Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges, represents, warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) the Issuer that, as at the date of this Agreement and at the Closing Date: (a) The Issuer has not filed a prospectus with any of the Commissions or any other securities commission or similar authority in connection with the offering of the Securities and that: (i) the Purchaser is restricted from using most of the civil remedies available under the Acts; (ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts; (iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and (iv) the issuance and sale of the Securities to the Purchaser is subject to the sale being exempt from the prospectus requirements of the Acts. (b) If the Purchaser is a resident of British Columbia or Alberta, then the Purchaser is purchasing the Securities as principal and is either: (i) an "accredited investor" as defined in NI 45-106 and was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of "accredited investor" in NI 45-106 (c) The Purchaser, if not a resident of British Columbia, certifies that it is not resident in British Columbia and acknowledges that: (i) no 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; (iii) there are risks associated with the purchase of the Securities; (iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and (v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser. (d) If the Purchaser is resident outside of Canada but not in the United States, the Purchaser: (i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "Authorities") having application in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition of the Securities, if any; (ii) is purchasing the Securities pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption; (iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; and (iv) the purchase of the Purchaser's Securities by the Purchaser does not trigger: (A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or (B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably; (e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices; (f) The purchase of the Securities has not been made through or as a result of, and the distribution of the Securities has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television. (g) No person has made to the Purchaser any written or oral representations: (i) that any person will resell or repurchase the Securities; (ii) that any person will refund the purchase price of the Securities; (iii) as to the future price or value of any of the Securities; or (iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange. (h) The Purchaser is not a "control person" of the Issuer as defined in the BC Act, will not become a "control person" by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer. (i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that: (i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal; (ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction; (iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and (iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith. (j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S. (k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect. (l) With respect to compliance with the 1933 Act: (i) the Purchaser is not a U.S. Person and the Securities are not being acquired by it for or on behalf of a U.S. Person; (ii) no offers to sell the Securities were made by any person to the Purchaser while the Purchaser was in the United States, and the Subscriber was outside the United States at the time of execution and delivery of this subscription; (iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇); (iv) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and (v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investment. (m) The Purchaser has no knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction. (n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf. (o) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound. (p) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms. (q) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI 45-102 and the 1933 Act, and other securities legislation, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation. (r) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities. (s) the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result of the Purchaser’s financial, investment or business experience or as a result of advice received from a registered person other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment. (t) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation. (u) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon. (v) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities and will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date. (w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons. (x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.
Appears in 4 contracts
Sources: Private Placement Subscription Agreement (Enertopia Corp.), Private Placement Subscription Agreement (Enertopia Corp.), Private Placement Subscription Agreement (Enertopia Corp.)
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges4.1 In order to induce the Vendor to enter into and consummate this Agreement, represents, warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser represents and warrants to the Vendor, and acknowledges that the Vendor is contracting hereunder) the Issuer that, as at the date of relying on such representations and warranties in entering into this Agreement and at completing the Closing Datetransactions contemplated hereby, that:
(a) The Issuer has not filed a prospectus with any of the Commissions or any other securities commission or similar authority in connection with the offering of the Securities and that:
(i) the Purchaser is restricted from using most of the civil remedies available under the Acts;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale of the Securities duly incorporated pursuant to the Purchaser laws of Nevada and is subject in good standing with respect to the sale being exempt from the prospectus requirements filing of the Acts.annual reports thereunder;
(b) If the authorized capital of the Purchaser is a resident consists of British Columbia or Alberta, then the Purchaser is purchasing the Securities 100,000,000 common shares with par value of US$0.001 of which 2,000,000 common shares are issued and outstanding as principal fully paid and is either:
(i) an "accredited investor" as defined in NI 45non-106 and was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of "accredited investor" in NI 45-106assessable;
(c) The the Purchaser will issue the Purchaser's Shares against payment for same pursuant to section 1.2 of this Agreement, if not a resident free of British Columbiaall liens, certifies that it is not resident in British Columbia claims, charges, restrictions on transfer, voting agreements, voting trusts, escrow conditions and acknowledges that:
(i) no encumbrances whatsoever, other than statutory hold periods or other restrictions imposed by applicable securities commission legislation or similar securities regulatory authority has reviewed or passed on the merits of the Securitiesbodies;
(iid) there is no government or other insurance covering the Securities;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions Purchaser has due and sufficient right and authority to enter into this Agreement on the Purchaser’s ability to resell terms and conditions herein set out and all necessary corporate action has been taken by or on the Securities and it is the responsibility part of the Purchaser to find out what those restrictions are authorize the execution and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus delivery of this Agreement and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(d) If the Purchaser is resident outside of Canada but not in the United States, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "Authorities") having application in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition of the Securities, if any;
(ii) is purchasing the Securities pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; and
(iv) the purchase of the Purchaser's Securities by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any all other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonablydocuments contemplated hereby;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(f) The purchase of the Securities has not been made through or as a result of, and the distribution of the Securities has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(g) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange.
(h) The Purchaser is not a "control person" of the Issuer as defined in the BC Act, will not become a "control person" by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Act:
(i) the Purchaser is not a U.S. Person and the Securities are not being acquired by it for or on behalf of a U.S. Person;
(ii) no offers to sell the Securities were made by any person to the Purchaser while the Purchaser was in the United States, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investment.
(m) The Purchaser has no knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(p) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legalvalid and legally binding contract, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms., subject to equitable remedies and the rights of creditors generally;
(f) other than the Purchaser's Shares, no person, firm or corporation has any right, agreement or option, whether oral or in writing, or a right capable of becoming a right, agreement or option:
(i) for the purchase of the Purchaser's Shares,
(ii) for the purchase, subscription or issuance of any of the unissued shares in the capital of the Purchaser, or
(iii) to require the Purchaser to purchase, redeem or otherwise acquire the Purchaser's Shares;
(g) the audited financial statements (the "Purchaser's Financial Statements) of the Purchaser as at July 31,2000 which are attached hereto as Schedule "C", are true and correct in every material respect and present fairly the assets, liabilities and the financial position of the Purchaser as at July 31, 2000 and the sales, earnings and the results of its operations for the periods then ended in accordance with United States generally accepted accounting principles, on a basis consistently applied;
(h) except as set out in the Purchaser's Financial Statements, since July 31,2000
(i) there has not been any material adverse change in the financial position or condition of the Purchaser or any damage, loss or other change in circumstances material ally affecting the business or property of the Purchaser or its right or capacity to carry on business,
(ii) the Purchaser has not waived or surrendered any right of material value,
(iii) the Purchaser has not discharged or satisfied or paid any material lien or encumbrance or obligation or liability other than current liabilities in the ordinary course of business, and
(iv) the business of the Purchaser has been carried on in the ordinary course;
(i) there are no material liabilities, contingent or otherwise, of the Purchaser of which the Purchaser has knowledge, not disclosed in the financial statements of Purchaser's Financial Statements, except those nonmaterial liabilities incurred in the ordinary course of business of the Purchaser since July 31,2000, and the Purchaser has not guaranteed, or agreed to guarantee, any material debt, liability or other obligation of any person, firm or corporation;
(j) all material transactions of the Purchaser have been properly recorded in the books and records of the Purchaser, and the minute books of the Purchaser contain records of all material contracts and meetings and proceedings of shareholders and directors thereof;
(k) no dividends or other distribution on any shares in the capital of the Purchaser has been made, declared or authorized since its incorporation nor will any be declared, paid or authorized after the date hereof and up to the Closing Date;
(1) no payments of any kind have been made or authorized by or on behalf of the Purchaser to or on behalf of officers, directors, shareholders or employees of the Purchaser or under any management agreements with the Purchaser, other than in the ordinary course of business;
(m) there are no material actions, suits, judgements, investigations or proceedings outstanding or pending or, to the best of the Purchaser's knowledge, threatened against or affecting the Purchaser at law or in equity or before or by any federal, provincial, state, municipal or other governmental department, commission, board, bureau, agency, court or tribunal;
(n) no shareholders, directors, officers, employees or consultants of the Purchaser are now indebted or under obligation to the Purchaser on any account whatsoever;
(o) the Purchaser is not indebted to any of its shareholders, directors, officers, employees or consultants, other than in the ordinary course of business;
(p) the performance of this Agreement will not be in violation of the Articles or Bylaws of the Purchaser or of any agreement to which the Purchaser is a party and will not give any person any right to terminate or cancel any agreement or any right enjoyed by the Purchaser and will not result in the creation or imposition of any lien, encumbrance or restriction of any nature whatsoever in favour of a third party upon or against the assets of the Purchaser;
(q) The the Purchaser has obtained independent advice as not retained, employed or introduced any broker, finder or other person who would be entitled to the applicable hold period imposed on the Securities by NI 45-102 and the 1933 Act, and other securities legislation, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware a brokerage commission or finder's fee arising out of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation.transactions contemplated hereby;
(r) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, there are no liabilities of the Purchaser will signof any kind whatsoever, delivercontingent or otherwise, file, and otherwise assist existing on the Issuer date hereof in filing all reports, undertakings, and other documents required with respect to of which the issue Purchaser may be liable on or after the completion of the Securities.transactions contemplated hereby other than liabilities disclosed or referred to in this Agreement;
(s) the Purchaser is capable not subject to any cease trade or any other similar order of assessing and evaluating any securities regulatory authority, and, to the risks and merits of this investment as a result knowledge of the Purchaser’s financial, investment no investigation or business experience other similar proceeding is currently in progress or as a result of advice received from a registered person pending before any other than the Issuer securities regulatory authority or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.stock exchange;
(t) the Purchaser (or, if applicable, others for whom is current in the filing of all public disclosure documents required to be filed by the Purchaser under applicable securities and other legislation and all such filings are complete and correct and do not contain any misrepresentations and the Purchaser is not in default of any material requirement of the securities legislation of any province in which it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.a reporting issuer;
(u) The the Purchaser makes has made adequate provision for all tax payable for the representations, warranties, covenantscurrent period for which returns or records are not yet required to be filed, and acknowledgements the Purchaser has not made any agreements or other arrangements providing for, or received any waivers allowing, an extension of time within which any tax return or record must be filed or any tax, tax deficiency or other charge to any government agency must be paid;
(v) there are no actions, audits, assessments, reassessments, suits, proceedings, investigations or claims now pending or, to the best of the Purchaser's knowledge, threatened against the Purchaser in respect of taxes or governmental charges asserted by any Governmental Authority, nor has the Purchaser been notified that any tax returns previously filed will be subject to reassessment.
4.2 The representations and warranties of the Purchaser contained in this Agreement and or any certificates or documents delivered pursuant to the provisions hereof or in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, connection with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(v) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements transactions contemplated hereby will be true and correct both as of the signing date of this Agreement at and as of the Time of Closing Date as though such representations and that they warranties were made at and as of such time. Notwithstanding any investigations or inquiries made by the Purchaser prior to the Closing or the waiver of any condition by the Purchaser, the representations and warranties of the Purchaser will survive the Purchaser’s purchase of Closing Date and, notwithstanding the Securities and Closing, will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Dateeffect.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (3w Cyber Logistics Inc), Purchase and Sale Agreement (3w Cyber Logistics Inc)
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges4.1 In order to induce the Vendors to enter into and consummate this Agreement, represents, warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) represents and warrants to the Issuer thatVendors, as at and acknowledges that the date of Vendors are relying on such representations and warranties in entering into this Agreement and at completing the Closing Datetransactions contemplated hereby, that:
(a) The Issuer has not filed a prospectus with any of the Commissions or any other securities commission or similar authority in connection with the offering of the Securities and that:
(i) the Purchaser is restricted from using most duly incorporated pursuant to the laws of the civil remedies available under the Acts;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer State of Florida and is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale of the Securities in good standing with respect to the Purchaser is subject to the sale being exempt from the prospectus requirements filing of the Acts.annual reports thereunder;
(b) If the authorized capital of the Purchaser is consists of 50,000,000 common shares with a resident par value of British Columbia or AlbertaUS$0.001, then the Purchaser is purchasing the Securities of which 1,000,000 common shares are issued and outstanding as principal fully paid and is either:
(i) an "accredited investor" as defined in NI 45non-106 and was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of "accredited investor" in NI 45-106assessable;
(c) The Purchaserthe Purchaser will issue the First Geneva Shares and First Geneva Warrants against payment for same pursuant to section 1.2 of this Agreement, if not a resident free of British Columbiaall liens, certifies that it is not resident in British Columbia claims, charges, restrictions on transfer, voting agreements, voting trusts, escrow conditions and acknowledges that:
(i) no encumbrances whatsoever, other than statutory hold periods or other restrictions imposed by applicable securities commission laws or similar securities regulatory authority has reviewed or passed on the merits of the Securitiesbodies;
(iid) there is no government or other insurance covering the Securities;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions Purchaser has due and sufficient right and authority to enter into this Agreement on the Purchaser’s ability to resell terms and conditions herein set out and all necessary corporate action has been taken by or on the Securities and it is the responsibility part of the Purchaser to find out what those restrictions are authorize the execution and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus delivery of this Agreement and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(d) If the Purchaser is resident outside of Canada but not in the United States, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "Authorities") having application in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition of the Securities, if any;
(ii) is purchasing the Securities pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; and
(iv) the purchase of the Purchaser's Securities by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any all other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonablydocuments contemplated hereby;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(f) The purchase of the Securities has not been made through or as a result of, and the distribution of the Securities has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(g) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange.
(h) The Purchaser is not a "control person" of the Issuer as defined in the BC Act, will not become a "control person" by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Act:
(i) the Purchaser is not a U.S. Person and the Securities are not being acquired by it for or on behalf of a U.S. Person;
(ii) no offers to sell the Securities were made by any person to the Purchaser while the Purchaser was in the United States, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investment.
