Exhibit 4.3
THIS PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT RELATES TO AN OFFERING OF
SECURITIES IN AN OFFSHORE TRANSACTION TO PERSONS WHO ARE NOT U.S. PERSONS (AS
DEFINED HEREIN) PURSUANT TO REGULATION S UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT").
THE SECURITIES TO WHICH THIS PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT (THE
"SUBSCRIPTION AGREEMENT") RELATES HAVE NOT BEEN REGISTERED WITH THE SECURITIES
AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE, AND WILL BE
ISSUED IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT
OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE WITH APPLICABLE
STATE SECURITIES LAWS.
ENOX BIOPHARMA, INC.
PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT SHARES
NON-UNITED STATES RESIDENT SUBSCRIBERS
INSTRUCTIONS TO PURCHASER
1. The purchaser is to complete all the information in the boxes on page 1 and
sign where indicated with an " X ".
2. IF THE PURCHASER IS AN ACCREDITED INVESTOR and not purchasing a minimum of
$150,000 in value of securities, then complete the "ACCREDITED INVESTOR
QUESTIONNAIRE" that starts on page 5.
3. IF THE PURCHASER IS NOT AN ACCREDITED INVESTOR, and not purchasing a
minimum of $150,000 in value of securities, complete the "FRIENDS AND
FAMILY" QUESTIONNAIRE that starts on page 8.
4. PURCHASERS PURCHASING A MINIMUM OF $150,000 IN VALUE OF SECURITIES may
subscribe without filling in an Accredited Investor or Friends and Family
Questionnaire.
5. All other information must be filled in where appropriate.
This is Page 2 of 15 pages of a subscription agreement and related appendices,
schedules and forms. Collectively, these pages together are referred to as the
"Subscription Agreement".
PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
TO: ENOX BIOPHARMA INC. (the " ISSUER "), of 00 Xxxxxxxx Xx., Xxxxx 00000,
Xxxxxx.
Subject and pursuant to the terms set out in the Terms on pages 3 to 4, the
General Provisions on pages 9 to 14 and the other schedules and appendices
attached which are hereby incorporated by reference, the Purchaser hereby
irrevocably subscribes for, and on Closing will purchase from the Issuer, the
following securities at the following price:
________ Units.
US $0.25 per Unit for a total purchase price of __________.
The Purchaser owns, directly or indirectly, the following securities of the
Issuer:
Nil
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[CHECK IF APPLICABLE] The Purchaser is [ ] an insider of the Issuer or [ ] a
member of the professional group
The Purchaser directs the Issuer to issue, register and deliver the certificates
representing the Purchased Securities as follows:
REGISTRATION INSTRUCTIONS DELIVERY INSTRUCTIONS
Name to appear on certificate Name and account reference, if applicable
Account reference if applicable Contact name
Address Address
Telephone Number
EXECUTED by the Purchaser this __th day of ______ 2008. By executing this
Subscription Agreement, the Purchaser certifies that the Purchaser and any
beneficial purchaser for whom the Purchaser is acting is resident in the
jurisdiction shown as the "Address of Purchaser".
EXECUTION BY PURCHASER:
Signature of individual (if Purchaser IS an Address of Purchaser
individual) (residence)
Authorized signatory (if Purchaser IS NOT an Telephone Number
individual)
Name of Purchaser (PLEASE PRINT) E-mail address
ACCEPTANCE:
Accepted this __ day of _____, 2008
ENOX BIOPHARMA, INC.
Name
Authorized Signatory
Accepted this __ day of _____, 2008
By signing this acceptance, the Issuer agrees to be bound by the Terms on pages
3 to 4, the General Provisions on pages 9 to 14 and the other schedules and
appendices incorporated by reference. IF FUNDS ARE DELIVERED TO THE COMPANY'S
LAWYERS, THEY ARE AUTHORIZED TO RELEASE THE FUNDS TO THE ISSUER.
