SUBSCRIPTION AGREEMENT
Exhibit
10.1
000
Xxxxxx Xxx
Xxxx,
Xxxxxx 00000-0000
Gentlemen:
The
undersigned (the “Investor”)
hereby
confirms its agreement with you as follows:
1. This
Subscription Agreement (this “Agreement”)
is
made as of the date set forth below between Altair Nanotechnologies Inc.,
a
corporation continued under the Canada Business Corporations Act (the
“Company”),
and
the Investor.
2. The
Company has authorized the sale and issuance to certain investors of up to
an
aggregate of 9,259,259 units (the “Units”),
each
consisting of (i) one share (the “Share,”
collectively the “Shares”)
of its
common shares, without nominal or par value (the “Common
Shares”)
and
(ii) one warrant (the “Warrant,”
collectively the “Warrants”)
to
purchase 0.25 Common Shares (and the fractional amount being the “Warrant
Ratio”), subject to adjustment by the Company’s Board of Directors, or a
committee thereof, for a purchase price of US$2.70 per Unit (the “Purchase
Price”).
The
Shares issuable upon the exercise of the Warrants are referred to herein
as the
“Warrant
Shares.”
The
Warrant Shares, together with the Shares and the Warrants, are referred to
herein as the “Securities.”
The
Units will not be represented by a certificate or document, and the Shares
and
Warrants constituting the Units shall be immediately separable.
3. The
offering and sale of the Units (the “Offering”)
are
being made pursuant to (1) an effective Registration Statement on Form S-3
(File
No. 333-137099) (including the Prospectus contained therein (the “Base
Prospectus”),
the
“Registration
Statement”)
filed
by the Company with the Securities and Exchange Commission (the “Commission”),
(2)
if applicable, certain “free writing prospectuses” (as that term is defined in
Rule 405 under the Securities Act of 1933, as amended), that have or will
be
filed with the Commission and delivered to the Investor on or prior to the
date
hereof and (3) a Prospectus Supplement (the “Prospectus
Supplement”
and
together with the Base Prospectus, the “Prospectus”)
containing certain supplemental information regarding the Securities and
terms
of the Offering that will be filed with the Commission and delivered to the
Investor (or made available to the Investor by the filing by the Company
of an
electronic version thereof with the Commission) along with the Company’s
counterpart to this Agreement.
4. The
Company and the Investor agree that the Investor will purchase from the Company
and the Company will issue and sell to the Investor the Units set forth on
the
signature page hereof at the Purchase Price per Unit for the aggregate purchase
price set forth on the signature page hereof. The Units shall be purchased
pursuant to the Terms and Conditions for Purchase of Units attached hereto
as
Annex
I
and
incorporated herein by this reference as if fully set forth herein. The Investor
acknowledges that the Offering is not being underwritten by the placement
agent
(the “Placement
Agent”)
named
in the Prospectus Supplement and that there is no minimum offering
amount.
5. The
manner of settlement of the Shares included in the Units purchased by the
Investor shall be determined by such Investor as follows (check
one):
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[____]
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A.
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Delivery
by electronic book-entry at CDS Clearing and Depository Services
Inc.
(“CDS”)
registered in the Investor’s name and address as set forth below, and
released by Equity Transfer & Trust Company, the Company’s transfer
agent (the “Transfer
Agent”),
to the Investor at the Closing (as
defined in Section 3.1 of Annex I hereto).
NO
LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THIS AGREEMENT
BY
THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL:
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(I)
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DIRECT
THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE CREDITED
WITH THE
SHARES ARE MAINTAINED TO SET UP A DEPOSIT/WITHDRAWAL AT CUSTODIAN
(“DWAC”)
INSTRUCTING THE TRANSFER AGENT TO CREDIT SUCH ACCOUNT OR ACCOUNTS
WITH THE
SHARES, AND
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(II)
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REMIT
BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE AGGREGATE PURCHASE
PRICE
FOR THE UNITS BEING PURCHASED BY THE INVESTOR TO THE FOLLOWING
ACCOUNT:
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THE
CITIBANK PRIVATE BANK
000
Xxxxx
Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx,
XX 00000
ABA
#
000-000-000
Account
Name: Xxxxxx Xxxx Xxxxx Raysman & Xxxxxxx, as escrow agent for the account
of Altair Nanotechnologies Inc.
