NON-BROKERED PRIVATE PLACEMENT OF UNITS SUBSCRIPTION AGREEMENT INSTRUCTIONS
Exhibit 10.2
Form of Subscription Agreement for Accredited
Investors
(Canadian and Non-US Residents)
NON-BROKERED PRIVATE PLACEMENT OF UNITS
INSTRUCTIONS
1.
Complete and sign
the Execution Page (which
follows this cover page) of the Subscription
Agreement.
2.
Complete and sign
Exhibit
1 (Certificate of Accredited Investors) and initial next to the appropriate
category in Appendix “A” to Exhibit 1
and complete and
sign Appendix
“B” to Exhibit 1 (Form 45-106F9), if you
are an individual accredited investor required to do
so.
3.
Provide payment of
the purchase price in United States dollars by
delivering a certified cheque or
bank draft made payable to “Fasken Xxxxxxxxx XxXxxxxx LLP in
trust” to Fasken Xxxxxxxxx, 000 Xxx Xxxxxx, Xxxxx 0000, Xxx
Xxxxxxxx Centre, Box 20, Xxxxxxx, XX X0X 0X0, Attention: Jordana
Keslassy or by wire transfer according to the wire
instructions below, representing the full subscription price
payable by the Subscriber for the Units set out on the first page
of this Subscription Agreement:
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Currency:
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Correspondent/Intermediary Bank:
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Correspondent/Intermediary SWIFT:
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Fedwire/ABA:
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Settlement Bank Name:
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Settlement Bank Address:
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Clearing Code:
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Transit Number:
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Institution Number:
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Swift Code:
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Beneficiary:
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Beneficiary Address:
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Beneficiary Account Number:
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Payment Details
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Any
associated wire transfer fees are the responsibility of the
subscriber.
4.
Return a completed
and originally executed copy of this Subscription Agreement and the
other documents required to be delivered with it (including payment
of the subscription price) by no later than 4:00 p.m. on December
27, 2019 to Fasken Xxxxxxxxx XxXxxxxx LLP, 000 Xxx Xxxxxx, Xxxxx
0000, Xxx Xxxxxxxx Centre, Toronto, ON M5H 2T6, Attention: Jordana
Keslassy, Telephone: x0 000 000 0000, email:
xxxxxxxxx@xxxxxx.xxx.
1
EXECUTION PAGE - SUBSCRIPTION FOR UNITS
TO:
Edesa
Biotech, Inc. (the “Corporation”)
The
undersigned (the “Subscriber”) hereby irrevocably
subscribes for and agrees to purchase from Edesa Biotech, Inc. (the
“Corporation”)
that number of units of the Corporation (individually, a
“Unit” and
collectively, the “Units”) as is equal to the
Aggregate Subscription Price set out below divided by the Unit
Price. The “Unit
Price” shall be the lower of (i) the price determined
by calculating a 20% discount to the average of each of five
trailing daily volume-weighted average prices (“VWAP”) for the Common Shares on
The NASDAQ Capital Market (“NASDAQ”) as determined by
Bloomberg prior to the date a registration statement for the
Offering is filed (the “Execution Date”), or (2) a price
determined by calculating a 20% discount to the VWAP on the
Execution Date; provided that issuances of Units to officers,
directors, employees or consultants shall be made at a price no
less than the consolidated closing bid price immediately preceding
the Execution Date. The Unit Price shall be denominated and payable
in United States dollars.
Each
Unit comprises one common share of the Corporation (individually, a
“Common Share”
and collectively, the “Common
Shares”), three-quarters of one whole Common Share
purchase warrant (each such Common Share purchase warrant, a
“Class A Warrant”), and one-half of one
whole Common Share purchase warrant (each such Common Share
purchase warrant, “Class B
Warrant”, and collectively with the Class A Warrants,
the “Warrants”).
Each
Warrant shall be exercisable for one Common Share on the terms
described herein.
The
Subscriber agrees to be bound by the terms and conditions set forth
in the attached “Terms and Conditions of Subscription for
Units” including, without limitation, the representations,
warranties and covenants set forth in the applicable Schedules and
Exhibits attached thereto (together with this Execution Page, the
“Subscription
Agreement”). The Subscriber further agrees, without
limitation, that the Corporation (and its counsel) may rely upon
the Subscriber’s representations, warranties and covenants
contained in such documents.
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Number of Units:
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(Name
of Subscriber – please print)
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Aggregate Subscription Price: US$
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(Signature
of Subscriber or authorized Signatory)
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If the Subscriber is signing as agent for a principal, complete the
following and ensure that the applicable Exhibit(s) are completed
on behalf of such principal (the “Disclosed
Principal”), UNLESS the Subscriber is deemed to be purchasing
as a principal under National Instrument 45-106 - Prospectus Exemptions (“NI
45-106”) by virtue of being either (i) a trust company or
trust corporation acting on behalf of a fully managed account
managed by a trust company or trust corporation; or (ii) a person
acting on behalf of a fully managed account managed by it, and in
each case satisfying the criteria set forth in NI
45-106:
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(Official
Capacity or Title – please print)
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(Please
print name of individual whose signature appears
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above
if different than the name of the Subscriber
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printed
above.)
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(Subscriber’s
Address)
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(Subscriber’s
Address)
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(Telephone
Number)
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(Name
of Disclosed Principal)
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(E-Mail
Address)
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(Disclosed
Principal’s Address)
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[Execution
Pages Continue]
2
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Register the Securities as set forth below:
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Deliver the Securities as set forth below:
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Same as
Registered Address (otherwise complete
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(Name)
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below)
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(Account
reference, if applicable)
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(Name)
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(Account
reference, if applicable)
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(Address)
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(Contact
Name)
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(Address)
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(Address)
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(Address)
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Is the
Subscriber (or the Disclosed Principal) an “insider” of
the Corporation (as defined in applicable securities laws, which
generally
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Excluding
securities subscribed for in this Agreement, the Subscriber owns,
directly or indirectly, or exercises control or direction
over:
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includes
a director, an officer or a 10% shareholder)?
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(a)
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Common
Shares; and
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(yes/no):
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(b)
securities convertible or exercisable into an
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Is the
Subscriber registered or required to be registered
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additional
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Common
Shares.
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under
applicable securities laws?
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(yes/no):
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3
ACCEPTANCE: The Corporation hereby accepts the subscription
as set forth above on the terms and conditions contained in this
Subscription Agreement.
_____________________,
20___
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By:
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Name:
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Title:
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4
TERMS AND CONDITIONS OF SUBSCRIPTION
Terms of the Offering
1. Irrevocable
Subscription; Subject to Acceptance.