<PAGE>
Subscription Agreement (with related appendices, schedules and forms)
Page 3 of 15
TERMS
Reference date of this
Subscription Agreement ____________, 2008 (the " Agreement Date ")
The Offering
The Issuer Enox Biopharma Inc." (the " Issuer ")
Offering The offering consists of up to 400,000 units ("Units")
consisting of one common share ("Shares"), one Series A
Warrant and one Series B Warrant (together the
"Warrants") of the Issuer.
Purchased Securities The "Purchased Securities" under this
Subscription Agreement are the Shares, the Warrants
and the shares issuable on exercise of the Warrants.
Total Amount up to US $100,000 from the sale of Units.
Issue Price US $0.25 per Unit.
Series A Warrants Exercisable for 1 year from Closing at $0.30 for one
common share of the Issuer.
Series B Warrants Exercisable for 2 years from Closing at $0.40 for one
common share of the Issuer.
Payment Schedule The Offering will close on July 15, 2008.
Selling Jurisdictions The Units will be sold in jurisdictions other than the
United States where they may be lawfully sold (the
"Selling Jurisdictions").
Exemptions The offering will be made in accordance with the
following exemptions from the prospectus requirements:
(a) the " accredited investor " exemption in Canada
(section 2.3 of National Instrument 45-106);
(b) the " $150,000 purchaser " exemption in Canada
(section 2.10 of National Instrument 45-106);
(c) the " Friends and Family " exemption in Canada
except Ontario (section 2.5 of National Instrument
45-106)
(d) Regulation S under the US Securities Act of 1933;
and
(e) such other exemptions as may be available the
securities laws of the Selling Jurisdictions.
Registration of Shares The Issuer will use reasonable efforts to file a
registration statement with the SEC within 40 days of
Closing and register for resale the Purchased
Securities acquired by the Purchasers within 4 months
from Closing.
Resale restrictions
and legends The Purchaser acknowledges that the certificates
representing the Purchased Securities will bear the
following legends: "THESE SECURITIES HAVE NOT BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE AND HAVE BEEN
ISSUED IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
Subscription Agreement (with related appendices, schedules and forms)
Page 4 of 15
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS."
Purchasers are advised to consult with their own legal
counsel or advisors to determine the resale
restrictions that may be applicable to them.
Purchaser has requested the Issuer not to include
legend under Canadian Securities laws
Closing Date The completion of the sale and purchase of the Shares
will take place in one or more closings, on a date or
dates as agreed to by the Issuer and the Purchaser.
Payment for, and delivery of the Shares, is scheduled
to occur on or about July 15th, 2008 or such later date
as may be agreed upon by the Issuer and the Purchaser
(the " Closing Date ").
Additional definitions In the Subscription Agreement, the following words have
the following meanings unless otherwise indicated:
(a) " Purchased Securities " means the Shares purchased
under this Subscription Agreement; and
(b) " Securities " means the Shares (to be issued on a
post-split basis).
The Issuer
Jurisdiction of
organization The Issuer is incorporated under the laws of the State
of Nevada.
Stock exchange listings Certain market makers make market in the Issuer's stock
on the US over the counter bulletin board
"Securities Legislation
Applicable to the
Issuer" The " Securities Legislation Applicable to the Issuer "
are the US Securities Exchange Act of 1934, and the
Securities Commission having jurisdiction over the
Issuer is the United States Securities and Exchange
Commission and the British Columbia Securities
Commission.
END OF TERMS
Subscription Agreement (with related appendices, schedules and forms)
Page 5 of 15
NATIONAL INSTRUMENT 45-106
ACCREDITED INVESTOR QUESTIONNAIRE
The purpose of this Questionnaire is to assure ENOX BIOPHARMA INC. " (the
"Company") that the undersigned (the "Subscriber") will meet certain
requirements for the registration and prospectus exemptions provided for under
National Instrument 45-106 ("NI 45-106"), as adopted by the Securities
Commissions in Canada, in respect of a proposed private placement of securities
by the Company (the "Transaction"). The Company will rely on the information
contained in this Questionnaire for the purposes of such determination.
