FIRSTGOLD CORP. SUBSCRIPTION AGREEMENT FOR UNITS (For British Columbia, Alberta, Ontario and Offshore Subscribers)
Exhibit
10.21
SUBSCRIPTION
AGREEMENT FOR UNITS
(For
British Columbia, Alberta, Ontario and Offshore Subscribers)
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TO:
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FIRSTGOLD
CORP. (the “Corporation”)
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AND
TO:
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KINGSMILL
CAPITAL PARTNERS INC. (the
“Agent”)
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The
undersigned (the “Subscriber”) hereby irrevocably subscribes
for and agrees to purchase from the Corporation that number of units of the
Corporation (each, a “Unit”) set out below at a price of
US$0.45 per Unit. Each Unit consists of one common share in the
capital of the Corporation (each, a “Common Share”) and
one-half of one Common Share purchase warrant (each whole Common Share purchase
warrant, a “Warrant”). Each Warrant will entitle the
holder thereof to purchase one Common Share (each, a “Warrant
Share”) at a price of US$0.65 per Warrant Share (the “Exercise
Price”) for a period of 18 months from the Closing Date (as hereinafter
defined). The Subscriber agrees to be bound by the terms and
conditions set forth in the attached “Terms and Conditions of Subscription for
Units” including without limitation the representations, warranties and
covenants set forth in the applicable schedules attached thereto. The Subscriber
further agrees, without limitation, that the Corporation and
the Agent (as hereinafter defined) may rely upon the
Subscriber’s representations, warranties and covenants contained in such
documents.
Mr.
Xxxxx Xxxxx, a director of the Corporation, is also a director of and exercises
control or direction over shares of the Agent. Consequently, the Corporation
may
be considered to be a "connected issuer" of the Agent for the purposes of
Canadian securities legislation. See Section 9.1 of the attached
“Terms and Conditions of Subscription for
Units”.
Please
print all information (other than signatures), as applicable, in the space
provided below
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(Name
of Subscriber)
Per:
from
the name of the Subscriber printed above.)
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Number
of
Units: X
$0.45
Aggregate
Subscription
Price:
("Subscription
Price")
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If
the Subscriber is signing as agent for a beneficial purchaser ("Disclosed
Principal") and is not a trust company or portfolio manager, in either
case, purchasing as trustee or agent for accounts fully managed by
it,
complete the following:
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Registered
Shareholder Information (if different from
Subscriber):
(Name)
(Account Reference, if applicable) |
Delivery
Instructions as set forth below:
(Contact
Name) (Telephone
Number)
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ACCEPTANCE:
The Corporation hereby accepts the subscription as set forth above on the terms
and conditions contained in this Subscription Agreement.
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This
day
of
, 2007
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(Authorized
Signatory)
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TERMS
AND CONDITIONS OF SUBSCRIPTION FOR
UNITS
ARTICLE
1- INTERPRETATION
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1.1
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Definitions
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Whenever
used in this Subscription Agreement, unless there is something in the subject
matter or context inconsistent therewith, the following words and phrases shall
have the respective meanings ascribed to them as follows:
“Agent” means
Kingsmill Capital Partners Inc., together with any of its affiliates and any
other investment dealers included in the syndicate for the
Offering.
“Business
Day” means a day other than a Saturday, Sunday or any other day on
which the principal chartered banks located in Toronto are not open for
business.
“Closing”
shall have the meaning ascribed to such term in Section 4.1.
“Closing
Date” shall have the meaning ascribed to such term in
Section 4.1.
“Closing
Time” shall have the meaning ascribed to such term in
Section 4.1.
“Common
Shares” shall have the meaning ascribed to such term on the face page
of this Subscription Agreement.
“Compensation
Options” shall have the meaning ascribed to such term in Section
7.1.
“Corporation”
means FirstGold Corp. and includes any successor corporation to or of the
Corporation.
"Disclosed
Principal" shall have the meaning ascribed to such term on the face
page of this Subscription Agreement.
“Exercise
Price” shall have the meaning ascribed to such term on the face page of
this Subscription Agreement.
“NI
45-106” shall have the meaning ascribed to such term in Section
5.1(j)(i).
“Offering”
means the offering of up to a maximum of 5,555,555 Units.
“person”
means any individual (whether acting as an executor, trustee administrator,
legal representative or otherwise), corporation, firm, partnership, sole
proprietorship, syndicate, joint venture, trustee, trust, unincorporated
organization or association, and pronouns have a similar extended
meaning.
“Securities”
means, collectively, the Units, the Common Shares, the Warrants and the Warrant
Shares.
“Securities
Laws” means the securities laws, instruments, regulations, rules,
rulings and orders in the provinces of British Columbia, Alberta, and Ontario,
as applicable, and the policy statements issued by the Securities
Regulators.
“Securities
Regulators” means the securities regulatory authorities or securities
commissions in the provinces of British Columbia, Alberta and
Ontario.
“Subscriber”
means the subscriber for the Units as set out on the face page of this
Subscription Agreement.
“Subscription
Agreement” means this subscription agreement
(including any schedules hereto) and any instrument amending this Subscription
Agreement; “hereof”, “hereto”,
“hereunder”, “herein”
and
similar expressions
mean and refer to this Subscription Agreement and not to a particular Article
or
Section; and the expression “Article” or
“Section” followed by a number means and refers to
the
specified Article or Section of this Subscription Agreement.
“Subscription
Price” shall have the meaning ascribed to such term on
the face page of this Subscription Agreement.
“United
States” means the United States of America, its
territories and possessions, any State of the United States and the District
of
Columbia.
“Units”
shall have the meaning ascribed to such term on the face page of this
Subscription Agreement.
“U.S.
Person” means a U.S. Person as that term is defined in
Rule 902(k) of Regulation S under the U.S. Securities Act.
“U.S.
Securities Act” means the United States Securities Act
of 1933, as amended.
“Warrants”
shall have the meaning ascribed to such term on the face page of this
Subscription Agreement.
“Warrant
Shares” shall have the meaning ascribed to such term on the face page
of this Subscription Agreement.
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1.2
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Gender
and Number
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Words
importing the singular number only shall include the plural and vice versa,
words importing the masculine gender shall include the feminine gender and
words
importing persons shall include firms and corporations and vice
versa.
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1.3
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Currency
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Unless
otherwise specified, all dollar amounts in this Subscription Agreement,
including the symbol “$”, are expressed in United States dollars.
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1.4
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Subdivisions,
Headings and Table of
Contents
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The
division of this Subscription Agreement into Articles, Sections, Schedules
and
other subdivisions and the inclusion of headings are for convenience of
reference only and shall not affect the construction or interpretation of this
Subscription Agreement. The headings in this Subscription Agreement
are not intended to be full or precise descriptions of the text to which they
refer. Unless something in the subject matter or context is
inconsistent therewith, references herein to an Article, Section, Subsection,
paragraph, clause or Schedule are to the applicable article, section,
subsection, paragraph, clause or schedule of this Subscription
Agreement.
ARTICLE
2 - SCHEDULES
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2.1
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Description
of Schedules
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The
following are the Schedules attached to and incorporated in this Subscription
Agreement by reference and deemed to be a part hereof:
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Schedule“A”-
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Representation
Letter
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Schedule
“B”-
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Certificate
– Additional Representations, Warranties and
Covenants for Non-Canadian Subscribers (other than U.S.