(m) The Purchaser has no knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(p) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legalvalid and legally binding contract, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms., subject to equitable remedies and the rights of creditors generally;
(f) other than the First Geneva Securities, no person, firm or corporation has any right, agreement or option, whether oral or in writing, or a right capable of becoming a right, agreement or option:
(i) for the purchase of the First Geneva Securities,
(ii) for the purchase, subscription or issuance of any of the unissued shares in the capital of the Purchaser, or
(iii) to require the Purchaser to purchase, redeem or otherwise acquire the First Geneva Securities,
(g) the audited financial statements of the Purchaser as at March 31, 1998, which are attached hereto as Schedule "G", are true and correct in every material respect and present fairly the assets, liabilities and the financial position of the Purchaser as at March 31, 1998 and the sales, earnings and the results of its operations for the periods then ended in accordance with United States' generally accepted accounting principles, on a basis consistently applied;
(h) copies of all documents filed with the United States Securities and Exchange Commission (the "Public Record") since March 31, 1998 have, or will have, prior to the Closing, been provided to the Vendors' counsel;
(i) except as set out in the Public Record, since March 31, 1998:
(i) there has not been any material adverse change in the financial position or condition of the Purchaser or any damage, loss or other change in circumstances materially affecting the business of the Purchaser or its right or capacity to carry on business,
(ii) the Purchaser has not waived or surrendered any right of material value,
(iii) the Purchaser has not discharged or satisfied or paid any material lien or encumbrance or obligation or liability other than current liabilities in the ordinary course of business, and
(iv) the business of the Purchaser has been carried on in the ordinary course;
(j) there are no material liabilities, contingent or otherwise, of the Purchaser, of which the Purchaser has knowledge, not disclosed in the financial statements of the Purchaser as at March 31, 1998 or the Public Record, except those non-material liabilities incurred in the ordinary course of business of the Purchaser since March 31, 1998 and the Purchaser has not guaranteed, or agreed to guarantee, any material debt, liability or other obligation of any person, firm or corporation;
(k) no dividends or other distribution on any shares in the capital of the Purchaser has been made, declared or authorized since its incorporation nor will any be declared, paid or authorized after the date hereof and up to the Closing Date;
(l) except as set out in the Public Record, no payments of any kind have been made or authorized by or on behalf of the Purchaser to or on behalf of officers, directors, shareholders or employees of the Purchaser or under any management agreements with the Purchaser, other than in the ordinary course of business;
(m) the Purchaser has not entered into any material contracts (including without limitation employment agreements, change of control agreements, collective agreements, finders' fee agreements, agreements to pay bonuses, agreements in respect of gifts or donations, agreements regarding dividends or distributions or containing restrictions on dividends or distributions, agreements with respect to borrowings, agreements with respect to loans or advances, agreements with respect to investments, guarantees or other financial support for the obligations of others, management or consulting agreements, leases of real property, leases of personal property, non-competition or non-solicitation agreements, confidentiality agreements, and licensing or royalty agreements relating to intellectual property);
(n) except as set out in the Public Record, there are no material actions, suits, judgements, investigations or proceedings outstanding or pending or, to the best of the Purchaser's knowledge, threatened against or affecting the Purchaser at law or in equity or before or by any federal, provincial, state, municipal or other governmental department, commission, board, bureau, agency, court or tribunal;
(o) there are no pensions, profit sharing, group insurance or similar plans or other deferred compensation plans affecting the Purchaser;
(p) except as set out in the Public Record, no shareholders, directors, officers, employees or consultants of the Purchaser are now indebted or under obligation to the Purchaser on any account whatsoever;
(q) The Purchaser has obtained independent advice except as to set out in the applicable hold period imposed on the Securities by NI 45-102 and the 1933 ActPublic Record, and other securities legislation, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware not indebted to any of its shareholders, directors, officers, employees or consultants, other than in the risks and other characteristics ordinary course of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation.business;
(r) If required by applicable securities legislation, policy, the performance of this Agreement will not be in violation of the Articles or order or by any securities commission, stock exchange or other regulatory authority, By-laws of the Purchaser or of any agreement to which the Purchaser is a party and will signnot give any person any right to terminate or cancel any agreement or any right enjoyed by the Purchaser and will not result in the creation or imposition of any lien, deliver, file, and otherwise assist encumbrance or restriction of any nature whatsoever in favour of a third party upon or against the Issuer in filing all reports, undertakings, and other documents required with respect to the issue assets of the Securities.Purchaser;
(s) the Purchaser is capable of assessing and evaluating the risks and merits of this investment as has not retained, employed or introduced any broker, finder or other person who would be entitled to a result brokerage commission or finder's fee arising out of the Purchaser’s financial, investment or business experience or as a result of advice received from a registered person other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.transactions contemplated hereby;
(t) there are no liabilities of the Purchaser of any kind whatsoever, contingent or otherwise, existing on the date hereof in respect of which the Purchaser may be liable on or after the completion of the transactions contemplated hereby other than:
(ori) liabilities disclosed or referred to in this Agreement, if applicableand
(ii) liabilities incurred in the ordinary course of business, others for whom it is contracting hereunder) has been advised none of which are materially adverse to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerationsthe business, and it (oroperations, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislationaffairs or financial condition of the Purchaser.
(u) The the Purchaser makes is currently listed on the representationsNASD OTC Bulletin Board under the trading symbol FGAI;
(v) the Purchaser is not subject to any cease trade or any other similar order of any securities regulatory authority, warrantiesand, covenantsto the knowledge of the Purchaser, no investigation or other similar proceeding is currently in progress or pending before any securities regulatory authority;
(w) the Purchaser is current in the filing of all public disclosure documents required to be filed by the Purchaser under applicable securities and other legislation and all such filings are complete and correct and do not contain any misrepresentations and the Purchaser is not in default of any material requirement of the securities laws of any jurisdiction;
(x) as of the date hereof, to the best of its knowledge, Schedule "H" lists all of the holders of 10% or more of the total number of outstanding shares in the capital of the Purchaser;
(y) to the best of the Purchaser's knowledge, all currently issued and outstanding common shares of the Purchaser were originally issued in full compliance with all applicable securities laws;
(z) the Purchaser does not have any information or knowledge of any material facts pertaining to it which, if known to the Vendors, might reasonably be expected to deter the Vendors from completing the transactions contemplated hereby;
(aa) no authorization, approval, order, license, permit, consent, certificate or registration of any Governmental Authority, court or arbitrator, or any other party, and acknowledgements no registration, declaration or filing by the Purchaser with any Governmental Authority, court or arbitrator, or any other party, is required in order for the Purchaser to execute and deliver this Agreement and all other documents and instruments to be delivered by it pursuant hereto;
(bb) no action, suit, judgement, investigation, inquiry, assessment, reassessment, litigation, determination or administrative or other proceeding or arbitration before or of any court, arbitrator or Governmental Authority or dispute with any Governmental Authority is in process or, to the best of the Purchaser's knowledge, threatened, against or relating to the business of the Purchaser or any of its assets or properties and, to the best of the Purchaser's knowledge, no state of facts exists which could constitute the basis therefor;
(cc) to the best of the Purchaser's knowledge, the business of the Purchaser complies in all material respects with all applicable laws, judgements, decrees, orders, injunctions, rules, statutes and regulations of all courts, arbitrators or Governmental Authority, including all environmental, health and safety statutes and regulations;
(dd) the Purchaser does not have any contracts, agreements, pension plans, benefit plans, profit sharing plans, bonus plans, undertakings or arrangements, whether oral, written, or implied, with employees, lessees, licensees, managers, accountants, suppliers, agents, distributors, officers, lawyers, or others which cannot be terminated on not more than one month's notice and for an amount not in excess of $1,000;
(ee) the Purchaser has complied with all laws, rules, regulations and orders applicable to it relating to employment, including those relating to wages, hours, collective bargaining, occupational health and safety, workers' hazardous materials, employment standards, pay equity and workers' compensation;
(ff) all requisite tax returns and reports of the Purchaser have been prepared and filed and are all substantially true, correct and complete, the Purchaser has been assessed for applicable income tax for all years up to and including the fiscal year of the Purchaser ended December 31, 1998, all taxes and other government charges have been paid to date or, if not yet due, have been accrued and are reflected in the Purchaser's Financial Statements, and, to the best of the Purchaser's knowledge, there are no contingent tax liabilities;
(gg) the Purchaser has made adequate provision for all tax payable for the current period for which returns or records are not yet required to be filed, and the Purchaser has not made any agreements or other arrangements providing for, or received any waivers allowing, an extension of time within which any tax return or record must be filed or any tax, tax deficiency or other charge to any government agency must be paid;
(hh) there are no actions, audits, assessments, reassessments, suits, proceedings, investigations or claims now pending or, to the best of the Purchaser's knowledge, threatened against the Purchaser in respect of taxes or governmental charges asserted by any Governmental Authority, nor has the Purchaser been notified that any tax returns previously filed will be subject to reassessment;
(ii) all material transactions of the Purchaser have been properly recorded in the books and records of the Purchaser, and the minute books of the Purchaser contain records of all material contracts and meetings and proceedings of shareholders and directors thereof;
(jj) the Purchaser owns, holds, possesses or lawfully uses in the operation of its business all Authorizations of any governmental entity having jurisdiction which are necessary for it to conduct its business as presently conducted in compliance with all applicable laws. All such Authorizations are valid, subsisting and in good standing, the Purchaser is not in material default or breach thereof and, to the best of the Purchaser's knowledge, no proceeding is pending or threatened to revoke or limit any Authorization. All Authorizations are renewable by their terms or in the ordinary course of business without the need to comply with any special rules or procedures, agree to any materially different terms or conditions or pay any amounts other than routine filing fees. Neither the Purchaser nor any affiliate thereof owns or has any proprietary, financial or other interest (direct or indirect) in any such Authorization; and
(kk) the Purchaser has not granted a power of attorney to any person.
4.2 The representations and warranties of the Purchaser contained in this Agreement and or any certificates or documents delivered pursuant to the provisions hereof or in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, connection with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(v) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements transactions contemplated hereby will be true and correct both as of the signing date of this Agreement at and as of the Time of Closing Date as though such representations and that they warranties were made at and as of such time. Notwithstanding any investigations or inquiries made by the Purchaser prior to the Closing or the waiver of any condition by the Purchaser, the representations and warranties of the Purchaser will survive the Purchaser’s purchase of Closing Date and, notwithstanding the Securities and Closing, will continue in full force and effect even if for one year from the Purchaser subsequently disposes Closing, except those relating to tax matters which will survive until the expiration of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information statutory limitation period and those relating to the Purchaser set forth herein fraud or intentional misrepresentation which takes place before the Closing Datewill survive indefinitely. 5.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.
Appears in 1 contract
Sources: Share Exchange Agreement (Dragon Pharmaceuticals Inc)
Purchaser’s Representations and Warranties. 5.1 18.1 The Purchaser acknowledges, represents, warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) the Issuer that, as at the date of this Agreement and at the Closing Date:
(a) The Issuer has not filed a prospectus with any of the Commissions or any other securities commission or similar authority in connection with the offering of the Securities Units and that:
(i) the Purchaser is restricted from using most of the civil remedies available under the Acts;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and;
(iv) the issuance and sale of the Securities Units to the Purchaser is subject to the sale being exempt from the prospectus requirements of the Acts; and
(v) the Purchaser has not received nor been provided with, nor has it requested, nor does it have any need to receive, any offering memorandum, prospectus, sales or advertising literature or any other document purporting to describe the business and affairs of the Issuer which has been prepared for delivery to, and review by, prospectus purchasers of Units on order to assist in making an investment decision in respect of the Units.