Account
Number: 9970139151
-
OR
-
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[____]
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B.
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Delivery
versus payment (“DVP”)
through CDS (i.e., the Company shall deliver Shares registered
in the
Investor’s name and address as set forth below and released by the
Transfer Agent to the Investor through CDS at the Closing directly
to the
account(s) at Xxxxx and Company, LLC (“Cowen”)
identified by the Investor and simultaneously therewith payment
shall be
made by Cowen by wire transfer to the Company). NO
LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THIS AGREEMENT
BY
THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL:
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(I)
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NOTIFY
COWEN OF THE ACCOUNT OR ACCOUNTS AT COWEN TO BE CREDITED WITH THE
SHARES
BEING PURCHASED BY SUCH INVESTOR, AND
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(II)
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CONFIRM
THAT THE ACCOUNT OR ACCOUNTS AT COWEN TO BE CREDITED WITH THE SHARES
BEING
PURCHASED BY THE INVESTOR HAVE A MINIMUM BALANCE EQUAL TO THE AGGREGATE
PURCHASE PRICE FOR THE UNITS BEING PURCHASED BY THE INVESTOR.
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-2-
IT
IS THE INVESTOR’S RESPONSIBILITY TO (A) MAKE THE NECESSARY WIRE TRANSFER OR
CONFIRM THE PROPER ACCOUNT BALANCE IN A TIMELY MANNER AND (B) ARRANGE FOR
SETTLEMENT BY WAY OF DWAC OR DVP IN A TIMELY MANNER. IF THE INVESTOR DOES
NOT
DELIVER THE AGGREGATE PURCHASE PRICE FOR THE UNITS OR DOES NOT MAKE PROPER
ARRANGEMENTS FOR SETTLEMENT IN A TIMELY MANNER, THE SHARES AND WARRANTS MAY
NOT
BE DELIVERED AT CLOSING TO THE INVESTOR OR THE INVESTOR MAY BE EXCLUDED FROM
THE
CLOSING ALTOGETHER.
6. The
executed Warrant shall be delivered in accordance with the terms
hereof.
7. The
Investor represents that, except as set forth below, (a) it has had no position,
office or other material relationship within the past three years with the
Company or persons known to it to be affiliates of the Company, (b) it is
not a
NASD member or an Associated Person (as such term is defined under the NASD
Membership and Registration Rules Section 1011) as of the Closing, and (c)
neither the Investor nor any group of Investors (as identified in a public
filing made with the Commission) of which the Investor is a part in connection
with the Offering of the Units, acquired, or obtained the right to acquire,
20%
or more of the Common Shares (or securities convertible into or exercisable
for
Common Shares) or the voting power of the Company on a post-transaction basis.
Exceptions:
(If
no
exceptions, write “none.” If left blank, response will be deemed to be
“none.”)
8. The
Investor represents that it has received (or otherwise had made available
to it
by the filing by the Company of an electronic version thereof with the
Commission) the final Base Prospectus, dated October 3, 2006, as amended,
which
is a part of the Company’s Registration Statement, the documents incorporated by
reference therein, and any free writing prospectus (collectively, the
“General
Disclosure Package”),
prior
to or in connection with the receipt of this Agreement and the Prospectus
Supplement (or the filing by the Company of an electronic version thereof
with
the Commission) along with the Company’s counterpart to this
Agreement.
