Contract
Exhibit
10.2
THIS
PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT (“SUBSCRIPTION AGREEMENT”) RELATES TO
AN OFFERING OF SECURITIES IN AN OFFSHORE TRANSACTION TO PERSONS WHO ARE NOT U.S.
PERSONS PURSUANT TO REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE “1933 ACT”).
NONE
OF THE SECURITIES TO WHICH THIS PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT (THE
“SUBSCRIPTION AGREEMENT”) RELATES HAVE BEEN REGISTERED UNDER THE 1933 ACT OR ANY
U.S. STATE SECURITIES LAWS AND, UNLESS SO REGISTERED, NONE MAY BE OFFERED OR
SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE 1933 ACT, 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 EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE
STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING
THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE 1933 ACT.
"UNITED STATES" AND "U.S. PERSON" ARE AS DEFINED BY REGULATION S UNDER THE 1933
ACT.
SUBSCRIPTION
AGREEMENT
FOR
CANADIAN AND NON US SUBSCRIBERS
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TO:
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Marley
Coffee Inc. (the “Company”)
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000
Xxxxx Xxxxxxx Xxxxxx., Xxxxx 000, Xxx Xxxxxxx XX
00000
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Purchase of
Shares
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1.
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Subscription
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1.1
On the basis of the representations and warranties and subject to the terms and
conditions set forth herein, (the “Subscriber”) hereby
irrevocably subscribes for and agrees to purchase shares (each a “Share” and collectively the
“Shares”), with a price
per Share of USD $1.00 (such subscription and agreement to purchase being the
“Subscription”), for an
aggregate purchase price of USD$_____________ (the “Subscription
Proceeds”).
1.2
On the basis of the representations and warranties and subject to the terms and
conditions set forth herein, the Company hereby irrevocably agrees to sell the
Shares to the Subscriber.
1.3
Subject to the terms hereof, the Subscription will be effective upon its
acceptance by the Company.
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2.
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Payment
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2.1
The Subscription Proceeds must accompany this Subscription and shall be paid by
cashiers cheque or bank draft payable to the order of Marley Coffee, drawn in
U.S. funds on a Canadian bank or on a U.S. bank that is reasonably acceptable to
the Company or, at the Subscriber’s option, by wire transfer.
2.2
The Subscriber acknowledges and agrees that this Subscription Agreement, the
Subscription Proceeds and any other documents delivered in connection herewith
will be held on behalf of the Company. In the event that this
Subscription Agreement is not accepted by the Company for whatever reason, which
the Company expressly reserves the right to do, within 30 days of the delivery
of an executed Subscription Agreement by the Subscriber, this Subscription
Agreement, the Subscription Proceeds (without interest thereon) and any other
documents delivered in connection herewith will be returned to the Subscriber at
the address of the Subscriber as set forth in this Subscription
Agreement.
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2.3
The Company is entitled to treat the Subscription Proceeds as an interest free
loan to the Company until such time as the Subscription is accepted and a
certificate representing the Shares has been issued to the
Subscriber.
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3.
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Documents Required
from Subscriber
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3.1
The Subscriber must complete, sign and return to the Company an executed copy of
this Subscription Agreement and if the subscriber is a resident of Canada an
executed copy of the Accredited Investor Questionnaire attached to this
Agreement as Exhibit “A” (the “Questionnaire”).
3.2
The Subscriber shall complete, sign and return to the Company as soon as
possible, on request by the Company, any documents, questionnaires, notices and
undertakings as may be required by regulatory authorities, the OTC Bulletin
Board and applicable law.
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4.
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Closing
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4.1
Closing of the offering of the Shares (the “Closing”) shall occur on or
before February 28, 2008, or on such later date as may be determined by the
Company (the “Closing
Date”).
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5.