The undersigned Subscriber covenants, represents and warrants to the Company
that:
1. the Subscriber has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of the
Transaction and the Subscriber is able to bear the economic risk of loss
arising from such Transaction;
2. the Subscriber satisfies one or more of the categories of "accredited
investor" (as that term is defined in NI 45-106) indicated below (please
check the appropriate box):
[ ] (a) a Canadian financial institution as defined in National
Instrument 14-101, or an authorized foreign bank listed in Schedule
III of the BANK ACT (Canada);
[ ] (b) the Business Development Bank of Canada incorporated under the
BUSINESS DEVELOPMENT BANK ACT (Canada);
[ ] (c) a subsidiary of any person referred to in any of the foregoing
categories, 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;
[ ] (d) an individual registered or formerly registered under securities
legislation in a jurisdiction of Canada, as a representative of a
person or company registered under securities legislation in a
jurisdiction of Canada, as an adviser or dealer, other than a limited
market dealer registered under the SECURITIES ACT (Ontario) or the
SECURITIES ACT (Newfoundland);
[ ] (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);
[ ] (f) the government of Canada or a province, or any crown corporation
or agency of the government of Canada or a province;
[ ] (g) a municipality, public board or commission in Canada and a
metropolitan community, school board, the Comite de gestion de la taxe
scholaire de l'ile de Montreal or an intermunicipal management board
in Quebec;
[ ] (h) a national, federal, state, provincial, territorial or municipal
government of or in any foreign jurisdiction, or any agency thereof;
[ ] (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;
Subscription Agreement (with related appendices, schedules and forms)
Page 6 of 15
[ ] (j) an individual who either alone or with a spouse beneficially
owns, directly or indirectly, financial assets (as defined in NI
45-106) having an aggregate realizable value that, before taxes but
net of any related liabilities, exceeds CDNUS$1,000,000;
[ ] (k) an individual whose net income before taxes exceeded
CDNUS$200,000 in each of the two more recent calendar years or whose
net income before taxes combined with that of a spouse exceeded
US$300,000 in each of those years and who, in either case, reasonably
expects to exceed that net income level in the current calendar year;
[ ] (l) an individual who, either alone or with a spouse, has net assets
of at least CDN US$5,000,000;
[ ] (m) a person, other than an individual or investment fund, that had
net assets of at least CDNUS$5,000,000 as reflected on its most
recently prepared financial statements;
[ ] (n) an investment fund that distributes it securities only to
persons that are accredited investors at the time of distribution, a
person that acquires or acquired a minimum of CDN$150,000 of value in
securities, or a person that acquires or acquired securities under
Sections 2.18 or 2.19 of NI 45-106;
[ ] (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;
[ ] (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;
[ ] (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;
[ ] (r) a registered charity under the INCOME TAX ACT (Canada) that, in
regard to the trade, has obtained advice from an eligibility advisor
or an advisor registered under the securities legislation of the
jurisdiction of the registered charity to give advice on the
securities being traded;
[ ] (s) an entity organized in a foreign jurisdiction that is analogous
to any of the entities referred to in paragraphs (a) to (d) or
paragraph (i) in form and function;
[ ] (t) a person in respect of which all of the owners of interests,
direct, indirect or beneficial, except the voting securities required
by law are persons or companies that are accredited investors.
[ ] (u) an investment funds that is advised by a person registered as an
advisor or a person that is exempt [ from registration as an advisor;
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 this instrument comes into force;
Subscription Agreement (with related appendices, schedules and forms)
Page 7 of 15
The Subscriber acknowledges and agrees that the Subscriber may be required by
the Company to provide such additional documentation as may be reasonably
required by the Company and its legal counsel in determining the Subscriber's
eligibility to acquire the Shares under relevant Legislation.