By
signing this Agreement, the Subscriber irrevocably offers to
subscribe for the number of Units equal to the aggregate
Subscription Price set out on the cover page of this Agreement,
determined with reference to the Unit Price. The Corporation may,
in its absolute discretion, accept or reject the Subscriber’s
subscription for Units set out in this Agreement, in whole or in
part, and the Corporation reserves the right to allot to the
Subscriber less than the amount of Units subscribed for under this
Agreement. This Agreement is not enforceable against the
Corporation unless (and except to the extent to which) it has been
accepted by the Corporation. The Subscriber waives any requirement
of the Corporation to communicate its acceptance of the
subscription (in whole or in part) to the Subscriber. The
Subscriber acknowledges (on its own behalf and, if applicable, on
behalf of the Disclosed Principal) that the subscription for the
Units will be made in accordance with and subject to the terms and
conditions of this Subscription Agreement.
2. Return
of Funds.
The
funds for the aggregate subscription price will be held in trust by
Fasken Xxxxxxxxx XxXxxxxx LLP (“Fasken”), counsel to the
Corporation, for the benefit of the Subscriber pending closing of
the Offering. If the Offering is not completed for any reason, or
this Agreement is rejected in whole, any payment delivered on
account of the subscription price for the Units will, following
receipt by Fasken of written notification from the Corporation of
such rejection, be promptly returned to the Subscriber, without
interest. If this Agreement is accepted only in part, payment in
the amount of any excess payment delivered by the Subscriber to
Fasken on account of the subscription price for the Units will,
following receipt by Fasken of written notification from the
Corporation of such partial acceptance, be promptly delivered to
the Subscriber, without interest. No fractions of any Securities
(as defined herein) will be issued for any subscription. Any funds
in excess of the aggregate Subscription Price for the actual number
of Units issued shall be promptly delivered to the Subscriber after
Closing. Any return of funds by Fasken hereunder shall be made by
the issuance of a cheque sent by regular mail to the
Subscriber.
3. The
Offering.
The
Subscriber acknowledges (on its own behalf and, if applicable, on
behalf of the Disclosed Principal) that the Units subscribed for
hereunder form part of a larger offering of Units by the
Corporation in the United States, of which the Common Shares
composing the Units shall be registered pursuant to a registration
statement filed with the United States Securities and Exchange
Commission (the “SEC”) for aggregate gross proceeds
of up to US$5.1 million (the “Offering”). The Units and the
Common Shares and Warrants composing the Units as the context
requires are also referred to herein as the “Securities”.
4. Description
of the Warrants.
Each
whole Class A Warrant shall be exercisable to purchase one Class A
Warrant Share at a price equal to 150% of the subscription price
for a term expiring three years from the vesting date for the Class
A Warrants, which vesting date shall be six months from the Closing
Date. The Class A Warrants will provide for cashless exercise
provisions in some circumstances.
Each
whole Class B Warrant shall be exercisable for one Class B Warrant
Share at a price equal to either (a) 100% of the Nasdaq Official
Closing Price (i.e. the “Nasdaq Minimum Price”) for
each Subscriber that is not an officer, director, employee or
consultant of the Company, or (b) for each Subscriber that is an
officer, director, employee or consultant of the Corporation (other
than issuances to certain entities controlled by an officer,
director, employee, or consultant of the Corporation where such
issuances would not be considered equity compensation under
applicable Nasdaq Listing Rules), the greater of the Nasdaq Minimum
Price or the consolidated closing bid price per Common Share on
NASDAQ immediately preceding the Execution Date, for a term
expiring four months from the vesting date for the Class B
Warrants, which vesting date shall be six months from the Closing
Date. The Class B Warrants will provide for cashless exercise
provisions in some circumstances.
The
Warrants will be created and issued pursuant to definitive physical
warrant certificates. Additional specific attributes of the
Warrants shall be set forth in the certificates representing the
Warrants, including, among other things, provisions for the
appropriate adjustment in number and price of the Warrants upon the
occurrence of certain events, including any subdivision,
consolidation or reclassification of the Units.
No
fractional Warrants will be issued in any circumstance. Any
entitlement to a fraction of a Warrant in connection with the
purchase of Units shall be rounded down to the nearest whole
Warrant.
5
5. Registration
Rights.
The
Company will file a registration statement with the SEC on Form S-3
or other appropriate form if necessary to comply with General
Instruction I.B.6. of Form S-3 and Commission interpretations
thereof) within 45 days of the Closing Date to register the Common
Shares issuable upon exercise of the Warrants and shall use its
best efforts to have the registration statement declared effective
within 75 days of the Closing Date, or in the case of review by the
SEC, within 105 days of the Closing Date and to keep such
registration statement effective at all times until no Purchaser
owns any Warrants or Common Shares issuable upon exercise
thereof.
In
connection with the purchase of the Securities, the Subscriber
agrees to return the following to the Corporation’s legal
counsel, Fasken Xxxxxxxxx XxXxxxxx LLP (“Fasken”), in accordance with the
instructions on the cover page to this Agreement:
(a)
this Agreement,
completed and signed, including, if the Subscriber is subscribing
under the “accredited investor” exemption from the
prospectus requirements of applicable securities laws, a completed
and signed Accredited Investor Certificate attached as Exhibit 1;
(b)
a wire transfer,
bank draft or certified cheque for the aggregate subscription price
for the Securities, denominated in United States dollars, payable
to Fasken Xxxxxxxxx DuMoulin LLP, in trust, with wire transfer
being payable as follows:
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Currency:
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Correspondent/Intermediary Bank:
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Correspondent/Intermediary SWIFT:
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Fedwire/ABA:
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Settlement Bank Name:
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Settlement Bank Address:
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Clearing Code:
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Transit Number:
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Institution Number:
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Swift Code:
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Beneficiary:
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Beneficiary Address:
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Beneficiary Account Number:
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Payment Details
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(c)
any further
documentation required under securities laws or by NASDAQ or other
regulatory authority, or otherwise contemplated by this
Agreement;
7. Compliance
with Laws.
The
Subscriber (or the Disclosed Principal) agree to comply with
applicable securities laws and the policies of NASDAQ concerning
the purchase of, the holding of, and the resale restrictions
applicable to, the Securities.
8. Expenses.
All
costs incurred by the Subscriber (including any fees and
disbursements of any legal counsel or other advisors retained by
the Subscriber) relating to the subscription for Units will be
borne by the Subscriber.
6
9. Conditions
of Closing
The
obligation of the Corporation to complete the sale of the
Securities is subject to the fulfillment of the following
conditions at or before the Closing Time:
(a)
the Subscriber will
have delivered the items set out in Section 6;
(b)
the representations
and warranties made by the Subscriber in this Agreement will have
been true and correct when made and at the Closing Time with the
same force and effect as if they had been made as of the Closing
Time;
(c)
all covenants
contained in this Agreement to be performed by the Subscriber at or
before the Closing Time will have been performed in all material
respects;
(d)
the Corporation
will have received approval of the Offering from
NASDAQ;
(e)
all other necessary
regulatory approvals will have been obtained;
(f)
the portion of the
Offering undertaken in the United States shall have closed;
and
(g)
the sale of the
Units to the Subscribers will be exempt from prospectus
requirements under applicable Canadian provincial and harmonized
securities laws.