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Acknowledgements of
Subscriber
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5.1
The Subscriber acknowledges and agrees that:
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(a)
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none
of the Shares have been or, except as otherwise expressly set forth in
this Agreement, will be 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 only in accordance with
applicable state securities laws;
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(b)
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other
than as set out herein, the Company has not undertaken to, and will have
no obligation to, register any of the Shares under the 1933 Act or any
other securities legislation;
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(c)
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it
has received and carefully read this Subscription
Agreement;
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(d)
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if
the Subscriber is a resident of Canada, by completing the Questionnaire,
the Subscriber is representing and warranting that the Subscriber is not a
resident of the United States and that the subscriber is an “Accredited
Investor”, as that term is defined in National Instrument 45-106, as
adopted by the British Columbia Securities
Commission;
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(e)
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no
prospectus or offering memorandum within the meaning of the securities
laws has been delivered to, summarized for or seen by the Subscriber (and,
if applicable, others for whom it is contracting hereunder) in connection
with the Offering and the Subscriber (and, if applicable, others for whom
it is contracting hereunder) is not aware of any prospectus or offering
memorandum having been prepared by the
Company;
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(f)
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the
decision to execute this Subscription Agreement and acquire the Shares
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 adequacy of which is
hereby acknowledged) about the Company that is available to any member of
the public on the XXXXX database maintained by the U.S. Securities and
Exchange Commission (the “SEC”) at
xxx.xxx.xxx;
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(g)
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it
has not received, nor has it requested, nor does it have any need to
receive, any offering memorandum (as defined in or contemplated by
applicable securities legislation) or any other document (other than
financial statements or any other continuous disclosure documents, the
contents of which are prescribed by statute or regulation) describing the
business and affairs of the Company which has been prepared for delivery
to, and review by, prospective subscribers in order to assist them in
making an investment decision in respect of the Shares, and it has not
become aware of any advertisement including, by way of example and not in
limitation, advertisement in any printed media of general and regular
circulation or on radio or television with respect to the distribution of
the Shares;
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(h)
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it
and its advisor(s) have had a reasonable opportunity to ask questions of
and receive answers from the Company in connection with the sale of the
Shares hereunder, and to obtain additional information, to the extent
possessed or obtainable by the Company without unreasonable effort or
expense;
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(i)
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the
books and records of the Company were available upon reasonable notice for
inspection, subject to certain confidentiality restrictions, by the
Subscriber during reasonable business hours at its principal place of
business and that all documents, records and books in connection with the
sale of the Shares hereunder have been made available for inspection by
him and his attorney and/or
advisor(s);
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(j)
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all
information which the Subscriber has provided to the Company is correct
and complete as of the date the Subscription Agreement is signed, and if
there should be any change in such information prior to this Subscription
Agreement being executed by the Company, the Subscriber will immediately
provide the Company with such
information;
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(k)
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the
Company is entitled to rely on the representations and warranties of the
Subscriber contained in this Subscription Agreement and the Subscriber
will hold harmless the Company from any loss or damage it or they may
suffer as a result of the Subscriber’s failure to correctly complete this
Subscription Agreement;
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(l)
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if
the Subscriber is a resident of Canada, the Company has advised the
Subscriber that the Company is relying on an exemption from the
requirements of the regulatory authorities in Canada requiring that the
Company provide the Subscriber with a prospectus and sell the Shares to
the Subscriber through a person registered to sell securities under the
securities laws of the Canadian Province where the Subscriber resides and,
as a consequence of acquiring the Shares pursuant to this exemption,
certain protections, rights and remedies provided by the securities laws
of that Canadian Province, including statutory rights of rescission or
damages, will not be available to the
Subscriber;
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(m)
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the
Subscriber has not acquired the Shares as a result of, and will not itself
engage in, any “directed selling efforts” (as that term is defined in
Regulation S) in the United States in respect of the Shares 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 Shares; provided, however, that
the Subscriber may sell or otherwise dispose of the Shares pursuant to
registration thereof under the 1933 Act and any applicable state and
provincial Shares laws or under an exemption from such registration
requirements;
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(n)
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the
Subscriber will indemnify and hold harmless the Company and, where
applicable, its respective 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
threatened) arising out of or based upon any representation or warranty of
the Subscriber contained herein or in any document furnished by the
Subscriber to the Company in connection herewith being untrue in any
material respect or any breach or failure by the Subscriber to comply with
any covenant or agreement made by the Subscriber to the Company in
connection therewith;
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(o)
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the
statutory and regulatory basis for the exemption from U.S. registration
requirements claimed for the offer of the Shares, 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 or provincial securities
laws;
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(p)
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the
Subscriber has been advised to consult the Subscriber’s own legal, tax and
other advisors with respect to the merits and risks of an investment in
