchaser further agrees that by accepting delivery of the Common Shares on the Closing Date, it shall be representing and warranting that the foregoing representations and warranties remain true and correct as at the Closing Date with the same force and effect as if they had been made by the Purchaser at the time of Closing and that they shall survive the purchase by the Purchaser of the Common Shares and still continue in full force and effect notwithstanding any subsequent disposition by the Purchaser of the Common Shares. The Corporation, the Agents and their respective legal counsel shall be entitled to rely on the representations and warranties of the undersigned contained in this paragraph, and the Purchaser shall indemnify and hold harmless the Corporation, the Agents and their respective legal counsel for any loss, costs or damages any of them may suffer as a result of any misrepresentations of the undersigned.
8. Commission to the Agents
The Purchaser understands that, in connection with the issue and sale of Common Shares pursuant to the Offering, the Agents will receive from the Corporation on Closing, a cash fee equal to 8% of the gross proceeds of the Offering. In addition, the Agents will receive compensation warrants of the Corporation exercisable to acquire that number of Common Shares equal to 15% of the number of
- 12 -
Commons Shares sold pursuant to the Offering at a price of $2.05 per Common Share for a period of 18 months following the Closing Date.
No other fee or commission is payable by the Corporation in connection with the sale of the Common Shares. However, the Corporation will pay those fees and expenses in connection with the Offering as are set out in the Agency Agreement.
9. Costs
The Purchaser acknowledges and agrees that except as may otherwise be provided for in the Agency Agreement, all costs and expenses incurred by the Purchaser (including any fees and disbursements of any special counsel retained by the Purchaser) relating to the sale of the Common Shares to the Purchaser shall be borne by the Purchaser.
10. Survival
This Subscription Agreement, including without limitation the representations, warranties and covenants contained herein, shall survive and continue in full force and effect and be binding upon the Purchaser notwithstanding the completion of the purchase of the Common Shares by the Purchaser pursuant hereto, the completion of the Offering of Common Shares of the Corporation and any subsequent disposition by the Purchaser of the Common Shares.
11. Facsimile and Counterpart Subscriptions
The Corporation and the Agents shall be entitled to rely on delivery by facsimile machine of an executed copy of this Subscription Agreement, including the completed schedules hereto, and acceptance by the Corporation and the Agents of such facsimile copy shall be legally effective to create a valid and binding agreement among the Purchaser, the Agents and the Corporation in accordance with the terms hereof. In addition, this Subscription Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same document.
12. Governing Law
This Subscription Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein. The Purchaser on its own behalf and, if applicable, on behalf of each beneficial purchaser for whom it is contracting hereunder, hereby irrevocably attorns to the jurisdiction of the courts of the Province of British Columbia with respect to any matters arising out of this Subscription Agreement.
13. Assignment
The terms and provisions of this Subscription Agreement shall be binding upon and enure to the benefit of the Purchaser and the Corporation and their respective heirs, executors, administrators, successors and assigns; provided that, except for the assignment by a Purchaser who is acting as
- 13 -
nominee or agent to the beneficial owner and as otherwise herein provided, this Subscription Agreement shall not, except to the extent that the Agents in their sole discretion consent, be assignable by any party without prior written consent of the other parties. The benefits and the obligations of this Subscription Agreement, insofar as they apply to the Purchaser, shall pass with any assignment or transfer of the Common Shares.
14. Entire Agreement and Headings
This Subscription Agreement (including the schedules hereto) constitutes the entire agreement between the Purchaser and the Corporation relating to the subject matter hereof and there are no representations, warranties, covenants, understandings or other agreements relating to the subject matter hereof except as stated or referred to herein. This Subscription Agreement may be amended or modified in any respect by written instrument only. The headings contained herein are for convenience only and shall not affect the meanings or interpretation hereof.
15. Time of Essence
Time shall be of the essence of this Subscription Agreement.