Closing
10. Closing.
The
closing of the sale of the Securities (the “Closing”) will take place at
Fasken’s offices in Toronto, Bay Adelaide Centre West, 000
Xxx Xxxxxx, Xxxxxxx, Xxxxxxx, X0X 0X0 at 9:00 a.m. (Eastern time),
or such other time as the Corporation may determine (the
“Closing Time”)
on January 7, 2020, or such other date as the Corporation may
determine (the “Closing Date”). If, at the Closing, the
terms and conditions contained in this Agreement have been complied
with to the satisfaction of the Corporation, the Corporation shall
notify Fasken in writing of such and (a) Fasken will deliver to the
Corporation (i) all completed subscription agreements, including
this Agreement, and (ii) the aggregate subscription price for the
Units (net of commissions and expenses) and (b) the Corporation
will deliver certificates representing the Common Shares and
Warrants composing the Units registered in accordance with the
Subscriber’s instructions to the Subscriber in accordance
with the delivery instructions provided by the
Subscriber.
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11. Failure
to Close.
If the
Closing does not occur on or prior to January 10, 2019, Fasken
shall promptly return this Agreement and any funds, certified
cheques and bank drafts delivered by the Subscriber representing
the aggregate consideration for the Securities without interest, to
the Subscriber.
12. Representations,
Warranties and Covenants of the Subscriber
The
Subscriber (on its own behalf and, if applicable, on behalf of a
Disclosed Principal) represents, warrants, acknowledges and
covenants to the Corporation and its counsel (and acknowledges that
they are relying thereon) both at the date hereof and at the
Closing Time (as herein defined) that:
(a)
it recognizes that
the purchase of the Securities involves a high degree of risk
including, but not limited to, the following: (i) the Corporation
has a limited operating history and requires substantial funds in
addition to the proceeds of the Offering; (ii) an investment in the
Corporation is highly speculative and only investors who can afford
the loss of their entire investment should consider investing in
the Corporation and the Securities; (iii) the Subscriber may not be
able to liquidate his, her or its investment; (iv) there are
restrictions on the ability of the Subscriber to sell the
Securities; (v) in the event of a disposition, the Subscriber could
sustain the loss of its entire investment; and (vi) the Corporation
has not paid any dividends since its inception and does not
anticipate paying any dividends in the near future;
(b)
it acknowledges and
represents that it: (i) has adequate means of providing for its
current financial needs and contingencies, (ii) has knowledge and
experience in business and financial matters and prior investment
experience, including investments in securities without the benefit
of a prospectus; (iii) recognizes the speculative nature of an
investment in the Securities; (iv) is able to bear the economic
risk that it hereby assumes; and (v) could afford a complete loss
of such investment in the Securities;
(c)
the Subscriber is
aware that there are restrictions on the Subscriber’s ability
to resell the Securities and it is the Subscriber’s
responsibility to consult the Subscriber’s own advisors to
find out what those restrictions are and to comply with them before
selling the Securities, and confirms that no representation has
been made to it by or on behalf of the Corporation with respect
thereto; acknowledges that it is aware of the characteristics of
the Securities, the risks relating to an investment therein and of
the fact that it may not be able to resell the Securities, except
in accordance with limited exemptions under applicable securities
legislation until expiry of the applicable restricted period and
compliance with the other requirements of applicable
law;
(d)
the Subscriber is
aware that any certificates representing the Securities will bear a
legend (or an ownership statement issued under a book-entry system
will bear a legend restriction notation) in substantially the
following form:
“UNLESS
PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY
MUST NOT TRADE THE SECURITY BEFORE [THE DATE THAT IS 4 MONTHS AND
ONE DAY AFTER THE CLOSING DATE WILL BE
INSERTED.]”
(e)
it hereby
represents that it has been furnished by the Corporation during the
course of the Offering with all information regarding the
Corporation, the terms and conditions of the Offering and any
additional information that it has requested or desired to know,
and has been afforded the opportunity to ask questions of and
receive answers from duly authorized officers or other
representatives of the Corporation concerning the Corporation and
the terms and conditions of the Offering;
(f)
it has not received
or been provided with, nor has it requested, nor does it have any
need to receive, any offering memorandum, any prospectus, sales or
advertising literature, or any other document describing the
business and affairs of the Corporation which has been prepared for
delivery to, and review by, a prospective purchaser in order to
assist it in making an investment decision in respect of the
Securities and the Subscriber’s decision to subscribe for the
Securities was not based upon, and the Subscriber has not relied
upon, any oral or written representations as to facts made by or on
behalf of the Corporation, except as set forth herein and in the
Corporation’s current public disclosure record available on
the system for electronic document analysis and retrieval at
xxx.xxxxx.xxx..To the extent necessary, the Subscriber has
retained, at its own expense, and relied upon appropriate
professional advice regarding the investment, tax and legal merits
and consequences of this Subscription Agreement and the purchase of
the Securities hereunder. The Subscriber disclaims reliance on any
statements made or information provided by any person or entity in
the course of the Subscriber’s consideration of an investment
in the Securities and the results of Subscriber’s own
independent investigation;
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(g)
it has not become
aware of any advertisement in printed media of general and regular
paid circulation (or other printed public media), radio, television
or other means of telecommunications or other form of advertisement
(including electronic display such as the Internet) with respect to
the distribution of the Securities;
(h)
the Subscriber has
no knowledge of a “material fact” or “material
change” with respect to the Corporation (as those terms are
defined in applicable securities laws, and which generally includes
a fact or change which would reasonably be expected to have a
significant effect on the market price of the Common Shares) that
has not been generally disclosed to the public;
(i)
unless disclosed to
the Corporation, the Subscriber is not a “control
person” of the Corporation (within the meaning of applicable
securities laws, and which generally includes a person holding or
controlling (alone or in concert with other persons) more than 20%
of the Common Shares), and unless disclosed to the Corporation, the
purchase of securities under the Offering will not result in the
Subscriber becoming a “control person” (and, if the
Subscriber is purchasing on behalf of a Disclosed Principal, the
purchase of securities under the Offering will not result in the
Disclosed Principal becoming a “control
person”);
(j)
it is purchasing
the Securities as principal for its own account, not for the
benefit of any other person, for investment only and not with a
view to the resale or distribution of all or any of the Securities,
it is resident in the jurisdiction set out as the
“Subscriber’s Address” on the face page hereof
and that address is not being used solely for the purpose of
acquiring the Securities, and if the Subscriber is acting for a