IN WITNESS WHEREOF, the undersigned has executed this Questionnaire as of the
_____________, 200 ___.
X
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Signature
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Print or Type Name
Subscription Agreement (with related appendices, schedules and forms)
Page 8 of 15
FAMILY, FRIENDS AND BUSINESS ASSOCIATES QUESTIONNAIRE
IF THE SUBSCRIBER IS RESIDENT IN A CANADIAN PROVINCE OR TERRITORY OTHER THAN
ONTARIO IS NOT PURCHASING MORE THAN $150,000 IN VALUE OF SECURITIES AND IS NOT
AN ACCREDITED INVESTOR, HE OR SHE IS TO CHECK ONE OR MORE OF THE FOLLOWING
BOXES, AS APPROPRIATE:
(A) A DIRECTOR, OFFICER, EMPLOYEE OR CONTROL PERSON OF THE ISSUER _____
(B) A SPOUSE, PARENT, GRANDPARENT, BROTHER, SISTER OR CHILD OF A DIRECTOR,
SENIOR OFFICER OR CONTROL PERSON OF THE ISSUER _____
(C) A CLOSE PERSONAL FRIEND OF A DIRECTOR, SENIOR OFFICER OR CONTROL PERSON OF
THE ISSUER _____
(D) A CLOSE BUSINESS ASSOCIATE OF A DIRECTOR, SENIOR OFFICER OR CONTROL PERSON
OF THE ISSUER _____
If the Subscriber is resident in Ontario, the Subscriber is (TICK ONE OR MORE OF
THE FOLLOWING BOXES ONLY IF THE SUBSCRIBER IS RESIDENT IN ONTARIO):
(A) a founder of the Issuer [ ]
(B) an affiliate of a founder of the Issuer [ ]
(C) a spouse, parent, brother, sister, grandparent or child
of a director, executive officer or founder of the Issuer [ ]
(D) a person that is a control person of the Issuer [ ]
(E) an accredited investor [ ]
(F) purchasing as principal Securities with an aggregate acquisition
cost of not less than CDN$150,000 [ ]
IF THE SUBSCRIBER TICKED BOXES A-D ABOVE, NAME OF DIRECTOR, OFFICER OR EMPLOYEE
OF THE ISSUER WITH WHOM THE SUBSCRIBER HAS A RELATIONSHIP:
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SIGNATURE
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Print or Type Name of Entity or Individual
DATE: _______________________, 2008
Subscription Agreement (with related appendices, schedules and forms)
Page 9 of 15
GENERAL PROVISIONS
1. DEFINITIONS
1.1 In the Subscription Agreement (including the first (cover) page, the Terms
on pages 3 to 4, the General Provisions on pages 9 to 14 and the other schedules
and appendices incorporated by reference), the following words have the
following meanings unless otherwise indicated:
(a) "1933 ACT" means the United States Securities Act of 1933, as
amended;
(b) "APPLICABLE LEGISLATION" means the Securities Legislation Applicable
to the Issuer (as defined on page 8) and all legislation incorporated
in the definition of this term in other parts of the Subscription
Agreement, together with the regulations and rules made and
promulgated under that legislation and all administrative policy
statements, blanket orders and rulings, notices and other
administrative directions issued by the Commissions;
(c) "CLOSING" means the completion of the sale and purchase of the
Purchased Securities;
(d) "CLOSING DATE" has the meaning assigned in the Terms;
(e) "CLOSING YEAR" means the calendar year in which the Closing takes
place;
(f) "COMMISSIONS" means the Commissions with Jurisdiction over the
Issuer (as defined on page 4) and the securities commissions
incorporated in the definition of this term in other parts of the
Subscription Agreement;
(g) "FINAL CLOSING" means the last closing under the Private Placement;
(h) "GENERAL PROVISIONS" means those portions of the Subscription
Agreement headed " GENERAL PROVISIONS" and contained on pages 9 to 15;
(i) "PRIVATE PLACEMENT" means the offering of the Purchased Securities
on the terms and conditions of this Subscription Agreement;
(j) "PURCHASED SECURITIES" has the meaning assigned in the Terms;
(k) "REGULATORY AUTHORITIES" means the Commissions;
(l) "SECURITIES" has the meaning assigned in the Terms;
(m) "SUBSCRIPTION AGREEMENT" means the first (cover) page, the Terms on
pages 3 to 4, the General Provisions on pages 9 to 14 and the other
schedules and appendices incorporated by reference; and
(n) "TERMS" means those portions of the Subscription Agreement headed
"Terms" and contained on pages 3 to 4.
