SUBSCRIPTION AGREEMENT THIS SUBSCRIPTION AGREEMENT made as of the 8 day of JUNE, 2021;
Exhibit 10.1.1.2
THIS SUBSCRIPTION AGREEMENT made as of the 8 day of JUNE, 2021;
B E T W E E N :
METAMATERIAL INC., an Ontario corporation (the “Company”)
OF THE FIRST PART
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RANK INCORPORATED
(the “Subscriber”)
OF THE SECOND PART
WHEREAS the Subscriber wishes to subscribe for 993,490 common shares in the capital of the Company (the “Purchased Shares”), on and subject to the terms set out in this Subscription Agreement;
WHEREAS in consideration of its subscription for the Purchased Shares, the Subscriber has (a) amended the lease between the Subscriber and the Company relating to the Subscriber’s Highfield Facility located in Dartmouth, Nova Scotia (the “Lease”) to (i) expanded the space leased to the Company pursuant to the Lease by approximately 15,000 square feet to approximately 68,000 square feet, and (ii) reduced the annual rent payable under the Lease for the remainder of its term by an aggregate amount of $2,877,867 (the amendments to the Lease in (a)(i) and (a)(ii) collectively being the “Lease Amendments”), and (b) paid or will pay to the Company $500,000 for on-going tenant improvements (the “Tenant Payment” and together with the Lease Amendments, the “Consideration”);
WHEREAS the parties have the determined that the Consideration has an aggregate fair value equal to the value of the Purchased Shares;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the respective covenants and agreements of the parties contained herein, and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows:
1. SUBSCRIPTION
1.1 Subscription. The Subscriber hereby irrevocably subscribes for and agrees to purchase from the Company, and the Company hereby sells and issues to the Subscriber, the Purchased Shares at a price per Purchased Share of $3.40 (the “Subscription Price”).
1.2 Subscription Price. The obligation to pay the aggregate Subscription Price for the Purchased Shares shall be satisfied by the Consideration. The parties hereby acknowledge that the Consideration has an aggregate fair value equal to the value of the Purchased Shares. For greater certainty, the Company has determined that the Consideration has a fair value that is not less than the fair equivalent of the money that the Company would have received if the Purchased Shares had been issued for cash consideration.
2. SECURITIES LAWS
2.1 No Offering Memorandum. The Company acknowledges that is has not provided to the Subscriber any form of offering memorandum relating to the Company or the Purchased Shares. The Subscriber acknowledges that it has not received any form of offering memorandum relating to the Company or the Purchased Shares, and that the terms and conditions applicable to the sale and delivery of the Purchased Shares are contained in this Subscription Agreement.
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3. CLOSING
3.1 Closing. Delivery of the Purchased Shares will be completed at the offices of the Company’s solicitors (“Closing”) on June , 2021 or on such other date as determined by the Company in its sole discretion.
3.2 Direction. The Subscriber hereby directs the Company to register the holder of the Purchased Shares subscribed for herein on the books of the Company in the name of the Subscriber.
4. REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of the Company. By accepting this Subscription Agreement, the Company will be deemed to have represented and warranted to the Subscriber as follows:
4.2 Representations and Warranties of the Subscriber. The Subscriber hereby acknowledges, represents, warrants and covenants to the Company as follows:
A. any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
B. any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction;
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“Unless permitted under securities legislation, the holder of this security must not trade the security before October 10, 2021.”
4.3 Reliance on Representations and Warranties of the Subscriber. The Subscriber acknowledges that the representations, warranties and covenants contained in this Agreement, including the schedules attached hereto, are made by the Subscriber with the intent that they may be relied upon by the Company in determining, among other things, the Subscriber’s eligibility to purchase the Purchased Shares.
5. GENERAL PROVISIONS
5.1 Survival. The parties agree that the provisions of 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 Subscriber and the Company, notwithstanding the completion of the purchase of the Purchased Shares by the Subscriber pursuant hereto and any subsequent disposition by the Subscriber of any of the Purchased Shares.