9. No
offer
by the Investor to buy Units will be accepted and no part of the Purchase
Price
will be delivered to the Company until the Company has accepted such offer
by
countersigning a copy of this Agreement, and any such offer may be withdrawn
or
revoked by the Investor, without obligation or commitment of any kind, at
any
time prior to the Company (or the Placement Agent on behalf of the Company)
sending (orally, in writing, or by electronic mail) notice of its acceptance
of
such offer. An indication of interest will involve no obligation or commitment
of any kind until this Agreement is accepted and countersigned by or on behalf
of the Company.
10. The
Investor represents that, except as set forth below, (a) the Investor is
domiciled, and has its principal office, at the address identified as the
address of the Investor on the signature page hereof; (b) the Investor is
an
“institutional investor” in that it is an entity which is in the business of
purchasing and selling securities for its own account with net assets in
excess
of US$15,000,000 and was not formed for the purpose of purchasing the Units;
(c)
the Investor is not domiciled in Canada, is not purchasing the Units for
the
account or benefit of any resident of any province or territory of Canada
and is
not purchasing the Units with a view to resale into Canada of the Units,
the
Shares or the Warrant Shares; and (d) the Units were not offered to the investor
in Canada, and this Agreement was not received or executed in
Canada.
-3-
Exceptions:
(If
no
exceptions, write “none.” If left blank, response will be deemed to be
“none.”)
Note:
Pursuant to the instructions provided by Investor on Exhibit
A
to Annex I attached hereto, at the Closing (as defined in Section 3.1 of
Annex
I), (i) the Transfer Agent shall settle the Shares via CDS through the
Investor’s broker-dealer’s Canadian clearing agent by DWAC (or through Xxxxx’x
Canadian clearing agent where such Investor has elected to settle by DVP);
and
(ii) such Investor’s Canadian clearing agent shall further transfer such Shares
to the Investor’s broker-dealer’s clearing agent in the United States via DTC.
-4-
Number
of
Units: ____________________________
Purchase
Price Per Units: US$ ___________________
Aggregate
Purchase Price: US$__________________
Please
confirm that the foregoing correctly sets forth the agreement between us
by
signing in the space provided below for that purpose.
Dated
as
of: December __, 2006
____________________________________________
INVESTOR
By:
___________________________________
Print
Name: _____________________________
Title:
__________________________________
Address:_______________________________
____________________________________________
Agreed
and Accepted
this
___
day of December, 2006:
By:________________________________
Title:
-5-
ANNEX
I
TERMS
AND CONDITIONS FOR PURCHASE OF UNITS
1. Authorization
and Sale of the Units. Subject to the terms and conditions of this Agreement,
the Company has authorized the sale of the Units, which consist of the Shares
and the Warrants.
2. Agreement
to Sell and Purchase the Units; Placement Agent.
2.1 At
the
Closing, the Company will sell to the Investor, and the Investor will purchase
from the Company, upon the terms and conditions set forth herein, the number
of
Units set forth on the last page of the Agreement to which these Terms and
Conditions for Purchase of Units are attached as Annex
I
(the
“Signature
Page”)
for
the aggregate purchase price therefor set forth on the Signature
Page.
2.2 The
Company proposes to enter into substantially this same form of Subscription
Agreement with certain other investors (the “Other
Investors”)
and
expects to complete sales of Units to them. The Investor and the Other Investors
are hereinafter sometimes collectively referred to as the “Investors,”
and
this Agreement and the Subscription Agreements executed by the Other Investors
are hereinafter sometimes collectively referred to as the “Agreements.”
2.3 Investor
acknowledges that the Company has agreed to pay Xxxxx and Company, LLC
(“Cowen”
or
the
“Placement
Agent”)
a fee
(the “Placement
Fee”)
in
respect of the sale of Units to the Investor.
2.4 The
Company has entered into a Placement Agent Agreement, dated December 13,
2006
(the “Placement
Agreement”),
with
the Placement Agent that contains certain representations, warranties, covenants
and agreements of the Company that may be relied upon by the Investor, which
shall be a third party beneficiary thereof.
3. Closings
and Delivery of the Units and Funds.
