EXHIBIT 4.16
SUBSCRIPTION AGREEMENT
(U.S. Resident Subscriber)
XXXX XXXXX
(Name of Subscriber - please print)
Number of Units: 95,454
Aggregate Subscription Price: $52,499.70
(Number of Units x $0.55 per Unit)
"Xxxx Xxxxx"
Signature of Subscriber
0000 Xxxxxxx Xxxxxxx
(Subscriber's Address)
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Date: May 17, 2002
000-000-0000
(Telephone Number)
xxxxxx@xxxxxxxxxxx.xxx
(Email Address)
ACCEPTANCE: The Corporation hereby accepts the above subscription and the
Corporation represents, warrants and covenants to the Subscriber that the
representations and warranties made by the Corporation in this Subscription
Agreement are true and correct in all material respects as of this date and
that the Subscriber will have the benefit of and be entitled to rely on such
representations and warranties.
GLOBALTEX INDUSTRIES INC.
Per: Xxxx Xxxxxx
Authorized Signatory
Date: May 31, 2002
INSTRUCTIONS
1. After reviewing the terms and conditions of this Subscription Agreement,
complete all portions, including the provisions respecting U.S. securities laws
in Section 5, and sign it.
2. Attach payment of the subscription price as described under "Subscription".
3. Return the entire subscription booklet, together with the foregoing material
to:
Globaltex Industries Inc.
#000 - 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Attention: Xxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
4. Retain a copy for your records.
TO: GLOBALTEX INDUSTRIES INC.
AND TO: THE DIRECTORS THEREOF
1. Subscription
The undersigned (the "Subscriber") hereby tenders to Globaltex Industries Inc.
(the "Corporation") a corporation subsisting under the laws of the Province of
British Columbia, this subscription offer which, upon acceptance by the
Corporation, will constitute an agreement (the "Subscription Agreement") of the
Subscriber to subscriber for, take up, purchase and pay for and, on the part of
the Corporation, to issue and sell to the Subscriber, the number of Units of
the Corporation as described below (the "Units"), set out on page 1 hereof (the
"Subscriber's Units") for the aggregate subscription price set out on page 1
hereof (the "Subscription Price") all on the terms and subject to the
conditions set forth in this Subscription Agreement.
Each Unit will consist of one Common share of the Corporation (a "Share") and
one half of one non-transferable Common share purchase warrant. Each whole non
-transferable Common share purchase warrant (a "Warrant") will be exercisable
by the holder to purchase one additional Share for a period of two years at a
price of $0.60 per Share. The Warrants will include provisions customarily
included in warrants of TSX Venture Exchange listed issuers, including
provisions pursuant to which the exercise price and the number of Shares that
can be acquired by the holder on exercise will be adjusted in the event of any
reorganization of the Corporations capital. Where applicable in this
Subscription Agreement, references to Units will include the Shares issuable
upon exercise of the Warrants.
The Subscriber must complete, date and sign two copies of this Subscription
Agreement, and forward both copies to the Corporation by no later than 5:00
p.m. (Vancouver Time) on __________________, 2002.
Concurrent with the delivery of this Subscription Agreement to the Corporation,
the Subscriber will deliver to the Corporation's solicitors, Bull, Housser &
Xxxxxx, #3000 - 1055 W. Georgia Street, Vancouver, British Columbia, Canada V6E
3R3, in Canadian or U.S. funds, the Subscription Price for the Subscriber's
Units in the form of a wire transfer deposits, bank draft or certified cheque
and a copy of this Subscription Agreement. Wire transfer instructions are
attached as Schedule A to this Subscription Agreement.
The funds representing the Subscription Price will be held in trust by Bull,
Housser & Xxxxxx pending the closing of the purchase and sale of the
Subscriber's Units (the "Closing"). In the event this subscription is rejected
by the Corporation or accepted only in part, the applicable amount of the
Subscription Price will be returned to the Subscriber within 10 business days
of the Closing, without interest or deduction, to the Subscriber at the address
indicated on the first page of this Subscription Agreement. The Corporation
has the right in its sole discretion to accept, reject or reduce any
subscription for Units.
2. Closing
The Closing will be completed at the offices of Bull, Housser & Xxxxxx within
10 business days after the Corporation receives the final letter of acceptance
by the TSX Venture Exchange in connection with this Subscription Agreement.
Upon closing, the Corporation will cause certificates representing the
Subscriber's Units to be made available for delivery to the Subscriber.