5.2 Assignment. Neither party may assign this Agreement without the prior written consent of the other party.
5.3 Notice. Any notice or other communication required or permitted to be given pursuant to this Agreement shall be in writing, shall be addressed to the relevant party at the address set out herein for such party, and shall be given by prepaid first-class mail or by hand-delivery as hereinafter provided. Any such notice or other communication, if mailed by prepaid first-class mail at any time other than during a general discontinuance of postal service due to strike, lockout or otherwise, shall be deemed to have been received on the fourth Business Day after the post-marked date thereof, or if delivered by hand shall be deemed to have been received at the time it is delivered to the applicable address set out herein for such party to an individual at such address having apparent authority to accept deliveries on behalf of the addressee. Notice of a change of address shall also be governed by this section. In the event of a general discontinuance of postal service due to strike, lock-out or otherwise, notices or other communications shall be delivered by hand and shall be deemed to have been received in accordance with this section.
5.4 Further Assurances. The Subscriber agrees that it will promptly do, make, execute or deliver, or cause to be done, made, executed or delivered, all such further acts, documents and things as the Company may reasonably require from time to time for the purpose of
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giving effect to the provisions of this Subscription Agreement and the Subscriber agrees that it will use reasonable efforts and take all such steps as may be reasonably within its power to implement to their full extent the provisions of this Subscription Agreement.
5.5 Governing Law. This Subscription Agreement shall be governed by the laws of the Province of Ontario and by the laws of Canada applicable therein and each of the Subscriber and the Company hereby submits to the non-exclusive jurisdiction of the Province of Ontario in connection with this Subscription Agreement.
5.6 Enurement. This Agreement shall enure to the benefit of, and be binding upon, the parties hereto and their respective heirs, administrators, estate trustees, successors, affiliates and permitted assigns.
5.7 Gender and Number. In this Subscription Agreement, unless the context otherwise requires, words importing the singular include the plural and vice versa and words importing one gender include all genders.
5.8 Currency. In this Subscription Agreement, all amounts are stated and payable in Canadian currency.
5.9 Invalidity of Provisions. Each of the provisions contained in this Subscription Agreement is distinct and severable and a declaration of invalidity or unenforceability of any such provision by a court of competent jurisdiction shall not affect the validity or enforceability of any other provision of this Subscription Agreement.
5.10 Counterparts. This Subscription Agreement may be signed in counterparts and each of such counterparts shall constitute an original document and such counterparts, when taken together, shall constitute one and the same instrument.
5.11 Electronic Delivery. Each party shall be entitled to rely on delivery by facsimile, pdf or other electronic format of an executed copy of this Subscription Agreement, and acceptance by a party of such copy shall be legally effective to create a valid and binding agreement between the Subscriber and the Company in accordance with the terms of this Subscription Agreement.
[Signature page to follow.]
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IN WITNESS WHEREOF the Subscriber and the Company have duly executed this Subscription Agreement as of the date above first written.
METAMATERIAL INC. |
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Per: |
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Name: |
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Title: |
RANK INCORPORATED |
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Per: |
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Name: Xxxxxx Xxxxx |
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Title: Secretary |
319188.00003/112949640.6
SCHEDULE A
ACCREDITED INVESTOR STATUS CERTIFICATE
The categories listed herein contain certain specifically defined terms. If you are unsure as to the meanings of those terms, or are unsure as to the applicability of any category below, please contact your broker and/or legal advisor before completing this certificate. Capitalized terms used but not defined herein have the meanings ascribed thereto in the Subscription Agreement to which this Schedule A is attached.