Persons)
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Schedule
“C”-
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Term
Sheet
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ARTICLE
3- SUBSCRIPTION AND DESCRIPTION OF
UNITS
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3.1
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Subscription
for the Units
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The
Subscriber hereby confirms its irrevocable subscription for and offer to
purchase the Units from the Corporation, on and subject to the terms and
conditions set out in this Subscription Agreement, for the Subscription Price
which is payable as described in Article 4 hereto.
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3.2
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Description
of Units
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(a) Each
Unit consists of one Common Share and one-half of one
Warrant. Subject to the anti-dilution provisions contained in the
instrument under which the Warrants will be governed, each Warrant shall entitle
the holder thereof to acquire upon payment of the Exercise Price one Warrant
Share for a period of 18 months following the Closing Date.
(b) The
Offering is being made on a private placement basis.
(c) The
Securities will be offered in the provinces of British Columbia, Alberta and
Ontario and in such other jurisdictions as may be agreed to by the Corporation
and the Agent.
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3.3
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Acceptance
and Rejection of Subscription by the
Corporation
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The
Subscriber acknowledges and agrees that the Corporation reserves the right,
in
its absolute discretion, to reject this subscription for Units, in whole or
in
part, at any time prior to the Closing Time. If this subscription is
rejected in whole, any cheques or other forms of payment delivered to the Agent
representing the Subscription Price 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 Subscription Price for that
portion of the subscription for the Units which is not accepted, will be
promptly delivered to the Subscriber without interest or deduction.
ARTICLE
4 - CLOSING
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4.1
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Closing
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Issuance,
sale and delivery of the Units and payment of the Subscription Price will be
completed (the “Closing”) at the offices of Xxxxxxx Xxxxx LLP,
Suite 500, 000 Xxxxxxxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx, Xxxxxx at 10:00 a.m.
(Toronto time) (the “Closing Time”) on April 5, 2007 or such
other place or date or time as the Corporation and the Agent may agree (the
“Closing Date”).
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4.2
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Conditions
of Closing
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The
Subscriber acknowledges and agrees (on its own behalf and, if applicable, on
behalf of the Disclosed Principal) that as the sale of the Units will not be
qualified by a prospectus, such sale and issuance is subject to the condition
that the Subscriber (or, if applicable, the Disclosed Principal for whom it
is
contracting hereunder) sign and return to the Corporation and/or the Agent
all
relevant documentation required by the Securities Laws. The
Subscriber acknowledges and agrees that the Corporation and/or the Agent may
be
required to provide the Securities Regulators with a list setting forth the
identities of the Disclosed Principal, if any. Notwithstanding that
the Subscriber may be purchasing Units as agent on behalf of an undisclosed
principal, the Subscriber agrees to provide, on request, particulars as to
the
identity of the Disclosed Principal or any undisclosed principal as may be
required by the Corporation in order to comply with the foregoing.
The
Subscriber acknowledges and agrees (on its own behalf and, if applicable, on
behalf of the Disclosed Principal) that the obligations of the Corporation
hereunder are conditional on the accuracy and truth 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:
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(a)
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the
Corporation accepts the Subscriber's subscription in whole or in
part;
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(b)
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unless
other arrangements acceptable to the Agent have been made, payment
by the
Subscriber of the Subscription Price by certified cheque or bank
draft in
United States dollars payable to “Xxxxxxx Xxxxx LLP in Trust” or by wire
transfer of the Subscription Price in United States dollars
to:
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Xxxxxxx
Xxxxx LLP Trust Account
TD
Canada Trust
00
Xxxx Xxxxxx Xxxx & Xxx Xxxxxx
Xxxxxxx,
Xxxxxxx
X0X
0X0
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Transit
No.:
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10202-004
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Account
No.:
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0690-0000000
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Swift
Code No.:
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XXXXXXXXXXX
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US
Funds From Outside Canada
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Bank
of America NY, NY
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ABA
No.:
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026
009 593
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Swift
Code No.:
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XXXXXX0XXXX
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To
be forwarded to TD Canada
Trust
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(c)
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the
Subscriber having properly completed, signed and delivered this
Subscription Agreement to:
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Kingsmill
Capital Partners Inc.
000
Xxxxx Xxxxxxxx Xxxxxx
Xxxxx
000X
Xxxxxxx,
Xxxxxxx
X0X
0X0
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Attention:
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Xxxxx
Xxxxx
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Fax:
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000-000-0000
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(d)
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the
Subscriber having properly completed, signed and delivered one of
the
certificates as set forth in Schedule “A” or Schedule “B” hereto, as
applicable;
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(e)
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the
Subscriber having properly completed, signed and delivered to the
Corporation such other documents as may be required pursuant to terms
of
this Subscription Agreement; and
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(f)
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the
Corporation obtaining all orders, permits, approvals, waivers, consents,
licenses or similar authorizations of the Securities Regulators necessary
to complete the offer, sale and issuance of the
Securities.
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4.3
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Authorization
of the Agent
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The
Subscriber irrevocably authorizes the Agent in its discretion, to act as the
Subscriber’s representative at the Closing, and hereby appoints the Agent, with
full power of substitution, as its true and lawful attorney with full power
and
authority in the Subscriber’s place and stead:
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(a)
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to
receive certificates representing the Common Shares and Warrants,
to
execute in the Subscriber’s name and on its behalf all closing receipts
and required documents, to complete and correct any errors or omissions
in
any form or document provided by the Subscriber in connection with
the
subscription for the Units;
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(b)
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to
extend such time periods and to waive, in whole or in part, any
representations, warranties, covenants or conditions for the Subscriber’s
benefit contained in this Subscription Agreement or any ancillary
or
related document in its absolute discretion, and as deemed
appropriate;
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(c)
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to
terminate this Subscription Agreement if any condition precedent
is not
satisfied, in such manner and on such terms and conditions as the
Agent in
its sole discretion may determine;
and
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(d)
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to
authorize Xxxxxxx Xxxxx LLP to release the funds representing the
Subscription Price to the
Corporation.
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ARTICLE
5 - ACKNOWLEDGEMENTS, COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE
SUBSCRIBER
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5.1
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Acknowledgements,
Representations, Warranties and Covenants of the
Subscriber
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The
Subscriber, on its own behalf and, if applicable, on behalf of the Disclosed
Principal, hereby represents and warrants to, and covenants with, the
Corporation as follows and acknowledges that the Corporation and the Agent
are
relying on such representations and warranties in connection with the
transactions contemplated herein:
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(a)
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The
Subscriber and, if applicable, the Disclosed Principal, were
offered the Securities in and, are resident in the jurisdiction set
out on
the face page of this Subscription Agreement as the "Subscriber's
Residential Address" and the "Disclosed Principal's Residential Address"
(as the case may be) or are otherwise subject to the Securities
Laws. Such addresses were not created and are not used solely
for the purpose of acquiring the Units and the Subscriber and, if
applicable, the Disclosed Principal were solicited to purchase the
Units
solely in such jurisdiction.
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(b)
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The
Subscriber and, if applicable, the Disclosed Principal have knowledge
in
financial and business affairs, are capable of evaluating the merits
and
risks of an investment in the Units and are able to bear the economic
risk
of such investment even if the entire investment is
lost.
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(c)
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The
Subscriber, on its own behalf and, if applicable, on behalf of the
Disclosed Principal, makes the representations, warranties and covenants
set out in Schedule “A” or Schedule “B” to this Subscription Agreement, as
applicable, to the Corporation and the Subscriber and, if applicable,
the
Disclosed Principal may avail itself of one or more of the categories
of
prospectus exempt purchasers listed in Schedule “A” or Schedule “B”, as
applicable.