(b) If the Purchaser is a resident of British Columbia or AlbertaColumbia, then either:
(i) the Purchaser is purchasing the Securities Units as principal for its own account and not for the benefit of any other person and not with a view to the resale or distribution of all or any of the Securities and is an “accredited investor” as defined in MI 45-103, and the Purchaser has completed , signed and delivered to the Issuer, an Appendix I – British Columbia/Alberta Certificate; or
(ii) the Purchaser is purchasing the Units as principal for its own account and not for the benefit of any other person and not with a view to the resale of distribution of all or any of the Securities and is either:
(A) a director, senior officer or control person of the Issuer or andaffiliate of the Issuer;
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Issuer or an affiliate of the Issuer; or
(C) a parent, grandparent, brother, sister or child of the spouse of a director, senior officer or control person of the Issuer or an affiliate of the Issuer; or
(D) a close personal friend of a director, senior officer or control person of the Issuer or an affiliate of the Issuer; or
(E) a close business associate of a director, senior officer or control person of the Issuer or an affiliate of the Issuer; or
(F) a founder of the Issuer or a spouse, parent, grandparent, brother, sister, child, close personal friend or close business associate of a founder of the Issuer; or
(G) a parent, grandparent, brother, sister or child of the spouse of a founder of the Issuer; or
(H) a company of which a majority of the voting securities are beneficially owned by or a majority of the directors are persons or companies described in paragraphs (A) to (G) above; or
(I) a trust or estate of which all the beneficiaries or a majority of the trustees are persons or companies described in paragraphs (A) to (G) above; and the Purchaser has completed, signed and delivered to the Issuer, an Appendix I – British Columbia/Alberta Certificate; or
(iii) the Purchaser is purchasing sufficient Units so that the aggregate acquisition cost of the Units to the Purchaser is not less than $97,000, and if the Purchaser is not an individual, the Purchaser is not a corporation, partnership, trust, fund, association, or any other organized group of persons created solely or used primarily to permit the purchase of the Units (or other similar purchases) without a prospectus by a group of individuals whose individual share of the aggregate acquisition cost of the Units is less than $97,000 and is either:
(A) purchasing the Units as principal for investment purposes, for its own account and not for the benefit of any other person and not with a view to the resale of distribution of all or any of the Securities, and it will be the sole beneficial owner of the Securities; or
(B) not purchasing the Units as principal, but is duly authorized to enter into this Agreement and to sign all documents in connection with the purchase on behalf of each beneficial purchaser, and it acknowledges that the Issuer may in the future be required by law to disclose on a confidential basis to securities regulatory authorities the identity of each beneficial purchaser of the Units for whom it is acting, and is either:
(1) a trust company, insurance company or a portfolio manager which is deemed under the BC Act to be purchasing the Units as principal and the aggregate acquisition cost of the Units purchased for all the accounts managed by it is not less than $97,000; or
(2) acting as agent for one or more disclosed principals, each of whom is purchasing a portion of the Units: (i) as principal for its own account; (ii) not for the benefit of any other person; (iii) not with a view to the resale or distribution of all or any of the Securities and (iv) sufficient in number so the aggregate acquisition cost of such Units for such principal is not less than $97,000, and the principal is not a corporation, syndicate, partnership, or other form of incorporated or unincorporated entity or organization created solely to permit the purchase of such Units (or other similar purchases) by a group of individuals whose individual share of the aggregate acquisition cost of such Units is less than $97,000; or
(c) If the Purchaser is a resident of Alberta, then either:
(i) the Purchaser is purchasing the Units as principal for its own account and not for the benefit of any other person and not with a view to the resale or distribution of all or any of the Securities and is an "“accredited investor" ” as defined in NI MI 45-106 103, and was the Purchaser has completed Section 1 of, and signed and delivered to the Issuer, an Appendix I – British Columbia/Alberta Certificate; or
(ii) the Purchaser is purchasing the Units as principal for its own account and not for the benefit of any other person and not with a view to the resale of distribution of all or any of the Securities and is either:
(A) a director, senior officer or control person of the Issuer or an affiliate of th Issuer;
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Issuer or an affiliate of the Issuer; or
(C) a parent, grandparent, brother, sister or child of the spouse of a director, senior officer or control person of the Issuer or an affiliate of the Issuer; or
(D) a close personal friend of a director, senior officer or control person of the Issuer or an affiliate of the Issuer; or
(E) a close business associate of a director, senior officer or control person of the Issuer or its affiliate; or
(F) a founder of the Issuer or a spouse, parent, grandparent, brother, sister, child, close personal friend or close business associate of a founder of the Issuer, or
(G) a parent, grandparent, brother, sister or child of the spouse of a founder of the Issuer; or
(H) a company of which a majority of the voting securities are beneficially owned by or a majority of the directors are persons or companies described in paragraphs (A) to (E) above; or
(I) a trust or estate of which all the beneficiaries or a majority of the trustees are persons or companies described in paragraphs (A) to (E) above; and the Purchaser has completed and signed and delivered to the Issuer, an Appendix I – British Columbia/Alberta Certificate; or
(iii) the Purchaser is purchasing sufficient Units such that the aggregate acquisition cost of the Units is not less than $97,000, and the Purchaser is:
(A) an individual;
(B) a corporation, syndicate, partnership or other form of unincorporated organization which pre-existed the offering of the Units and has a bona fide purpose other than investment in the Units; or
(C) a corporation, syndicate, partnership or other form of unincorporated organization created to permit an investment in the Units, where the individual share of the aggregate acquisition cost for each member or used solely participant of such organization is not less than $97,000; and the Purchaser either:
(A) is purchasing the Units as principal and no other person, corporation, firm or other organization will have a beneficial interest in the Securities; or
(B) is not purchasing the Units as principal, but is duly authorized to enter into this Agreement and to sign all documentation in connection with the purchase on behalf of each beneficial purchaser, it acknowledges that the Issuer is required by law to disclose on a confidential basis to certain regulatory authorities, the identity of each beneficial purchaser of Units for whom it may be acting, it and each beneficial purchaser are resident in the jurisdiction set out on page 1 and 2 of this Agreement, and it fully complies with the criteria set forth below:
a. it is trading for accounts fully managed by it and is a trust corporation trading as trustee or hold securities an agent, a portfolio manager trading as an accredited investor agent, or a person or company trading as described in paragraph (m) agent that, except for an exemption under the Alberta Act , is required to be registered as a portfolio manager; or
b. it is acting as agent for one or more disclosed principals, each of which principals is purchasing a portion of the definition Units such that the aggregate acquisition cost of "such Units is not less than $97,000, and each such principal is either: (i) and individual; (ii) a corporation, syndicate, partnership or other form of unincorporated organization which pre- existed the offering of the Units and has a bona fide purpose other than investment in the Units; or (ii) a corporation, syndicate, partnership or other form of unincorporated organization created to permit an investment in the Units, where the individual share of the aggregate acquisition cost for each member or participant of such organization is not less than $97,000; or
(d) If the Purchaser is resident in Ontario, then either:
(i) the Purchaser is purchasing the Units as principal for its own account and not for the benefit of any other “person” (as defined in the Ontario Act) or company and is an “accredited investor" ” as defined in NI Rule 45-106501 and the Purchaser has completed, signed and delivered to the Issuer an Appendix II – Ontario Certificate; or
(cii) the Purchaser is purchasing the Units as agent for a disclosed principal, each beneficial purchaser of the Units for whom it is acting as agent is purchasing as principal for its own account and not for the benefit of any other person, is an “accredited investor” as defined in OSC Rule 45-501 and the Purchaser has completed, signed and delivered to the Issuer, an Appendix II – Ontario Certificate, and the Purchaser is an agent with due and proper authority to execute all documentation in connection with the purchase on behalf of the beneficial purchaser.
(e) The Purchaser, if not a resident of British Columbia, certifies that it is not resident in British Columbia and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(df) If the Purchaser is resident outside of Canada but not in the United StatesCanada, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "“Authorities"”) having application in the jurisdiction in which the Purchaser is resident (the "“International Jurisdiction"”) which would apply to the acquisition of the SecuritiesUnits, if any;
(ii) is purchasing the Securities Units pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities Units under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;; and
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; andUnits.
(iv) the purchase of the Purchaser's Securities by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(fg) The purchase of the Securities Units has not been made through or as a result of, and the distribution of the Securities Units has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(gh) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the SecuritiesUnits or the Warrant Shares;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange, other than the Shares on the Exchange.
(hi) The Purchaser is not a "“control person" ” of the Issuer as defined in the BC Act, will not become a "“control person" ” by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term Purchaser is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, resident in the United States or by or jurisdiction indicated on the cover page to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Actthis Agreement and:
(i) the Purchaser is not a national, citizen, or resident of the United States of America or its territories or possessions (a “U.S. Person Person”) and is not purchasing the Securities are not being acquired by it Units for the account or on behalf benefit of a U.S. Person;
(ii) no offers to sell the Securities were made by any person Issuer did not offer the Units to the Purchaser while when the Purchaser was in the United States, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;; and
(iii) the Purchaser did not sign or deliver this Agreement in the United States.
(k) The Purchaser acknowledges that the Securities have not been registered under the 1933 Act or the securities laws of any person who acquires Securities will state of the United States, and may not be required to provide offered or sold in the United States unless registered under the 1933 Act and the securities laws of all applicable states of the United States or an exemption from such registration requirements is available, and that the Issuer with written certification that it is has no obligation or present intention of filing a registration statement under the 1933 Act regarding any of the Securities.
(l) The Units are not being acquired directly or indirectly, for the account or benefit of a U.S. Person or a person in the United States and that the Securities are Purchaser does not being acquired by it for have any agreement or on behalf of a understanding (either written or oral) with any U.S. Person or a person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);respecting:
(ivi) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect transfer or assignment of any of the Securities which would include any activities undertaken for the purpose of, rights or that could reasonably be expected to have the effect of, conditioning the market interest in the United States for the resale of any of the Securities;
(ii) the division of profits, losses, fees, commissions, or any financial stake in connection with this subscription; provided, however, that or
(iii) the Subscriber may sell or otherwise dispose of any voting of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investmentShares.
(m) The Purchaser has no knowledge of a "“material fact" ” or "“material change" ” (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(p) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms.
(q) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI 45-102 and the 1933 Act, and other securities legislation, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation.
(r) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(s) the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result of the Purchaser’s financial, investment or business experience or as a result of advice received from a registered person other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.
(t) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(u) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(v) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities and will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.la
Appears in 1 contract
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges, represents, further represents and warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) the Issuer that, as at the date of this Agreement and at the Closing DateCompany:
(a) The Issuer has Shares are being issued to the Purchaser by the Company for investment only, for the Purchaser's own account, and are not filed being purchased by the Purchaser with a prospectus with any view to distribution of such Shares, or for the Commissions or any other securities commission or similar authority offer and/or sale in connection with the offering any distribution thereof. The Purchaser is not participating, directly or indirectly, in an underwriting of the Securities and that:
(i) the Shares or in any similar undertaking. The Purchaser is restricted from using most has no present plans to enter into any contract, undertaking, agreement or arrangement which would entail an underwriting of the civil remedies available under the Actssuch Shares or any similar distribution thereof;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale of the Securities to the Purchaser is subject to the sale being exempt from the prospectus requirements of the Acts.
(b) If the The Purchaser is a resident of British Columbia or Alberta, then the Purchaser is purchasing the Securities as principal and is either:
(i) an "accredited investor" as that term is defined in NI 45-106 Rule 501 of Regulation D promulgated by the Securities and was not created Exchange Commission, in that
(i) the undersigned is a natural person whose net worth or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) joint net worth, taking the Purchaser's spouse into consideration, at the time of the definition Purchaser's purchase of "accredited investor" these Shares herein, exceeds One Million Dollars ($1,000,000), or
(ii) the undersigned is a natural person whose income in NI 45-106each of the last two years exceeded Two Hundred Thousand Dollars ($200,000) (Three Hundred Thousand Dollars [$300,000] joint income taking the Purchaser's spouse into consideration) and the undersigned has a reasonable expectation of reaching the same income level in this current year; or
(iii) as otherwise defined in Regulation D.
(c) The Purchaser, if not a resident of British Columbia, certifies Purchaser understands that it is not resident in British Columbia and acknowledges that:
(i) no securities commission or similar regulatory authority has reviewed or passed on the merits of the Securities;
(ii) there is no government guarantee of profits or other insurance covering against loss as a result of purchasing the Securities;
(iii) there are risks associated with Shares and the purchase Purchaser hereby states that the Purchaser can afford a complete loss of the Securities;
(iv) there are restrictions on investment in such Shares. The Purchaser further warrants that the Purchaser’s ability 's present financial condition is such that the Purchaser has no present or perceived future need to resell the Securities and it is the responsibility dispose of any portion of the Purchaser Shares to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised satisfy any existing or contemplated undertaking, obligation, need or indebtedness. Consequently, the Purchaser represents that the Issuer is relying on an exemption from Purchaser has sufficient liquid assets to pay the requirements to provide full purchase price of the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts andShares, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to has adequate means for providing for the Purchaser's current needs and possible contingencies and has no current need to liquidate any of the Purchaser's investment in the Company.
(d) If The Purchaser has been represented by such legal counsel and other advisors, each of whom has been personally selected by the Purchaser, as the Purchaser is resident outside of Canada but not in the United Stateshas found necessary to consult, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "Authorities") having application in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition of the Securities, if any;
(ii) is purchasing the Securities pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; and
(iv) concerning the purchase of the Shares, and such representation has included an examination of applicable documents and an analysis of all relevant tax, financial, recording and securities law aspects of an investment in the Shares. The Purchaser, the Purchaser's Securities counsel, advisors, and such other persons with whom the Purchaser has found it necessary or advisable to consult, have represented to the Purchaser that they have knowledge or experience in business and financial matters to evaluate the information set forth in the aforementioned reports, proxy statement, documents and other information made available by the Purchaser does not trigger:
(A) any obligation Company, the risks associated with this investment, and to prepare and file a prospectus or similar document, or any other report make an informed investment decision with respect hereto. To the extent that the Purchaser has found it necessary to consult with any such counsel and/or advisors concerning the purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and Shares, the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local has relied upon their advice and counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;making such investment decision.
(e) The Issuer Purchaser is entitled to rely on the representations and warranties and the statements and answers a resident of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of jurisdiction set forth below the Purchaser's failure to correctly complete this Agreement and name on the Appendices;
(f) The purchase of the Securities has not been made through or as a result of, and the distribution of the Securities has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(g) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange.
(h) The Purchaser is not a "control person" of the Issuer as defined in the BC Act, will not become a "control person" by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Act:
(i) the Purchaser is not a U.S. Person and the Securities are not being acquired by it for or on behalf of a U.S. Person;
(ii) no offers to sell the Securities were made by any person to the Purchaser while the Purchaser was in the United States, and the Subscriber was outside the United States at the time of execution and delivery signature page of this subscription;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investmentSubscription Agreement.
(m) The Purchaser has no knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(p) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms.
(q) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI 45-102 and the 1933 Act, and other securities legislation, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation.
(r) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(s) the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result of the Purchaser’s financial, investment or business experience or as a result of advice received from a registered person other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.
(t) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(u) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(v) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities and will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.
Appears in 1 contract
Sources: Subscription Agreement (Cpac Inc)
Purchaser’s Representations and Warranties. 5.1 The In connection with the purchase of the Shares, Purchaser acknowledges, represents, represents and warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) Company the Issuer that, as at the date of this Agreement and at the Closing Datefollowing:
(a) The Issuer has not filed a prospectus with any Purchaser is aware of the Commissions or any other securities commission or similar authority in connection with Company’s business affairs and financial condition and has acquired sufficient information about the offering of Company to reach an informed and knowledgeable decision to acquire the Securities and that:
(i) the Purchaser is restricted from using most of the civil remedies available under the Acts;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale of the Securities to the Purchaser is subject to the sale being exempt from the prospectus requirements of the Acts.
(b) If the Purchaser is a resident of British Columbia or Alberta, then the Shares. Purchaser is purchasing the Securities as principal and is either:
(i) an "accredited investor" as defined in NI 45-106 and was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of "accredited investor" in NI 45-106
(c) The Purchaser, if not a resident of British Columbia, certifies that it is not resident in British Columbia and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Shares for investment for Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(d) If the Purchaser is resident outside of Canada but not in the United States, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "Authorities") having application in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition of the Securities, if any;
(ii) is purchasing the Securities pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; and
(iv) the purchase of the Purchaser's Securities by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(f) The purchase of the Securities has not been made through or as a result of, and the distribution of the Securities has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(g) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange.