the Shares and with respect to applicable resale restrictions, and it is
solely responsible (and the Company is not in any way responsible) for
compliance with:
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(i)
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any
applicable laws of the jurisdiction in which the Subscriber is resident in
connection with the distribution of the Shares hereunder,
and
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(ii)
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applicable
resale restrictions;
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(q)
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none
of the Shares are listed on any stock exchange or automated dealer
quotation system and no representation has been made to the Subscriber
that any of the Shares will become listed on any stock exchange or
automated dealer quotation system, except that currently certain market
makers make market in the common shares of the Company on the National
Association of Securities Dealers, Inc.’s OTC Bulletin
Board;
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(r)
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if
the Subscriber is a resident of Canada, in addition to resale restrictions
imposed under U.S. securities laws, there are additional restrictions on
the Subscriber’s ability to resell the Shares under Canadian provincial
securities laws and Canadian National Instrument
45-102;
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(s)
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the
Company will refuse to register any transfer of the Shares 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 each
case in accordance with applicable state securities
laws;
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(t)
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neither
the SEC nor any other securities commission or similar regulatory
authority has reviewed or passed on the merits of the
Shares;
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(u)
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no
documents in connection with the sale of the Shares hereunder have been
reviewed by the SEC or any state securities
administrators;
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(v)
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there
is no government or other insurance covering any of the
Shares;
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(w)
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the
issuance and sale of the Shares to the Subscriber will not be completed if
it would be unlawful or if, in the discretion of the Company acting
reasonably, it is not in the best interests of the Company;
and
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(x)
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this
Subscription Agreement is not enforceable by the Subscriber unless it has
been accepted by the Company.
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6.
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Representations,
Warranties and Covenants of the
Subscriber
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6.1
The Subscriber hereby represents and warrants to and covenants with the Company
(which representations, warranties and covenants shall survive the Closing)
that:
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(a)
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the
Subscriber has the legal capacity and competence to enter into and execute
this Subscription Agreement and to take all actions required pursuant
hereto and, if the Subscriber 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 Subscription
Agreement on behalf of the
Subscriber;
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(b)
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if
the Subscriber is a corporation or other entity, the entering into of this
Subscription Agreement and the transactions contemplated hereby do not and
will not result in the violation of any of the terms and provisions of any
law applicable to, or the constating documents of, the Subscriber or of
any agreement, written or oral, to which the Subscriber may be a party or
by which the Subscriber is or may be
bound;
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(c)
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the
Subscriber has duly executed and delivered this Subscription Agreement and
it constitutes a valid and binding agreement of the Subscriber enforceable
against the Subscriber;
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(d)
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the
Subscriber is not a U.S. Person, as that term is defined in Regulation
S;
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(e)
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the
Subscriber is not acquiring the Shares for the account or benefit of,
directly or indirectly, any U.S. Person, as that term is defined in
Regulation S;
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(f)
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if
the Subscriber is a resident of Canada, the Subscriber is an Accredited
Investor (as defined in National Instrument 45-106) and the Subscriber
agrees that the Company shall not consider the Subscriber's Subscription
for acceptance unless the undersigned provides to the Company, along with
an executed copy of this Agreement:
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(i)
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a
fully completed and executed Questionnaire in the form attached as Exhibit
A hereto; and
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(ii)
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such
other supporting documentation that the Company or its legal counsel may
request to establish the Subscriber's qualification as an Accredited
Investor;
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(g)
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the
Subscriber is resident in the jurisdiction set out under the heading “Name
and Address of Subscriber” on the signature page of this Subscription
Agreement;
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(h)
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the
sale of the Shares to the Subscriber as contemplated in this Subscription
Agreement complies with or is exempt from the applicable securities
legislation of the jurisdiction of residence of the
Subscriber;
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(i)
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the
Subscriber is outside the United States when receiving and executing this
Agreement and is acquiring the Shares as principal for the Subscriber'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;
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(j)
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the
decision to execute this Agreement and acquire the Shares hereunder has
not been based upon any oral or written representation as to fact or
otherwise made by or on behalf of the
Company;
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(k)
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the
Subscriber is acquiring the Shares as principal for its own account for
investment purposes only and not for the account of any other person and
not for distribution, assignment or resale to others, and no other person
has a direct or indirect beneficial interest in such Shares, and it has
not subdivided its interest in the Shares with any other
person;
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(l)
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the