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(d)
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The
Subscriber has properly completed, executed and delivered within
applicable time periods to the Corporation the applicable certificate
(dated as of the date hereof) set forth in Schedule “A” or Schedule “B” to
this Subscription Agreement and the information contained therein
is true
and correct.
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(e)
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The
representations, warranties and covenants contained in Schedule “A” or
Schedule “B”, as applicable, to this Subscription Agreement will be true
and correct both as of the date of execution of this Subscription
Agreement and as of the Closing
Time.
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(f)
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The
Subscriber and, if applicable, the Disclosed Principal are neither
U.S.
Persons nor subscribing for the Units for the account of a U.S. Person
or
for resale in the United States and the Subscriber confirms that
the Units
have not been offered to the Subscriber or the Disclosed Principal
(as the
case may be) in the United States and that this Subscription Agreement
has
not been signed in the United
States.
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(g)
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Neither
the Subscriber nor any Disclosed Principal will offer, sell or otherwise
dispose of the Warrants in the United States or to a U.S. Person
or for
the account or benefit of a person in the United States or a U.S.
Person.
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(h)
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If
the Subscriber or, if applicable, the Disclosed Principal is not
a person
resident in Canada, the subscription for the Units by the Subscriber,
or
if applicable, the Disclosed Principal does not contravene any of
the
applicable securities legislation in the jurisdiction in which the
Subscriber or such other person 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 Common Shares,
Warrants
or Warrant Shares or to be registered with or to file any report
or notice
with any governmental or regulatory
authority.
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(i)
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The
execution and delivery of this Subscription Agreement, the performance
and
compliance with the terms hereof, the subscription for the Units
and the
completion of the transactions described herein by the Subscriber
or any
beneficial purchaser for whom it is acting 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 or
any
beneficial purchaser for whom it is acting, the Securities Laws or
any
other laws applicable to the Subscriber or any beneficial purchaser
for
whom it is acting, if applicable, or any other contract, instrument,
undertaking, covenant or agreement to which the Subscriber or any
beneficial purchaser for whom it is acting is a party, or any judgment,
decree, order, statute, rule or regulation applicable to the Subscriber
or
any beneficial purchasers for whom it is
acting.
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(j)
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Unless
the Subscriber is purchasing under Section 5.1(k) hereof, it is purchasing
the Units as principal for its own account, not for the benefit of
any
other person, for investment only and not with a view to the resale
or
distribution of all or any of the Common Shares or Warrants, it is
resident in or otherwise subject to applicable securities laws of
the
jurisdiction set out as the “Subscriber’s Residential Address” on the face
page of this Subscription Agreement and it fully complies with one
of the
criteria set forth below:
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(i)
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it
is an “accredited investor”, as such term is defined in National
Instrument 45-106 - “Prospectus and Registration Exemptions” (“NI
45-106”), it was not created or used solely to purchase or hold
securities as an “accredited investor” as described in paragraph (m) of
the definition of “accredited investor” in NI 45-106 and it has
concurrently executed and delivered a Representation Letter in the
form
attached as Schedule “A” to this Subscription Agreement and has initialled
in Appendix “I” thereto indicating that the Subscriber satisfies (and will
satisfy at the Closing Time) one of the categories of “accredited
investor” set forth in such
definition;
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(ii)
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the
aggregate acquisition cost of the Units to the Subscriber is not
less than
CDN$150,000 and it was not created or used solely to purchase or
hold
securities in reliance on the prospectus exemption or the dealer
registration exemption set out in Section 2.10 of NI 45-106;
or
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(iii)
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it
is a resident of, or otherwise subject to, the securities legislation
of a
jurisdiction other than Canada or the United States and it has
concurrently executed and delivered the certificate attached as Schedule
“B” to this Subscription Agreement.
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(k)
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If
the Subscriber is purchasing the Units and is acting as agent for
the
Disclosed Principal, such Disclosed Principal is purchasing as principal
for its own account, not for the benefit of any other person, for
investment only and not with a view to the resale or distribution
of all
or any of the Common Shares or Warrants and such Disclosed Principal
complies with subsection (i) or subsection (ii) of Section 5.1(j)
hereof,
the Subscriber acknowledges the Corporation is required by law to
disclose
to certain regulatory authorities the identity of Disclosed Principal
for
whom it may be acting, the Subscriber is resident in or otherwise
subject
to applicable securities laws of the jurisdiction set out as the
“Subscriber’s Residential Address” on the face page of this Subscription
Agreement and the Disclosed Principal is resident in or otherwise
subject
to applicable securities laws of the jurisdiction set out as the
“Disclosed Principal's Residential Address” on the face page of this
Subscription Agreement.
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(l)
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In
the case of a subscription for the Units 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 Common Shares and Warrants, 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 any
undisclosed beneficial purchaser for whom the Subscriber is
acting.
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(m)
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In
the case of a subscription for the Units by the Subscriber acting
as
principal, this Subscription Agreement and all other documentation
in
connection with such subscription 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
purchaser, including the Disclosed Principal, on whose behalf the
Subscriber is acting.
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(n)
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If
the Subscriber is:
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(i)
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a
corporation, the Subscriber is duly incorporated and is validly subsisting
under the laws of its jurisdiction of incorporation and has all requisite
legal and corporate power and authority to execute and deliver this
Subscription Agreement, to subscribe for the Units as contemplated
herein
and to carry out and perform its obligations under the terms of this
Subscription Agreement;
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(ii)
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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;
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(iii)
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an
individual, the Subscriber is of the full age of majority in the
jurisdiction in which it is resident and has the legal capacity and
competency to execute and deliver this Subscription Agreement and
to
observe and perform his or her covenants and obligations hereunder;
and
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(iv)
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subscribing
on its own behalf, this Subscription Agreement has been duly executed
and
delivered by the Subscriber and constitutes a legal, valid and binding
agreement of the Subscriber enforceable against him or her in accordance
with its terms.
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(o)
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Other
than the Agent (and any group of investment dealers managed by the
Agent
for purposes of offering the Units for sale), 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 fee or other compensation is payable
in
connection with this subscription for the Units, the Subscriber covenants
to indemnify and hold harmless the Corporation and any such registrant
with respect thereto and with respect to all costs reasonably incurred
in
the defence thereof.
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(p)
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The
Subscriber and, if applicable, the Disclosed Principal are not purchasing
Units with knowledge of material information concerning the Corporation
which has not been generally
disclosed.
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(q)
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If
required by the 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
Securities as may be required by any securities commission, stock
exchange
or other regulatory authority (including, if applicable, the
Representation Letter in the form attached hereto as Schedule
“A”).
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(r)
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The
Subscriber and, if applicable, the Disclosed Principal have been
advised
to consult their own legal advisors with respect to the execution,
delivery and performance by it of this Subscription Agreement and
the
transactions contemplated by this Subscription Agreement, including
but
not limited to, trading in the Securities and with respect to the
resale
restrictions imposed by the Securities Laws and other applicable
securities laws, and acknowledges that no representation has been
made
respecting the applicable hold periods imposed by the Securities
Laws or
other resale restrictions applicable to such securities which restrict
the
ability of the Subscriber (or, if applicable, the Disclosed Principal)
to
resell such securities, that the Subscriber (or, if applicable, the
Disclosed Principal) is solely responsible to find out what these
restrictions are and the Subscriber is solely responsible (and neither
the
Corporation nor the Agent are in any way responsible) for compliance
with
applicable resale restrictions and the Subscriber (and, if applicable,
the
Disclosed Principal) is aware that it may not be able to resell such
securities except in accordance with limited exemptions under the
Securities Laws and other applicable securities
laws.