3.1 Closing.
The
completion of the purchase and sale of the Units (the “Closing”)
shall
occur at a place and time (the “Closing
Date”)
to be
specified by the Company and the Placement Agent, and of which the Investors
will be notified in advance by the Placement Agent, in accordance with Rule
15c6-1 promulgated under the Securities Exchange Act of 1934, as amended
(the
“Exchange
Act”).
At
the Closing, (a) the Company shall cause the Transfer Agent to deliver to
the
Investor the number of Shares equal to the number of Units set forth on the
Signature Page registered in the name of the Investor or, if so indicated
on the
Investor Questionnaire attached hereto as Exhibit A, in the name of a nominee
designated by the Investor, (b) the Company shall cause to be placed with
an
express courier for delivery to the Investor a Warrant to purchase a number
of
whole Warrant Shares determined by multiplying the number of Shares (and
Units)
set forth on the signature page by the Warrant Ratio and rounding down to
the
nearest whole number and (c) the aggregate purchase price for the Units being
purchased by the Investor will be delivered by or on behalf of the Investor
to
the Company.
Annex
I-1
3.2 Conditions
to the Company’s Obligations.
(a)
The
Company’s obligation to issue and sell the Units to the Investor shall be
subject to: (i) the receipt by the Company of the purchase price for the
Units
being purchased hereunder as set forth on the Signature Page and (ii) the
accuracy of the representations and warranties made by the Investor and the
fulfillment of those undertakings of the Investor to be fulfilled prior to
the
Closing Date.
(b) Conditions
to the Investor’s Obligations.
The
Investor’s obligation to purchase the Units will be subject to the accuracy of
the representations and warranties made by the Company and the fulfillment
of
those undertakings of the Company to be fulfilled prior to the Closing Date,
including without limitation, those contained in the Placement Agreement,
and to
the condition that the Placement Agent shall not have: (a) terminated the
Placement Agreement pursuant to the terms thereof or (b) determined that
the
conditions to the closing in the Placement Agreement have not been satisfied.
The Investor’s obligations are expressly not conditioned on the purchase by any
or all of the Other Investors of the Units that they have agreed to purchase
from the Company.
3.3 Delivery
of Funds.
(a) Delivery
by Electronic Book-Entry at CDS Clearing and Depository Services Inc.
(“CDS”).
If the
Investor elects to settle the Shares purchased by such Investor through delivery
by electronic book-entry at CDS, no
later than one (1) business day after the execution of this Agreement by
the
Investor and the Company,
the
Investor shall remit by wire transfer the amount of funds equal to the aggregate
purchase price for the Units being purchased by the Investor to the following
account designated by the Company and the Placement Agent pursuant to the
terms
of that certain Escrow Agreement (the “Escrow
Agreement”)
dated
as of December 13, 2006, by and among the Company, the Placement Agent and
Xxxxxx Xxxx Xxxxx Raysman & Xxxxxxx LLP (the “Escrow
Agent”):
THE
CITIBANK PRIVATE BANK
000
Xxxxx
Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx,
XX 00000
ABA
#
000-000-000
Account
Name: Xxxxxx Xxxx Xxxxx Raysman & Xxxxxxx, as escrow agent for the account
of Altair Nanotechnologies Inc.
Account
Number: 9970139151
Such
funds shall be held in escrow until the Closing and delivered by the Escrow
Agent on behalf of the Investors to the Company upon the satisfaction, in
the
sole judgment of the Placement Agent, of the conditions set forth in
Section
3.2(b)
hereof.