16. Effective Date
This Subscription Agreement is intended to and shall take effect on the effective date of the Agency Agreement, notwithstanding its actual date of execution or delivery by any of the parties.
17. English Language
We, the undersigned, hereby acknowledge that we have consented and requested that all documents evidencing or relating in any way to the sale of the Common Shares be drawn up in the English language only.
Nous, soussignés, reconnaissons par les présentes avoir consenti et demandé que tous les documents faisant foi ou se rapportant de quelque manière à la vente des actions ordinaires soient redigés en anglais seulement.
- 14 -
18. Subscription Particulars:
(a) | The aggregate number of the of Common Shares being subscribed for is ______________ . The aggregate price of the Common Shares being subscribed for is $ _______________. |
(b) | The Common Shares are to be registered
in the following name and address: _______________________________________________________________________________________________________ _______________________________________________________________________________________________________ (if space is insufficient, attach a list) |
(c) | The certificate representing the Common Shares is to be delivered to: Contact Name: ____________________ Contact Number:____________________ |
(d) | If the Purchaser is signing as agent
for a principal and not as agent for a fully managed account, the name
and address of the beneficial purchaser is: _______________________________________________________________________________________________________ _______________________________________________________________________________________________________ _______________________________________________________________________________________________________ _______________________________________________________________________________________________________ |
(e) | The Purchaser owns or has control or direction over the following number
of securities of the Company. Dated at ____________________ , this _______day of ____________________, 2002. |
Address of Purchaser: ____________________________________________________________________________________________
Name of Purchaser (please print): ____________________________________________________________________________________
Witness (if an individual) | (Signature of or on behalf of Purchaser) | |
Witness (if an individual) | Office, Title of Other Authorization | |
(if not an individual) |
- 15 -
ACCEPTANCE
The Corporation hereby accepts the above-mentioned offer to purchase Common Shares this _______day of ____________________, _______.
XXXXXXXX LAKE GOLD INC.
Per:___________________________
Authorized
Signing Officer
SCHEDULE “A”
XXXXXXXX LAKE GOLD INC.
TERM SHEET
PRIVATE PLACEMENT OF COMMON SHARES
Issuer: | Xxxxxxxx Lake Gold Inc. |
Size of Offering: | Up to 2,625,000 Common Shares. |
Issue Price: | $1.80 per Common Share. |
Maximum Aggregate Proceeds: | Up to $4,725,000. |
Type of Transaction: | Best efforts agency basis, subject to
formal agency agreement. The Common Shares will be offered for sale and
sold on a “private placement” basis without an offering memorandum. |
Resale of Securities: | The Common Shares sold will be subject
to a four-month hold period, commencing from the date of Closing. |
Use of Proceeds: | Funding the ongoing development of the
Company’s mines in the Xxxxxxxx Lake mining district, for resource
delineation, and for working capital purposes. |
Offering Jurisdictions: | Ontario, British Columbia and Alberta. |
Commission: | 8% of gross proceeds of the Offering
payable on Closing. |
Compensation Warrants: | At Closing, the Agents will receive
compensation warrants entitling the Agents to purchase, in the aggregate,
that number of Common Shares equal to 15% of the Common Shares sold pursuant
to the Offering. Each Compensation Warrant will be exercisable for one
Common Share at the price of $2.05 per Common share for a period of 18
months following the date of Closing. |
Expenses: | All reasonable out of pocket expenses
of the Agents, including all legal fees, to a maximum of $25,000, shall
be paid by the Company. |
- 2 -
Closing: | December 30, 2002 or such alternate date as may be agreed upon by the Agents and the Company. |
Agents: | Octagon Capital Corporation Xxxxxxxxxx Canada Inc. |
SCHEDULE “B”
TSX VENTURE EXCHANGE (FORM 4C)
CORPORATE PLACEE REGISTRATION FORM
Where subscribers to a Private Placement are not individuals, the following information must be provided. This Form will remain on file with the Exchange. The corporation, trust, portfolio manager or other entity (the “Purchaser”) need only file it once, and it will be referenced for all subsequent Private Placements in which it participates. If any of the information provided in this Form changes, the Purchaser must notify the Exchange prior to participating in further placements with Exchange listed companies. If as a result of the Private Placement, the Purchaser becomes an Insider of the Issuer, the Purchaser is reminded that they must file a Personal Information Form (2A) with the Exchange.