The Subscriber acknowledges that participation in the offering is subject to
the acceptance of this Subscription Agreement by the Corporation, the cheque or
draft representing payment of the Subscription Price being honoured upon
presentation for payment, acceptance of the proposed offering by the TSX
Venture Exchange, and certain other considerations.
3. Expenses
Unless otherwise agreed with the Corporation, the Subscriber shall be
responsible for its own expenses incurred in connection with the issue and sale
of the Subscriber's Units.
4. Representations and Warranties of the Subscriber
The Subscriber hereby represents and warrants to the Corporation and
acknowledges that the Corporation is relying upon such representations and
warranties, as follows:
(a) if an individual, the Subscriber is of the age of majority and has the
capacity and competence to enter into and be bound by this Subscription
Agreement and all other agreements contemplated hereby and this Subscription
Agreement constitutes a legal, valid and binding agreement enforceable against
the Subscriber;
(b) if the Subscriber is an incorporated entity;
(i) the Subscriber is a valid and subsisting corporation and is in good
standing under the laws of the jurisdiction of its incorporation;
(ii) the Subscriber has the corporate capacity and authority to execute and
deliver this Subscription Agreement and to observe and perform its obligations
hereunder;
(iii) this Subscription Agreement has been duly authorized, executed and
delivered by the Subscriber and is a legal, valid and binding obligation of the
Subscriber, enforceable against the Subscriber in accordance with its terms;
(iv) the execution and delivery of this Subscription Agreement by the
Subscriber will not result in the violation of, or constitute a default under,
or conflict with or cause the acceleration of any obligation of the Subscriber
under (a) any contract to which the Subscriber is a party or by which it is
bound; (b) any provision of the constating documents of the Subscriber; or (c)
any judgment, decree, order or award of any court, government body or
arbitrator having jurisdiction over the Subscriber;
(c) the Subscriber is a resident of the jurisdiction set out on page 1 of this
Subscription Agreement;
(d) the Subscriber is a director of the Company;
(e) the Subscriber has not received, nor has it requested, nor does it have any
need to receive, from the Corporation any offering memorandum with respect to
the Subscriber's purchase of the Subscriber's Units;
(f) the Subscriber's Units are not being purchased by the Subscriber as a
result of any warranties or representations with regard to the present or
future value of the Subscriber's Units, that any person will resell or
repurchase the Subscriber's Units, or that any person will refund the purchase
price for the Subscriber's Units;
(g) no consent or approval of any person is required in connection with the
execution and delivery of this Subscription Agreement by the Subscriber;
(h) the Subscriber realizes that its purchase of the Subscriber's Units,
involves a high degree of risk and will be a speculative investment, and that
he, she or it is able, without impairing Subscriber's financial condition, to
bear the complete loss of the Subscription Price;
(i) the Subscriber, has such knowledge and experience in financial and business
affairs as to be capable of evaluating the merits and risks of the investment
hereunder in the Units and is able to bear the economic risk of loss of such
investment;
(j) the Subscriber is purchasing the Subscriber's Units as principal for
investment only and not with a view to resale or distribution;
(k) the Subscriber is aware of the characteristics of the Units and of the fact
that the Units are subject to restrictions on their resale;
(l) the Subscriber shall notify the Corporation immediately if it anticipates
that any representation or warranty made by the Subscriber herein will cease
to be correct or if it becomes aware that any such representation or warranty
has ceased to be correct; and
(m) to the extent necessary, the Subscriber has retained, at his or her own
expense, and relied upon, appropriate professional advice regarding the
investment, tax and legal merits and consequences of this Subscription
Agreement and ownership of the Units.