1.2 In the Subscription Agreement, the following terms have the meanings defined
in Regulation S: "DIRECTED SELLING EFFORTS", "FOREIGN ISSUER", "SUBSTANTIAL U.S.
MARKET INTEREST", "U.S. PERSON" and "UNITED STATES".
1.3 In the Subscription Agreement, unless otherwise specified, currencies are
indicated in US dollars.
1.4 In the Subscription Agreement, other words and phrases that are capitalized
have the meanings assigned to them in the body hereof.
Subscription Agreement (with related appendices, schedules and forms)
Page 10 of 15
2. ACKNOWLEDGEMENTS, REPRESENTATIONS AND WARRANTIES OF PURCHASER
2.1 ACKNOWLEDGEMENTS CONCERNING OFFERING
The Purchaser acknowledges that:
(a) none of the Purchased Securities have been registered under the 1933
Act, or under any state securities or "blue sky" laws of any state of
the United States, and, unless so registered, may not be offered or
sold in the United States or, directly or indirectly, to U.S. Persons,
as that term is defined in Regulation S under the 1933 Act
("Regulation S"), except in accordance with the provisions of
Regulation S, pursuant to an effective registration statement under
the 1933 Act, or pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the 1933 Act and in
each case in accordance with applicable state and provincial
securities laws;
(b) the Purchaser acknowledges that the Company has not undertaken, and
will have no obligation, to register any of the Purchased Securities
under the 1933 Act, except as set out in this Agreement;
(c) the decision to execute this Agreement and acquire the Units hereunder
has not been based upon any oral or written representation as to fact
or otherwise made by or on behalf of the Company, and such decision is
based entirely upon a review of information (the receipt of which is
hereby acknowledged) which has been filed by the Company with the
Securities and Exchange Commission (the "SEC");
(d) neither the SEC nor any other securities commission or similar
regulatory authority has reviewed or passed on the merits of the
Units;
(e) there is no government or other insurance covering any of the Units;
(f) there are risks associated with an investment in the Units;
(g) the Purchaser has not acquired the Units as a result of, and will not
itself engage in, any "directed selling efforts" (as defined in
Regulation S under the 0000 Xxx) in the United States in respect of
the Units which would include any activities undertaken for the
purpose of, or that could reasonably be expected to have the effect
of, conditioning the market in the United States for the resale of any
of the Shares; provided, however, that the Purchaser may sell or
otherwise dispose of the Purchased Securities pursuant to registration
thereof under the 1933 Act and any applicable state and provincial
securities laws or under an exemption from such registration
requirements;
(h) the Purchaser and the Purchaser's advisor(s) have had a reasonable
opportunity to ask questions of and receive answers from the Company
in connection with the distribution of the Purchased Securities
hereunder, and to obtain additional information, to the extent
possessed or obtainable without unreasonable effort or expense,
necessary to verify the accuracy of the information about the Company;
(i) the books and records of the Company were available upon reasonable
notice for inspection, subject to certain confidentiality
restrictions, by the Purchaser during reasonable business hours at its
principal place of business, and all documents, records and books in
connection with the distribution of the Units hereunder have been made
available for inspection by the Purchaser, the Purchaser's lawyer
and/or advisor(s);
(j) the Purchaser will indemnify and hold harmless the Company and, where
applicable, its directors, officers, employees, agents, advisors and
shareholders, from and against any and all loss, liability, claim,
damage and expense whatsoever (including, but not limited to, any and
all fees, costs and expenses whatsoever reasonably incurred in
investigating, preparing or defending against any claim, lawsuit,
administrative proceeding or investigation whether commenced or
Subscription Agreement (with related appendices, schedules and forms)
Page 11 of 15
threatened) arising out of or based upon any representation or
warranty of the Purchaser contained herein or in any document
furnished by the Purchaser to the Company in connection herewith being
untrue in any material respect or any breach or failure by the
Purchaser to comply with any covenant or agreement made by the
Purchaser to the Company in connection therewith;
(k) the Shares are not listed on any stock exchange or automated dealer
quotation system and no representation has been made to the Purchaser
that any of the Shares will become listed on any stock exchange or
automated dealer quotation system, except that currently market makers