1. | Purchaser Information: |
|
(a) |
Name: _____________________________________________________________________________________________ |
|
(b) |
Complete Address: ___________________________________________________________________________________ |
|
(c) |
Jurisdiction of Incorporation or Creation:
___________________________________________________________________ |
|
2. | (a) |
Is the Purchaser purchasing securities as a portfolio manager: Yes ___________ No ___________ |
(b) |
Is the Purchaser carrying on business as a portfolio manager outside of Canada? Yes ___________ No ___________ |
|
3. | If the answer to 2(b) above
was “Yes”, the undersigned certifies that: |
|
(a) |
It is purchasing securities of an Issuer
on behalf of managed accounts for which it is making the investment decision
to purchase the securities and has full discretion to purchase or sell
securities for such accounts without requiring the client’s express
consent to a transaction; |
|
(b) |
it carries on the business of managing
the investment portfolios of clients through discretionary authority granted
by those clients (a “portfolio manager” business) in ____________________
[jurisdiction], and it is permitted by law to carry on a portfolio manager
business in that jurisdiction; |
|
(c) |
it was not created solely or primarily
for the purpose of purchasing securities of the Issuer; |
|
(d) |
the total asset value of the investment
portfolios it manages on behalf of clients is not less than Cdn$20,000,000; |
- 2 -
(e) | the Issuer has provided it with the following list of the directors, senior officers and other insiders of the Issuer and the persons that carry on investor relations activities for the Issuer: |
D. Xxxxx X. Xxxxxx | Xxxxx X. Xxxxxxxxxxx | Xxxxx X. Xxxxxx | ||
S. Xxxx Xxxxxxx | A. Xxxxxx Xxxxxxxx | W. Xxxxxx Xxxxxx | ||
D. Xxxxx Xxxxxx | DSK Consulting Inc. |
|
and it does not believe, and has no reasonable grounds to believe, that any of those persons has a beneficial interest in any of the managed accounts for which it is purchasing, except as follows: |
|
_______________________________________________________________________________________________________ _______________________________________________________________________________________________________ |
||
(Insert name of insider(s)
or person(s) carrying on investor relations activities for the Issuer
that have a beneficial interest in an account or insert ‘N/A’,
as applicable.) |
||
(f) | it has no reasonable grounds to believe, that any of the directors, senior officers and other insiders of the Issuer, and the persons that carry on investor relations activities for the Issuer has a beneficial interest in any of the managed accounts for which it is purchasing | |
4. | If the answer to 2(a). above was “No”, please provide the names and addresses of control persons of the Purchaser: |
Name | Street Address | City and Province or State |
Country |
- 3 -
The Purchaser acknowledges that it is bound by the provisions of applicable Securities Law, including provisions concerning the filing of insider reports and reports of acquisitions (See for example, sections 87 and 111 of the Securities Act (British Columbia) and sections 176 and 182 of the Securities Act (Alberta).
Dated at_______________________________________________ on _______________________________________________.
(Name of Purchaser - please print) | |
(Authorized Signature) | |
(Official Capacity - please print) | |
(please print name of individual whose | |
signature appears above, if different from | |
name of purchaser printed above) |
SCHEDULE “C”
ACCREDITED INVESTOR CERTIFICATE
(FOR ONTARIO RESIDENTS ONLY)
TO: XXXXXXXX LAKE GOLD INC.