5. Provisions Respecting U.S. Securities Laws
The Subscriber warrants, represents, agrees and acknowledges as follows:
(a) the Units issuable under this Subscription Agreement have not been and will
not be registered under the United States Securities Act of 1933, as amended
(the "1933 Act"), or the applicable securities laws of any state of the United
States and therefore may not be offered or sold by the Subscriber, directly or
indirectly, in the United States without registration under United States
federal and state securities laws except pursuant to an applicable exemption
from the registration requirements of the 1933 Act and applicable state
securities laws;
(b) either:
(1) the Subscriber:
(A) is not a "U.S. Person," as such term is defined by Rule 902 of Regulation S
under the Act (the definition of which includes, but is not limited to, an
individual resident in the United States and an estate or trust of which any
executor or administrator or trustee, respectively, is a U.S. Person and any
partnership or corporation organized or incorporated under the laws of the
United States);
(B) was outside the United States at the time of execution and delivery of this
Subscription Agreement;
(C) acknowledges no offers to sell the Units were made by any person to the
Subscriber while the Subscriber was in the United States;
(D) acknowledges that the Units are not being acquired, directly or indirectly,
for the account or benefit of a U.S. Person or a person in the United States;
(E) agrees not to engage in hedging transactions with regard to the Units prior
to the expiration of the one-year distribution compliance period set forth in
Rule 903(b)(3) of Regulation S under the 1933 Act; and
(F) acknowledges and agrees with the Issuer that the Issuer shall refuse to
register any transfer of the Units not made in accordance with the provisions
of Regulation S, pursuant to registration under the 1933 Act, or pursuant to an
available exemption from registration under the 1933 Act; or
(2) the Subscriber:
(A) understands and agrees that the Units are being offered to the Subscriber
directly by the Issuer on a private placement basis in the United States
pursuant to Rule 506 of Regulation D under the 1933 Act;
(B) is an accredited investor as defined in Rule 501 of Regulation D under the
1933 Act and satisfies one or more of the categories indicated below (please
place an "X" on the appropriate lines):
_____ Category 1
An organization described in Section 501(c)(3) of the United States Internal
Revenue Code, a corporation, a Massachusetts or similar business trust or
partnership, not formed for the specific purpose of acquiring the Securities,
with total assets in excess of US$5,000,000;
__X___ Category 2
A natural person whose individual net worth, or joint net worth with that
person's spouse, at the date hereof exceeds US$1,000,000;
_____ Category 3
A natural person who had an individual income in excess of US$200,000
in each of the two most recent years or joint income with that person's
spouse in excess of US$300,000 in each of those years and has a reasonable
expectation of reaching the same income level in the current year;
_____ Category 4
A trust that (a) has total assets in excess of US$5,000,000, (b) was not
formed for the specific purpose of acquiring the Securities and (c) is
directed in its purchases of securities by a person who has such knowledge
and experience in financial and business matters that he/she is capable of
evaluating the merits and risks of an investment in the Subscriber's Units;
_____ Category 5
An investment company registered under the Investment Company Act of 1940 or a
business development company as defined in Section 2(a)(48) of that Act;
_____ Category 6
A Small Business Investment Company licensed by the U.S. Small Business
Administration under Section 301 (c) or (d) of the Small Business Investment
Act of 1958;
_____ Category 7
A private business development company as defined in Section 202(a)(22) of the
Investment Advisors Acts of 1940; or
_____ Category 8
An entity in which all of the equity owners satisfy the requirements of one or
more of the foregoing categories.
; and
(C) is acquiring the Subscriber's Units for the Subscriber's own account as a
bona fide investment and not with a view to any resale, distribution or other
disposition of such Units.
6. Legends
The Subscriber understands and acknowledges that upon the original issuance
thereof, and until such time as the same is no longer required under applicable
requirements of the 1933 Act or applicable state securities laws, certificates
representing the Subscriber's Units, and all certificates issued in exchange
therefor or in substitution thereof, will bear the following legend:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), THESE
SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE ISSUER
(B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER
THE SECURITIES ACT IF APPLICABLE, (C) INSIDE THE UNITED STATES (i) PURSUANT TO
THE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER, IF APPLICABLE AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS OR (ii) PURSUANT TO ANOTHER APPLICABLE EXEMPTION UNDER THE SECURITIES ACT
AND ANY APPLICABLE STATE SECURITIES LAWS, AS EVIDENCED BY AN OPINION OF COUNSEL
OF RECOGNIZED STANDING IN FORM ACCEPTABLE TO THE ISSUER."
In addition to the foregoing legend, the Subscriber acknowledges and agrees
that the certificates representing the Subscriber's Units will bear a legend in
the form as required under the policies of the TSX Venture Exchange.
7. Reliance Upon Representations and Warranties
The Subscriber acknowledges that the foregoing representations and warranties
are made by it with the intent that they may be relied upon by the Corporation
and its counsel in determining its eligibility or (if applicable) the
eligibility of others on whose behalf it is contracting hereunder to purchase
Units under relevant securities laws. The Subscriber further agrees that by
accepting the Subscriber's Units, at the Closing, it shall be representing and
warranting that the foregoing representations and warranties are true as at the
Closing and will survive the completion of the sale of the Subscriber's Units.