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(s)
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The
Subscriber has not received or been provided with a prospectus, offering
memorandum (as such term is defined in the Securities Laws), or any
similar document in connection with the Offering and the Subscriber’s
decision to subscribe for the Units was not based upon, and the Subscriber
has not relied upon, any verbal or written representations as to
facts
made by or on behalf of the Corporation, the Agent or any other employees
or agent. The Subscriber’s decision to subscribe for the Units
was based solely upon information about the Corporation which is
publicly
available (any such information having been obtained by the Subscriber
without independent investigation or verification by the Agent) and
agrees
that the Agent and the Agent's counsel assume no responsibility or
liability of any nature whatsoever for the accuracy, adequacy or
completeness of the publicly available information or as to whether
all
information concerning the Corporation required to be disclosed by
the
Corporation has been generally disclosed and acknowledges that the
Agent's
counsel and the Corporation’s counsel are acting as counsel to the Agent
and the Corporation, respectively, and not as counsel to the
Subscriber.
|
|
(t)
|
No
person has made any written or oral
representations:
|
|
(i)
|
that
any person will resell or repurchase any of the
Securities;
|
|
(ii)
|
that
any person will refund the Subscription Price;
or
|
|
(iii)
|
as
to the future price or value of any of the
Securities.
|
|
(u)
|
The
subscription for the Units has not been made through or as a result
of,
and the distribution of the Units 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.
|
|
(v)
|
The
funds representing the Subscription Price which will be advanced
by the
Subscriber hereunder will not represent proceeds of crime for the
purposes
of the Proceeds of Crime (Money Laundering) and Terrorist Financing
Act (Canada) and the Subscriber acknowledges that the Corporation
or
the Agent may in the future be required by law to disclose the
Subscriber’s name and other information relating to this Subscription
Agreement and the Subscriber’s subscription hereunder, on a confidential
basis, pursuant to the Proceeds of Crime (Money Laundering) and
Terrorist Financing Act (Canada) and to the best of the Subscriber’s
knowledge: (i) none of the subscription funds to be provided by the
Subscriber (A) have been or will be derived from or related to any
activity that is deemed criminal under the law of Canada, the United
States, or any other jurisdiction, or (B) are being tendered on behalf
of
a person or entity who has not been identified to the Subscriber;
and (ii)
it shall promptly notify the Corporation and the Agent if the Subscriber
discovers that any of such representations ceases to be true, and
to
provide the Corporation and the Agent with appropriate information
in
connection therewith.
|
|
5.2
|
Acknowledgments
of the Subscriber
|
The
Subscriber (on its own behalf and, if applicable, on behalf of the Disclosed
Principal) acknowledges and agrees as follows:
|
(a)
|
The
Subscriber acknowledges that the aggregate gross proceeds of the
Offering
will be up to US$2,500,000, that the Corporation is negotiating an
additional placement of up to 20,000,000 subscription receipts
exchangeable for Units to raise gross proceeds of up to an additional
US$9,000,000 and that the Offering is not conditional on the completion
of
such additional placement.
|
|
(b)
|
No
prospectus has been filed with any Securities Regulators in connection
with the Offering.
|
|
(c)
|
No
securities commission, agency, governmental authority, regulatory
body,
stock exchange or other regulatory body has reviewed or passed on
the
merits of an investment in or endorsement of the
Securities.
|
|
(d)
|
The
Securities will be subject to statutory resale restrictions under
the
Securities Laws and under other applicable securities laws, and the
Subscriber covenants that it will not resell any of the Securities
except
in compliance with such laws and the Subscriber acknowledges that
it is
solely responsible (and neither the Corporation nor the Agent are
in any
way responsible) for such compliance. The Corporation may make
a notation on its records or give instructions to any transfer agent
of
the Common Shares in order to implement such resale
restrictions;
|
|
(e)
|
The
Corporation may complete additional financings in the future in order
to
develop the business of the Corporation and fund its ongoing development,
and such future financings may have a dilutive effect on current
securityholders of the Corporation, including the Subscriber but
there is
no assurance that such financing will be available, on reasonable
terms or
at all, and if not available, the Corporation may be unable to fund
its
ongoing development;
|
|
(f)
|
(A)
the Securities have not been registered under the U.S. Securities
Act, are
being sold in reliance upon an exemption from registration afforded
by
Regulation S promulgated under the U.S. Securities Act; and that
such
Shares have not been registered with any state securities commission
or
authority; and (B) pursuant to the requirements of Regulation S,
the
Securities may not be transferred, sold or otherwise exchanged unless
in
compliance with the provisions of Regulation S and/or pursuant to
registration under the U.S. Securities Act, or pursuant to an available
exemption thereunder;
|
|
(g)
|
The
certificates (and any replacement certificates issued prior to the
expiration of the applicable hold periods or ownership statements
issued
under a direct registry system or other electronic book entry system)
representing the Common Shares and Warrants 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 THE DATE THAT IS 4 MONTHS AND A DAY AFTER THE LATER
OF
(i) [INSERT THE DISTRIBUTION DATE], AND (ii) THE DATE THE ISSUER BECAME A
REPORTING ISSUER IN ANY PROVINCE OR TERRITORY.”
|
(h)
|
In
the event that holders of Warrants exercise the Warrants prior to
the
expiry of the hold periods applicable to the Warrants, the Warrant
Shares
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 THE DATE THAT IS 4 MONTHS AND A DAY AFTER (i) [INSERT
THE DISTRIBUTION DATE], AND (ii) THE DATE THE ISSUER BECAME A REPORTING ISSUER
IN ANY PROVINCE OR TERRITORY.”
|
(i)
|
The
certificates representing the Common Shares, Warrants, and Warrant
Shares
originally issued to a person, other than a U.S. Person, a person
in the
United States or a person for the account or benefit of a U.S. Person
or a
person in the United States, as well as all certificates issued in
exchange for or in substitution of the foregoing securities, shall
bear
the following additional legend:
|
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN OFFERED AND SOLD IN AN
“OFFSHORE TRANSACTION” IN RELIANCE UPON REGULATION S AS PROMULGATED BY THE
SECURITIES AND EXCHANGE COMMISSION. ACCORDINGLY, THE SECURITIES REPRESENTED
BY
THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
(THE
“SECURITIES ACT”) AND MAY NOT BE TRANSFERRED OTHER THAN IN ACCORDANCE WITH
REGULATION S, PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT, OR PURSUANT
TO
AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, THE
AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE COMPANY.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE CANNOT BE THE SUBJECT OF HEDGING
TRANSACTIONS UNLESS SUCH TRANSACTIONS ARE CONDUCTED IN COMPLIANCE WITH THE
SECURITIES ACT.”
|
(j)
|
The
Subscriber (on its own behalf and, if applicable, on behalf of the
Disclosed Principal) shall execute, deliver, file and otherwise assist
the
Corporation and the Agent with filing all documentation required
by the
Securities Laws to permit the subscription for the Units and the
issuance
of the Common Shares, Warrants or Warrant Shares, as may be
required.
|
|
(k)
|
The
Corporation and the Agent are relying on the representations, warranties
and covenants contained herein and in one of Schedule “A” or Schedule “B”
attached hereto to determine the Subscriber’s eligibility to subscribe for
the Units under the Securities Laws and the securities laws of the
United
States and the Subscriber agrees to indemnify the Corporation, the
Agent
and each of their respective directors and officers against all losses,
claims, costs, expenses, damages or liabilities which any of them
may
suffer or incur as a result of or arising from reliance thereon.