In connection with the purchase by the undersigned Subscriber of the Purchased Shares, the Subscriber, on its own behalf hereby represents, warrants, covenants and certifies to Metamaterial Inc. (the “Company”) (and acknowledges that the Company and its counsel are relying thereon) that:
(PLEASE CHECK THE BOX OF THE APPLICABLE CATEGORY OF ACCREDITED INVESTOR)
**If you check box (i), (k) or (l), you must also complete attached Exhibit I - Risk Acknowledgement Form**
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(a) |
except in Ontario, a Canadian financial institution, or a Schedule III bank; |
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(a.l) |
in Ontario, a financial institution that is (i) a bank listed in Schedule I, II or III of the Bank Act (Canada); (ii) an association to which the Cooperative Credit Associations Act (Canada) applies or a central cooperative credit society for which an order has been made under subsection 473(1) of that Act; or (iii) a loan corporation, trust company, trust corporation, insurance company, treasury branch, credit union, caisse populaire, financial services cooperative or credit union league or federation that is authorized by a statute of Canada or Ontario to carry on business in Canada or Ontario, as the case may be; |
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(b) |
except in Ontario, the Business Development Bank of Canada incorporated under the Business Development Bank of Canada Act (Canada); |
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(c) |
a subsidiary of any person or company referred to in paragraphs (a), (a.l) or (b), if the person or company 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) |
a person or company registered under the securities legislation of a jurisdiction (province or territory) of Canada as an adviser or dealer; |
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(e) |
an individual 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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(e.l) |
an individual formerly registered under the securities legislation of a jurisdiction of Canada, other than an individual formerly registered solely as a representative of a limited market dealer under one or both of the Securities Act (Ontario) or the Securities Act (Newfoundland and Labrador); |
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(f) |
the Government of Canada or a jurisdiction (province or territory) of Canada, or any crown corporation, agency or wholly owned entity of the Government of Canada or a jurisdiction (province or territory) of Canada; |
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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 scolaire de Pile de Montreal or an intermunicipal management board in Quebec; |
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(h) |
any national, federal, state, provincial, territorial or municipal government of or in any foreign jurisdiction, or any agency of that government; |
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(i) |
a pension fund that is regulated by either the Office of the Superintendent of Financial Institutions (Canada), a pension commission or similar regulatory authority of a jurisdiction (province or territory) of Canada; |
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(j) |
an individual who, either alone or with a spouse, beneficially owns financial assets having an aggregate realizable value that, before taxes, but net of any related liabilities, exceeds $1,000,000; [PLEASE ALSO COMPLETE SECTIONS 2-4 OF EXHIBIT I] |
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(j.1) |
an individual who beneficially owns financial assets having an aggregate realizable value that, before taxes but net of any related liabilities, exceeds $5,000,000; |
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(k) |
an individual whose net income before taxes exceeded $200,000 in each of the two most recent calendar years or whose net income before taxes combined with that of a spouse exceeded $300,000 in each of the two most recent calendar years and who, in either case, reasonably expects to exceed that net income level in the current calendar year; [PLEASE ALSO COMPLETE SECTIONS 2-4 OF EXHIBIT I] |
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(l) |
an individual who, either alone or with a spouse, has net assets of at least $5,000,000; [PLEASE ALSO COMPLETE SECTIONS 2-4 OF EXHIBIT I] |
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(m) |
a person, other than an individual or investment fund, that has net assets of at least $5,000,000 as shown on its most recently prepared financial statements; |
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(n) |
an investment fund that distributes or has distributed its securities only to (i) a person that is or was an accredited investor at the tune of the distribution, (ii) a person that acquires or acquired securities in the circumstances referred to in sections 2.10 [Minimum amount investment] or 2.19 [Additional investment in investment funds} of NI 45-106, or (iii) a person described in sub- paragraph (i) or (ii) that acquires or acquired securities under section 2.18 [Investment fund reinvestment} 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 Quebec, 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 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; |
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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 adviser or an adviser 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 to be owned by directors, are persons that are accredited investors; |
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(u) |
an investment fund that is advised by a person registered as an adviser or a person that is exempt from registration as an adviser; |
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(v) |
(i) a person that is recognized or designated by the securities regulatory authority or, except in Ontario and Québec, the regulator as an accredited investor; or (ii) in Ontario, a person that is recognized or designated by the Ontario Securities Commission as an accredited investor; or |
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(w) |
a trust established by an accredited investor for the benefit of the accredited investor’s family members of which a majority of the trustees are accredited investors and all of the beneficiaries are the accredited investor’s spouse, a former spouse of the accredited investor or a parent, grandparent, brother, sister, child or grandchild of that accredited investor, of that accredited investor’s spouse or of that accredited investor’s former spouse. |
For the purposes hereof, the following definitions are included for convenience:
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In NI 45-106 a person or company is considered to be an affiliated entity of another person or company if one is a subsidiary entity of the other, or if both are subsidiary entities of the same person or company, or if each of them is controlled by the same person or company.