In connection with the proposed purchase of securities (the "Securities") of XXXXXXXX LAKE GOLD INC. (the "Company"), the undersigned represents and warrants that the undersigned has read the following definition of an "accredited investor" from Ontario Securities Commission Rule 45-501 – Exempt Distributions and certifies that the undersigned is an accredited investor as indicated below (check one):
"accredited investor " means | |||||
(a) | a bank listed in Schedule I or II of the Bank Act (Canada), or | ¨ | |||
an authorized foreign bank listed in Schedule III of that Act; | |||||
(b) | the Business Development Bank incorporated under the | ¨ | |||
Business Development Bank Act (Canada); | |||||
(c) | a loan corporation or trust corporation registered under the | ¨ | |||
Loan and Trust Corporations Act or under the Trust and | |||||
Loan Companies Act (Canada), or under comparable | |||||
legislation in any other jurisdiction; | |||||
(d) | a co-operative credit society, credit union central, federation | ¨ | |||
of caisses populaires, credit union or league, or regional | |||||
caisse populaire, or an association under the Cooperative | |||||
Credit Associations Act (Canada), in each case, located in | |||||
Canada; | |||||
(e) | a company licensed to do business as an insurance company | ¨ | |||
in any jurisdiction; | |||||
(f) | a subsidiary of any company referred to in paragraph (a), (b), | ¨ | |||
(c), (d) or (e), where the company owns all of the voting | |||||
shares of the subsidiary; | |||||
(g) | a person or company registered under the Ontario Securities | ¨ | |||
Act or securities legislation in another jurisdiction as an | |||||
adviser or dealer, other than a limited market dealer; |
- 2 -
(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 | ¨ | |||
Ontario Securities Act or securities legislation in another | |||||
jurisdiction as a representative of a person or company | |||||
referred to in paragraph (g), whether or not the individual 's | |||||
registration is still in effect; | |||||
(p) | a promoter of the issuer or an affiliated entity of a promoter | ¨ | |||
of the issuer; | |||||
(q) | a spouse, parent, grandparent or child of an officer, director | ¨ | |||
or promoter of the issuer; |
- 3 -
(r) | a person or company that, in relation to the issuer, is an | ¨ | |||
affiliated entity or a person or company referred to in clause | |||||
(c) of the definition of distribution in subsection 1(1) of the | |||||
Ontario Securities Act; | |||||
(s) | an issuer that is acquiring securities of its own issue; | ¨ | |||
(t) | a company, limited partnership, limited liability partnership, | ¨ | |||
trust or estate, other than a mutual fund or non-redeemable | |||||
investment fund, that had net assets of at least $5,000,000 as | |||||
reflected in its most recently prepared financial statements; | |||||
(u) | a person or company that is recognized by the Ontario | ¨ | |||
Securities Commission as an accredited investor or until | |||||
November 30, 2002 as an exempt purchaser; | |||||
(v) | a mutual fund or non-redeemable investment fund that, in | ¨ | |||
Ontario, distributes its securities only to persons or | |||||
companies that are accredited investors; | |||||
(w) | a mutual fund or non-redeemable investment fund that, in | ¨ | |||
Ontario, distributes its securities under a prospectus for | |||||
which a receipt has been granted by the Director; | |||||
(x) | a managed account if it is acquiring a security that is not a | ¨ | |||
security of a mutual fund or non-redeemable investment | |||||
fund; | |||||
(y) | an account that is fully managed by a trust corporation | ¨ | |||
registered under the Loan and Trust Corporations Act; | |||||
(z) | an entity organized outside of Canada that is analogous to | ¨ | |||
any of the entities referred to in paragraphs (a) through (g) | |||||
and paragraph (k) in form and function; or | |||||
(aa) | a person or company in respect of which all of the owners of | ¨ | |||
interests, direct or indirect, legal or beneficial, are persons or | |||||
companies that are accredited investors. |
- 4 -
For the purposes hereof,
the following definitions are included for convenience: |
|||
(a) |
“company” means
any corporation, incorporated association, incorporated syndicate or other
incorporated organization; |
||
(b) |
“entity” means
a company, syndicate, partnership, trust or unincorporated organization; |
||
(c) |
“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) |
“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; |
||
(e) |
“mutual fund”
includes an issuer of securities that 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 securities; |
||
(f) |
“non-redeemable investment
fund” means an issuer: |
||
(i) |
whose primary purpose is to invest money
provided by its securityholders; |
||
(i) |
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 |
||
(ii) |
that is not a mutual fund; |
||
(g) |
“person” means
an individual, partnership, unincorporated association, unincorporated
syndicate, unincorporated organization, trust, trustee, executor, administrator
or other legal representative; |
||
(h) |
“portfolio adviser”
means: |
||
(i) |
a portfolio manager; |
||
(ii) |
a broker or investment dealer exempted
from registration as an adviser under subsection 148(1) of the regulation
made under 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; |
- 5 -
(i) | “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; |
|
(j) | “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. |
In Ontario Securities Commission Rule 45-501 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.