The
Subscriber undertakes to immediately notify the Corporation of any
change
in any statement or other information relating to the Subscriber
set forth
in such applicable Schedule which takes place prior to the Closing
Time.
|
|
(l)
|
The
Agent and/or its directors, officers, employees, agents and
representatives assume no responsibility or liability of any nature
whatsoever for the accuracy or adequacy of any publicly available
information concerning the Corporation that is required to be disclosed
or
filed by the Corporation under the Securities Laws or any other applicable
laws has been so disclosed or
filed.
|
|
(m)
|
The
Corporation is relying on an exemption from the requirement to provide
the
Subscriber with a prospectus under the Securities Laws and the securities
laws of the United States and, as a consequence of acquiring the
Units
pursuant to such exemption, certain information, protections, rights
and
remedies provided by the Securities Laws will not be available to
the
Subscriber.
|
|
(n)
|
The
Subscriber and, if applicable, the Disclosed Principal are responsible
for
obtaining such legal and tax advice as they consider appropriate
in
connection with the execution, delivery and performance of this
Subscription Agreement and the transactions contemplated under this
Subscription Agreement. The Subscriber and, if applicable, the
Disclosed Principal, are not relying on the Corporation, the Agent
or
their respective affiliates or counsel in this
regard.
|
|
(o)
|
There
is no government or other insurance covering the
Securities.
|
|
(p)
|
There
are risks associated with the purchase of the Securities and the
Subscriber and any beneficial purchaser for whom it is acting, including
any Disclosed Principal, may lose his, her or its entire
investment.
|
|
5.3
|
Reliance
on Representations, Warranties, Covenants and
Acknowledgements
|
The
Subscriber acknowledges and agrees (on its own behalf and, if applicable, on
behalf of the Disclosed Principal) that the representations, warranties,
covenants and acknowledgements made by the Subscriber in this Subscription
Agreement are made with the intention that they may be relied upon by the
Corporation and the Agent in determining the Subscriber’s eligibility (and, if
applicable, the eligibility of the Disclosed Principal) to purchase the Units
under the Securities Laws or other applicable securities laws. The Subscriber
further agrees that by accepting the Units, the Subscriber shall be representing
and warranting that such representations, warranties, acknowledgements and
covenants are true 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 shall
survive the purchase by the Subscriber of the Units and shall continue in full
force and effect notwithstanding any subsequent disposition by the Subscriber
of
any of the Common Shares, Warrants or Warrant Shares.
ARTICLE
6 - SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
|
6.1
|
Survival
of Representations, Warranties and Covenants of the
Corporation
|
The
representations, warranties, acknowledgements and covenants of the Corporation
contained in this Subscription Agreement shall survive the Closing and,
notwithstanding such Closing or any investigation made by or on behalf of the
Subscriber with respect thereto, shall continue in full force and effect for
the
benefit of the Subscriber and the Agent.
|
6.2
|
Survival
of Representations, Warranties and Covenants of the
Subscriber
|
The
representations, warranties, acknowledgements and covenants of the Subscriber
contained in this Subscription Agreement shall survive the Closing and,
notwithstanding such Closing or any investigation made by or on behalf of the
Corporation with respect thereto, shall continue in full force and effect for
the benefit of the Corporation and the Agent.
ARTICLE
7 - COMMISSION
7.1
The
Subscriber understands that in connection with the issue and sale of the Units
pursuant to the Offering: (a) the Agent will receive from the Corporation on
Closing, a cash commission equal to 7% of the gross proceeds of the Offering;
and (b) the Corporation will grant to the Agent options (the
“Compensation Options”) equal in number to 10% of the number of
Units sold pursuant to the Offering. Subject to anti-dilution
provisions contained in the instrument under which the Compensation Options
will
be governed, each Compensation Option will entitle the Agent to purchase one
Common Share and one half of one Warrant at an exercise price of US$0.65 for
a
period of eighteen (18) months following the Closing Date. No other
fee or commission is payable by the Corporation in connection with the
completion of the Offering.
ARTICLE
8 - COLLECTION OF PERSONAL INFORMATION
|
8.1
|
Collection
of Personal Information
|
The
Subscriber acknowledges that this Subscription Agreement and Schedule “A” hereto
require the Subscriber to provide certain personal information to the
Corporation. Such information is being collected by the Corporation
for the purposes of completing the Offering, which includes, without limitation,
determining the Subscriber’s eligibility (or, if applicable, the eligibility of
the Disclosed Principal) to purchase the Units under applicable securities
legislation, preparing and registering certificates representing the Common
Shares and Warrants to be issued hereunder and completing filings required
by
any stock exchange or securities regulatory authority. The
Subscriber’s personal information (and, if applicable, the Disclosed Principal’s
personal information) may be disclosed by the Corporation to: (a) stock
exchanges or securities regulatory authorities, (b) the Corporation’s registrar
and transfer agent, (c) any government agency, board or other entity; and (d)
any of the other parties involved in the Offering, including the Corporation,
the Agent and their respective legal counsel, and may be included in record
books in connection with the Offering. By executing this Subscription
Agreement, the Subscriber (and, if applicable, the Disclosed Principal) is
deemed to be consenting to the foregoing collection, use and disclosure of
the
Subscriber’s personal information (and, if applicable, the Disclosed Principal’s
personal information). The Subscriber (and, if applicable, the
Disclosed Principal) also consents to the filing of copies or originals of
any
of the documents described in Section 5.1(r) of this Subscription Agreement
as
may be required to be filed with any stock exchange or securities regulatory
authority in connection with the transactions contemplated hereby and consents
to the disclosure of such information to the public through the filing of a
report of trade with applicable Securities Regulators. The Subscriber
(and, if applicable, the Disclosed Principal) further acknowledges that it
has
been notified by the Corporation of and authorizes (a) the delivery to the
Ontario Securities Commission (the “OSC”) of the full name,
residential address and telephone number of the Subscriber (and, if applicable,
the Disclosed Principal), the number and type of securities purchased, the
total
purchase price, the exemption relied upon and the date of distribution; (b)
that
this information is being collected indirectly by the OSC under the authority
granted to it in securities legislation; (c) that this information is being
collected for the purposes of the administration and enforcement of the
securities legislation of Ontario; and (d) that the Administrative Assistant
to
the Director of Corporate Finance can be contacted at Ontario Securities
Commission, Xxxxx 0000, Xxx 00, 00 Xxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx X0X
0X0,
or at (000) 000-0000, regarding any questions about the OSC’s indirect
collection of this information.
ARTICLE
9 - MISCELLANEOUS
|
9.1
|
Relationship
between Corporation and
Agent
|
Mr.