Disclosed Principal, such Disclosed Principal is purchasing as
principal for its own account, not for the benefit of any other
person, for investment only and not with a view to resale or
distribution, and is resident in the jurisdiction set forth in the
Subscription Agreement as the “Disclosed Principal’s
Address” of the Disclosed Principal and that address is not
being used solely for the purpose of acquiring the Securities, and
either:
(i)
the Subscriber is
an Accredited Investor and has concurrently executed and delivered
a Certificate in the form attached as Exhibit 1
to this Subscription Agreement and has completed the appropriate
Appendices; or
(ii)
the Subscriber (or
any Disclosed Principal) is purchasing pursuant to an exemption
from prospectus and registration requirements (particulars of which
have been enclosed herewith by the Subscriber) available to the
Subscriber under applicable securities legislation of the
jurisdiction of the Subscriber’s residence and shall deliver
to the Corporation such further particulars of the exemption(s) and
the Subscriber’s qualifications thereunder as the Corporation
or its counsel may request;
(k)
the Subscriber is
aware that the Corporation is relying on exemptions from the
requirements under Canadian securities laws to provide the
Subscriber with a prospectus, and no prospectus has been filed by
the Corporation with any stock exchange or regulatory authority in
Canada in connection with the issuance of the Securities, and as a
consequence:
(i)
the Subscriber is
restricted from using some of the civil remedies otherwise
available under Canadian securities laws and certain protections,
rights and remedies provided by securities laws, including
statutory rights of rescission or damages, will not be available to
the Subscriber; and
(ii)
the Subscriber may
not receive information that would otherwise be required to be
provided to the Subscriber under Canadian securities
laws;
(l)
if the Subscriber
is resident in or otherwise subject to applicable securities laws
of a jurisdiction other than
Canada, the Subscriber confirms, represents and warrants
that:
(i)
the Subscriber is
knowledgeable with respect to, or has been independently advised as
to, the applicable securities laws of the jurisdiction in which the
Subscriber is resident (the “International Jurisdiction”) and which would
apply to the acquisition of the Securities;
(ii)
the Subscriber
is purchasing the Securities pursuant to exemptions from prospectus
or registration requirements or equivalent requirements under
applicable securities laws or, if such is not applicable, the
Subscriber is permitted to purchase the Securities under the
applicable securities laws of the International Jurisdiction
without the need to rely on any exemptions;
(iii)
the applicable
securities laws of the International Jurisdiction do not require
the Corporation to make any filings or seek any approvals of any
kind whatsoever from any securities regulator of any kind
whatsoever in the International Jurisdiction in connection with the
issue and sale or resale of the Securities;
(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 Corporation in the
International Jurisdiction; and
(v)
the Subscriber
will, if requested by the Corporation, deliver to the Corporation a
certificate or opinion of local counsel from the International
Jurisdiction which will confirm the matters referred to in
subsections (ii), (iii) and (iv)
above to the satisfaction of the Corporation acting
reasonably;
9
(i)
no stock exchange,
securities commission or similar regulatory authority has reviewed
or passed on the merits of the Securities;
(ii)
there is no
government or other insurance covering the Securities;
and
(iii)
there are risks
associated with the purchase of the Securities;
(n)
the Subscriber is
not a “U.S. person” (as defined in Regulation S under
the United States Securities Act
of 1933 (the “U.S.
Securities Act”) and which includes an individual
resident in the United States, an estate or trust of which any
executor, administrator or trustee is a U.S. person, and any
corporation or partnership incorporated or organized under the laws
of the United States) (a “U.S. Person”) and the Securities
were not offered to the Subscriber in the United States. At the
time the buy order for the Securities originated, the Subscriber
was outside the United States, and this Agreement was executed and
delivered by (or on behalf of) the Subscriber outside the United
States;
(o)
it understands that
the Warrants will not be registered under the securities laws of
the United States, and unless a registration statement is filed
with the SEC registering the Class A Warrant Shares and Class B
Warrant Shares and such registration statement is made effective,
the Class A Warrant Shares and Class B Warrant Shares may not be
offered or sold, directly or indirectly, in the United States
except pursuant to registration under the U.S. Securities Act and
the securities laws of all applicable states or available
exemptions therefrom;
(p)
it undertakes and
agrees that it will not offer or sell Securities in the United
States unless such securities are registered under the U.S.
Securities Act and the securities laws of all applicable states of
the United States or an exemption from such registration
requirements is available, and further that it will not resell the
Securities, except in accordance with the provisions of applicable
securities legislation, regulations, rules, policies and orders and
stock exchange rules, and the Subscriber is solely responsible for
compliance with such legislation, rules, and
regulations;
(q)
if the Subscriber
is a corporation, partnership, unincorporated association or other
entity, it has the legal capacity and competence to enter into and
be bound by this Subscription Agreement and to perform all of its
obligations hereunder, and if it is a body corporate, it is duly
incorporated or created and validly subsisting under the laws of
the jurisdiction of its incorporation, and further certifies that
all necessary approvals of directors, shareholders or otherwise
have been given and obtained;
(r)
the performance and
compliance with the terms hereof, the subscription for the Units
and the completion of the transactions described herein by the
Subscriber will not result in any material breach of, or be in
conflict with, or constitute a material default under, or create a
state of facts that, after notice or lapse of time, or both, would
constitute a material default under any term or provision of the
constating documents, by-laws or resolutions of the Subscriber (if
the Subscriber is not an individual), applicable securities laws or
any other laws applicable to the Subscriber, any agreement to which
the Subscriber is a party, or any judgment, decree, order, statute,
rule or regulation applicable to the Subscriber;
(s)
if the Subscriber
is an individual, it is of the full age of majority and is legally
competent to execute this Subscription Agreement and take all
action pursuant hereto;
(t)
this Subscription
Agreement and any other documents contemplated hereby, have been
duly and validly authorized, executed and delivered by and
constitute a legal, valid, binding and enforceable obligation of
the Subscriber in accordance with its terms;
10
(u)
in the case of a
subscription by it for Securities acting as agent for a Disclosed
Principal, it is duly authorized to execute and deliver this
Subscription Agreement and all other necessary documentation in
connection with such subscription on behalf of such Disclosed
Principal and this Subscription Agreement has been duly authorized,
executed and delivered by or on behalf of, and constitutes a legal,
valid and binding agreement of, such Disclosed Principal and the
Subscriber acknowledges that the Corporation is required by law to
disclose to certain principal regulatory authorities the identity