(h) The Purchaser is not a "control person" of the Issuer as defined in the BC Act, will not become a "control person" by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Act:
(i) the Purchaser is not a U.S. Person and the Securities are not being acquired by it for or on behalf of a U.S. Person;
(ii) no offers to sell the Securities were made by any person to the Purchaser while the Purchaser was in the United States, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account only and not with a view to, or for, for resale in connection with with, any distribution “distribution” thereof within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any meaning of the Securities Act of 1933, as amended (the “Securities Act”).
(b) Purchaser understands that the Shares have not been registered under the Securities Act by reason of a specific exemption therefrom, which would include any activities undertaken exemption depends on, among other things, the bona fide nature of Purchaser’s investment intent as expressed herein. In this connection, Purchaser understands that, in the view of the Securities and Exchange Commission (the “SEC”), the statutory basis for such exemption may not be present if Purchaser’s representations meant that Purchaser’s present intention was to hold the purpose ofShares for a minimum capital gains period under applicable tax statutes, or that could reasonably be expected to have the effect offor a deferred sale, conditioning for a market rise, for a sale if the market does not rise or for a year or any other fixed period in the United States for the resale of any of the Securities; provided, however, future.
(c) Purchaser further acknowledges and understands that the Subscriber may sell Shares must be held indefinitely unless they are subsequently registered under the Securities Act or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements is available. Purchaser further acknowledges and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her Company is under no obligation to bear register the risks of such investmentShares.
(md) The Purchaser has no knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(p) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms.
(q) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI 45-102 and the 1933 Act, and other securities legislation, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks adoption of Rule 144 by the SEC, promulgated under the Securities Act, which permits limited public resales of securities acquired in a nonpublic offering, subject to the satisfaction of certain conditions, including, among other things, the availability of certain current public information about the issuer, the sale being through a broker in an unsolicited “broker’s transaction” and other characteristics the amount of securities being sold during any three (3) month period not exceeding specified limitations. Purchaser is aware that Rule 144 of the SEC under the Securities and Act currently is not available to exempt the sale of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation.
(r) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(s) the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result of the Purchaser’s financial, investment or business experience or as a result of advice received Shares from a registered person other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.
(t) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(u) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(v) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities and will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Securities Act. Purchaser further represents that Purchaser understands that, at the time Purchaser desires to sell the Shares, there may be no public market in which to make such a sale and that, even if such a public market exists for the Company’s Common Stock, the Company may not be satisfying the current public information requirement of Rule 144 or other conditions under Rule 144 that are required of the Company. If so, Purchaser understands that Purchaser will be precluded from selling the Shares under Rule 144.
Appears in 1 contract
Sources: Stock Purchase and Membership Interest Contribution Agreement (808 Renewable Energy Corp)
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges, represents, hereby represents and warrants and covenants to and OTC with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) the Issuer that, respect to this purchase as at the date of this Agreement and at the Closing Date:
follows: (a) The Issuer the Purchaser has not filed a prospectus pre-existing business relationship with any of the Commissions or any other securities commission or similar authority in connection with the offering of the Securities and that:
I&M; (ib) the Purchaser is restricted from using most of the civil remedies available under the Acts;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale of the Securities to the Purchaser is subject to the sale being exempt from the prospectus requirements of the Acts.
(b) If the Purchaser is a resident of British Columbia or Alberta, then the Purchaser is purchasing the Securities as principal and is either:
(i) an "accredited investor" as defined in NI 45-106 and was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of "accredited investor" in NI 45-106
(c) The Purchaser, if not a resident of British Columbia, certifies that it is not resident in British Columbia and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(d) If the Purchaser is resident outside of Canada but not in the United States, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "Authorities") having application in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition of the Securities, if any;
(ii) is purchasing the Securities pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; and
(iv) the purchase of the Purchaser's Securities by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(f) The purchase of the Securities has not been made through or as a result of, and the distribution of the Securities has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(g) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange.
(h) The Purchaser is not a "control person" of the Issuer as defined in the BC Act, will not become a "control person" by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Act:
(i) the Purchaser is not a U.S. Person and the Securities are not being acquired by it for or on behalf of a U.S. Person;
(ii) no offers to sell the Securities were made by any person to the Purchaser while the Purchaser was in the United States, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely Shares for investment purposes for his or her its own account and not with a view to, or for, for resale in connection with with, any distribution within distribution; (c) the United States or by or Purchaser understands that the Shares to U.S. Persons (as defined in Regulation S promulgated be purchased hereby have not been registered under the ▇▇▇▇ ▇▇▇);
Securities Act of 1933, as amended (ivthe "Securities Act") and are being sold by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the investment intent as expressed herein; (d) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S Shares must be held indefinitely unless subsequently registered under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, Act or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided hereinis available; and
(ve) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investment.
(m) The Purchaser has no knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(p) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms.
(q) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI 45-102 and the 1933 Act, and other securities legislation, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks provisions of Rule 144 promulgated under the Securities Act which permits limited resale of shares purchased in a private placement subject to the satisfaction of certain conditions, including, among other things, the existence of a public market for the shares, the availability of certain current public information about I&M (except as provided in Rule 144(k)), the resale occurring not less than two years after a party has purchased and other characteristics paid for the security to be sold, the sale being through a "broker's transaction" or in transactions directly with a "market maker" (as provided by Rule 144(f)) and the number of shares being sold during any three-month period not exceeding specified limitations except as provided in Rule 144(d); (f) the Purchaser understands that no public market now exists for any of the Securities Shares and of that it is unlikely that a public market will ever exist for the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, Shares; and other applicable securities legislation.
(r) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(sg) the Purchaser is capable aware of assessing all financial information, including operating results, balance sheets and evaluating the risks and merits projections of this investment as a result future results of the Purchaser’s financial, investment or business experience or as a result operations of advice received from a registered person other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.
(t) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(u) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(v) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both I&M as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities and will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Datehereof.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.
Appears in 1 contract
Sources: Note and Stock Purchase Agreement (Oryx Technology Corp)
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges, represents, represents and warrants to the Vendors that the following representations and covenants to and with (on its own behalf and, if applicable, on behalf warranties are true as of those for whom the Purchaser is contracting hereunder) the Issuer that, as at the date hereof and will be true as of this Agreement and at the Closing DateTime of Closing:
(a) The Issuer the Purchaser is a corporation duly continued, organized and subsisting under the laws of the Yukon Territory of Canada; and
(b) the Purchaser has good and sufficient power, authority and right to enter into and deliver this Agreement and to complete the transactions to be completed by the Purchaser contemplated hereby.
(c) the financial statements of the Purchaser, as filed with the SEC:
(i) are in accordance with the books and accounts of the Purchaser as of the dates thereof,
(ii) are true and correct and present fairly the financial position of the Purchaser as of the dates thereof, and
(iii) have been prepared in accordance with generally accepted accounting principles consistently applied;
(d) since the date of the latest balance sheet of the Purchaser filed with the SEC, (i) there has been no material adverse change in the assets, liabilities or financial position of the Purchaser, and (ii) the businesses of the Purchaser have been carried on in their usual and ordinary course, and (iii) the Purchaser has not filed entered into any transaction out of the usual and ordinary course of its businesses that has not been disclosed in its public filings;
(e) the LML Shares when issued and delivered to the Vendors in accordance with the terms of this Agreement will be validly issued, fully paid and non-assessable shares of common stock of the Purchaser, free and clear of any liens, claims or encumbrances; and
(f) with respect to the Shares acquired by Purchaser pursuant to the terms of this Agreement:
(i) Purchaser is acquiring the Shares for investment for its own accounts, not as nominees or agents, and not with a prospectus with view to the sale or distribution of any part thereof, and that it has no present intention of selling, granting any participation in or otherwise distributing same;
(ii) Purchaser will not make any disposition of any of the Commissions Shares, except in accordance with applicable U.S. federal securities and Blue Sky laws;
(iii) Legends on Certificates. The Purchaser consents to the placement of legends on the certificates for the Shares issued hereunder in substantially the following forms:
A. THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 ("1933 ACT"), AS AMENDED, OR UNDER ANY STATE SECURITIES LAWS. THESE SHARES MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT REGISTRATION UNDER THE 1933 ACT AND ANY APPLICABLE STATE SECURITIES LAW UNLESS THE ISSUER RECEIVES AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER AND ITS COUNSEL THAT SUCH TRANSFER DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY OTHER STATE SECURITIES LAWS.
(g) the Purchaser is an "accredited investor" as that term is defined in Rule 501 promulgated under the 1933 Act;
(h) the Purchaser acknowledges that the Vendors have made no representations or any other securities commission or similar authority in connection with warranties regarding (i) the offering ability of the Securities and that:Corporation or the Purchaser to utilize after the Closing any of the net operating losses generated by the Corporation prior to the Closing, or (ii) the value after the Closing of the Corporation's net operating losses; and
(i) the Purchaser is restricted from using most has entered into no agreement to pay a finder's fee or any commission in respect of the civil remedies available under the Acts;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale of the Securities to the Purchaser is subject to the sale being exempt from the prospectus requirements of the Acts.
(b) If the Purchaser is a resident of British Columbia or Alberta, then the Purchaser is purchasing the Securities as principal and is either:
(i) an "accredited investor" as defined in NI 45-106 and was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of "accredited investor" in NI 45-106
(c) The Purchaser, if not a resident of British Columbia, certifies that it is not resident in British Columbia and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(d) If the Purchaser is resident outside of Canada but not in the United States, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "Authorities") having application in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition of the Securities, if any;
(ii) is purchasing the Securities pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; and
(iv) the purchase of the Purchaser's Securities by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained transactions contemplated in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as other than a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(f) The purchase of the Securities has not been made through or as a result of, and the distribution of the Securities has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(g) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange.
(h) The Purchaser is not a "control person" of the Issuer as defined finders fee in the BC Act, will not become a "control person" by virtue amount of the purchase of any of the Securities, and does not intend $157,500 to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇▇▇▇ ▇▇▇) without registration under ▇▇▇▇ Consulting of Omaha, Nebraska, which is payable in LML Shares by the 1933 Act Purchaser; provided that it is understood and any applicable State securities lawsacknowledged by the Vendors that, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 at the instant immediately following the Purchaser becoming the registered owner of Regulation S under the 1933 Act Shares, the Purchaser is going to sell and all applicable State securities lawstransfer the Shares to ChequeMark Holdings Inc., (ii) Rule 144 ChequeMark Holdings Inc. is a wholly-owned subsidiary of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Act:
(i) the Purchaser is not a U.S. Person and the Securities are not being acquired by it for or on behalf of a U.S. Person;
(ii) no offers to sell the Securities were made by any person to the Purchaser while the Purchaser was in the United States, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investment.
(m) The Purchaser has no knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction the State of incorporation, Delaware and (iii) such sale and transfer of the Shares will be effected pursuant to a separate agreement between the Purchaser and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalfsubsidiary.
(o) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(p) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms.
(q) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI 45-102 and the 1933 Act, and other securities legislation, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation.
(r) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(s) the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result of the Purchaser’s financial, investment or business experience or as a result of advice received from a registered person other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.
(t) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(u) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(v) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities and will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.
Appears in 1 contract
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges, represents, warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) the Issuer that, as at the date of this Agreement and at the Closing Date:
(a) The Issuer has not filed a prospectus with any of the Commissions or any other securities commission or similar authority in connection with the offering of the Securities Units and that:
(i) the Purchaser is restricted from using most of the civil remedies available under the Acts;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and;
(iv) the issuance and sale of the Securities Units to the Purchaser is subject to the sale being exempt from the prospectus requirements of the ActsB.C. Act and the registration requirements of the 1933 Act; and
(v) the Purchaser has not received nor been provided with, nor has it requested, nor does it have any need to receive, any offering memorandum, prospectus, sales or advertising literature or any other document purporting to describe the business and affairs of the Issuer which has been prepared for delivery to, and review by, prospectus purchasers of Units on order to assist in making an investment decision in respect of the Units.
(b) If the Purchaser is a resident of British Columbia or Alberta, then the The Purchaser is purchasing the Securities Units as principal for its own account and is either:
(i) an "accredited investor" as defined in NI 45-106 not for the benefit of any other person and was not created with a view to the resale or used solely to purchase distribution of all or hold securities as an accredited investor as described in paragraph (m) any of the definition of "accredited investor" in NI 45-106Securities;
(c) The Purchaser, if not a resident of British Columbia, Purchaser certifies that it is not resident in British Columbia and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(d) If the The Purchaser is resident outside of Canada but not in the United States, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "“Authorities"”) having application in the jurisdiction in which the Purchaser is resident (the "“International Jurisdiction"”) which would apply to the acquisition of the Securities, if any;
(ii) is purchasing the Securities pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; and
(iv) the UnitsThe purchase of the Purchaser's Securities by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(f) The purchase of the Securities Units has not been made through or as a result of, and the distribution of the Securities Units has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(ge) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the SecuritiesUnits or the Warrant Shares;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange, other than the Shares on the Exchange.
(hf) The Purchaser is not a "“control person" ” of the Issuer as defined in the BC Act, will not become a "“control person" ” by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(ig) The Purchaser, Purchaser is resident in the jurisdiction indicated on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) cover page to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewiththis Agreement.
(jh) The Subscriber Purchaser acknowledges and agrees that the Securities have not been registered under the 1933 Act or the securities laws of any state of the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities lawsStates, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, sold in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration unless registered under the 1933 Act and any the securities laws of all applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in states of the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Act:
(i) the Purchaser is not a U.S. Person and the Securities are not being acquired by it for or on behalf of a U.S. Person;
(ii) no offers to sell the Securities were made by any person to the Purchaser while the Purchaser was in the United States, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements is available, and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his Issuer has no obligation or her investment program and that his or her financial position enable him or her to bear present intention of filing a registration statement under the risks 1933 Act regarding any of such investmentthe Securities.
(mi) The Purchaser has no knowledge of a "“material fact" ” or "“material change" ” (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(nj) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(ok) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(pl) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms.