Subscriber is aware that an investment in the Company is speculative and
involves certain risks, including the possible loss of the entire
investment and it has carefully read and considered the matters set forth
under the heading “Risk Factors” appearing in the Company’s Form 10-KSB
and any other filings filed with the
SEC;
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(m)
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the
Subscriber has made an independent examination and investigation of an
investment in the Shares and the Company and has depended on the advice of
its legal and financial advisors and agrees that the Company will not be
responsible in any way whatsoever for the Subscriber’s decision to invest
in the Shares and the Company;
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(n)
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the
Subscriber (i) has adequate net worth and means of providing for its
current financial needs and possible personal contingencies, (ii) has no
need for liquidity in this investment, and (iii) is able to bear the
economic risks of an investment in the Shares for an indefinite period of
time;
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(o)
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the
Subscriber understands and agrees that the Company and others will rely
upon the truth and accuracy of the acknowledgements, representations and
agreements contained in this Subscription Agreement and agrees that if any
of such acknowledgements, representations and agreements are no longer
accurate or have been breached, the Subscriber shall promptly notify the
Company;
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(p)
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the
Company is entitled to rely on the representations and warranties of the
Subscriber contained in this Agreement and the Questionnaire and the
Subscriber 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 threatened) arising out
of or based upon any representation or warranty of the Subscriber
contained herein, the Questionnaire or in any document furnished by the
Subscriber to the Company in connection herewith being untrue in any
material respect or any breach or failure by the Subscriber to comply with
any covenant or agreement made by the Subscriber to the Company in
connection therewith;
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(q)
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the
Subscriber has the legal capacity and competence to enter into and execute
this Subscription Agreement and to take all actions required pursuant
hereto;
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(r)
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the
Subscriber has duly executed and delivered this Subscription Agreement and
it constitutes a valid and binding agreement of the Subscriber enforceable
against the Subscriber in accordance with its
terms;
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(s)
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it
is not an underwriter of, or dealer in, the common shares of the Company,
nor is the Subscriber participating, pursuant to a contractual agreement
or otherwise, in the distribution of the Shares or any of
them;
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(t)
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the
Subscriber understands and agrees that none of the Shares have been or
will, except as set forth in this Agreement, be 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, 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
only in accordance with applicable state securities
laws;
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(u)
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the
Subscriber acknowledges that the Subscriber has not acquired the Shares as
a result of, and will not itself engage in, any “directed selling efforts”
(as defined in Regulation S) in the United States in respect of the Shares
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 Shares; provided,
however, that the Subscriber may sell or otherwise dispose of the Shares
pursuant to registration of the Shares 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;
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(v)
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the
Subscriber understands and agrees that offers and sales of any of the
Shares 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 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;
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(w)
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the
Subscriber 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;
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(x)
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the
Subscriber understands and agrees that the Company will refuse to register
any transfer of the Shares 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;
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(y)
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the
Subscriber is not aware of any advertisement of, or any general
solicitation in respect of, any of the Shares;
and
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(z)
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no
person has made to the Subscriber any written or oral
representations:
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(i)
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that
any person will resell or repurchase any of the
Shares;
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(ii)
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that
any person will refund the purchase price of any of the
Shares;
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(iii)
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as
to the future price or value of any of the Shares;
or
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(iv)
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that
any of the Shares 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 on any stock exchange or automated
dealer quotation system; except that the Company’s Common Stock is
currently approved for trading on the U.S. Over the Counter Bulletin
Board.
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6.2
In this Subscription Agreement, the term “U.S. Person” shall have the meaning
ascribed thereto in Regulation S.
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7.
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Representations and
Warranties will be Relied Upon by the
Company
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7.1
The Subscriber acknowledges that the representations and warranties contained
herein are made by it with the intention that such representations and
warranties may be relied upon by the Company and its legal counsel in
determining the Subscriber’s eligibility to purchase the Shares under applicable
securities legislation, or (if applicable) the eligibility of others on whose
behalf it is contracting hereunder to purchase the Shares under applicable
securities legislation. The Subscriber further agrees that by
accepting delivery of the certificates representing the Shares on the Closing
Date, it will be representing and warranting that the representations and
warranties contained herein are true and correct as at the Closing Date with the
same force and effect as if they had been made by the Subscriber on the Closing
Date and that they will survive the purchase by the Subscriber of the Shares and
will continue in full force and effect notwithstanding any subsequent
disposition by the Subscriber of such Shares.