The Corporation and its counsel shall be entitled to rely on the
representations and warranties of the Subscriber contained herein and the
Subscriber shall indemnify and hold harmless the Corporation and its counsel
for any losses, claims, costs, expenses, damages or liabilities they may suffer
or incur which are caused by or arise from, directly or indirectly, their
reliance thereon.
8. Representations, Warranties of the Corporation
By accepting this offer, the Corporation hereby represents and warrants to the
Subscriber, and acknowledges that the Subscriber is relying upon such
representations and warranties, as follows:
(a) the Corporation is a corporation incorporated and validly existing under
the laws of the Province of British Columbia and is in good standing with
respect to the filing of its annual reports with the British Columbia Registrar
of Companies;
(b) the Corporation is a reporting issuer in British Columbia, its Shares are
listed and posted for trading on the TSX Venture Exchange, and the Warrants are
not listed and posted for trading on the TSX Venture Exchange;
(c) the Corporation has the corporate capacity and authority to execute and
deliver this Subscription Agreement and to observe and perform its obligations
hereunder;
(d) the Corporation has taken all necessary corporate action to authorize the
execution, delivery and performance of this Subscription Agreement, and, upon
acceptance by the Corporation and the TSX Venture Exchange, this Subscription
Agreement will constitute a legal, valid and binding contract of the
Subscriber enforceable against the Corporation in accordance with its terms;
(e) the Shares issued as part of the Subscriber's Units, when issued, sold and
delivered in accordance with the terms of this Subscription Agreement for the
consideration expressed herein, will be duly and validly issued, fully paid and
non-assessable, and will be free and clear of all liens, charges, claims and
encumbrances;
(f) no order ceasing trading in the securities of the Corporation nor
prohibiting sale of such securities has been issued to and is in effect against
the Corporation or its directors, officers or promoters and to the best of the
Corporation's knowledge no investigations or proceedings for such purposes are
pending or threatened;
(g) to the best of the Corporation's knowledge, there is no action, suit,
proceeding, claim, application, complaint or investigation pending or
threatened before any court, regulatory body, governmental or non-governmental
body against the Corporation and the Corporation is not subject to any judgment
order, writ, injunction, decree or award of any governmental authority to which
it is subject; and
(h) the Corporation has not made an assignment in bankruptcy nor has a receiver
been appointed in respect of the Corporation's assets, and, to the best of the
Corporation's knowledge, no proceedings have been commenced against the
Corporation or are threatened to be commenced, that could result in the
Corporation making an assignment in bankruptcy or a receiver being appointed in
respect of the Corporation's assets.
9. Reliance Upon Representations, and Warranties
The Corporation acknowledges that the foregoing representations and warranties
are made by it with the intent that they may be relied upon by the Subscriber.
The Corporation further agrees that, at the Closing, it shall be
representing and warranting that the foregoing representations and warranties
are true as at the Closing and will survive the completion of the sale of the
Subscriber's Units. The Subscriber shall be entitled to rely on the
representations and warranties of the Corporation contained herein and the
Corporation shall indemnify and hold harmless the Subscriber and its counsel
for any losses, claims, costs, expenses, damages or liabilities they may suffer
or incur which are caused by or arise from, directly or indirectly, their
reliance thereon.
10. Survival of Representations and Warranties
Notwithstanding the Closing all the representations and warranties of the
Corporation and the Subscriber contained in the Subscription Agreement shall
survive the Closing.