In NI 45-106 a person (first person) is considered to control another person (second person) if (a) the first person, directly or indirectly, beneficially owns or exercises control or direction over securities of the second person carrying votes which, if exercised, would entitle the first person to elect a majority of the directors of the second person, unless that first person holds the voting securities only to secure an obligation, (b) the second person is a partnership, other than a limited partnership, and the first person holds more than 50% of the interests of the partnership, or (c) the second person is a limited partnership and the general partner of the limited partnership is the first person.
In NI 45-106 a trust company or trust corporation described in paragraph (p) above of the definition of “accredited investor” (other than in respect of a trust company or trust corporation registered under the laws of Xxxxxx Xxxxxx Island that is not registered or authorized under the Trust and Loan Companies Act (Canada) or under comparable legislation in another jurisdiction of Canada) is deemed to be purchasing as principal.
In NI 45-106 a person described in paragraph (q) above of the definition of “accredited investor” is deemed to be purchasing as principal.
Important Information Regarding the Collection of Personal Information
The Company is required to file a report of trade with all applicable securities regulatory authorities containing personal information about the Subscriber. The Subscriber acknowledges that it has been notified by the Company:
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By completing this certificate, the Subscriber authorizes the indirect collection of this information by each applicable securities regulatory authority or regulator and acknowledges that such information is made available to the public under applicable securities legislation.
The foregoing representations contained in this certificate are true and accurate as of the date of this certificate and will be true and accurate as of the Closing. If any such representations shall not be true and accurate prior to the Closing, the undersigned shall give immediate written notice of such fact to the Company prior to the Closing.
Dated: As of JUNE 8 , 2021 |
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Signed: |
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RAWK INCORPORATED |
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Witness (If Subscriber is an Individual) |
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Print the name of Subscriber |
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Print Name of Witness |
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If Subscriber not an Individual, Print name and title of Authorized Signing Officer Xxxxxx Xxxxx Secretary |
319188.00003/112949640.6
EXHIBIT I TO SCHEDULE A
RISK ACKNOWLEDGEMENT FORM FOR INDIVIDUAL ACCREDITED INVESTORS
[Accredited investor categories - (j), (k) and (l) only]
WARNING TO INVESTORS
This investment is risky. Do not invest unless you can afford to lose all the money you pay for this investment.