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8.
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Resale
Restrictions
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8.1
The Subscriber acknowledges that any resale of the Shares will be subject to
resale restrictions contained in the securities legislation applicable to each
Subscriber or proposed transferee. The Subscriber acknowledges that
the Shares have not been registered under the 1933 Act of the securities laws of
any state of the United States. The Shares may not be offered or sold
in the United States unless registered in accordance with United States federal
securities laws and all applicable state securities laws or exemptions from such
registration requirements are available.
8.2
The Subscriber acknowledges that restrictions on the transfer, sale or other
subsequent disposition of the Shares by the Subscriber may be imposed by
securities laws in addition to any restrictions referred to in Section
8.1
above.
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9.
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Acknowledgement and
Waiver
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9.1
The Subscriber has acknowledged that the decision to purchase the Shares was
solely made on the basis of information available to the Subscriber on the XXXXX
database maintained by the SEC at xxx.xxx.xxx. The
Subscriber hereby waives, to the fullest extent permitted by law, any rights of
withdrawal, rescission or compensation for damages to which the Subscriber might
be entitled in connection with the distribution of the Shares.
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10.
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Legending of Subject
Shares
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10.1
The Subscriber hereby acknowledges that that upon the issuance thereof, and
until such time as the same is no longer required under the applicable
securities laws and regulations, the certificates representing any of the Shares
will bear a U.S. legend in substantially the following form (the “U.S. Legend”):
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“THESE SHARES WERE ISSUED 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”). ACCORDINGLY, NONE OF THE
SHARES TO WHICH THIS CERTIFICATE RELATES HAVE BEEN REGISTERED UNDER THE
1933 ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED,
NONE MAY BE OFFERED OR SOLD IN THE UNITED STATES (AS DEFINED HEREIN) OR,
DIRECTLY OR INDIRECTLY, TO U.S. PERSONS (AS DEFINED HEREIN) EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS
INVOLVING THE SHARES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE
1933 ACT. “UNITED STATES" AND "U.S. PERSON" ARE AS DEFINED BY REGULATION S
UNDER THE 1933 ACT.”
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10.2
The Subscriber hereby acknowledges and agrees to the Company making a notation
on its records or giving instructions to the registrar and transfer agent of the
Company in order to implement the restrictions on transfer set forth and
described in this Subscription Agreement.
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11.
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Costs
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11.1
The Subscriber acknowledges and agrees that all costs and expenses incurred by
the Subscriber (including any fees and disbursements of any special counsel
retained by the Subscriber) relating to the purchase of the Shares shall be
borne by the Subscriber.
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12.
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Indemnification.
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12.1
Indemnification by the
Company. The Company shall, notwithstanding any termination of
this Agreement, indemnify and hold harmless the Subscriber, the officers,
directors, agents, brokers (including brokers who offer and sell Shares as
principal as a result of a pledge or any failure to perform under a margin call
of Common Stock), investment advisors and employees of the Subscriber, each
person who controls the Subscriber (within the meaning of Section 15 of the 1933
Act or Section 20 of the Exchange Act) and the officers, directors, agents and
employees of each such controlling person, to the fullest extent permitted by
applicable law, from and against any and all losses, claims, damages,
liabilities, costs (including, without limitation, costs of preparation and
attorneys' fees) and expenses (collectively, "Losses"), as incurred,
arising out of or relating to any untrue or alleged untrue statement of a
material fact contained in any prospectus or any form of prospectus or in any
amendment or supplement thereto or in any preliminary prospectus, or arising out
of or relating to any omission or alleged omission of a material fact required
to be stated therein or necessary to make the statements therein (in the case of
any prospectus or form of prospectus or supplement thereto, in the light of the
circumstances under which they were made) not misleading, except to the extent,
but only to the extent, that (i) such untrue statements or omissions are based
solely upon information regarding the Subscriber furnished to the Company by or
on behalf of the Subscriber expressly for use therein, and (ii) that the
foregoing indemnity agreement is subject to the condition that, insofar as it
relates to any untrue statement, allegedly untrue statement, omission or alleged
omission made in any preliminary prospectus but eliminated or remedied in the
final prospectus (filed pursuant to Rule 172 or Rule 424 of the 1933 Act), such
indemnity agreement shall not inure to the benefit of the Subscriber or any
underwriter, broker or other person acting on behalf of holders of the Shares,
from whom the person asserting any loss, claim, damage, liability or expense
purchased the Shares which are the subject thereof, if a copy of such final
prospectus had been made available to such person and the Subscriber or such
underwriter, broker or other person acting on behalf of the Subscriber and such
final prospectus was not delivered to such person with or prior to the written
confirmation of the sale of such Shares to such person. The Company
shall notify the Subscriber promptly of the claim, threat or assertion of any
proceeding of which the Company is aware in connection with the transactions
contemplated by this Agreement.