make a market for the Company's common shares on the NASD's OTC
Bulletin Board;
(l) the Company will refuse to register any transfer of the Purchased
Securities not made in accordance with the provisions of Regulation S,
pursuant to an effective registration statement under the 1933 Act or
pursuant to an available exemption from the registration requirements
of the 1933 Act and in accordance with applicable state and provincial
securities laws;
(m) the statutory and regulatory basis for the exemption claimed for the
offer of the Units, although in technical compliance with Regulation
S, would not be available if the offering is part of a plan or scheme
to evade the registration provisions of the 1933 Act or any applicable
state and provincial securities laws;
(n) the Purchaser has been advised to consult the Purchaser's own legal,
tax and other advisors with respect to the merits and risks of an
investment in the Units and with respect to applicable resale
restrictions, and it is solely responsible (and the Company is not in
any way responsible) for compliance with:
(i) any applicable laws of the jurisdiction in which the Purchaser is
resident in connection with the distribution of the Shares
hereunder, and
(ii) applicable resale restrictions;
(o) this Agreement is not enforceable by the Purchaser unless it has been
accepted by the Company, and the Purchaser acknowledges and agrees
that the Company reserves the right to reject any subscription for any
reason; and
(p) By executing and delivering this Agreement, each Subscriber will have
directed the Company not to include a Canadian Legend on any
certificates representing the Shares to be issued to such Subscriber.
As a consequence, the Subscriber will not be able to rely on the
resale provisions of Multilateral Instrument 45-102, and any
subsequent trade in the Securities during or after the Canadian hold
period described therein will be a distribution subject to the
prospectus and registration requirements of Canadian securities
legislation, to the extent that the trade is at that time subject to
any such Canadian securities legislation.
2.2 REPRESENTATIONS BY THE PURCHASER
The Purchaser represents and warrants to the Issuer that, as at the Agreement
Date and at the Closing:
(a) the Purchaser has the legal capacity and competence to enter into and
execute this Agreement and to take all actions required pursuant
hereto and, if the Purchaser is a corporation, it is duly incorporated
and validly subsisting under the laws of its jurisdiction of
incorporation and all necessary approvals by its directors,
shareholders and others have been obtained to authorize execution and
performance of this Agreement on behalf of the Purchaser;
(b) the entering into of this Agreement and the transactions contemplated
hereby do not result in the violation of any of the terms and
provisions of any law applicable to the Purchaser or of any agreement,
Subscription Agreement (with related appendices, schedules and forms)
Page 12 of 15
written or oral, to which the Purchaser may be a party or by which the
Purchaser is or may be bound;
(c) the Purchaser has duly executed and delivered this Agreement and it
constitutes a valid and binding agreement of the Purchaser enforceable
against the Purchaser in accordance with its terms;
(d) the Purchaser is not acquiring the Units for the account or benefit
of, directly or indirectly, any U.S. Person;
(e) the Purchaser is not a U.S. Person;
(f) the Purchaser is resident in the jurisdiction set out under the
heading "Name and Address of Purchaser" on the signature page of this
Agreement;
(g) the sale of the Units to the Purchaser as contemplated in this
Agreement complies with or is exempt from the applicable securities
legislation of the jurisdiction of residence of the Purchaser;
(h) the Purchaser is acquiring the Units for investment only and not with
a view to resale or distribution and, in particular, it has no
intention to distribute either directly or indirectly any of the
Purchased Securities in the United States or to U.S. Persons;
(i) the Purchaser is outside the United States when receiving and
executing this Agreement and is acquiring the Units as principal for
the Purchaser's own account, for investment purposes only, and not
with a view to, or for, resale, distribution or fractionalisation
thereof, in whole or in part, and no other person has a direct or
indirect beneficial interest in such Shares;
(j) the Purchaser is not an underwriter of, or dealer in, the common
shares of the Company, nor is the Purchaser participating, pursuant to
a contractual agreement or otherwise, in the distribution of the
Units;
(k) the Purchaser (i) is able to fend for him/her/itself in the
Subscription; (ii) has such knowledge and experience in business
matters as to be capable of evaluating the merits and risks of its
prospective investment in the Shares; and (iii) has the ability to