Xxxxx
Xxxxx, a director of the Corporation, is also a director of and exercises
control or direction over shares of the Agent. Consequently, the Corporation
may
be considered to be a “connected issuer” of the Agent for the purposes of
Canadian securities legislation. The decision to offer the Units and the
determination of the terms of the Offering were made through negotiations
between the Corporation and the Agent. As a consequence of the
Offering, the agent will receive the cash commission and Compensation Options
described in Section 7.1 hereof.
|
9.2
|
Further
Assurances
|
Each
of
the parties hereto upon the request of each of the other parties hereto, whether
before or after the Closing Time, shall do, execute, acknowledge and deliver
or
cause to be done, executed, acknowledged and delivered all such further acts,
deeds, documents, assignments, transfers, conveyances, powers of attorney and
assurances as may reasonably be necessary or desirable to complete the
transactions contemplated herein.
|
9.3
|
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:
|
0000
Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx
Xxxx
XX 00000
Attention:
Xxxxx Xxxxxxx
Fax:
(000) 000-0000
with
copies to:
Xxxxxxx
Xxxxx XXX
Xxxxx
000, X.X. Xxx 000
100
Wellington Street West
Toronto,
Ontario M5K 1H1
Canada
Attention: Xxxxx
Xxxxxx
Fax:
(000) 000-0000
|
(ii)
|
in
the case of the Subscriber, at the address specified on the face
page
hereof;
|
|
(iii)
|
in
the case of the Agent, to:
|
|
Kingsmill
Capital Partners Inc.
000
Xxxxx Xxxxxxxx Xxxxxx
Xxxxx
000X
Xxxxxxx,
Xxxxxxx
X0X
0X0
|
|
|
Attention:
|
Xxxxx
Xxxxx
|
|
Fax:
|
000-000-0000
|
|
(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.
|
|
9.4
|
Time
of the Essence
|
Time
shall be of the essence of this Subscription Agreement and every part
hereof.
|
9.5
|
Costs
and Expenses
|
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.
|
9.6
|
Applicable
Law
|
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 federal 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 the Province of Ontario
and waives objection to the venue of any proceeding in such court or that such
court provides an inconvenient forum.
|
9.7
|
Entire
Agreement
|
This
Subscription Agreement, including the Schedules hereto, constitutes the entire
agreement between the parties hereto with respect to the transactions
contemplated herein and cancels and supersedes any prior understandings,
agreements, negotiations and discussions between the parties. There are no
representations, warranties, terms, conditions, undertakings or collateral
agreements or understandings, express or implied, between the parties hereto
other than those expressly set forth in this Subscription Agreement or in any
such agreement, certificate, affidavit, statutory declaration or other document
as set out in this Subscription Agreement. This Subscription Agreement may
not
be amended or modified in any respect except by written instrument executed
by
each of the parties hereto.
|
9.8
|
Counterparts
|
This
Subscription Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same Subscription Agreement. Counterparts may be
delivered either in original or faxed form and the parties adopt any signature
received by a receiving fax machine as original signatures of the
parties.
|
9.9
|
Assignment
|
This
Subscription Agreement may not be assigned by either party except with the
prior
written consent of the other parties hereto.
|
9.10
|
Enurement
|
This
Subscription Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors, successors (including
any
successor by reason of the amalgamation or merger of any party), administrators
and permitted assigns.
|
9.11
|
Beneficial
Subscribers
|
Whether
or not explicitly stated in this Subscription Agreement, any acknowledgement,
representation, warranty, covenant or agreement made by the Subscriber in this
Subscription Agreement, including the Schedules will be treated as if made
by
the Disclosed Principal, if any.
|
9.12
|
Language
of Documents
|
It
is the
express wish of the parties to this Agreement that this Agreement and all
related documents be drafted in English. Les parties aux présentes
conviennent et exigent que cette convention ainsi que tous les documents s'y
rattachant soient rédigés en langue Anglais.
SCHEDULE
“A”
REPRESENTATION
LETTER
|
TO:
|
FirstGold
Corp. (the “Corporation”)
|
In
connection with the agreement to purchase Units by the undersigned Subscriber
or, if applicable, the Disclosed Principal on whose behalf the undersigned
is
purchasing as agent, the Subscriber hereby represents, warrants, covenants
and
certifies to the Corporation that:
1. The
undersigned Subscriber is resident in the jurisdiction set out as the
"Subscriber's Residential Address" on the face page of the Subscription
Agreement and, if the undersigned Subscriber is purchasing in principal as
agent
for a Disclosed Principal, the Disclosed Principal is resident in the
jurisdiction set out at the "Disclosed Principal's Residential Address" on
the
face page of the Subscription Agreement.
2. The
undersigned Subscriber or, if the Subscriber is acting as agent for a Disclosed
Principal, the Disclosed Principal is purchasing the Units as principal for
its
own account (NOTE: For this purpose, a trust company or trust corporation
described in paragraph (p) in Appendix “I” to this Representation Letter (other
than a trust company or trust corporation registered under the laws of Xxxxxx
Xxxxxx Island that is not registered or authorized under the Trust and Loan
Companies Act (Canada) or under comparable legislation in another
jurisdiction of Canada) and a person described in paragraph (q) in Appendix
“I”
to this Representation Letter is deemed to be purchasing as
principal).
3. The
undersigned Subscriber (or if the undersigned Subscriber is purchasing as agent
for a Disclosed Principal, the Disclosed Principal) is and will be at the
Closing Time an “accredited investor” within the meaning of NI 45-106 by virtue
of satisfying the indicated criterion as set out in Appendix “I” to this
Representation Letter.
4. The
undersigned Subscriber (or if the undersigned Subscriber is purchasing as agent
for a Disclosed Principal, the Disclosed Principal) was not created or used
solely to purchase or hold securities as described in paragraph (m) of the
definition of "accredited investor" in NI 45-106.
5. Upon
execution of this Schedule “A” by the Subscriber, this Schedule “A” shall be
incorporated into and form a part of the Subscription Agreement to which this
Schedule is attached.
|
Dated: _________________________,
2007
|
|||
|
|
|
||
| Print name of Subscriber, or person signing as agent | |||
| for the Disclosed Principal | |||
| Signature | |||
| Print name of Signatory (if different from Subscriber or agent, as applicable) | |||
| Title | |||
**
PLEASE INITIAL THE APPLICABLE PROVISION IN APPENDIX “I” ON THE FOLLOWING PAGES
**
APPENDIX
“I”
TO
SCHEDULE “A”
|
NOTE:
|
THE
INVESTOR MUST INITIAL BESIDE THE APPLICABLE PORTION OF THE DEFINITION
BELOW.
|
Accredited
Investor - (defined in NI 45-106) means:
|
__________
|
(a) |
a
Canadian financial institution, or a Schedule III bank;
or
|
|
__________
|
(b) |
the
Business Development Bank of Canada incorporated under the Business
Development Bank of Canada Act (Canada); or
|
|
__________
|
(c) |
a
subsidiary of any person referred to in paragraphs (a) or (b), if
the
person owns all of the voting securities of the subsidiary, except
the
voting securities required by law to be owned by directors of that
subsidiary; or
|
|
__________
|
(d) |
a
person registered under the securities legislation of a jurisdiction
of
Canada as an adviser or dealer, other than a person registered solely
as a
limited market dealer under one or both of the Securities Act
(Ontario) or the Securities Act (Newfoundland and Labrador);
or
|
|
__________
|
(e) |
an
individual registered or formerly registered under the securities
legislation of a jurisdiction of Canada as a representative of a
person
referred to in paragraph (d); or
|
|
__________
|
(f) |
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; or
|
|
__________
|
(g) |
a
municipality, public board or commission in Canada and a metropolitan
community, school board, the Comité de gestion de la taxe scolaire de
l’ile de Montréal or an intermuncipal management board in Québec;
or
|
|
__________
|
(h) |
any
national, federal, state, provincial, territorial or municipal government
of or in any foreign jurisdiction, or any agency of that government;
or
|
|
__________
|
(i) |
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; or
|
|
__________
|
(j) |
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;
or
|
|
**Note:
if individual accredited investors wish to purchase through wholly-owned
holding companies or similar entities, such purchasing entities must
qualify under (t) below, which must be
initialled.