(qm) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI MI 45-102 102, other securities legislation (including, without limitation, any applicable U.S. federal and state securities laws) and the 1933 Act, and other securities legislationExchange, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI MI 45-102, the 1933 Act, and other applicable securities legislationlegislation and the Exchange’s policies.
(rn) Although the Agent may have introduced the Purchaser to the Issuer, the Purchaser and the Issuer acknowledge and agree with and for the benefit of the Agent that:
(i) the Agent and its directors, officers, employees, agents, and representatives have no responsibility or liability of any nature whatsoever for the accuracy or adequacy of the information contained in this Agreement, or any other publicly available information concerning the Issuer or as to whether the Issuer has generally disclosed all information concerning the Issuer that it was required to disclosed;
(ii) the Agent has not engaged in any independent investigation or verification regarding this Agreement or any other information;
(iii) the Agent is entitled to rely on the statements and answers of the Purchaser and the Issuer contained in this Agreement and in the Appendices, and that the Purchaser will hold harmless the Agent and the Issuer from any loss or damage it may suffer as a result of the Purchaser’s failure to correctly complete the Appendices; and
(iv) the Purchaser and the Issuer release the Agent and any of its affiliates and any of the Agent’s directors, officers, and employees from any claims, losses, damages, liabilities (or actions in respect thereof), costs, and expenses that may arise in respect of this Agreement.
(o) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authorityauthority or the Issuer, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(s) the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result of the Purchaser’s financial, investment or business experience or as a result of advice received from a registered person other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.
(t) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(up) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, hereunder with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the SecuritiesUnits, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(vq) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities Units and will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.
Appears in 1 contract
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges, represents, warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) the Issuer that, as at the date of this Agreement and at the Closing Date:
(a) The Issuer has not filed a prospectus with any of the Commissions or any other securities commission or similar authority in connection with the offering of the Securities and that:
(i) the Purchaser is restricted from using most of the civil remedies available under the Acts;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale of the Securities to the Purchaser is subject to the sale being exempt from the prospectus requirements of the Acts.
(b) If the Purchaser is a resident of British Columbia or Alberta, then the Purchaser is purchasing the Securities as principal and is either:
(i) an "accredited investor" as defined in NI 45-106 and was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of "accredited investor" in NI 45-106; OR
(ii) is eligible to purchase Securities under section 2.9 of NI 45-106 by virtue of having received a copy of the Offering Memorandum prior to executing this subscription and signing the Risk Acknowledgement Form in the form attached hereto as Appendix IIA and, in the case of a Purchaser who is a resident of Alberta and is subscribing for more than $10,000 in Securities, signing Appendix IIB attached hereto and the Purchaser has completed, signed and delivered to the Issuer an Appendix I – "Certificate of B.C. and Alberta Purchasers";
(c) The Purchaser, if not a resident of British Columbia, certifies that it is not resident in British Columbia and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(d) If the Purchaser is resident outside of Canada but not in the United States, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "Authorities") having application in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition of the Securities, if any;
(ii) is purchasing the Securities pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; and
(iv) the purchase of the Purchaser's Securities by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(f) The purchase of the Securities has not been made through or as a result of, and the distribution of the Securities has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(g) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange.
(h) The Purchaser is not a "control person" of the Issuer as defined in the BC Act, will not become a "control person" by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Act:
(i) the Purchaser is not a U.S. Person and the Securities are not being acquired by it for or on behalf of a U.S. Person;
(ii) no offers to sell the Securities were made by any person to the Purchaser while the Purchaser was in the United States, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investment.
(m) The Purchaser has no knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(p) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms.
(q) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI 45-102 and the 1933 Act, and other securities legislation, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation.
(r) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, ,deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(s) the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result of the Purchaser’s financial, investment or business experience or as a result of advice received from a registered person other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.
(t) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(u) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(v) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities and will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.
Appears in 1 contract
Sources: Private Placement Subscription Agreement (Enertopia Corp.)
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges, represents, represents and warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) the Issuer Corporation that, as at the date of this Agreement and at the Closing Date:
(a) The Issuer has not filed a prospectus with any of the Commissions or any other securities commission or similar authority in connection with the offering of the Securities and that:
(i) the Purchaser has been duly incorporated and is restricted from using most of the civil remedies available validly existing and in good standing under the Actslaws of Canada and has all requisite corporate power and capacity to enter into and carry out its obligations under this Subscription Agreement;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale of the Securities to the Purchaser is subject to the sale being exempt from the prospectus requirements of the Acts.
(b) If on the Closing Date and the date of each Subsequent Closing, Purchaser will have taken all corporate steps and proceedings necessary to approve the transactions contemplated hereby, including the execution and delivery of this Subscription Agreement;
(c) the Purchaser is a resident of British Columbia Canada and is not a “U.S. Person” (as defined in applicable United States securities laws) or Albertaotherwise subject to the securities laws of the United States of America;
(d) the Purchaser is a Canadian Accredited Investor (and will confirm that fact by delivering a completed Canadian Accredited Investor Certificate prior to the Closing Time) and it is acquiring the Shares for its own account and not on behalf of any other person;
(e) except to the extent contemplated herein, then the Purchaser is purchasing the Securities as principal Shares for investment only and is either:
(i) an "accredited investor" as defined in NI 45-106 and was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of "accredited investor" in NI 45-106
(c) The Purchaser, if not a resident of British Columbia, certifies that it is not resident in British Columbia and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and view to sell resale or distribution in violation of applicable provincial, state or federal securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(d) If the Purchaser is resident outside of Canada but not in the United States, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "Authorities") having application in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition of the Securities, if any;
(ii) is purchasing the Securities pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; and
(iv) the purchase of the Purchaser's Securities by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendiceslaws;
(f) The purchase the Purchaser was not incorporated or created solely, nor is it being used primarily, to permit purchases without a prospectus under applicable law;
(g) the offering and sale of the Securities has Shares to the Purchaser were not been made through or as a result of, and the distribution an advertisement of the Securities has not been accompanied by, an advertisement Shares in printed media of general and regular paid subscriptioncirculation, radioradio or television or telecommunications, including electronic display or television.
(g) No person has made any other form of advertisement and, except for this Subscription Agreement, the only documents, if any, delivered or otherwise furnished to the Purchaser in connection with such offering and sale were a term sheet and copies of documents from the public record, which documents the Purchaser acknowledges do not, individually or collectively, constitute an offering memorandum or similar document;
(h) the Purchaser has had the opportunity to access and review information about the Corporation and its business; it has been offered the opportunity to ask questions and receive answers from management concerning the Corporation, the Shares and the terms and conditions of this offering, and that any written or oral representations:request for such information has been complied with to the Purchaser's satisfaction; and it has had the opportunity to consult with its legal and tax advisors with regard thereto;
(i) that any person will resell or repurchase the SecuritiesPurchaser has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of the investment hereunder in the Shares and is able to bear the economic risk of loss of such investment;
(ii) that any person will refund the purchase price of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange.
(h) The Purchaser is not a "control person" of the Issuer as defined in the BC Act, will not become a "control person" by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(iij) to the best of its the Purchaser’s knowledge, none of the subscription funds used for the purchase of the Shares (the “Subscription Funds Funds”) (A) will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), (B) have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction, or (C) are being tendered on behalf of a person or entity who has not been identified to the Purchaser, and the Purchaser shall promptly notify the Corporation if the Purchaser discovers that any of the representations in this subsection 5(j) above ceases to be true, and to provide the Corporation with appropriate information in connection therewith;
(k) no person has made to the Purchaser any written or oral representation:
(i) that any person will resell or repurchase any of the Shares;
(ii) that any person will refund the purchase price of any of the Shares; or
(iii) as to the future price or value of the Shares;
(l) the Purchaser has been advised that:
(i) no securities commission or similar regulatory authority has received or passed on the merits of the Shares;
(ii) there is no government or other insurance covering the Shares;
(iii) without limiting there are risks associated with the foregoing, none purchase of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Act:
(i) the Purchaser is not a U.S. Person and the Securities are not being acquired by it for or on behalf of a U.S. Person;
(ii) no offers to sell the Securities were made by any person to the Purchaser while the Purchaser was in the United States, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇)Shares;
(iv) there are restrictions on the Purchaser’s ability to resell the Shares and it is the responsibility of the Purchaser acknowledges that it has not acquired the Units as a result of, to find out what those restrictions are and will not itself engage in, comply with them before selling any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided hereinShares; and
(v) The Purchaser understands as a consequence of acquiring the speculative nature Shares pursuant to exemptions from registration and risks prospectus requirements under applicable securities laws, certain protections, rights and remedies provided by those securities laws, including statutory rights of investment in rescission or damages, will not be available to the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investment.Purchaser; and
(m) The the Purchaser has no knowledge of a "understands that there may be material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed tax consequences to the publicPurchaser of an acquisition, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation disposition or exercise of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(p) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms.
(q) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI 45-102 Shares and the 1933 Act, Corporation has given no opinion and other securities legislation, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation.
(r) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required representation with respect to the issue of the Securities.
(s) tax consequences to the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result under applicable federal, provincial, state, local or foreign tax law of the Purchaser’s financial, investment acquisition or business experience or as a result disposition of advice received from a registered person other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.
(t) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(u) such Shares. The Purchaser makes acknowledges and agrees that each of the representationsforegoing representations and warranties are made by it with the intention that they may be relied upon in determining its eligibility to purchase Shares under relevant securities legislation. The Purchaser further agrees that by accepting delivery of the Shares on the Closing Date or the date of any Subsequent Closing, warranties, covenants, it will be representing and acknowledgements contained in this Agreement warranting that the foregoing representations and in any other Appendices, documents, or materials signed warranties are true and delivered correct as at such date with the same force and effect as if they had been made by the Purchaser hereunder, with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(v) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date at such time and that they will survive the Purchaser’s purchase by the Purchaser of the Securities Shares hereunder and will continue in full force and effect even if notwithstanding any subsequent disposition by the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing DateShares acquired hereunder.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.
Appears in 1 contract
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges, represents, warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) the Issuer that, as at the date of this Agreement and at the Closing Date:
(a) The Issuer has not filed a prospectus with any of the Commissions or any other securities commission or similar authority in connection with the offering of the Securities Units and that:
(i) the Purchaser is restricted from using most of the civil remedies available under the Acts;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and;
(iv) the issuance and sale of the Securities Units to the Purchaser is subject to the sale being exempt from the prospectus requirements of the Acts; and
(v) the Purchaser has not received nor been provided with, nor has it requested, nor does it have any need to receive, any offering memorandum, prospectus, sales or advertising literature or any other document purporting to describe the business and affairs of the Issuer which has been prepared for delivery to, and review by, prospectus purchasers of Units on order to assist in making an investment decision in respect of the Units.