bear the economic risks of its prospective investment and can afford
the complete loss of such investment;
(l) the Purchaser acknowledges that the Purchaser has not acquired the
Units as a result of, and will not itself engage in, any "directed
selling efforts" (as defined in Regulation S under the 0000 Xxx) in
the United States in respect of the Units which would include any
activities undertaken for the purpose of, or that could reasonably be
expected to have the effect of, conditioning the market in the United
States for the resale of the Purchased Securities; provided, however,
that the Purchaser may sell or otherwise dispose of the Purchased
Securities pursuant to registration of the Purchased Securities
pursuant to the 1933 Act and any applicable state and provincial
securities laws or under an exemption from such registration
requirements and as otherwise provided herein;
(m) the Purchaser understands and agrees that none of the Purchased
Securities have been registered under the 1933 Act, or under any state
securities or "blue sky" laws of any state of the United States, and,
unless so registered, may not be offered or sold in the United States
or, directly or indirectly, to U.S. Persons except in accordance with
the provisions of Regulation S, pursuant to an effective registration
statement under the 1933 Act, or pursuant to an exemption from, or in
a transaction not subject to, the registration requirements of the
1933 Act;
(n) the Purchaser understands and agrees that offers and sales of any of
the Purchased Securities prior to the expiration of a period of one
year after the date of original issuance of the Shares (the one year
period hereinafter referred to as the "Distribution Compliance
Subscription Agreement (with related appendices, schedules and forms)
Page 13 of 15
Period") shall only be made in compliance with the safe harbor
provisions set forth in Regulation S, pursuant to the registration
provisions of the 1933 Act or an exemption therefrom, and that all
offers and sales after the Distribution Compliance Period shall be
made only in compliance with the registration provisions of the 1933
Act or an exemption therefrom and in each case only in accordance with
applicable state and provincial securities laws;
(o) the Purchaser understands and agrees not to engage in any hedging
transactions involving any of the Shares unless such transactions are
in compliance with the provisions of the 1933 Act and in each case
only in accordance with applicable state and provincial securities
laws;
(p) the Purchaser understands and agrees that the Company will refuse to
register any transfer of the Purchased Securities not made in
accordance with the provisions of Regulation S, pursuant to an
effective registration statement under the 1933 Act or pursuant to an
available exemption from the registration requirements of the 1933
Act;
(q) the Purchaser is not aware of any advertisement of any of the Units
and is not acquiring the Units as a result of any form of general
solicitation or general advertising including advertisements,
articles, notices or other communications published in any newspaper,
magazine or similar media or broadcast over radio or television, or
any seminar or meeting whose attendees have been invited by general
solicitation or general advertising; and
(r) no person has made to the Purchaser any written or oral
representations:
(i) that any person will resell or repurchase any of the Units;
(ii) that any person will refund the purchase price of any of the
Units;
(iii) as to the future price or value of any of the Units; or
(iv) that any of the Purchased Securities will be listed and posted
for trading on any stock exchange or automated dealer quotation
system or that application has been made to list and post any of
the Shares of the Company on any stock exchange or automated
dealer quotation system.
2.3 RELIANCE, INDEMNITY AND NOTIFICATION OF CHANGES
The representations and warranties in the Subscription Agreement (including the
first (cover) page, the Terms on pages 3 to 4, the General Provisions on pages 9
to 14 and the other schedules and appendices incorporated by reference) are made
by the Purchaser with the intent that they be relied upon by the Issuer in
determining its suitability as a purchaser of Purchased Securities, and the
Purchaser hereby agrees to indemnify the Issuer against all losses, claims,
costs, expenses and damages or liabilities which any of them may suffer or incur
as a result of reliance thereon. The Purchaser undertakes to notify the Issuer
immediately of any change in any representation, warranty or other information
relating to the Purchaser set forth in the Subscription Agreement (including the
first (cover) page, the Terms on pages 3 to 4, the General Provisions on pages 9
to 14 and the other schedules and appendices incorporated by reference) which
takes place prior to the Closing.