of the Disclosed Principal for whom the Subscriber may be
acting;
(v)
the Subscriber will
execute, deliver, file and otherwise assist the Corporation in
filing, such reports, undertakings and other documents with respect
to the issue of the Securities as may be required by any securities
commission, stock exchange or other regulatory
authority;
(w)
the entering into
of this Subscription Agreement and the transactions contemplated
hereby, will not result in a violation of any of the terms or
provisions of any law applicable to the Subscriber, or if the
Subscriber is not a natural person, any of the Subscriber’s
constating documents, or any agreement to which the Subscriber is a
party or by which it is bound;
(x)
none of the funds
the Subscriber is using to purchase the Securities represent
proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and
Terrorist Financing Act (Canada) (the “PCMLTFA”) or the United States Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act (the “Patriot Act”) and the Subscriber
acknowledges that the Corporation may in the future be required by
law to disclose the Subscriber’s (and if applicable, the
Disclosed Principal’s) name and other information relating to
this Subscription Agreement and the Subscriber’s (and if
applicable, the Disclosed Principal’s) subscription
hereunder, on a confidential basis, pursuant to the PCMLTFA or the Patriot Act. To the best of its
knowledge: (a) none of the subscription funds to be provided by the
Subscriber: (i) have been or will be derived from or related to any
activity that is deemed criminal under the law of Canada, the
United States or any other jurisdiction; or (ii) are being tendered
on behalf of a person or entity who has not been identified to the
Subscriber, and (b) it shall promptly notify the Corporation if the
Subscriber discovers that any of such representations ceases to be
true, and to provide the Corporation with appropriate information
in connection therewith;
(y)
the Subscriber
acknowledges that the Corporation’s counsel is acting as
counsel to the Corporation and not as counsel to the Subscriber,
and acknowledges that it is solely responsible for and has been
encouraged to and should obtain independent legal, income tax and
investment advice with respect to its subscription for Securities
and accordingly, has been independently advised as to the meanings
of all terms contained herein relevant to the Subscriber for
purposes of giving representations, warranties and covenants under
this Subscription Agreement;
(z)
no person
(including the Corporation) has made to the Subscriber any written
or oral representations:
(i)
that any person
will resell or repurchase any of the Securities;
(ii)
that any person
will refund the purchase price for the Securities; or
(iii)
as to the future
price or value of any of the Securities;
(aa)
in making its
decision to enter into this Agreement for the purchase of the
Securities, the Subscriber has relied solely on the
Corporation’s current public disclosure record available on
the system for electronic document analysis and retrieval at
xxx.xxxxx.xxx, which includes the prospectus supplement for the
Offering;
11
(bb)
the
Subscriber’s offer to subscribe for Securities has not been
induced by any representations with regard to the present or future
value of the Securities;
(cc)
the Subscriber is
aware that: the Corporation may complete additional financings in
the future to develop the proposed business of the Corporation and
to fund its ongoing development; that there is no assurance that
any financings will be available or, if available, that the
financings will be available on reasonable terms; any future
financings may have a dilutive effect on current securityholders,
including the Subscriber (or a Disclosed Principal); and, if future
financings are not available, the Corporation may be unable to fund
its ongoing development and the lack of capital resources may
result in the failure of its business venture;
(dd)
other than
Brookline Capital Markets as described in the prospectus supplement
to be filed with the SEC in connection with the Offering, there is
no person acting or purporting to act in connection with the
Offering who is entitled to any brokerage or finder’s fee and
if any person establishes a claim that any fee or other
compensation is payable in connection with this subscription for
Units, the Subscriber covenants to indemnify and hold harmless the
Corporation with respect thereto and with respect to all costs
reasonably incurred in the defence thereof;
(ee)
the Subscriber is
not purchasing Units with knowledge of material information
concerning the Corporation that has not been generally
disclosed;
(ff)
the Subscriber does
not act jointly or in concert with any other person for the
purposes of the acquisition of the Securities; and
(gg)
if the Subscriber,
or any person for whom it is contracting hereunder, is a
corporation or a partnership, syndicate, trust, association, or any
other form of unincorporated organization or organized group of
persons, the Subscriber or such person was not created and is not
being used solely to permit purchases of or to hold securities
without a prospectus in reliance on a prospectus and registration
exemption (including but not limited to the “Minimum
Investment Amount” exemption provided under section 2.10 of
NI 45-106 or as an accredited investor as described in paragraph
(m) of the definition of
“accredited investor” in section 1.1 of NI 45-106) and
it pre-existed the Offering and has a bona fide purpose other than
investment in the Securities.
13. Compensation.
The
Subscriber understands that in connection with the issue and sale
of the Units, Brookline Capital Markets (“BCM”), in its capacity as
placement agent for the Offering, will receive from the
Corporation: (i) a cash commission in an amount equal to 6.5% of
the gross subscription proceeds from any persons introduced to the
Offering by such finders and 3.5% of the gross subscription
proceeds from certain persons introduced to the Offering by the
Company and settled by the Company directly; and (ii) that number
of compensation options (the “Broker Warrants”) as is equal to
1.25% of the Units sold in the Offering. Each Broker Warrant will
be exercisable by the holder thereof to purchase one Common Share
the Unit Price for a period of five years from the Closing Date.
BCM shall not be entitled to compensation in connection with
subscriptions from Subscribers not resident in the United
States.
General
14. Accuracy
of Representations and Warranties.
The
Subscriber agrees that the representations, warranties and
covenants of the Subscriber herein will be true and correct both as
of the execution of this Subscription Agreement and as of the
Closing Time and will survive the completion of the issuance of the
Securities. The representations, warranties and covenants of the
Subscriber herein are made with the intent that they be relied upon
by the Corporation in determining the eligibility of a purchaser of
Securities and the Subscriber agrees to indemnify the Corporation
and its directors, officers, partners, employees and agents against
all losses, claims, costs, expenses and damages or liabilities
which any of them may suffer or incur which are caused or arise
from a breach thereof. The Subscriber undertakes to immediately
notify the Corporation at its head office, to the attention of the
Chief Financial Officer, of any change in any statement or other
information relating to the Subscriber set forth herein which takes
place prior to the Closing Time.
15. Responsibility
for Costs.
The
Subscriber acknowledges and agrees that all costs incurred by the
Subscriber (including any fees and disbursements of any special
counsel retained by the Subscriber) relating to the sale of the
Securities to the Subscriber shall be borne by the
Subscriber.
12
16. Collection
of Personal Information.