|
||
|
__________
|
(k) |
an
individual whose net income before taxes exceeded $200,000 in each
of the
2 most recent calendar years or whose net income before taxes combined
with that of a spouse exceeded $300,000 in each of the 2 most recent
calendar years and who, in either case, reasonably expects to exceed
that
net income level in the current calendar year; or
|
| **Note: if individual accredited investors wish to purchase through wholly-owned holding companies or similar entities, such purchasing entities must qualify under (t) below, which must be initialled. | ||
|
__________
|
(l) |
an
individual who, either alone or with a spouse, has net assets of
at least
$5,000,000; or
|
| **Note: if individual accredited investors wish to purchase through wholly-owned holding companies or similar entities, such purchasing entities must qualify under (t) below, which must be initialled. | ||
|
__________
|
(m) |
a
person, other than an individual or investment fund, that has net
assets
of at least $5,000,000 as shown on its most recently prepared financial
statements; or
|
|
__________
|
(n) |
an
investment fund that distributes or has distributed its securities
only
to:
(i) a
person that is or was an accredited investor at the time of the
distribution,
(ii) a
person that acquires or acquired securities in the circumstances
referred
to in sections 2.10 [Minimum amount investment] of NI 45-106, and
2.19 [Additional investment in investment funds] of NI 45-106,
or
(iii) a
person described in paragraph (i) or (ii) that acquires or acquired
securities under section 2.18 [Investment fund reinvestment] of
NI 45-106; or
|
|
__________
|
(o) |
an
investment fund that distributes or has distributed securities under
a
prospectus in a jurisdiction of Canada for which the regulator or,
in
Quebec, the securities regulatory authority, has issued a receipt;
or
|
|
__________
|
(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, acting on behalf of a fully managed account managed
by the
trust company or trust corporation, as the case may be;
or
|
|
__________
|
(q) |
a
person acting on behalf of a fully managed account managed by that
person,
if that person:
(i) is
registered or authorized to carry on business as an adviser or the
equivalent under the securities legislation of a jurisdiction of
Canada or
a foreign jurisdiction, and
(ii) in
Ontario, is purchasing a security that is not a security of an investment
fund; or
|
|
__________
|
(r) |
a
registered charity under the Income Tax Act (Canada) that, in
regard to the trade, has obtained advice from an eligibility adviser
or an
adviser registered under the securities legislation of the jurisdiction
of
the registered charity to give advice on the securities being traded;
or
|
|
__________
|
(s) |
an
entity organized in a foreign jurisdiction that is analogous to any
of the
entities referred to in paragraphs (a) to (d) or paragraph (i) in
form and
function; or
|
|
__________
|
(t) |
a
person in respect of which all of the owners of interests, direct,
indirect or beneficial, except the voting securities required by
law to be
owned by directors, are persons that are accredited investors;
or
|
|
__________
|
(u) |
an
investment fund that is advised by a person registered as an adviser
or a
person that is exempt from registration as an adviser; or
|
|
__________
|
(v) |
a
person that is recognized or designated by the securities regulatory
authority or, except in Ontario and Quebec, the regulator as:
(i) an
accredited investor, or
(ii) an
exempt purchaser in Alberta or British Columbia after NI 45-106 came
into
force.
|
For
the purposes hereof:
an
issuer
is an “affiliate” of another issuer if
|
(a)
|
one
of them is the subsidiary of the other,
or
|
|
(b)
|
each
of them is controlled by the same
person;
|
“bank”
means a bank named in Schedule I or II of the Bank Act
(Canada);
“Canadian
financial institution” means
|
|
(a)
|
an
association governed by the Cooperative Credit Associations Act
(Canada) or a central cooperative credit society for which an order
has
been made under section 473(1) of that Act,
or
|
|
|
(b)
|
a
bank, loan corporation, trust company, trust corporation, insurance
company, treasury branch, credit union, caisse populaire, financial
services cooperative, or league that, in each case, is authorized
by an
enactment of Canada or a jurisdiction of Canada to carry on business
in
Canada or a jurisdiction in Canada;
|
“company”
means any corporation, incorporated association, incorporated syndicate or
other
incorporated organization;
a
person
(first person) is considered to “control” another person
(second person) if
|
|
(a)
|
the
first person, directly or indirectly, beneficially owns or exercises
control or direction over securities of the second person carrying
votes
which, if exercised, would entitle the first person to elect a majority
of
the directors of the second person, unless that first person holds
the
voting securities only to secure an
obligation,
|
|
|
(b)
|
the
second person is a partnership, other than a limited partnership,
and
first person holds more than 50% of the interests of the partnership,
or
|
|
|
(c)
|
the
second person is a limited partnership and the general partner of
the
limited partnership is the first
person;
|
“director”
means
|
|
(a)
|
a
member of the board of directors of a company or an individual who
performs similar functions for a company,
and
|
|
|
(b)
|
with
respect to a person that is not a company, an individual who performs
functions similar to those of a director of a
company;
|
“entity”
means a company, syndicate, partnership, trust or unincorporated
organization;
“financial
assets” means
|
(a)
|
cash,
|
|
(b)
|
securities,
or
|
|
|
(c)
|
a
contract of insurance, a deposit or an evidence of a deposit that
is not a
security for the purposes of securities
legislation;
|
“foreign
jurisdiction” means a country other than Canada or a political
subdivision of a country other than Canada;
“fully
managed account” means an account of a client for which a person makes
the investment decisions if that person has full discretion to trade in
securities for the account without requiring the client’s express consent to a
transaction;
“investment
fund” means a mutual fund or non-redeemable investment fund, and, for
greater certainty, in British Columbia includes an employee venture capital
corporation that does not have a restricted constitution, and is registered
under Part 2 of the Employee Investment Act (British Columbia),
R.S.B.C. 1996 c. 112, and whose business objective is making multiple
investments and a venture capital corporation registered under Part 1 of the
Small Business Venture Capital Act (British Columbia), R.S.B.C. 1996
c.429 whose business objective is making multiple investments;
“jurisdiction”
means a province or territory of Canada except when used in the term “foreign
jurisdiction”;
“individual”
means a natural person, but does not include
|
|
(a)
|
a
partnership, unincorporated association, unincorporated syndicate,
unincorporated organization or a trust,
or
|
|
|
(b)
|
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,
|
|
|
(A)
|
for
the purpose of exercising or seeking to exercise control of an issuer,
other than an issuer that is a mutual fund or a non-redeemable investment
fund, or
|
|
|
(B)
|
for
the purpose of being actively involved in the management of any issuer
in
which it invests, other than an issuer that is a mutual fund or a
non-redeemable investment fund, and
|
|
(c)
|
that
is not a mutual fund;
|
“person”
includes
|
(a)
|
an
individual,
|
|
(b)
|
a
corporation,
|
|
|
(c)
|
a
partnership, trust, fund and an association, syndicate, organization
or
other organized group of persons, whether incorporated or not,
and
|
|
|
(d)
|
an
individual or other person in that person’s capacity as a trustee,
executor, administrator or personal or other legal
representative;
|
“regulator”
means, for the local jurisdiction, the person referred to in Appendix D of
National Instrument 14-101 “Definitions” (“NI 14-101”) opposite
the name of the local jurisdiction;
“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;
|
“Schedule
III bank” means an authorized foreign bank named in Schedule III of
the Bank Act (Canada);
“securities
legislation” means, for the local jurisdiction, the instruments listed
in Appendix B of NI 14-101 opposite the name of the local
jurisdiction
“securities
regulatory authority” means, for the local jurisdiction, the securities
commission or similar regulatory authority listed in Appendix C of NI 14-101
opposite the name of the local jurisdiction;
“spouse”
means an individual who,
|
|
(a)
|
is
married to another individual and is not living separate and apart
within
the meaning of the Divorce Act (Canada), from the other
individual,
|
|
|
(b)
|
is
living with another individual in a marriage-like relationship, including
a marriage-like relationship between individuals of the same gender,
or
|
|
|
(c)
|
in
Alberta, is an individual referred to in paragraph (a) or (b), or
is an
adult interdependent partner within the meaning of the Adult
Interdependent Relationships Act (Alberta);
and
|
“subsidiary”
means an issuer that is controlled directly or indirectly by another issuer
and
includes a subsidiary of that subsidiary.