12.2
Indemnification by
Subscriber. The Subscriber shall, severally and not jointly,
indemnify and hold harmless the Company, its directors, officers, agents and
employees, each person who controls the Company (within the meaning of Section
15 of the 1933 Act and Section 20 of the Exchange Act), and the directors,
officers, agents and employees of such controlling persons, to the fullest
extent permitted by applicable law, from and against all Losses (as determined
by a court of competent jurisdiction in a final judgment not subject to appeal
or review), as incurred, arising out of or based upon any untrue statement of a
material fact contained in any prospectus, or any form of prospectus, or arising
out of or based upon any omission of a material fact required to be stated
therein or necessary to make the statements therein (in the case of any
prospectus or form of prospectus or supplement thereto, in the light of the
circumstances under which they were made) not misleading, to the extent, but
only to the extent, that such untrue statement or omission is contained in any
information so furnished by the Subscriber to the Company specifically for
inclusion in any prospectus.
12.3
Contribution. If
a claim for indemnification under Section 15.1 or 15.2 is unavailable to an
indemnified party because of a failure or refusal of a governmental authority to
enforce such indemnification in accordance with its terms (by reason of public
policy or otherwise), then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such Losses, in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying party
on the one hand and the indemnified party on the other from the offering of the
Shares. If, but only if, the allocation provided by the foregoing
sentence is not permitted by applicable law, the allocation of contribution
shall be made in such proportion as is appropriate to reflect not only the
relative benefits referred to in the foregoing sentence but also the relative
fault, as applicable, of the indemnifying party and indemnified party in
connection with the actions, statements or omissions that resulted in such
Losses as well as any other relevant equitable considerations. The
relative fault of such indemnifying party and indemnified party shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission of a material fact, has been taken or made by, or relates to
information supplied by, such indemnifying party or indemnified party, and
the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses shall be deemed to include any
reasonable attorneys' or other reasonable fees or expenses incurred by such
party in connection with (i) any proceeding to the extent such party would have
been indemnified for such fees or expenses if the indemnification provided for
in this Section was available to such party in accordance with its terms or (ii)
enforcing any rights under this Section 15.
-8-
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 15.3 were determined by pro rata allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the immediately preceding paragraph. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
The
indemnity and contribution agreements contained in this Section are in addition
to any liability that the indemnifying parties may have to the indemnified
parties.
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13.
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Governing
Law
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13.1
This Subscription Agreement is governed by the laws of the State of Nevada and
the federal laws of the United States applicable therein.
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14.
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Survival
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14.1
This Subscription Agreement, including without limitation the representations,
warranties and covenants contained herein, shall survive and continue in full
force and effect and be binding upon the parties hereto notwithstanding the
completion of the purchase of the Shares by the Subscriber pursuant
hereto.
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15.
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Assignment
|
15.1
This Subscription Agreement is not transferable or assignable.
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16.
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Severability
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16.1
The invalidity or unenforceability of any particular provision of this
Subscription Agreement shall not affect or limit the validity or enforceability
of the remaining provisions of this Subscription Agreement.
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17.
|
Entire
Agreement
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17.1
Except as expressly provided in this Subscription Agreement and in the
agreements, instruments and other documents contemplated or provided for herein,
this Subscription Agreement contains the entire agreement between the parties
with respect to the sale of the Shares and there are no other terms, conditions,
representations or warranties, whether expressed, implied, oral or written, by
statute or common law, by the Company or by anyone else.