11. Acknowledgements and Covenants of the Subscriber
The Subscriber hereby acknowledges and agrees that:
(a) this subscription is irrevocable, unconditional, irrevocable and non-
transferable;
(b) no prospectus has been filed by the Corporation with any of the securities
regulatory authorities of the of Canada or the United States in connection with
the issuance of the Subscriber's Units;
(c) the issuance of the Subscriber's Units is exempt from the prospectus
requirements of the Securities Act (British Columbia and the rules promulgated
thereunder, together with the prospectus requirements of any other applicable
securities legislation and, as a result:
(i) the Subscriber is restricted from using certain of the civil remedies
available under applicable securities laws;
(ii) the Subscriber may not receive information that might otherwise be
required to be provided to the Subscriber under applicable securities laws; and
(iii) the Subscriber is relieved from certain obligations that would otherwise
apply under applicable securities laws;
(d) the Subscriber will notify the Corporation immediately of any change in any
representation, warranty or other information relating to the Subscriber set
forth herein which takes place prior to the Closing;
(e) the offer and sale to the Subscriber of the Subscriber's Units were not
made through an advertisement of the Units in printed media of general and
regular paid circulation, radio or television or any other form of
advertisement;
(f) the Subscriber will comply with the resale restrictions applicable to the
Units;
(g) the Subscriber has been advised to consult its own legal advisers with
respect to applicable resale restrictions and that it is solely responsible for
complying with such restrictions (and the Corporation is not, in any manner,
responsible for ensuring compliance by the Subscriber with such restrictions);
(h) Bull, Housser & Xxxxxx has acted as legal counsel to the Corporation in
connection with this Subscription Agreement and has not acted for the
Subscriber, and the Subscriber is, in no way, relying on any advice sought from
or given by Bull, Housser & Xxxxxx in connection with this Subscription
Agreement; and
(i) the Subscriber is responsible for obtaining such legal advice as the
Subscriber considers appropriate in connection with the execution, delivery and
performance by the Subscriber of this Subscription Agreement and the
transactions contemplated hereby;
12. Further Assurances
The Subscriber covenants and agrees to execute and deliver such further
documents and to provide such further assurances as may reasonably be required
by the Corporation to give effect to this Subscription Agreement including,
without limiting the generality of the foregoing, all documents, assurances
undertakings and other information as may be required from time to time under
applicable securities laws and all regulatory or governmental bodies or
stock exchanges having jurisdiction over the Corporation's affairs.
13. Notices
Unless otherwise provided, any notice required or permitted under this
Subscription Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
deposit with the postal service, postage prepaid and addressed to the party to
be notified at the address indicated for such party on page 1 hereof or at such
other address as such party may designate by ten day's written notice to the
other party given in the foregoing manner.
14. Amendment
This Subscription Agreement may not 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.
15. Entire Agreement
This Subscription Agreement constitutes the full and entire understanding and
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements with respect to the subject matter hereof.
16. Time of the Essence
Time will be of the essence of each provision of this Subscription Agreement.
In the event the acceptance referred to in Section 2 has not been received from
the TSX Venture Exchange within 90 days from the date hereof, notwithstanding
the other provisions of this Subscription Agreement, this Subscription
Agreement will be deemed to have terminated and will be of no further force and
effect, and the total Subscription Price for the Subscriber's Units will be
returned to the Subscriber at the address indicated on the first page of the
Subscription Agreement within 10 business days of such termination, without
interest or deduction.
17. Governing Law
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 British Columbia.
18. Assignment.
The Subscriber may not assign this Subscription Agreement, or any part of this
Subscription Agreement, without the prior written consent of the Corporation.
Any purported assignment without such consent is not binding or enforceable
against any party.
19. Enurement
This Subscription Agreement enures to the benefit of and binds the parties and
their respective heirs, executors, administrators, successors and permitted
assigns.
20. Counterparts
This Subscription Agreement may be executed and delivered in counterparts with
the same effect as if both parties had signed and delivered the same document
and all counterparts will be construed together to constitute one and the same
original agreement.
21. Currency
Except as otherwise specifically provided, all references in this Subscription
Agreement to amounts of money are expressed in Canadian dollars.
22. Delivery by Fax
Any party may deliver an executed copy of this Subscription Agreement by fax
but that party will immediately dispatch by delivery in person to the other
parties an originally executed copy of this Subscription Agreement.
23. Severability
If one or more provisions of this Subscription Agreement are held to be
unenforceable in whole or in part under applicable law, such provision shall be
deemed not to affect or impair the validity of any other provision of this
Subscription Agreement and such void or unenforceable provision shall be
severable from this Subscription Agreement.
SCHEDULE A
WIRE TRANSFER INSTRUCTIONS
The Subscriber may pay the Subscription Price by a wire transfer to the
Corporation's legal counsel, Bull, Housser & Xxxxxx as follows:
Canadian Dollars
United States Dollars
Royal Bank of Canada
Main Branch, Transit #00
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Bull Housser & Xxxxxx client account
Account # 111 1350
Royal Bank of Canada
Main Branch, Transit #00
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Bull Housser & Xxxxxx client account
Account # 400 6953
Routing Number (if needed): XXXXXXX0
SCHEDULE TO EXHIBIT NUMBER 4.16
The Company has also entered into an additional document which is substantially
identical in all material respects to the document filed as an exhibit and
which has been omitted from the exhibits. The following is a summary of the
document omitted and the material details in which such document differs from
the document filed:
1. Subscription Agreement dated May 30, 2002 between the Company and Xxxxx
Xxxxxxx whereby Xx. Xxxxxxx participated in a private placement to purchase
40,908 units in the capital of the Company.