(b) If the Purchaser is a resident of British Columbia or AlbertaColumbia, then either:
(i) the Purchaser is purchasing the Securities Units as principal for its own account and not for the benefit of any other person and not with a view to the resale or distribution of all or any of the Securities and is an “accredited investor” as defined in MI 45-103, and the Purchaser has completed , signed and delivered to the Issuer, an Appendix I – British Columbia/Alberta Certificate; or
(ii) the Purchaser is purchasing the Units as principal for its own account and not for the benefit of any other person and not with a view to the resale of distribution of all or any of the Securities and is either:
(A) a director, senior officer or control person of the Issuer or an affiliate of the Issuer;
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Issuer or an affiliate of the Issuer; or
(C) a parent, grandparent, brother, sister or child of the spouse of a director, senior officer or control person of the Issuer or an affiliate of the Issuer; or
(D) a close personal friend of a director, senior officer or control person of the Issuer or an affiliate of the Issuer; or
(E) a close business associate of a director, senior officer or control person of the Issuer or an affiliate of the Issuer; or
(F) a founder of the Issuer or a spouse, parent, grandparent, brother, sister, child, close personal friend or close business associate of a founder of the Issuer; or
(G) a parent, grandparent, brother, sister or child of the spouse of a founder of the Issuer; or
(H) a company of which a majority of the voting securities are beneficially owned by or a majority of the directors are persons or companies described in paragraphs (A) to (G) above; or
(I) a trust or estate of which all the beneficiaries or a majority of the trustees are persons or companies described in paragraphs (A) to (G) above; and the Purchaser has completed, signed and delivered to the Issuer, an Appendix I – British Columbia/Alberta Certificate; or
(iii) the Purchaser is purchasing sufficient Units so that the aggregate acquisition cost of the Units to the Purchaser is not less than $97,000, and if the Purchaser is not an individual, the Purchaser is not a corporation, partnership, trust, fund, association, or any other organized group of persons created solely or used primarily to permit the purchase of the Units (or other similar purchases) without a prospectus by a group of individuals whose individual share of the aggregate acquisition cost of the Units is less than $97,000 and is either:
(A) purchasing the Units as principal for investment purposes, for its own account and not for the benefit of any other person and not with a view to the resale of distribution of all or any of the Securities, and it will be the sole beneficial owner of the Securities; or
(B) not purchasing the Units as principal, but is duly authorized to enter into this Agreement and to sign all documents in connection with the purchase on behalf of each beneficial purchaser, and it acknowledges that the Issuer may in the future be required by law to disclose on a confidential basis to securities regulatory authorities the identity of each beneficial purchaser of the Units for whom it is acting, and is either:
(1) a trust company, insurance company or a portfolio manager which is deemed under the BC Act to be purchasing the Units as principal and the aggregate acquisition cost of the Units purchased for all the accounts managed by it is not less than $97,000; or
(2) acting as agent for one or more disclosed principals, each of whom is purchasing a portion of the Units: (i) as principal for its own account; (ii) not for the benefit of any other person; (iii) not with a view to the resale or distribution of all or any of the Securities and (iv) sufficient in number so the aggregate acquisition cost of such Units for such principal is not less than $97,000, and the principal is not a corporation, syndicate, partnership, or other form of incorporated or unincorporated entity or organization created solely to permit the purchase of such Units (or other similar purchases) by a group of individuals whose individual share of the aggregate acquisition cost of such Units is less than $97,000; or
(c) If the Purchaser is a resident of Alberta, then either:
(i) the Purchaser is purchasing the Units as principal for its own account and not for the benefit of any other person and not with a view to the resale or distribution of all or any of the Securities and is an "“accredited investor" ” as defined in NI MI 45-106 103, and was the Purchaser has completed Section 1 of, and signed and delivered to the Issuer, an Appendix I – British Columbia/Alberta Certificate; or
(ii) the Purchaser is purchasing the Units as principal for its own account and not for the benefit of any other person and not with a view to the resale of distribution of all or any of the Securities and is either:
(A) a director, senior officer or control person of the Issuer or an affiliate of the Issuer;
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Issuer or an affiliate of the Issuer; or
(C) a parent, grandparent, brother, sister or child of the spouse of a director, senior officer or control person of the Issuer or an affiliate of the Issuer; or
(D) a close personal friend of a director, senior officer or control person of the Issuer or an affiliate of the Issuer; or
(E) a close business associate of a director, senior officer or control person of the Issuer or its affiliate; or
(F) a founder of the Issuer or a spouse, parent, grandparent, brother, sister, child, close personal friend or close business associate of a founder of the Issuer, or
(G) a parent, grandparent, brother, sister or child of the spouse of a founder of the Issuer; or
(H) a company of which a majority of the voting securities are beneficially owned by or a majority of the directors are persons or companies described in paragraphs (A) to (E) above; or
(I) a trust or estate of which all the beneficiaries or a majority of the trustees are persons or companies described in paragraphs (A) to (E) above; and the Purchaser has completed and signed and delivered to the Issuer, an Appendix I – British Columbia/Alberta Certificate; or
(iii) the Purchaser is purchasing sufficient Units such that the aggregate acquisition cost of the Units is not less than $97,000, and the Purchaser is:
(A) an individual;
(B) a corporation, syndicate, partnership or other form of unincorporated organization which pre-existed the offering of the Units and has a bona fide purpose other than investment in the Units; or
(C) a corporation, syndicate, partnership or other form of unincorporated organization created to permit an investment in the Units, where the individual share of the aggregate acquisition cost for each member or used solely participant of such organization is not less than $97,000; and the Purchaser either:
(A) is purchasing the Units as principal and no other person, corporation, firm or other organization will have a beneficial interest in the Securities; or
(B) is not purchasing the Units as principal, but is duly authorized to enter into this Agreement and to sign all documentation in connection with the purchase on behalf of each beneficial purchaser, it acknowledges that the Issuer is required by law to disclose on a confidential basis to certain regulatory authorities, the identity of each beneficial purchaser of Units for whom it may be acting, it and each beneficial purchaser are resident in the jurisdiction set out on page 1 and 2 of this Agreement, and it fully complies with the criteria set forth below:
a. it is trading for accounts fully managed by it and is a trust corporation trading as trustee or hold securities an agent, a portfolio manager trading as an accredited investor agent, or a person or company trading as described in paragraph (m) agent that, except for an exemption under the Alberta Act , is required to be registered as a portfolio manager; or
b. it is acting as agent for one or more disclosed principals, each of which principals is purchasing a portion of the definition Units such that the aggregate acquisition cost of "such Units is not less than $97,000, and each such principal is either: (i) and individual; (ii) a corporation, syndicate, partnership or other form of unincorporated organization which pre- existed the offering of the Units and has a bona fide purpose other than investment in the Units; or (ii) a corporation, syndicate, partnership or other form of unincorporated organization created to permit an investment in the Units, where the individual share of the aggregate acquisition cost for each member or participant of such organization is not less than $97,000; or
(d) If the Purchaser is resident in Ontario, then either:
(i) the Purchaser is purchasing the Units as principal for its own account and not for the benefit of any other “person” (as defined in the Ontario Act) or company and is an “accredited investor" ” as defined in NI Rule 45-106501 and the Purchaser has completed, signed and delivered to the Issuer an Appendix II – Ontario Certificate; or
(cii) the Purchaser is purchasing the Units as agent for a disclosed principal, each beneficial purchaser of the Units for whom it is acting as agent is purchasing as principal for its own account and not for the benefit of any other person, is an “accredited investor” as defined in OSC Rule 45-501 and the Purchaser has completed, signed and delivered to the Issuer, an Appendix II – Ontario Certificate, and the Purchaser is an agent with due and proper authority to execute all documentation in connection with the purchase on behalf of the beneficial purchaser.
(e) The Purchaser, if not a resident of British Columbia, certifies that it is not resident in British Columbia and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(df) If the Purchaser is resident outside of Canada but not in the United StatesCanada, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "“Authorities"”) having application in the jurisdiction in which the Purchaser is resident (the "“International Jurisdiction"”) which would apply to the acquisition of the SecuritiesUnits, if any;
(ii) is purchasing the Securities Units pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities Units under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;; and
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; andUnits.
(iv) the purchase of the Purchaser's Securities by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(fg) The purchase of the Securities Units has not been made through or as a result of, and the distribution of the Securities Units has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(gh) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the SecuritiesUnits or the Warrant Shares;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange, other than the Shares on the Exchange.
(hi) The Purchaser is not a "“control person" ” of the Issuer as defined in the BC Act, will not become a "“control person" ” by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term Purchaser is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, resident in the United States or by or jurisdiction indicated on the cover page to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Actthis Agreement and:
(i) the Purchaser is not a national, citizen, or resident of the United States of America or its territories or possessions (a “U.S. Person Person”) and is not purchasing the Securities are not being acquired by it Units for the account or on behalf benefit of a U.S. Person;
(ii) no offers to sell the Securities were made by any person Issuer did not offer the Units to the Purchaser while when the Purchaser was in the United States, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;; and
(iii) the Purchaser did not sign or deliver this Agreement in the United States.
(k) The Purchaser acknowledges that the Securities have not been registered under the 1933 Act or the securities laws of any person who acquires Securities will state of the United States, and may not be required to provide offered or sold in the United States unless registered under the 1933 Act and the securities laws of all applicable states of the United States or an exemption from such registration requirements is available, and that the Issuer with written certification that it is has no obligation or present intention of filing a registration statement under the 1933 Act regarding any of the Securities.
(l) The Units are not being acquired directly or indirectly, for the account or benefit of a U.S. Person or a person in the United States and that the Securities are Purchaser does not being acquired by it for have any agreement or on behalf of a understanding (either written or oral) with any U.S. Person or a person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);respecting:
(ivi) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect transfer or assignment of any of the Securities which would include any activities undertaken for the purpose of, rights or that could reasonably be expected to have the effect of, conditioning the market interest in the United States for the resale of any of the Securities;
(ii) the division of profits, losses, fees, commissions, or any financial stake in connection with this subscription; provided, however, that or
(iii) the Subscriber may sell or otherwise dispose of any voting of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investmentShares.
(m) The Purchaser has no knowledge of a "“material fact" ” or "“material change" ” (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(p) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms.
(q) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI 45-102 and the 1933 Act, and other securities legislation, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation.
(r) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(s) the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result of the Purchaser’s financial, investment or business experience or as a result of advice received from a registered person other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.
(t) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(u) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(v) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities and will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.la
Appears in 1 contract
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges, represents, warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) the Issuer that, as at the date of this Agreement and at the Closing Date:
(a) The Issuer has not filed a prospectus with any of the Commissions or any other securities commission or similar authority in connection with the offering of the Securities Units and that:
(i) the Purchaser is restricted from using most of the civil remedies available under the Acts;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him it under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale of the Securities Units to the Purchaser is subject to the sale being exempt from the prospectus requirements of the Acts.
(b) If the Purchaser is a resident of British Columbia or AlbertaCanada, then the Purchaser is purchasing the Securities as principal and is either:
(i) the Purchaser is purchasing the Units as principal (or is deemed by applicable securities laws to be purchasing as principal) for its own account and not for the benefit of any other person and not with a view to the resale or distribution of all or any of the Securities and is an "“accredited investor" ” as defined in NI 45-106 106, and was if the Purchaser is not an individual, the Purchaser has not been created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m1.1(m) of the definition of "accredited investor" in NI 45-106, and the Purchaser has completed, signed and delivered to the Issuer an Appendix I – Certificate of Accredited Investor; or
(ii) the Purchaser is purchasing the Units as principal (or is deemed by applicable securities laws to be purchasing as principal) for its own account and not for the benefit of any other person, and not with a view to the resale or distribution of all or any of the Securities and is purchasing sufficient Units so that the aggregate acquisition cost of the Units to the Purchaser is not less than $150,000, and if the Purchaser is not an individual, the Purchaser is not a corporation, partnership, trust, fund, association, or any other organized group of persons created or used solely to purchase or hold securities in reliance on the exemption provided in section 2.10 of NI 45-106;
(c) The Purchaser, if not a resident of British Columbia, Canada certifies that it is not resident in British Columbia Canada and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(d) If resident in the United States, the Purchaser acknowledges, represents, warrants and covenants to and with the Issuer that, as at the date given above and at the Closing:
(i) the Purchaser or the disclosed principal for which it is acting, as the case may be, falls within one or more of the sub-paragraphs of the definition of “accredited investor” set out in Appendix II hereto (the Purchaser having initialled the applicable sub-paragraph(s)); and
(ii) the Purchaser acknowledges and agrees that the Securities are "restricted securities" within the meaning of the 1933 Act (and applicable state securities laws) and may not be sold or transferred in the U.S. unless they are subsequently registered under the 1933 Act or any exemption from such registration is available and the certificates representing the Securities will bear a legend to reflect these restrictions. The Purchaser understands and agrees that upon the original issuance of the Securities, and until such time as the same is no longer required under applicable requirements of the 1933 Act or applicable state securities laws, the certificates representing the Securities may bear a legend in substantially the following form: "THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "U.S. SECURITIES ACT") OR ANY STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF THE COMPANY THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE COMPANY, (B) PURSUANT TO THE EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER, IF APPLICABLE, AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR (C) WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY, PURSUANT TO ANOTHER APPLICABLE EXEMPTION UNDER THE U.S. SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS. DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE GOOD DELIVERY IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES IN CANADA, AFTER THE EXPIRY OF ANY HOLD PERIOD IN CANADA. A NEW CERTIFICATE BEARING NO LEGEND, DELIVERY OF WHICH WILL CONSTITUTE GOOD DELIVERY, MAY BE OBTAINED FROM THE REGISTRAR AND TRANSFER AGENT UPON DELIVERY OF THIS CERTIFICATE AND A DULY EXECUTED DECLARATION, IN A FORM SATISFACTORY TO THE REGISTRAR AND TRANSFER AGENT AND THE COMPANY TO THE EFFECT THAT THE SALE OF THE SECURITIES REPRESENTED HEREBY IS BEING MADE IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT."
(e) If the Purchaser is resident outside of Canada but not in and the United States, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "“Authorities"”) having application in the jurisdiction in which the Purchaser is resident (the "“International Jurisdiction"”) which would apply to the acquisition of the SecuritiesUnits, if any;
(ii) is purchasing the Securities Units pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities Units under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the SecuritiesUnits; and
(iv) the purchase of the Purchaser's Securities Units by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(f) The purchase of the Securities Units has not been made through or as a result of, and the distribution of the Securities Units has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(g) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the SecuritiesUnits or the Warrant Shares;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange, other than the Shares and Warrant Shares on the Exchange.
(h) The Purchaser is not a "“control person" ” of the Issuer as defined in the BC Act, will not become a "“control person" ” by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf Unless the Purchaser has completed and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canadareturned with this Agreement an Appendix II – US Accredited Investor Questionnaire, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime Purchaser and each beneficial purchaser for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) whom it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties is acting are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, resident in the United States or by or jurisdiction indicated on the cover page to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Actthis Agreement confirm that:
(i) the Purchaser is not a U.S. Person and is not purchasing the Securities are not being acquired by it Units for the account or on behalf benefit of a U.S. Person;
(ii) no offers to sell the Securities were made by any person Issuer did not offer the Units to the Purchaser while when the Purchaser was in the United States;
(iii) the Purchaser did not sign or deliver this Agreement in the United States.
(iv) the current structure of this transaction and all transactions and activities contemplated hereunder are not a scheme to avoid the registration requirements of the 1933 Act; and
(v) the Purchaser has no intention to distribute either directly or indirectly any of the Securities in the United States, except in compliance with the 1933 Act.
(j) The Purchaser acknowledges that the Securities have not been registered under the 1933 Act or the securities laws of any state of the United States, and the Subscriber was outside may not be offered or sold in the United States at unless registered under the time 1933 Act and the securities laws of execution all applicable states of the United States or an exemption from such registration requirements is available, and delivery that the Issuer has no obligation or present intention of filing a registration statement under the 1933 Act regarding any of the Securities.
(k) Unless the Purchaser has completed and returned an Appendix II with this subscription, the Units are not being acquired directly or indirectly, for the account or benefit of a U.S. Person or a person in the United States and the Purchaser does not have any agreement or understanding (either written or oral) with any U.S. Person or a person in the United States respecting:
(i) the transfer or assignment of any rights or interest in any of the Securities;
(ii) the division of profits, losses, fees, commissions, or any financial stake in connection with this subscription;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any voting of the Shares or the Warrant Shares pursuant Shares; or
(l) This subscription has not been solicited in any other manner contrary to registration of any of the Shares Acts or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investmentAct.
(m) The Purchaser has no knowledge of a "“material fact" ” or "“material change" ” (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(p) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms.
(q) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI 45-102 102, other securities legislation and the 1933 Act, and other securities legislationExchange, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislationlegislation and the Exchange’s policies.
(r) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(s) the The Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result of the Purchaser’s financial, investment or business experience or as a result of advice received from a registered person other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.
(t) the The Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(u) The Purchaser acknowledges that Issuer’s counsel is acting as counsel to the Issuer and not as counsel to the Purchaser.
(v) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, hereunder with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the SecuritiesUnits, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(vw) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities Units and will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.