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18.
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Notices
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18.1
All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Subscriber shall be directed to the
address on the signature page of this Subscription Agreement and notices to the
Company shall be directed to it at Marley Coffee 000 Xxxxx Xxxxxxx. Xxxxx 000,
Xxx Xxxxxxxx, XX 00000 Attention: President.
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19.
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Counterparts and
Electronic Means
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19.1
This Subscription Agreement may be executed in any number of counterparts, each
of which, when so executed and delivered, shall constitute an original and all
of which together shall constitute one instrument. Delivery of an
executed copy of this Subscription Agreement by electronic facsimile
transmission or other means of electronic communication capable of producing a
printed copy will be deemed to be execution and delivery of this Subscription
Agreement as of the date hereinafter set forth.
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20.
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Delivery
Instructions
|
20.1
The Subscriber hereby directs the Company to deliver the Certificate evidencing
the Shares to:
(name)
(address)
20.2
The Subscriber hereby directs the Company to cause the Shares to be registered
on the books of the Company as follows:
(name)
(address)
20.3
The undersigned hereby acknowledges that it will deliver to the Company all such
additional completed forms in respect of the Subscriber’s purchase of the Shares
as may be required for filing with the appropriate securities commissions and
regulatory authorities.
IN WITNESS WHEREOF the
Subscriber has duly executed this Subscription Agreement as of the date of
acceptance by the Company.
Print Name of Subscriber
By:
Print Address of
Subscriber:
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A
C C E P T A N C E
The
above-mentioned Subscription Agreement in respect of the Shares is hereby
accepted by Marley Coffee Inc.
DATED at
_____________________________________, the ________ day of __________,
2008.
MARLEY
COFFEE INC.
Per:
Authorized Signatory
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EXHIBIT
A
ACCREDITED
INVESTOR QUESTIONNAIRE
FOR
CANADIAN INVESTORS ONLY
NATIONAL INSTRUMENT
45-106
The
purpose of this Questionnaire is to assure Marley Coffee Inc. (the “Issuer”)
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 members of the Canadian Securities
Administrators, in respect of a proposed private placement of securities by the
Issuer (the “Transaction”). The Issuer will rely on the information
contained in this Questionnaire for the purposes of such
determination.
The
undersigned Subscriber covenants, represents and warrants to the Issuer
that:
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1.
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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;
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2.
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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):
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(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);
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(b)
the Business Development Bank of Canada incorporated under the Business Development Bank
Act (Canada);
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(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;
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(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);
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(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);
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(f)
the government of Canada or a province, or any crown corporation or agency
of the government of Canada or a
province;
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(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
Québec;
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(h)
a national, federal, state, provincial, territorial or municipal
government of or in any foreign jurisdiction, or any agency
thereof;
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(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;
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(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 CDN$1,000,000;
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(k)
an individual whose net income before taxes exceeded CDN$200,000 in each
of the two more recent calendar years or whose net income before taxes
combined with that of a spouse exceeded $300,000 in each of those years
and who, in either case, reasonably expects to exceed that net income
level in the current calendar year;
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-12-
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(l)
an individual who, either alone or with a spouse, has net assets of at
least CDN $5,000,000;
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(m)
a person, other than a person or investment fund, that had net assets of
at least CDN$5,000,000 as reflected on its most recently prepared
financial statements;
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(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;
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(o)
an investment fund that distributes or has distributed securities under a
prospectus in a jurisdiction of Canada for which the regulator or, in
Québec, the securities regulatory authority, has issued a
receipt;
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(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;
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(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;
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(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;
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(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;
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(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.
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(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
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(v)
a person that is recognized or designated by the securities regulatory
authority as an accredited investor or, in Alberta or B.C., an exempt
purchaser,
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8
The
Subscriber acknowledges and agrees that the Subscriber may be required by the
Issuer to provide such additional documentation as may be reasonably required by
the Issuer 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 ________ day of __________________,
2008.
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If
a Corporation, Partnership or Other Entity:
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If
an Individual:
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|
Print
or Type Name of Entity
|
Signature
|
|
Signature
of Authorized Signatory
|
Print
or Type Name
|
|
Type
of Entity
|
-13-