SCHEDULE
“B”
CERTIFICATE
ADDITIONAL
REPRESENTATIONS, WARRANTIES AND COVENANTS
FOR
NON-CANADIAN SUBSCRIBERS
(OTHER
THAN U.S. SUBSCRIBERS)
The
Subscriber, on its own behalf and (if applicable) on behalf of others for whom
it is acting hereunder, further represents, warrants and covenants to and with
the Corporation and the Agent and their respective counsel (and acknowledges
that the Corporation, the Agent and their respective counsel are relying
thereon) that it is, and (if applicable) any beneficial purchaser for whom
it is
acting hereunder is, a resident of, or otherwise subject to, the securities
legislation of a jurisdiction other than Canada or the United States,
and:
|
(d)
|
the
Subscriber is, and (if applicable) any other purchaser for whom it
is
acting hereunder, is:
|
|
(i)
|
a
purchaser that is recognized by the securities regulatory authority
in the
jurisdiction in which it is, and (if applicable) any other purchaser
for
whom it is acting hereunder is resident or otherwise subject to the
securities laws of such jurisdiction as an exempt purchaser and is
purchasing the Units as principal for its, or (if applicable) each
such
other purchaser’s, own account, and not for the benefit of any other
person, 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 purchasing
the securities as agent or trustee for the principal disclosed on
the
cover page of this Agreement and each disclosed principal for whom
the
Subscriber is acting is purchasing as principal for its own account,
and
not for the benefit of any other person, and is purchasing for investment
only and not a view to resale or distribution;
or
|
|
(ii)
|
a
purchaser which is purchasing Units pursuant to an exemption from
any
prospectus or securities registration requirements (particulars of
which
are enclosed herewith) available to the Corporation, the Agent, the
Subscriber and any such other purchaser under applicable securities
laws
of their jurisdiction of residence or to which the Subscriber and
any such
other purchaser are otherwise subject to, and the Subscriber and
any such
other purchaser shall deliver to the Corporation and the Agent such
further particulars of the exemption and their qualification thereunder
as
the Corporation or the Agent may reasonably
request;
|
|
(e)
|
the
purchase of Units by the Subscriber, and (if applicable) each such
other
purchaser, does not contravene any of the applicable securities laws
in
such jurisdiction and does not trigger: (i) any obligation of the
Corporation to prepare and file a prospectus, an offering memorandum
or
similar document, or (ii) any obligation of the Corporation to make
any
filings with or seek any approvals of any kind from any regulatory
body in
such jurisdiction or any other ongoing reporting requirements with
respect
to such purchase or otherwise; or (iii) any registration or other
obligation on the part of the Corporation or the
Agent;
|
|
(f)
|
all
acts of solicitation, conduct or negotiations directly or indirectly
in
furtherance of the purchase of securities occurred outside of Canada
and
the Untied States;
|
|
(g)
|
no
offer was made to the Subscriber in Canada or the United States and
the
buy order in respect of the subscription was not placed from within
Canada
or the United States;
|
|
(h)
|
the
Subscriber is knowledgeable of, and has been independently advised
as to,
the securities laws of such jurisdiction as applicable to this
Subscription Agreement; and
|
|
(i)
|
the
Subscriber, and (if applicable) any other purchaser for whom it is
acting
hereunder will not sell or otherwise dispose of any Units or any
Common
Shares, Warrants and Warrant Shares underlying the Units (the
“Underlying Securities”), except in accordance with
applicable Canadian securities laws, and if the Subscriber, or (if
applicable) such beneficial purchaser sell or otherwise dispose of
any
Units or Underlying Securities to a person other than a resident
of
Canada, the Subscriber, and (if applicable) such beneficial purchaser,
will obtain from such purchaser representations, warranties and covenants
in the same form as provided in this Schedule “B” and shall comply with
such other requirements as the Corporation may reasonably
require.
|
Dated
at
_______________ this ____ day of ____________, 2007.
|
Name
of Subscriber
Signature
of Subscriber
Title
of Subscriber
|
SCHEDULE
“C”
TERM
SHEET
UP
TO US$2,500,000
PRIVATE
PLACEMENT OF UNITS
|
Issuer:
|
Firstgold
Corp. (the “Corporation”)
|
|
Issue:
|
Up
to 5,555,000 units (the “Units”), each Unit consisting of
one common share in the capital of the Corporation (each, a
“Common Share”) and one-half of one Common Share purchase
warrant (each whole warrant, a
“Warrant”).
|
|
Warrants:
|
Each
Warrant will entitle the holder thereof to purchase one common share
of
the Corporation (each, a “Warrant Share”) at a price of
US$0.65 per Warrant Share for a period of 18 months from the
closing date.
|
|
Amount:
|
Up
to US$2,500,000. The Company is also negotiating an additional
placement of up to 20,000,000 subscription receipts exchangeable
for Units
to raise gross proceeds of up to an additional US$9,000,000.The offering
of Units is not conditional on the completion of such additional
placement.
|
|
Issue
Price:
|
US$0.45
per Unit.
|
|
Form
of Financing:
|
Best
efforts agency private placement to institutional and “accredited”
investors in Canada.
|
|
Agent:
|
Kingsmill
Capital Partners Inc.
|
|
Use
of Proceeds:
|
The
net proceeds of the offering shall be used for exploration and development
of the Corporation’s Relief Canyon project, as well as for general
and administrative expenses.
|
|
Hold
Period:
|
The
Units and the underlying Common Shares and Warrants will be subject
to
applicable hold periods in Canada and the United States. In Canada
the
hold period is four months from the date the Company becomes a reporting
issuer and in the United States the hold period is one year from
the date
of closing. The Corporation will use its reasonable commercial
efforts to file and have declared effective a Registration Statement
to
qualify the resale of the Common Shares, Warrants and Warrant Shares
in
the United States.
|
|
Fees:
|
Fees
equal to 7.0% cash commission based on the gross proceeds raised
in the
Financing and 10.0% broker warrants (calculated on the basis of the
number
of Units issued upon closing of the Offering) with each warrant entitling
the holder to purchase one Common Share and one Warrant at an exercise
price equal to the offering price of the Units and expiring 18 months
from
closing of the Offering.
|
|
Closing:
|
On
or about April 10, 2007 or as the parties may otherwise
agree.
|