The Placement Agent shall have no rights in or to any of the escrowed funds,
unless the Placement Agent and the Escrow Agent are notified in writing by
the
Company in connection with the Closing that a portion of the escrowed funds
shall be applied to the Placement Fee. The
Company and the Investor agree to indemnify and hold the Escrow Agent harmless
from and against any and all losses, costs, damages, expenses and claims
(including, without limitation, court costs and reasonable attorneys fees)
(“Losses”)
arising under this Section
3.3
or
otherwise with respect to the funds held in escrow pursuant hereto or arising
under the Escrow Agreement, unless it is finally determined that such Losses
resulted directly from the willful misconduct or gross negligence of the
Escrow
Agent. Anything in this Agreement to the contrary notwithstanding, in no
event
shall the Escrow Agent be liable for any special, indirect or consequential
loss
or damage of any kind whatsoever (including but not limited to lost profits),
even if the Escrow Agent has been advised of the likelihood of such loss
or
damage and regardless of the form of action.
Annex
I-2
Investor
shall also furnish to the Placement Agent a completed W-9 form (or, in the
case
of an Investor who is not a United States citizen or resident, a W-8
form).
Investor
acknowledges that the Escrow Agent acts as counsel to the Placement Agent,
and
shall have the right to continue to represent the Placement Agent, in any
action, proceeding, claim, litigation, dispute, arbitration or negotiation
in
connection with the Offering, and Investor hereby consents thereto and waives
any objection to the continued representation of the Placement Agent by the
Escrow Agent in connection therewith based upon the services of the Escrow
Agent
under the Escrow Agreement, without waiving any duty or obligation the Escrow
Agent may have to any other person.
(b) Delivery
Versus Payment through CDS Clearing and Depository Services Inc.
If the
Investor elects to settle the Shares purchased by such Investor by delivery
versus payment through CDS, no
later than one (1) business day after the execution of this Agreement by
the
Investor and the Company,
the
Investor shall confirm that the account or accounts at Cowen to be credited
with
the Shares being purchased by the Investor have a minimum balance equal to
the
aggregate purchase price for the Units being purchased by the Investor.
3.4 Delivery
of Shares.
(a) Delivery
by Electronic Book-Entry at CDS Clearing and Depository Services
Inc.
If the
Investor elects to settle the Shares purchased by such Investor through delivery
by electronic book-entry through CDS, no
later than one (1) business day after the execution of this Agreement by
the
Investor and the Company,
the
Investor shall direct the broker-dealer at which the account or accounts
to be
credited with the Shares being purchased by such Investor are maintained,
which
broker/dealer shall be a CDS and DTC participant, to set up a Deposit/Withdrawal
at Custodian (“DWAC”)
instructing Equity Transfer & Trust Company, the Company’s transfer agent,
to credit such account or accounts with the Shares by means of an electronic
book-entry delivery. Such DWAC shall indicate the settlement date for the
deposit of the Shares, which date shall be provided to the Investor by the
Placement Agent. Simultaneously with the delivery to the Company by the Escrow
Agent of the funds held in escrow pursuant to Section
3.3
above,
the Company shall direct its transfer agent to credit the Investor’s account or
accounts with the Shares pursuant to the information contained in the DWAC.
(b) Delivery
Versus Payment through CDS Clearing and Depository Services Inc.
If the
Investor elects to settle the Shares purchased by such Investor by delivery
versus payment through CDS, no
later than one (1) business day after the execution of this Agreement by
the
Investor and the Company,
the
Investor shall notify Cowen of the account or accounts at Cowen to be credited
with the Shares being purchased by such Investor. On the Closing Date, the
Company shall deliver the Shares to the Investor through CDS directly to
the
account or accounts at Cowen identified by Investor and simultaneously therewith
payment shall be made by Cowen by wire transfer to the Company.
Annex
I-3
4. Representations,
Warranties and Covenants of the Investor.
The
Investor represents and warrants to, and agrees with, the Company and the
Placement Agent that:
4.1 The
Investor (a) is knowledgeable, sophisticated and experienced in making, and
is
qualified to make decisions with respect to, investments in shares presenting
an
investment decision like that involved in the purchase of the Units, including
investments in securities issued by the Company and investments in comparable
companies, (b) has answered all questions on the Signature Page and the Investor
Questionnaire and the answers thereto are true and correct as of the date
hereof
and will be true and correct as of the Closing Date and (c) in connection
with
its decision to purchase the number of Units set forth on the Signature Page,
has received and is relying solely upon the General Disclosure Package and
the
documents incorporated by reference therein.