This
Subscription Agreement requires the Subscriber to provide certain
personal information to the Corporation. Such information is being
collected by the Corporation for the purposes of completing the
Offering, which includes, without limitation, determining the
Subscriber’s eligibility to purchase the Securities under
applicable securities legislation, preparing and registering
certificates (or other evidence of subscription) representing the
Common Shares and Warrants to be issued to the Subscriber and
completing filings required by taxation authorities and any stock
exchange or securities regulatory authority. Securities regulatory
authorities in each of the provinces of Canada have been granted
the authority to indirectly collect this personal information
pursuant to securities legislation and this personal information is
also being collected for the purpose of administration and
enforcement of securities legislation. The Subscriber hereby
acknowledges and consents to the collection, use, and disclosure of
certain personal information by securities regulatory authorities
in Canada. If the Subscriber is resident in or otherwise subject to
the securities laws applicable in another province of Canada, the
information provided by the Subscriber on the first page of this
Subscription Agreement identifying the name, address and telephone
number of the Subscriber, the Securities being purchased hereunder
and the subscription price, as well as the Closing Date and the
exemption that the Subscriber is relying on in purchasing the
Securities will be disclosed to the applicable securities
regulatory authority, and such information is being indirectly
collected by such securities regulatory authority under the
authority granted to it under securities legislation. This
information is being collected for the purposes of the
administration and enforcement of the securities legislation of the
applicable province. Each Subscriber (and for certainty, including
each Disclosed Principal) hereby authorizes the indirect collection
of such information by the applicable securities regulatory
authority. In the event the Subscriber has any questions with
respect to the indirect collection of such information by
securities regulatory authorities, the Subscriber should contact
the applicable securities regulatory authority at the addresses set
out at Schedule "C" hereto. The
Subscriber’s (and if applicable, each Disclosed
Principal’s) personal information may be disclosed by the
Corporation to: (a) regulatory authorities (including stock
exchanges, if applicable); (b) the Corporation’s registrar
and transfer agent; (c) taxation authorities; and (d) any of the
other parties involved in the Offering, including legal counsel. By
executing this Agreement, the Subscriber (and if applicable, any
other Disclosed Principal) is deemed to be consenting to the
foregoing collection (including the indirect collection of personal
information), use and disclosure of the Subscriber’s personal
information. The Subscriber (and if applicable, the Disclosed
Principal) also consents to the filing of copies or originals of
any of the Subscriber’s documents described in this
Subscription Agreement as may be required to be filed with any
stock exchange or securities regulatory authority in connection
with the transactions contemplated hereby.
17. Governing
Law.
The
contract arising out of this Subscription Agreement and all
documents relating thereto shall be governed by and construed in
accordance with the laws of the Province of Ontario and the federal
laws of Canada applicable therein. The parties irrevocably attorn
to the exclusive jurisdiction of the courts of the Province of
Ontario.
18. Time
of the Essence.
Time
shall be of the essence hereof.
19. Entire
Agreement.
This
Subscription Agreement represents the entire agreement of the
parties hereto relating to the subject matter hereof and there are
no representations, covenants or other agreements relating to the
subject matter hereof except as stated or referred to
herein.
20. Assignment.
The
terms and provisions of this Subscription Agreement shall be
binding upon and enure to the benefit of the Subscriber and the
Corporation and their respective heirs, executors, administrators,
successors and assigns; provided that, except for the assignment by
a Subscriber who is acting as nominee or agent for the beneficial
owner and as otherwise herein provided, this Subscription Agreement
shall not be assignable by the Subscriber without prior written
consent of the other parties.
21. Modification.
Neither
this Subscription Agreement nor any provision hereof shall be
modified, changed, discharged or terminated except by an instrument
in writing signed by the party against whom any waiver, change,
discharge or termination is sought.
13
22. Severability.
The
invalidity, illegality or unenforceability of any provision of this
Subscription Agreement shall not affect the validity, legality or
enforceability of any other provision hereof.
23. Agreement
For Consideration.
The
Subscriber, on its own behalf and, if applicable, on behalf of the
Disclosed Principal, agrees that this subscription is made for
valuable consideration and may not be withdrawn, cancelled,
terminated or revoked by the Subscriber, on its own behalf and, if
applicable, on behalf of the Disclosed Principal.
24. Currency.
In this
Subscription Agreement, references to “US$” or
“United States dollars” are to the lawful currency of
the United States, and references to “$” or “CDN
$” are to Canadian dollars, unless otherwise stated
herein.
*****
14
Schedule?"A"
CERTIFICATE OF “ACCREDITED INVESTOR”
TO:
Edesa
Biotech, Inc. (the “Corporation”)
In
connection with the proposed purchase of Units of the Corporation
(the “Securities”) by the subscriber or
if applicable, the Disclosed Principal on whose behalf the
subscriber is purchasing as agent (the “Subscriber”), the Subscriber
represents, warrants, covenants and certifies that:
(a)
_________ an
“accredited investor” within the meaning of National
Instrument 45-106 - Prospectus
Exemptions (“NI
45-106”) by virtue of satisfying the indicated
criterion as set out in Appendix “A” to this
Certificate (YOU MUST ALSO INITIAL
BESIDE THE APPLICABLE CATEGORY ON APPENDIX
“A” TO THIS
CERTIFICATE); or
(b)
_________
purchasing the Securities as agent or trustee for a beneficial
purchaser, and each such beneficial purchaser is purchasing as
principal for its own account and not for the benefit of another,
and each such beneficial purchaser is an “accredited
investor” within the meaning of NI 45-106 by virtue of
satisfying the indicated criterion as set out in Appendix “A” to this certificate
(YOU MUST ALSO INITIAL BESIDE THE
APPLICABLE CATEGORY ON APPENDIX “A”
TO THIS
CERTIFICATE).
2.
if the Subscriber
(or beneficial purchaser) is not an individual, the person was not
created or used solely to purchase or hold securities as an
accredited investor;
3.
these
representations, warranties, covenants and certifications will be
true and correct both as of the execution of this certificate and
as of the Closing Time of the purchase and sale of the Securities
purchased by the Subscriber and will survive the completion of the
issue of the Subscriber’s Securities; and
4.
these
representations, warranties, covenants and certifications are made
by the Subscriber with the intent that they be relied upon in
determining the suitability of the beneficial purchaser as a
purchaser of the Securities, and the Subscriber undertakes to
immediately notify the Corporation of any change in any statement
or other information relating to the Subscriber (and the beneficial
purchaser) set forth herein which takes place prior to the Closing
Time of the purchase and sale of the Subscriber’s
Securities.
Dated:
________________________, 2019.
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Print
name of Subscriber
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By:
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Signature
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Print
name of signatory (if different from Subscriber)
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Title
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IMPORTANT:
(A)
PLEASE
INITIAL BESIDE THE APPLICABLE CATEGORY ON APPENDIX
“A” TO THIS CERTIFICATE.
(B)
INDIVIDUAL
ACCREDITED INVESTORS IN THE CATEGORIES DESCRIBED IN (J), (K) OR (L)
OF APPENDIX “A” TO THIS
CERTIFICATE MUST ALSO COMPLETE AND SIGN APPENDIX
“B” TO THIS CERTIFICATE.
(C)
FOR
A DEFINITION OF CERTAIN TERMS USED IN THIS EXHIBIT AND ITS
APPENDICES, PLEASE REFER TO SCHEDULE "B" OF THIS SUBSCRIPTION
AGREEMENT.
15
APPENDIX “A”
DEFINITION OF “ACCREDITED INVESTOR”
INSTRUCTIONS:
(1)
Prior to completing
this Appendix “A”, please
carefully review the definitions set forth in Schedule "B" of the Subscription
Agreement, particularly the definitions of “financial assets” as distinguished
from “net
assets”, as well as “related liabilities”.
(2)
The Subscriber must
initial beside the applicable category of “accredited investor” the
Subscriber qualifies under below.