In Ontario Securities Commission Rule 45-501 a person or company is considered to be controlled by a person or company if,
(a) | in the case of a person
or company, |
||
(i) |
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 securities only, by or
for the benefit of the other person or company; and |
||
(ii) |
the votes carried by the securities
are entitled, if exercised, to elect a majority of the directors of the
first-mentioned person or company; |
||
(b) | 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 |
||
(c) | in the case of a limited
partnership, the general partner is the second-mentioned person or company. |
||
In Ontario Securities Commission Rule 45-501 a person or company is considered to be a subsidiary entity of another person or company if: | |||
(a) | it is controlled by, |
||
(i) |
that other, or |
||
(ii) |
that other and one or more persons or
companies each of which is controlled by that other, or |
||
(iii) |
two or more persons or companies, each
of which is controlled by that, or |
||
(b) | it is a subsidiary entity
of a person or company that is the other’s subsidiary entity. |
- 6 -
The foregoing representations and warranties are true and accurate as of the date of this certificate and will be true and accurate as of Closing. If any such representations and warranties shall not be true and accurate prior to Closing, the Subscriber shall give immediate written notice of such fact to the Company.
Dated:_______________________________ | Signed: :_______________________________ | |
Witness (If Purchaser is an | Print the name of Purchaser | |
Individual) | ||
Print Name of Witness | If Purchaser is a Corporation, | |
print name and title of | ||
Authorized Signing Officer |
- 7 -
SCHEDULE “D”
ACCREDITED INVESTOR CERTIFICATE
(FOR ALBERTA AND BRITISH COLUMBIA PURCHASERS ONLY)
TO: XXXXXXXX LAKE GOLD INC.
In connection with the proposed purchase of securities (the "Securities") of XXXXXXXX LAKE GOLD INC. (the "Company"), the undersigned represents and warrants that the undersigned is resident in either of the Province of Alberta or British Columbia and certifies that the undersigned is an "Accredited Investor" as defined under the Multilateral Instrument 45-103, Capital Raising Exemptions, by virtue of the fact that the Subscriber is one of the following and has so indicated by initialling the applicable paragraph:
_____ | (i) | a Canadian financial institution (as
defined under National Instrument 14-101), or an authorized foreign bank
listed in Schedule III of the Bank Act (Canada); |
|
_____ | (ii) | the Business Development Bank incorporated
under the Business Development Bank of Canada Act (Canada); |
|
_____ | (iii) | an association under the Cooperative
Credit Associations Act (Canada) located in Canada; |
|
_____ | (iv) | a subsidiary of any person or company
referred to in paragraphs (i), (ii) or (iii), where the person or company
owns all of the voting shares of the subsidiary, except voting securities
required by law to be owned by directors of that subsidiary; |
|
_____ | (v) | a person or company registered under
the securities legislation of British Columbia or Alberta or securities
legislation in another jurisdiction as an adviser or dealer, other than
a limited market dealer registered under the Securities Act (Ontario); |
|
_____ | (vi) | an individual registered or formerly
registered under the securities legislation of British Columbia or Alberta
or under the securities legislation of another jurisdiction of Canada,
as a representative of a person or company referred to in paragraph (v); |
|
_____ | (vii) | the government of Canada or a province,
or any crown corporation, or agency of the government of Canada or a province; |
|
_____ | (viii) | any municipality, public board or commission
in Canada; |
|
_____ | (ix) | any national, federal, state, provincial,
territorial or municipal government of or in any foreign jurisdiction,
or any agency of that government; |
- 8 -
_____ | (x) | 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; |
|