SECTION 1 TO BE COMPLETED BY THE ISSUER |
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1. About your investment |
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Type of securities: Common Shares |
Issuer: Metamaterial Inc. |
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Purchased from: Issuer |
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SECTIONS 2 TO 4 TO BE COMPLETED BY THE SUBSCRIBER |
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2. Risk acknowledgement |
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This investment is risky. Initial that you understand that: |
Your |
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Risk of loss - You could lose your entire investment of $ . [Instruction: Insert the total dollar amount of the investment.] |
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Liquidity risk - You may not be able to sell your investment quickly - or at all. |
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Lack of information - You may receive little or no information about your investment. |
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Lack of advice - You will not receive advice from the salesperson about whether this investment is suitable for you unless the salesperson is registered. The salesperson is the person who meets with, or provides information to, you about making this investment. To check whether the salesperson is registered, go to xxx.xxxxxxxxxxxxxxxxx.xx. |
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3. Accredited investor status |
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You must meet at least one of the following criteria to be able to make this investment. Initial the statement that applies to you. (You may initial more than one statement.) The person identified in section 6 is responsible for ensuring that you meet the definition of accredited investor. That person, or the salesperson identified in section 5, can help you if you have questions about whether you meet these criteria. |
Your |
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• Your net income before taxes was more than $200,000 in each of the 2 most recent calendar years, and you expect it to be more than $200,000 in the current calendar year. (You can find your net income before taxes on your personal income tax return.) |
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• Your net income before taxes combined with your spouse’s was more than $300,000 in each of the 2 most recent calendar years, and you expect your combined net income before taxes to be more than $300,000 in the current calendar year. |
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• Either alone or with your spouse, you own more than $1 million in cash and securities, after subtracting any debt related to the cash and securities. |
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• Either alone or with your spouse, you have net assets worth more than $5 million. (Your net assets are your total assets (including real estate) minus your total debt.) |
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4. Your name and signature |
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By signing this form, you confirm that you have read this form and you understand the risks of making this investment as identified in this form. |
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First and last name (please print): |
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Signature: |
Date: , 2021 |
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SECTION 5 TO BE COMPLETED BY THE SALESPERSON |
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5. Salesperson information |
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[Instruction: The salesperson is the person who meets with, or provides information to, the subscriber with respect to making this investment. That could include a representative of the issuer, a registrant or a person who is exempt from the registration requirement.] |
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First and last name of salesperson (please print): |
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Telephone: |
Email: |
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Name of firm (if registered): |
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SECTION 6 TO BE COMPLETED BY THE ISSUER |
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6. For more information about this investment |
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Please contact:
Metamaterial Inc. 0 Xxxxxxxx Xxxxx Xxxxxxxxx, Xxxx Xxxxxx X0X 0X0
Attention: Xxxxxx Xxxxxxxxx Phone: 000 000-0000 E-Mail: xxxxxx.xxxxxxxxx@xxxxxxxxxxxx.xxx Website: xxxxxxxxxxxx.xxx
For more information about prospectus exemptions, contact your local securities regulator. You can find contact information at xxx.xxxxxxxxxx-xxxxxxxxxxxxxx.xx.
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EXHIBIT II TO SCHEDULE A
SECURITIES COMMISSION CONTACT INFORMATION
Alberta Securities Commission Xxxxx 000, 000 – 0xx Xxxxxx XX Xxxxxxx, Xxxxxxx X0X 0X0 Telephone: (000) 000 0000 Toll free in Canada: 0-000-000-0000 Facsimile: (000) 000-0000 British Columbia Securities Commission X.X. Xxx 00000, Xxxxxxx Xxxxxx 000 Xxxx Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0 Inquiries: (000) 000-0000 Toll free in Canada: 1-800-373-6393 Facsimile: (000) 000-0000 Email: xxxxxxxxx@xxxx.xx.xx The Manitoba Securities Commission 500 – 000 Xx. Xxxx Xxxxxx Xxxxxxxx, Xxxxxxxx X0X 0X0 Telephone: (000) 000-0000 Toll free in Manitoba 0-000-000-0000 Facsimile: (000) 000-0000 Financial and Consumer Services Commission (New Brunswick) 00 Xxxxxxxxx Xxxxxx, Xxxxx 000 Xxxxx Xxxx, Xxx Xxxxxxxxx X0X 0X0 Telephone: (000) 000-0000 Toll free in Canada: 1-866-933-2222 Facsimile: (000) 000-0000 Email: xxxx@xxxx.xx Government of Newfoundland and Labrador Financial Services Regulation Division X.X. Xxx 0000 Xxxxxxxxxxxxx Xxxxxxxx 0xx Xxxxx, Xxxx Xxxxx Xxxxxx Xxxxxx Drive St. John’s, Newfoundland and Labrador A1B 4J6 Attention: Director of Securities Telephone: (000) 000-0000 Facsimile: (000) 000-0000 Government of the Northwest Territories Office of the Superintendent of Securities X.X. Xxx 0000 Xxxxxxxxxxx, Xxxxxxxxx Xxxxxxxxxxx X0X 0X0 Attention: Deputy Superintendent, Legal & Enforcement Telephone: (000) 000-0000 Facsimile: (000) 000-0000
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Nova Scotia Securities Commission Xxxxx 000, 0000 Xxxx Xxxxxx Xxxx Tower X.X. Xxx 000 Xxxxxxx, Xxxx Xxxxxx X0X 0X0 Telephone: (000) 000-0000 Facsimile: (000) 000-0000 Government of Nunavut Department of Justice Legal Registries Division P.O. Box 1000, Station 000 0xx Xxxxx, Xxxxx Xxxxxxxx Xxxxxxx, Xxxxxxx X0X 0X0 Telephone: (000) 000-0000 Facsimile: (000) 000-0000 Ontario Securities Commission 00 Xxxxx Xxxxxx Xxxx, 00xx Xxxxx Xxxxxxx, Xxxxxxx X0X 0X0 Telephone: (000) 000-0000 Toll free in Canada: 1-877-785-1555 Facsimile: (000) 000-0000 Email: xxxxxxxxxxxxxxxxxxx@xxx.xxx.xx.xx Public official contact regarding indirect collection of information: Inquiries Officer Xxxxxx Xxxxxx Island Securities Office 00 Xxxxxxxx Xxxxxx, 0xx Xxxxx Xxxx Building P.O. Box 2000 Charlottetown, Xxxxxx Xxxxxx Island C1A 7N8 Telephone: (000) 000-0000 Facsimile: (000) 000-0000 Xxxxxxxx xxx xxxxxxx xxxxxxxxxx 000, Xxxxxx Xxxxxxxx, 00x étage C.P. 000, Xxxx xx xx Xxxxxx Xxxxxxxx, Xxxxxx X0X 0X0 Telephone: (000) 000-0000 or 1-877-525-0337 Facsimile: (000) 000-0000 (For filing purposes only) Facsimile: (000) 000-0000 (For privacy requests only) Email: xxxxxxxxxxxxxxxxxxxxx@xxxxxxxxx.xx.xx (For corporate finance issuers); Financial and Consumer Affairs Authority of Saskatchewan Suite 601 - 0000 Xxxxxxxxxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx X0X 0X0 Telephone: (000) 000-0000 Facsimile: (000) 000-0000 Government of Xxxxx Xxxxxxxxxx xx Xxxxxxxxx Xxxxxxxx Xxx Xxxxxx, 0xx Xxxxx 0000 Xxxxxx Xxxxxx Xxxxxxxxxx, Xxxxx X0X 0X0 Telephone: (000) 000-0000 Facsimile: (000)000-0000 |
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SCHEDULE B
FOREIGN PURCHASER’S CERTIFICATE
(Residents of Jurisdictions other than Canada and the United States)
Capitalized terms not specifically defined in this Schedule B have the meanings ascribed to them in the Subscription Agreement to which this Schedule B is attached.
In connection with the purchase by the undersigned Purchaser of the Purchased Shares, the Purchaser hereby represents, warrants, covenants and certifies to the Company (and acknowledges that the Company and its counsel are relying thereon) that:
319188.00003/112949640.6
The foregoing representations, warranties, covenants and certifications contained in this certificate are true and accurate as of the date of this certificate and will be true and accurate as of Closing. If any such representations, warranties, covenants and certifications shall not be true and accurate prior to the Closing, the undersigned shall give immediate written notice of such fact to the Company prior to the Closing.
Dated: |
Signed: |
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Name: |
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