“accredited
investor”, as used in this Schedule,
means:
Initials
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_______
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(a) a Canadian
financial institution, or a Schedule III bank; or
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_______
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(b) the
Business Development Bank of Canada incorporated under the
Business Development Bank of
Canada Act (Canada); or
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_______
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(c) a
subsidiary of any person referred to in paragraphs (a) or (b), if
the person owns all of the voting securities of the subsidiary,
except the voting securities required by law to be owned by
directors of that subsidiary; or
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_______
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(d) a person
registered under the securities legislation of a jurisdiction of
Canada as an adviser or dealer; or
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_______
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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); or
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_______
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(e.1) 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); or
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_______
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(f) the
Government of Canada or a jurisdiction of Canada, or any crown
corporation, agency or wholly owned entity of the Government of
Canada or a jurisdiction of Canada; or
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_______
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(g) a
municipality, public board or commission in Canada and a
metropolitan community, school board, the Comité de gestion de
la taxe scolaire de l’île de Montréal or an
intermunicipal management board in Québec; or
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_______
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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; or
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_______
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(i) a pension
fund that is regulated by the Office of the Superintendent of
Financial Institutions (Canada), a pension commission or similar
regulatory authority of a jurisdiction of Canada; or
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_______
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(j) an
individual who, either alone or with a spouse, beneficially owns
financial assets (which term
excludes real estate) having an
aggregate realizable value that, before taxes but
net of any related liabilities, exceeds $1,000,000;
or
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[AN
INDIVIDUAL IN THIS CATEGORY MUST FULLY COMPLETE AND EXECUTE FORM
45-106F9 ATTACHED HERETO AS APPENDIX
“B” TO THIS EXHIBIT
1.]
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(j.1) an
individual who beneficially owns financial assets (which term excludes
real estate) having an aggregate
realizable value that, before taxes but net of any related liabilities, exceeds $5,000,000;
or
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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; or
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[AN INDIVIDUAL IN THIS CATEGORY MUST FULLY
COMPLETE AND EXECUTE FORM 45-106F9 ATTACHED HERETO AS APPENDIX
“B” TO THIS EXHIBIT 1]
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(l) an
individual who, either alone or with a spouse, has net assets that exceed $5,000,000; or
[AN INDIVIDUAL IN THIS CATEGORY
MUST FULLY COMPLETE AND EXECUTE FORM 45-106F9 ATTACHED HERETO
AS APPENDIX “B”
TO THIS EXHIBIT
1.]
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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;
or
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_______
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(n) an
investment fund that distributes or has distributed its securities
only to
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(a) a person
that is or was an accredited investor at the time of the
distribution;
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(b) a person
that acquires or acquired securities in the circumstances referred
to in sections 2.10 [“Minimum Amount Investment
exemption”] or 2.19 [“Additional Investment in Investment Funds
exemption”] of NI 45-106; or
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(c) a person
described in paragraph (i) or (ii) that acquires or acquired
securities under section 2.18 [“Investment Fund Reinvestment
exemption”] of NI 45-106; or
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_______
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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; or
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16
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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; or
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_______
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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; or
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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; or
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_______
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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; or
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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 (as defined in this Schedule); or
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_______
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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;
or
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_______
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(v) 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
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_______
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(w) a trust
established by an accredited investor (as defined in this Appendix)
for the benefit of the accredited investor’s family members
of which a majority of the trustees are accredited investors (as
defined in this Appendix) 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.
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All
dollar amounts referred to in this Schedule are expressed in
Canadian dollars.
For the
purposes of this Appendix
“A”:
(a)
a trust company or
trust corporation described in paragraph (p) above, other than a
trust company or trust corporation registered under the laws of
Xxxxxx Xxxxxx Island that is not registered or authorized under the
Trust and Loan Companies Act (Canada) or under comparable
legislation in another jurisdiction of Canada, is deemed to be
purchasing as principal; and
(b)
a person described
in paragraph (q) above is deemed to be purchasing as
principal.
17
APPENDIX “B”
Form 45-106F9
Form for Individual Accredited Investors
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WARNING!
This investment is risky. Don’t invest unless you can afford
to lose all the money you pay for this investment.
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SECTION 1 TO BE COMPLETED BY THE ISSUER OR SELLING SECURITY
HOLDER
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1. About
your investment
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Type of
securities: Units
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Issuer:
Edesa Biotech, Inc.
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Purchased
from: Edesa
Biotech, Inc.
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SECTIONS 2 TO 4 TO BE COMPLETED BY THE PURCHASER
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2. Risk
acknowledgement
|
|||||||||
|
This
investment is risky. Initial that you understand that:
|
Your initials
|
||||||||
|
Risk of loss – You could lose your entire investment
of $__________________. [Instruction: Insert the total dollar amount of
the investment.]
|
|
||||||||
|
Liquidity risk – You may not be able to sell your
investment quickly – or at all.
|
|
||||||||
|
Lack of information – You may receive little or no
information about your investment.
|
|
||||||||
|
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.
|
|
||||||||
|
3. Accredited
investor status
|
|||||||||
|
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 initials
|
||||||||
|
● 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.)
|
|
||||||||
|
● 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.
|
|
||||||||
|
● 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.
|
|
||||||||
|
● 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.)
|
|
||||||||
18
|
4. Your
name and signature
|
|||||||||
|
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.
|
|||||||||
|
First
and last name (please print):
|
|
||||||||
|
Signature:
|
|
Date:
|
|
||||||
|
SECTION 5 TO BE COMPLETED BY THE SALESPERSON
|
|||||||||
|
5. Salesperson
information
|
|||||||||
|
[Instruction:
The salesperson is the person who meets with, or provides
information to, the purchaser with respect to making this
investment. That could include a representative of the issuer or
selling security holder, a registrant or a person who is exempt
from the registration requirement.]
|
|||||||||
|
First
and last name of salesperson (please print):
|
Par
Xxxxxxxx
|
||||||||
|
Telephone:
|
|
Email:
|
|
||||||
|
Name of
firm (if registered):
|
N/A
|
||||||||
|
SECTION 6 TO BE COMPLETED BY THE ISSUER OR SELLING SECURITY
HOLDER
|
|||||||||
|
6. For
more information about this investment contact:
|
|||||||||
|
000 Xxx
Xxxxx
Xxxxxxx,
Xxxxxxx, X0X 0X0
Attention:
Par Xxxxxxxx
Phone:
Email:
For more information about prospectus exemptions, contact your
local securities regulator. You can find contact information at
xxx.xxxxxxxxxx-xxxxxxxxxxxxxx.xx.
|
|||||||||
Form instructions:
1.
The information in sections 1, 5 and 6 must be completed before the
purchaser completes and signs the form.
2.
The purchaser must sign this form. Each of the purchaser and the
issuer or selling security holder must receive a copy of this form
signed by the purchaser. The issuer or selling security holder is
required to keep a copy of this form for 8 years after the
distribution.
19
Schedule "B"
“affiliate”
– an issuer is an affiliate of another issuer
if:
(a)
one of them is the
subsidiary of the other;
(b)
each of them is
controlled by the same person.