Appears in 1 contract
Sources: Subscription Agreement
Purchaser’s Representations and Warranties. 5.1 (1) The Purchaser acknowledges, represents, represents and warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) the Issuer Vendor that, as at the date of this Agreement and at the Closing Date:
(a) The Issuer has not filed a prospectus with any of the Commissions or any other securities commission or similar authority in connection with the offering of the Securities and that:
(i) the Purchaser is restricted from using most of the civil remedies available under the Acts;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale of the Securities to the Purchaser is subject to the sale being exempt from the prospectus requirements of the Acts.
(b) If the Purchaser is a resident of British Columbia or Albertacorporation duly incorporated, then the Purchaser is purchasing the Securities as principal organized and is either:
(i) an "accredited investor" as defined in NI 45-106 and was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of "accredited investor" in NI 45-106
(c) The Purchaser, if not a resident of British Columbia, certifies that it is not resident in British Columbia and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(d) If the Purchaser is resident outside of Canada but not in the United States, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "Authorities") having application in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition of the Securities, if any;
(ii) is purchasing the Securities pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; and
(iv) the purchase of the Purchaser's Securities by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(f) The purchase of the Securities has not been made through or as a result of, and the distribution of the Securities has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(g) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange.
(h) The Purchaser is not a "control person" of the Issuer as defined in the BC Act, will not become a "control person" by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal subsisting under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Act:
(ib) the Purchaser is not a U.S. Person has good and the Securities are not being acquired by it for or on behalf of a U.S. Person;
(ii) no offers to sell the Securities were made by any person to the Purchaser while the Purchaser was in the United Statessufficient power, authority and the Subscriber was outside the United States at the time of execution and delivery of this subscription;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investment.
(m) The Purchaser has no knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent right to enter into and sign deliver this Agreement and to take all actions required pursuant hereto, and if complete the transactions to be completed by the Purchaser is a corporationcontemplated hereby;
(c) this Agreement has been duly authorized, executed and delivered by the Purchaser is duly incorporated and validly subsisting under the laws constitutes a valid and legally binding obligation of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(p) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms.terms subject to general principles of equity and to applicable bankruptcy, insolvency, reorganization and other laws of general application limiting the enforcement of creditors' rights generally and to the fact that specific performance is an equitable remedy available only in the discretion of the court;
(qd) The neither the entering into nor the delivery of this Agreement nor the completion of the transactions contemplated hereby by the Purchaser has obtained independent advice as will result in the violation of:
(i) any of the provisions of the constating documents or by-laws of the Purchaser; or
(ii) any Contract to the applicable hold period imposed on the Securities by NI 45-102 and the 1933 Act, and other securities legislation, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and which the Purchaser is aware a party or by which the Purchaser is bound; except where such violation would not have a material adverse effect on the ability of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation.carry out its obligations hereunder;
(r) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(se) the Purchaser is capable of assessing and evaluating a Canadian within the risks and merits of this investment as a result meaning of the Purchaser’s financial, investment or business experience or as a result of advice received from a registered person other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.Investment Canada Act (Canada);
(tf) the Purchaser (orwill, if applicableat Closing, others for whom it is contracting hereunder) has been advised have available funds sufficient to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.consummate the transactions contemplated hereby; and
(ug) The Purchaser makes no approval, order, consent of or filing with any Governmental Entity is required in connection with the representations, warranties, covenants, execution and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered delivery by the Purchaser hereunder, with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(v) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement or any other documents and as agreements to be delivered under this Agreement or the performance of the Closing Date and that they will survive the Purchaser’s purchase obligations of the Securities Purchaser under this Agreement or any other documents and will continue in full force and agreements to be delivered under this Agreement except where the failure to obtain such approval, order or consent or make such filing would not have a material adverse effect even if on the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes or its ability to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Datecarry out its obligations hereunder.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.
Appears in 1 contract
Sources: Share Purchase Agreement (Hollinger International Inc)
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges, represents, warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) the Issuer that, as at the date of this Agreement and at the Closing Date:
(a) The Issuer has not filed a prospectus with any of Purchaser represents and warrants to the Commissions or any other securities commission or similar authority in connection with the offering of the Securities and Company that:
: (i) all documents, records and books relating to the Purchaser’s investment in the Company requested by the Purchaser is restricted from using most have been made available or delivered to the Purchaser and that all questions of the civil remedies Purchaser relating to said investment have been answered by the Company; (ii) it understands that the Note is a speculative investment which involves a high degree of risk of loss by the Purchaser of its investment therein; (iii) it has been offered the opportunity to ask questions of appropriate officers of the Company with respect to its business and affairs, and such officers have answered all such questions to its satisfaction; (iv) its purchase of the Note is being made for the Purchaser’s own account for investment purposes and with no intention of immediate distribution; (v) the Purchaser has the requisite knowledge and experience in financial and business matters to enable it to evaluate the merits and risks of an investment in the Note; (vi) it is aware that the Note may be a “restricted security” within the meaning of such term under Rule 144 of the Rules of the SEC (“Rule 144”), that the Note may be subject to the resale restrictions of Rule 144 (unless another exemption is available under the Acts;
Securities Act of 1933, as amended (ii) the “Securities Act”), and that, if the Purchaser may not receive information that would otherwise be required at any time is deemed to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale an affiliate of the Securities to Company, the Purchaser is Note may be subject to the sale being additional resale restrictions under Rule 144 applicable to affiliates; (vii) it is aware that until the Note may be registered under the Securities Act, it may be unable to liquidate its investment in the Note despite a need to do so; and (viii) it is aware that the Note may bear a legend conditioning the transfer of the Note upon the receipt of a satisfactory opinion to the effect that any proposed transfer of the Note is exempt from registration under the prospectus requirements of Securities Act, or the Actslike.
(b) If The Purchaser represents and warrants to the Purchaser Company that it is a resident of British Columbia or Alberta, then the Purchaser is purchasing the Securities as principal and is either:
either (i) an "accredited investor" as defined in NI 45-106 and was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (munder Rule 501(a) of the definition of "accredited investor" in NI 45-106
(c) The Purchaser, if not a resident of British Columbia, certifies that it is not resident in British Columbia and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities Regulation D under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(d) If the Purchaser is resident outside of Canada but not in the United States, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "Authorities") having application in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition of the Securities, if any;
(ii) is purchasing the Securities pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; and
(iv) the purchase of the Purchaser's Securities by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(f) The purchase of the Securities has not been made through or as a result of, and the distribution of the Securities has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(g) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange.
(h) The Purchaser is not a "control person" of the Issuer as defined in the BC Act, will not become a "control person" by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 “Act"), as amended”) for the following reasons, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities lawsis not an accredited investor as marked below. o The Purchaser is a natural person whose individual net work, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act)joint net worth with his/her spouse, except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Act:
(i) the Purchaser is not a U.S. Person and the Securities are not being acquired by it for or on behalf of a U.S. Person;
(ii) no offers to sell the Securities were made by any person to the Purchaser while the Purchaser was in the United States, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; his/her purchase exceeds $1,000,000. o The Purchaser is not an underwriter a natural person who had individual income in excess of $200,000 in each of 2007 and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to2008, or for, resale joint income with his/her spouse in connection with any distribution within the United States or by or to U.S. Persons (as defined excess of $300,000 in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired the Units as a result ofeach of those years, and will not itself engage in, any "directed selling efforts" (as defined who reasonably expects the same or greater income level in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investment2009.
(m) The Purchaser has no knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(p) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms.
(q) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI 45-102 and the 1933 Act, and other securities legislation, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation.
(r) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(s) the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result of the Purchaser’s financial, investment or business experience or as a result of advice received from a registered person other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.
(t) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(u) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(v) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities and will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.
Appears in 1 contract
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges, represents, represents and warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) the Issuer that, as at the date of this Agreement and at the Closing Date:
(a) The Issuer Purchaser has not filed a prospectus with any of received, has carefully read and understands the Commissions or any other securities commission or similar authority in connection with the offering of the Securities and that:
Corporation's (i) the Purchaser is restricted from using most of the civil remedies available under the Acts;
Proxy Statement dated July 22, 1998 ("Proxy Statement"), (ii) Preliminary Offering Memorandum dated July 30, 1998 (the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
"Offering Memorandum") and (iii) Notice to Shareholders dated October 20, 1998 (the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale of the Securities to the Purchaser is subject to the sale being exempt from the prospectus requirements of the Acts."Notice");
(b) If the Purchaser is a resident of British Columbia or Alberta, then the has been furnished with all additional documents and information that Purchaser is purchasing the Securities as principal and is either:
(i) an "accredited investor" as defined in NI 45-106 and was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of "accredited investor" in NI 45-106has requested;
(c) The Purchaser, if not a resident Purchaser has had the opportunities to ask questions of British Columbia, certifies that it is not resident in British Columbia and acknowledges that:
(i) no securities commission or similar regulatory authority has reviewed or passed on received answers from the merits Corporation concerning the Corporation and the Shares and to obtain any additional information necessary to verify the accuracy of the Securitiesinformation furnished;
(ii) there is no government or other insurance covering the Securities;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(d) If Purchase has relied only on the Purchaser is resident outside of Canada but not foregoing information and documents in the United States, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "Authorities") having application in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition of the Securities, if any;
(ii) is purchasing the Securities pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer determining to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; and
(iv) the purchase of the Purchaser's Securities by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonablythis purchase;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained information in this Agreement (including the information set forth on the signature page hereto) is true, correct and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete at this Agreement and the Appendicesdate;
(f) The purchase of Proxy Statement, Offering Memorandum and Notice and other information furnished by the Securities has Corporation do not been made through constitute investment, accounting, legal or as a result of, tax advice and the distribution of the Securities has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.Purchaser is relying on professional advisers for such advice;
(g) No person has made All documents, records and books pertaining to the Purchaser's investment have been made available for inspection by the Purchaser any written or oral representations:and by the Purchaser's attorney, and/or Purchaser's accountant, and/or Purchaser's purchaser representative. The books and records of the Corporation will be available upon reasonable notice from Purchaser during reasonable business hours at the Corporation's principal place of business;
(h) Purchaser recognizes that an investment in the Shares involves substantial risks, including, but not limited to, those set forth under "Risk Factors" in the Offering Memorandum and in Corporation's Annual Report on Form 10-K attached to the Proxy Statement as Appendix F;
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange.
(h) The Purchaser is not a "control person" of the Issuer as defined in the BC Actunderstands, will not become a "control person" by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under Corporation is relying upon the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, representations and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, warranties made herein in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Act:
(i) the Purchaser is not a U.S. Person and the Securities are not being acquired by it for or on behalf of a U.S. Person;
(ii) no offers determining to sell Purchaser the Securities were made by any person to the Purchaser while the Purchaser was in the United States, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided hereinShares; and
(vj) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investment.
(m) The Purchaser has no knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority validly organized and is legally competent to enter into existing and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting in good standing under the laws of its jurisdiction of incorporationorganization and has the full power and authority to execute and deliver this Agreement and to perform its obligations hereunder. Purchaser has taken all action required by law, and its directors, shareholders, and others have given all necessary approvals organizational documents or otherwise required to be taken by it to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it hereby. This Agreement is or may be bound.
(p) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms.
(q) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI 45-102 and the 1933 Act, and other securities legislation, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation.
(r) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(s) the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result of the Purchaser’s financial, investment or business experience or as a result of advice received from a registered person other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.
(t) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(u) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(v) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities and will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.
Appears in 1 contract
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges7.01 In order to induce the Vendors and the Company to enter into and consummate this Agreement, represents, warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) hereby represents and warrants to the Issuer that, Vendors and Company as at the date of this Agreement and at the Closing Datefollows:
(a) The Issuer has not filed the Purchaser is a prospectus with any company duly incorporated, validly existing and in good standing under the Laws of the Commissions or any other securities commission or similar authority in connection with province of British Columbia, has the offering power and capacity to enter into this Agreement and to carry out its terms, including the issuance of the Securities and that:Purchaser Shares to the Vendors as provided in Section 2.01;
(ib) the Purchaser is restricted from using most of a company whose shares are listed on the civil remedies available under Exchange, and the ActsVendor is in material compliance with its listing agreement with the Exchange;
(iic) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale of the Securities to the Purchaser is subject to the sale being exempt from the prospectus requirements of the Acts.
(b) If the Purchaser is a resident “reporting issuer”(as that term is defined by the Regulatory Bodies) not in default in the provinces of British Columbia or and Alberta, then the Purchaser is purchasing the Securities as principal and is either:
(i) an "accredited investor" as defined in NI 45-106 and was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of "accredited investor" in NI 45-106
(c) The Purchaser, if not a resident of British Columbia, certifies that it is not resident in British Columbia and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(d) If the Purchaser is resident outside of Canada but not in the United States, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "Authorities") having application in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition of the Securities, if any;
(ii) is purchasing the Securities pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; and
(iv) the purchase of the Purchaser's Securities by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(f) The purchase of the Securities has not been made through or as a result of, and the distribution of the Securities has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(g) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange.
(h) The Purchaser is not a "control person" of the Issuer as defined in the BC Act, will not become a "control person" by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Act:
(i) the Purchaser is not a U.S. Person and the Securities are not being acquired by it for or on behalf of a U.S. Person;
(ii) no offers to sell the Securities were made by any person to the Purchaser while the Purchaser was in the United States, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investment.