2.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties contained in this Section will survive the
Closing.
3. ISSUER'S ACCEPTANCE
The Subscription Agreement, when executed by the Purchaser, and delivered to the
Issuer, will constitute a subscription for Units which will not be binding on
the Issuer until accepted by the Issuer by executing the Subscription Agreement
in the space provided on the face page(s) of the Agreement and, notwithstanding
Subscription Agreement (with related appendices, schedules and forms)
Page 14 of 15
the Agreement Date, if the Issuer accepts the subscription by the Purchaser, the
Subscription Agreement will be entered into on the date of such execution by the
Issuer.
4. CLOSING
4.1 On or before the end of the fifth business day before the Closing Date, the
Purchaser will deliver to the Issuer the Subscription Agreement and all
applicable schedules and required forms, duly executed, and payment in full for
the total price of the Purchased Securities to be purchased by the Purchaser.
4.2 At Closing, the Issuer will deliver to the Purchaser the certificates
representing the Purchased Securities purchased by the Purchaser registered in
the name of the Purchaser or its nominee, or as directed by the Purchaser.
5. MISCELLANEOUS
5.1 The Purchaser agrees to sell, assign or transfer the Securities only in
accordance with the requirements of applicable securities laws and any legends
placed on the Securities as contemplated by the Subscription Agreement.
5.2 The Purchaser hereby authorizes the Issuer to correct any minor errors in,
or complete any minor information missing from any part of the Subscription
Agreement and any other schedules, forms, certificates or documents executed by
the Purchaser and delivered to the Issuer in connection with the Private
Placement.
5.3 The Issuer may rely on delivery by fax machine of an executed copy of this
subscription, and acceptance by the Issuer of such faxed copy will be equally
effective to create a valid and binding agreement between the Purchaser and the
Issuer in accordance with the terms of the Subscription Agreement.
5.4 Without limitation, this subscription and the transactions contemplated by
this Subscription Agreement are conditional upon and subject to the Issuer's
having obtained such regulatory approval of this subscription and the
transactions contemplated by this Subscription Agreement as the Issuer considers
necessary.
5.5 This Subscription Agreement is not assignable or transferable by the parties
hereto without the express written consent of the other party to this
Subscription Agreement.
5.6 Time is of the essence of this Subscription Agreement and will be calculated
in accordance with the provisions of the INTERPRETATION ACT (British Columbia).
5.7 Except as expressly provided in this Subscription Agreement and in the
agreements, instruments and other documents contemplated or provided for in this
Subscription Agreement, this Subscription Agreement contains the entire
agreement between the parties with respect to the Securities and there are no
other terms, conditions, representations or warranties whether expressed,
implied, oral or written, by statute, by common law, by the Issuer, or by anyone
else.
5.8 The parties to this Subscription Agreement may amend this Subscription
Agreement only in writing.
5.9 This Subscription Agreement enures to the benefit of and is binding upon the
parties to this Subscription Agreement and their successors and permitted
assigns.
5.10 A party to this Subscription Agreement will give all notices to or other
written communications with the other party to this Subscription Agreement
concerning this Subscription Agreement by hand or by registered mail addressed
to the address given on page 1.
5.11 This Subscription Agreement is to be read with all changes in gender or
number as required by the context.
5.12 This Subscription Agreement will be governed by and construed in accordance
with the internal laws of British Columbia (without reference to its rules
governing the choice or conflict of laws), and the parties hereto irrevocably
Subscription Agreement (with related appendices, schedules and forms)
Page 15 of 15
attorn and submit to the exclusive jurisdiction of the courts of British
Columbia with respect to any dispute related to this Subscription Agreement.
END OF GENERAL PROVISIONS
End of Subscription Agreement