For the
purposes hereof, a person (first person) is considered to control
another person (second person) if
(a)
the first person
beneficially owns 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.
“bank”
means a bank named in Schedule I or II of the Bank Act (Canada);
“Canadian
financial institution” means
(a)
an association
governed by the Cooperative Credit
Associations Act (Canada) or a central credit cooperative
society for which an order has been made under section 473(1) of
that Act, or
(b)
a bank, loan
corporation, trust company, trust corporation, insurance company,
treasury branch, credit union, caisse populaire, financial services
cooperative, or league that, in each case, is authorized by an
enactment of Canada or a jurisdiction of Canada to carry on
business in Canada or a jurisdiction of Canada;
“control
person” has the meaning ascribed thereto in applicable
securities legislation;
“director”
means
(a)
a member of the
board of directors of a company or an individual who performs
similar functions for a company, and
(b)
with respect to a
person that is not a company, an individual who performs functions
similar to those of a director of a company;
“eligibility
adviser” means
(a)
a person that is
registered as an investment dealer and authorized to give advice
with respect to the type of security being distributed,
and
(b)
in Saskatchewan or
Manitoba, also means a lawyer who is a practicing member in good
standing with a law society of a jurisdiction of Canada or a public
accountant who is a member in good standing of an institute or
association of chartered accountants, certified general accountants
or certified management accountants in a jurisdiction of Canada
provided that the lawyer or public accountant must not
(i)
have a
professional, business or personal relationship with the issuer, or
any of its directors, executive officers, founders, or control
persons, and
(ii)
have acted for or
been retained personally or otherwise as an employee, executive
officer, director, associate or partner of a person that has acted
for or been retained by the issuer or any of its directors,
executive officers, founders or control persons within the previous
12 months;
20
“executive
officer” means, for an issuer, an individual who
is
(a)
a chair, vice-chair
or president,
(b)
a vice-president in
charge of a principal business unit, division or function including
sales, finance or production, or
(c)
performing a
policy-making function in respect of the issuer;
“financial
assets” means cash, securities or a contract of
insurance, a deposit or an evidence of a deposit that is not a
security for the purposes of securities legislation; and specifically excludes real estate. For the purposes of
paragraphs (j) and (j.1) of Exhibit 1,
financial assets are those financial assets which are beneficially
owned. The following factors are indicative of beneficial ownership
of financial assets:
(a)
physical or
constructive possession of evidence of ownership of the financial
asset;
(b)
entitlement to
receipt of any income generate d by the financial
asset;
(c)
risk of loss of the
value of the financial asset; and
(d)
the ability to
dispose of the financial asset or otherwise deal with it as the
individual sees fit.
Financial
assets are generally liquid or relatively easy to liquidate.
Realizable value of financial assets generally means the fair
market value of the assets that may reasonably be obtained in an
orderly liquidation. To satisfy the thresholds in paragraphs (j)
and (j.1) above, the value must be net of related
liabilities.
“foreign
jurisdiction” means a country other than Canada or a
political subdivision of a country other than Canada;
“founder”
means, in respect of an issuer, a person who,
(a)
acting alone, in
conjunction, or in concert with one or more persons, directly or
indirectly, takes the initiative in founding, organizing or
substantially reorganizing the business of the issuer,
and
(b)
at the time of the
distribution or trade is actively involved in the business of the
issuer;
“fully
managed account” means an account of a client for
which a person makes the investment decisions if that person has
full discretion to trade in securities for the account without
requiring the client’s express consent to a
transaction;
“jurisdiction”
or “jurisdiction of
Canada” means a province or territory of Canada except
when used in the term foreign jurisdiction;
“local
jurisdiction” means, in a national instrument or
multilateral instrument adopted or made by a Canadian securities
regulatory authority, the jurisdiction in which the Canadian
securities regulatory authority is situate;
“net
assets” means total assets (including real estate)
less total liabilities (including mortgages). For the purposes of
paragraph 1 of Exhibit
1, the value attributed to assets should reasonably reflect
their estimated fair value and tax is considered a liability to be
deducted if the obligation to pay the tax is outstanding at the
date of closing of the purchase of the Securities.
“person”
includes
(a)
an
individual,
(b)
a
corporation,
(c)
a partnership,
trust, fund and an association, syndicate, organization or other
organized group of persons, whether incorporated or not,
and
(d)
an individual or
other person in that person’s capacity as a trustee,
executor, administrator or personal or other legal
representative;
“regulator”
means, for the local jurisdiction, the person referred to in
Appendix D of National Instrument 14-101, opposite the name of the
local jurisdiction;
“related
entity” means, for an issuer, a person that controls
or is controlled by the issuer or that is controlled by the same
person that controls the issuer;
“related
liabilities” means
(a)
liabilities
incurred or assumed for the purpose of financing the acquisition or
ownership of financial assets, or
(b)
liabilities that
are secured by financial assets;
21
“Schedule
III bank” means an authorized foreign bank named in
Schedule III of the Bank
Act (Canada);
“securities
legislation” means the applicable securities
legislation of a jurisdiction of Canada;
“spouse”
means, an individual who
“subsidiary”
means an issuer that is controlled directly or indirectly by
another issuer and includes a subsidiary of that subsidiary;
and
For the
purpose of this Subscription Agreement, for residents of Manitoba,
“distribution”
means a primary distribution to the public.
For the
purpose of this Subscription Agreement, for residents of
Québec, “trade” refers to any of the
following activities:
(a)
the activities
described in the definition of “dealer” in section 5 of the
Securities Act
(Québec), including the following activities;
(i)
the sale or
disposition of a security by onerous title, whether the terms of
payment be on margin, instalment or otherwise, but does not
include, a transfer or the giving in guarantee of securities in
connection with a debt or the purchase of a security, except as
provided in paragraph (b);
(ii)
participation as a
trader in any transaction in a security through the facilities of
an exchange or a quotation and trade reporting system;
(iii)
the receipt by a
registrant of an order to buy or sell a security;
*****
22
Schedule "C"
|
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
|
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
|
|
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
|
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
|
|
The Manitoba Securities Commission
000 -
000 Xx. Xxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxx X0X 0X0
Telephone:
(000) 000-0000
Toll
free in Manitoba: 0-000-000-0000
Facsimile:
(204) 945- 0000
|
Xxxxxx Xxxxxx Xxxxxx 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
|
|
Financial and Consumer Services Commission (New
Brunswick)
00
Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx
Xxxx, Xxx Xxxxxxxxx X0X 0X0
Telephone:
(506) -658-3060
Toll
free in Canada: 1-866-933-2222
Facsimile:
(000) 000-0000
Email:
xxxx@xxxx.xx
|
Autorité des marchés financiers
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
privacy requests only)
Email:
xxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxx.xx.xx (For
corporate finance issuers)
|
|
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
|
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 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
|
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
|
|
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
|
|
23