4.2 The
Investor acknowledges that (a) no action has been or will be taken in any
jurisdiction outside the United States by the Company or the Placement Agent
that would permit an offering of the Units, or possession or distribution
of
offering materials in connection with the issue of the Securities in any
jurisdiction outside the United States where action for that purpose is
required, (b) if the Investor is outside the United States, it will comply
with
all applicable laws and regulations in each foreign jurisdiction in which
it
purchases, offers, sells or delivers Securities or has in its possession
or
distributes any offering material, in all cases at its own expense and (c)
the
Placement Agent is not authorized to make and has not made any representation,
disclosure or use of any information in connection with the issue, placement,
purchase and sale of the Units, except as set forth or incorporated by reference
in the Base Prospectus or the Prospectus Supplement.
4.3 The
Investor acknowledges that (a) the Investor has full right, power, authority
and
capacity to enter into this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement, and (b) this Agreement
constitutes a valid and binding obligation of the Investor enforceable against
the Investor in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium
or
similar laws affecting creditors’ and contracting parties’ rights generally and
except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in
equity or at law) and except as to the enforceability of any rights to
indemnification or contribution that may be violative of the public policy
underlying any law, rule or regulation (including any federal or state
securities law, rule or regulation).
4.4 The
Investor understands that nothing in this Agreement, the Prospectus or any
other
materials presented to the Investor in connection with the purchase and sale
of
the Units constitutes legal, tax or investment advice. The Investor has
consulted such legal, tax and investment advisors as it, in its sole discretion,
has deemed necessary or appropriate in connection with its purchase of
Units.
4.5 Since
the
earlier to occur of (i) the date on which the Placement Agent first contacted
such Investor about the Offering and (ii) the date that is the tenth
(10th)
trading
day prior to the date of this Agreement, it has not engaged in any transactions
in the securities of the Company (including, without limitation, any Short
Sales
(as defined below) involving the Company’s securities). Each Investor covenants
that it will not engage in any transactions in the securities of the Company
(including Short Sales) prior to the time that the transactions contemplated
by
this Agreement are publicly disclosed. Each Investor agrees that it will
not use
any of the Securities acquired pursuant to this Agreement to cover any short
position in the Common Shares if doing so would be in violation of applicable
securities laws. For purposes hereof, “Short Sales” include, without limitation,
all “short sales” as defined in Rule 200 promulgated under Regulation SHO under
the Exchange Act, whether or not against the box, and all types of direct
and
indirect stock pledges, forward sales contracts, options, puts, calls, short
sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the
Exchange Act) and similar arrangements (including on a total return basis),
and
sales and other transactions through non-US broker-dealers or foreign regulated
brokers.
Annex
I-4
5. Survival
of Representations, Warranties and Agreements; Third Party Beneficiary.
Notwithstanding
any investigation made by any party to this Agreement or by the Placement
Agent,
all covenants, agreements, representations and warranties made by the Company
and the Investor herein will survive the execution of this Agreement, the
delivery to the Investor of the Units being purchased and the payment therefor.
The Placement Agent shall be a third party beneficiary with respect to the
representations, warranties and agreements of the Investor in Section
4
hereof.