_____ | (xi) | a registered charity under the Income Tax Act
(Canada); |
|
_____ | (xii) | an individual who, either alone or jointly 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; |
|
_____ | (xiii) | 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; |
|
_____ | (xiv) | a corporation, 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 shown on
its most recently prepared financial statements; |
|
_____ | (xv) | a mutual fund or non-redeemable investment fund that,
in Alberta or British Columbia, as applicable, distributes its securities
only to persons or companies that are “Accredited Investors”; |
|
_____ | (xvi) | a mutual fund or non-redeemable investment fund that,
in Alberta or British Columbia, as applicable, distributes its securities
under a prospectus for which a receipt has been granted by the securities
commission in Alberta or British Columbia, as applicable; |
|
_____ | (xvii) | an entity organized outside of Canada in a foreign
jurisdiction that is analogous to any of the entities referred to in paragraphs
(i) through (v) and paragraph (x) in form and function; or |
|
_____ | (xix) | 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 definitions are included for convenience:
1. | “company” means
any corporation, incorporated association, incorporated syndicate or other
incorporated organization. |
||
2. | “entity” means
a company, syndicate, partnership, trust or unincorporated organization. |
||
3. | “financial assets”
means cash and securities. |
||
4. | “mutual fund”
includes an issuer of securities that 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 securities. |
||
5. | “non-redeemable investment
fund” means an issuer: |
||
(i) |
whose primary purpose is
to invest money provided by its securityholders; |
||
(ii) |
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 |
||
(ii) |
that is not a mutual fund. |
||
6. | “person” means
an individual, partnership, unincorporated association, unincorporated
syndicate, unincorporated organization, trust, trustee, executor, administrator
or other legal representative. |
||
7. | “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. |
||
8. | “spouse” means,
in relation to an individual, 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. |
||
In Multilateral Instrument 45-103 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. |
||
• | “controlled” by
a person or company if, |
||
(a) |
in the case of a person
or company, |
||
(i) |
voting securities of the first-mentioned
person or company carrying more than 50% of the votes for the election
of directors are held, otherwise than by way of securities only, by or
for the benefit of the other person or company; |
- 2 -
and |
|||
(ii) |
the votes carried by the securities
are entitled, if exercised, to elect a majority of the directors of the
first-mentioned person or company; |
||
(b) | 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% of the interests in the partnership;
or |
||
(c) | in the case of a limited
partnership, the general partner is the second-mentioned person or company. |
||
• | a “subsidiary entity” of another person or company if: | ||
(a) | it is controlled by, |
||
(i) |
that other, or |
||
(ii) |
that other and one or more persons or
companies each of which is controlled by that other, or |
||
(iii) |
two or more persons or companies, each
of which is controlled by that, or |
||
(b) | it is a subsidiary entity
of a person or company that is the other’s subsidiary entity. |
The foregoing representations and warranties are true and accurate as of the date of this certificate and will be true and accurate as of Closing. If any such representations and warranties shall not be true and accurate prior to Closing, the undersigned shall give immediate written notice of such fact to the Company.
Dated:_______________________________ | Signed: :_______________________________ | |
Witness (If Purchaser is an | Print the name of Purchaser | |
Individual) | ||
Print Name of Witness | If Purchaser is a Corporation, | |
print name and title of | ||
Authorized Signing Officer |