6. Notices.
All
notices, requests, consents and other communications hereunder will be in
writing, will be mailed (a) if within the domestic United States by first-class
registered or certified airmail, or nationally recognized overnight express
courier, postage prepaid, or by facsimile or (b) if delivered from outside
the
United States, by International Federal Express or facsimile, and will be
deemed
given (i) if delivered by first-class registered or certified mail domestic,
three business days after so mailed, (ii) if delivered by nationally recognized
overnight carrier, one business day after so mailed, (iii) if delivered by
International Federal Express, two business days after so mailed and (iv)
if
delivered by facsimile, upon electric confirmation of receipt and will be
delivered and addressed as follows:
(a)
if
to
the Company, to:
000
Xxxxxx Xxx
Xxxx,
Xxxxxx 00000
Attention:
Xxxxxx Xxxxxxxxx
Facsimile:
000-000-0000
with
copies to:
Xxxx
Xxxxxxxx Xxxxx Xxx & Xxxxxxxx, PC
000
Xxxxx
Xxxxx Xxxxxx, Xxxxx 0000
Xxxx
Xxxx
Xxxx, Xxxx 00000
Attention:
Xxxxx Xxxxx
Facsimile:
000-000-0000
(b)
if
to the
Investor, at its address on the Signature Page hereto, or at such other address
or addresses as may have been furnished to the Company in writing.
7. Changes.
This
Agreement may not be modified or amended except pursuant to an instrument
in
writing signed by the Company and the Investor.
8. Headings.
The
headings of the various sections of this Agreement have been inserted for
convenience of reference only and will not be deemed to be part of this
Agreement.
9. Severability.
In
case
any provision contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of
the
remaining provisions contained herein will not in any way be affected or
impaired thereby.
Annex
I-5
10. Governing
Law. This
Agreement will be governed by, and construed in accordance with, the internal
laws of the State of New York, without giving effect to the principles of
conflicts of law that would require the application of the laws of any other
jurisdiction.
11. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which will
constitute an original, but all of which, when taken together, will constitute
but one instrument, and will become effective when one or more counterparts
have
been signed by each party hereto and delivered to the other parties. The
Company
and the Investor acknowledge and agree that the Company shall deliver its
counterpart to the Investor along with the Prospectus Supplement (or the
filing
by the Company of an electronic version thereof with the Commission).
12. Confirmation
of Sale.
The
Investor acknowledges and agrees that such Investor’s receipt of the Company’s
counterpart to this Agreement, together with the Prospectus Supplement (or
the
filing by the Company of an electronic version thereof with the Commission),
shall constitute written confirmation of the Company’s sale of Units to such
Investor.
13. Press
Release.
The
Company and the Investor agree that the Company shall issue a press release
announcing the Offering prior to the opening of the financial markets in
New
York City on the business day immediately after the date hereof.
14. Termination.
In the
event that the Placement Agreement is terminated by the Placement Agent pursuant
to the terms thereof, this Agreement shall terminate without any further
action
on the part of the parties hereto.
Annex
I-6
EXHIIT
A
INVESTOR
QUESTIONNAIRE
Pursuant
to Section
3
of
Annex
I
to the
Agreement, please provide us with the following information:
|
1.
|
The
exact name that your Shares are to be registered in.
You
may use
a nominee name if appropriate:
|
______________________________________________________
|
|
2.
|
The
relationship between the Investor and the registered
holder
listed
in response to item 1 above:
|
______________________________________________________
|
|
3.
|
The
mailing address of the registered holder listed in
response
to
item 1 above:
|
______________________________________________________
|
|
4.
|
The
Social Security Number or Tax Identification Number of
the
registered holder listed in the response to item 1 above:
|
______________________________________________________
|
|
5.
|
Name
of CDS Participant (Canadian broker-dealer at which
the
account or accounts to be credited with the Shares are
maintained):
|
______________________________________________________
|
|
6.
|
Contact
person and telephone number at CDS broker-dealer
Participant
|
______________________________________________________
|
|
7.
|
CDS
NCI Deposit Instruction
|
______________________________________________________ |
|
8.
|
Name
of DTC Participant in (U.S. broker-dealer at which the
account
or accounts to be further
credited with the Shares
are
maintained):
|
______________________________________________________
|
|
9.
|
DTC
Participant Number:
|
______________________________________________________ |
|
10.
|
Name
of Account at DTC Participant being further
credited
with
the Shares:
|
______________________________________________________
|
|
11.
|
Account
Number at DTC Participant being further
credited
with
the Shares:
|
______________________________________________________
|
Exhibit
A-1