(m) The Purchaser has no knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into of this Agreement and the transactions completion of the transaction contemplated hereby will not result in have been duly and validly authorized by all necessary corporate action on the violation of any part of the terms and provisions of any law applicable toPurchaser, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(p) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, valid and binding agreement obligation of the Purchaser enforceable against the Purchaser in accordance with its termsterms subject however to limitations with respect to enforcement imposed by law in connection with bankruptcy or similar proceedings and to the extent that equitable remedies such as specific performance and injunction are in the discretion of the court from which they are sought;
(e) the Purchaser’s public disclosure record as found at ▇▇▇.▇▇▇▇▇.▇▇▇ is true and correct in all material respects and omits no information required so that the information therein contained is not misleading;
(f) the authorized capital of the Purchaser, as at the signing of this Agreement, consists of an unlimited number of common shares of which 5,055,454 common shares are issued and outstanding;
(g) the unaudited financial statements of the Purchaser as at and for the period ended June 30, 2013, (the “Purchaser’s Financial Statements”) as presented to the Vendors and the Company are true and correct in every material respect and present fairly the financial position of the Purchaser and the results of its operations for the period then ended, in accordance with GAAP applied on a basis consistent with the previous periods;
(h) except as has been incurred in connection with the Transaction, there are no material liabilities, contingent or otherwise, of the Purchaser which are not disclosed or reflected in the Purchaser’s Financial Statements and other than as set out in the Purchaser Financial Statements, the Purchaser has not guaranteed, nor agreed to guarantee, any debt, liability or other obligation of any firm, Person or corporation;
(i) no dividends or other Distribution on any shares in the capital of the Purchaser have been made;
(j) since June 30, 2013, and except as incurred in connection with the Transaction:
(i) there has not been any material adverse change in the financial position or condition of the Purchaser or any damage, loss or other change in circumstances materially affecting the Business or property of the Purchaser or its right or capacity to carry on Business,
(ii) the Purchaser has not waived or surrendered any right of material value,
(iii) the Purchaser has not discharged or satisfied or paid any lien or Encumbrance or obligation or liability other than current liabilities in the ordinary course of Business, and
(iv) the Business of the Purchaser has been carried on in the ordinary course;
(k) there is no basis for and there are no actions, suits, judgments, investigations or proceedings outstanding or pending or to the knowledge of the Purchaser threatened against or affecting the Purchaser at law or in equity or before or by any federal, provincial, state, municipal or other governmental department, commission, board, bureau or agency;
(l) the Purchaser is not in breach of any Laws, ordinances, statutes, regulations, bylaws, orders or decrees to which it is subject or which apply to it that would have a material adverse effect on the Purchaser;
(m) the Purchaser is not a party to any collective agreement with any labour union or other association of employees and no attempt has been made to organize or certify the employees of the Purchaser as a bargaining unit;
(n) there are no pensions, profit sharing, group insurance or similar plans or other deferred compensation plans affecting the Purchaser;
(o) the Purchaser has good and marketable title to all of its properties and assets subject to no mortgage, pledge, deed of trust, lien, conditional sale agreement, Encumbrance or charge;
(p) the Purchaser has not experienced nor is it aware of any occurrence or event which has had, or might reasonably be expected to have, a materially adverse effect on its Business or the results of its operations;
(q) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI 45-102 and the 1933 Actno officer, and other securities legislationdirector, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and employee or shareholder of the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that now indebted or under obligation to the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation.
on any account whatsoever; (r) If all Tax returns and reports of the Purchaser required by applicable securities legislationlaw to be filed prior to the Time of Closing will be filed and will be substantially true, policy, or order or by any securities commission, stock exchange or complete and correct and all Taxes and other regulatory authority, government charges for the Purchaser will sign, deliver, file, and otherwise assist the Issuer have been paid or accrued in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(s) the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result of the Purchaser’s financial, investment or business experience or as a result of advice received from a registered person other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.
(t) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(u) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(v) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities and will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.Financial Statements;
Appears in 1 contract
Sources: Share Purchase Agreement
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges
4.1 To induce the Selling Shareholder and Potanicals to enter into and consummate this Agreement, represents, warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) represents and warrants to the Issuer that, Selling Shareholder and Potanicals as at the date of this Agreement and at the Closing Datefollows:
(a) The Issuer has not filed a prospectus with any of the Commissions or any other securities commission or similar authority in connection with the offering of the Securities and that:
(i) the Purchaser is restricted from using most a corporation duly incorporated and validly existing under the laws of Alberta, is in good standing regarding the filing of annual reports, and immediately before the Closing, assuming the completion of continuation of the civil remedies available Purchaser from Alberta to British Columbia, the Purchaser will be a corporation recognized under the Acts;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale laws of the Securities to the Purchaser is subject to the sale being exempt from the prospectus requirements of the ActsBritish Columbia.
(b) If the Purchaser has the power and authority to enter into, deliver, and perform this Agreement and to carry out its terms;
(c) the Purchaser is a resident of "reporting issuer" in British Columbia and Alberta, is not listed as a “defaulting issuer” by any securities commission in British Columbia or Alberta, then the Purchaser is purchasing the Securities as principal and is either:not in default of any requirements of the applicable securities laws;
(id) an "accredited investor" as defined in NI 45-106 and was not created or used solely to purchase or hold the Purchaser's continuous disclosure filings with the securities as an accredited investor as described in paragraph (m) of the definition of "accredited investor" in NI 45-106
(c) The Purchaser, if not a resident of British Columbia, certifies that it is not resident commissions in British Columbia and acknowledges that:
(i) no 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;
(iii) there Alberta are risks associated with the purchase of the Securities;
(iv) there current and accurate, and such filings are restrictions on the Purchaser’s ability to resell the Securities true and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(d) If the Purchaser is resident outside of Canada but not in the United States, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "Authorities") having application in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition of the Securities, if any;
(ii) is purchasing the Securities pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; and
(iv) the purchase of the Purchaser's Securities by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonablycorrect;
(e) The Issuer is entitled to rely the Common Shares are listed on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the AppendicesTSXV;
(f) The purchase all necessary corporate action on the part of the Securities has not been made through or as a result ofPurchaser will, at Closing, validly authorize the signing, delivery, and the distribution of the Securities has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(g) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange.
(h) The Purchaser is not a "control person" of the Issuer as defined in the BC Act, will not become a "control person" by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Act:
(i) the Purchaser is not a U.S. Person and the Securities are not being acquired by it for or on behalf of a U.S. Person;
(ii) no offers to sell the Securities were made by any person to the Purchaser while the Purchaser was in the United States, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investment.
(m) The Purchaser has no knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into performance of this Agreement and the completion of the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.this Agreement;
(pg) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement obligation of the Purchaser enforceable against the Purchaser in accordance with its terms., except as may be limited by laws of general application affecting the rights of creditors;
(qh) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI 45-102 Purchaser's authorized capital is an unlimited number of Common Shares, of which there are currently 21,174,230 Common Shares issued and the 1933 Act, and other securities legislation, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation.outstanding;
(ri) If required by applicable securities legislationother than the Stock Options, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser which will sign, deliver, file, and otherwise assist the Issuer remain in filing all reports, undertakings, and other documents required with respect effect after Closing subject to the issue of the Securities.
(s) the Purchaser is capable of assessing and evaluating the risks and merits of this investment adjustment as a result of the Consolidation, no person has any written or oral agreement or option or right capable of becoming an agreement:
(i) to require the Purchaser to issue any securities or to convert or exchange any securities into or for shares of the Purchaser; or
(ii) for the purchase, subscription, allotment, or issuance of any of the issued or unissued shares or other securities of the Purchaser; or
(iii) to require the Purchaser to purchase, redeem, or otherwise acquire any of the Purchaser's issued and outstanding shares or other securities; and
(j) the audited financial statements of the Purchaser for the fiscal year ended December 31, 2016 and the unaudited financial statements of the Purchaser for the six months ended June 30, 2017 as filed and made available to the public on SEDAR under the Purchaser’s financialprofile, investment or business experience or present fairly, in all material respects, the financial position of the Purchaser as a result of advice received from a registered person other than at the Issuer or an affiliate respective dates thereof, and there has been no material adverse change in the Purchaser's financial position since June 30, 2017;
(k) the Consideration Shares will be issued as fully paid and non-assessable Common Shares and will be issued subject only to such hold restrictions and escrow requirements imposed by applicable securities laws and the policies of the CSE;
(l) the performance of this Agreement and the completion of the transactions contemplated by this Agreement will not conflict with the Purchaser's charter documents or of any agreement to which the Purchaser is a party, will not give any person any right to terminate or cancel any agreement or any right or other benefit enjoyed by the Purchaser, and will not result in the creation or imposition of any Encumbrance in favour of a third party on or against the Purchaser's assets; and
(m) there are no material actions, suits, appeals, claims, applications, orders, investigations, proceedings, grievances, arbitrations, or alternative dispute resolution processes in progress, or, where it is not purchasing as principalto the knowledge of the Purchaser, each beneficial purchaser is able to bear pending or threatened by or against the economic loss Purchaser.
4.2 The representations, warranties, covenants, and agreements of its investment.
(t) the Purchaser (orcontained in this Agreement or in any documents delivered in connection with the transactions contemplated hereby will be true at and as of the time of Closing as though the Purchaser made these representations and warranties at and as of that time. Despite any investigations the Selling Shareholder or Potanicals may make before the signing of this Agreement or the waiver by the Selling Shareholder or Potanicals of any condition, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(u) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by agreements of the Purchaser hereunder, with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(v) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities and will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Datefor one year.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.
Appears in 1 contract
Sources: Share Exchange Agreement
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges4.1 To induce the Selling Shareholder and eXeBlock to enter into and consummate this Agreement, represents, warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) represents and warrants to the Issuer that, Selling Shareholder and eXeBlock as at the date of this Agreement and at the Closing Datefollows:
(a) The Issuer the Purchaser is a corporation duly incorporated and validly existing under the laws of British Columbia, is in good standing with respect to the filing of annual reports, and has not filed a prospectus with any of the Commissions or any other securities commission or similar power and authority in connection with the offering of the Securities to enter into, deliver, and that:perform its obligations under this Agreement;
(ib) the Purchaser is restricted from using most of the civil remedies available under the Acts;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale of the Securities to the Purchaser is subject to the sale being exempt from the prospectus requirements of the Acts.
(b) If the Purchaser is a resident of British Columbia or Alberta, then the Purchaser is purchasing the Securities as principal and is either:
(i) an "accredited investor" as defined in NI 45-106 and was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of "accredited investor" in NI 45-106
(c) The Purchaser, if not a resident of British Columbia, certifies that it is not resident in British Columbia and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(d) If the Purchaser is resident outside of Canada but not in the United States, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "Authorities") having application in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition of the Securities, if any;
(ii) is purchasing the Securities pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; and
(iv) the purchase of the Purchaser's Securities by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(f) The purchase of the Securities has not been made through or as a result of, and the distribution of the Securities has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(g) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange.
(h) The Purchaser is not a "control person" of the Issuer as defined in the BC Act, will not become a "control person" by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securitiesreporting issuer" as that term is defined under Rule 144 the Securities Act (British Columbia), and is not included in the lists of defaulting reporting issuers maintained by the British Columbia Securities Commission and the Alberta Securities Commission, and is not in default of the 1933 Act, payment of prescribed fees and that charges the required by the Securities may not be offered and sold, directly Act (British Columbia) or indirectly, in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities Act (Alberta) or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act rules and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Act:
(i) the Purchaser is not a U.S. Person and the Securities are not being acquired by it for or on behalf of a U.S. Personregulations thereto;
(iic) no offers to sell the Securities were made by any person to Purchaser's continuous disclosure filings with the Purchaser while the Purchaser was securities commissions in the United StatesBritish Columbia and Alberta are current and accurate, and the Subscriber was outside the United States at the time of execution such filings are true and delivery of this subscriptioncorrect;
(iiid) any person who acquires Securities will be required to provide all necessary corporate action on the Issuer with written certification that it is not a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf part of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired will, at Closing, validly authorize the Units as a result ofsigning, delivery, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investment.
(m) The Purchaser has no knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into performance of this Agreement and the completion of the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.this Agreement;
(pe) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement obligation of the Purchaser enforceable against the Purchaser in accordance with its terms., except as may be limited by laws of general application affecting the rights of creditors;
(qf) The the Purchaser's authorized capital is an unlimited number of Common Shares, of which there are currently 5,596,600 Common Shares issued and outstanding ;
(g) other than the Warrants, no person has any written or oral agreement or option or right capable of becoming an agreement:
(i) to require the Purchaser has obtained independent advice to issue any securities or to convert or exchange any securities into or for Common Shares or other securities of the Purchaser; or
(ii) for the purchase, subscription, allotment, or issuance of any of the issued or unissued Common Shares or other securities of the Purchaser; or
(iii) to require the Purchaser to purchase, redeem, or otherwise acquire any of the issued and outstanding Common Shares or other securities of the Purchaser;
(h) the audited financial statements of the Purchaser for the fiscal year ended July 31, 2017, as will be filed and made available to the applicable hold period imposed public on SEDAR under the Purchaser’s profile, will present fairly, in all material respects, the financial position of the Purchaser as at the date thereof, and there has been no material adverse change in the Purchaser's financial position since July 31, 2017;
(i) as at the Closing Date, there will not be any material adverse difference in the aggregate indebtedness of the Purchaser, including goods and services taxes, provincial sales taxes, income taxes, payroll taxes and remittances, or any contingent liabilities, as shown on the Securities most recent financial statements of the Purchaser;
(j) the Consideration Shares will be issued as fully paid and non-assessable Common Shares and will be issued subject only to such hold restrictions and escrow requirements imposed by NI 45-102 applicable securities laws and the 1933 Actpolicies of the CSE, and, if requested by the Purchaser and eXeBlock, pooling under a pooling agreement;
(k) the making of this Agreement does not conflict with or result in the breach of or the acceleration of any indebtedness under, any terms, provisions or conditions of, or constitute default under any indenture, mortgage, deed of trust, agreement, joint venture, lease, franchise, certificate, consent, permit, license, authority or other securities legislation, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and instrument to which the Purchaser is aware a party or is bound or any judgment, decree, order, rule or regulation of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation.
(r) If required any court or administrative body by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(s) which the Purchaser is capable of assessing and evaluating bound, or any law, statute or regulation applicable to the risks and merits of this investment as a result Purchaser; and
(l) there are no material actions, suits, appeals, claims, applications, orders, investigations, proceedings, grievances, arbitrations, or alternative dispute resolution processes in progress, or, to the knowledge of the Purchaser’s financial, investment pending or business experience threatened by or as a result of advice received from a registered person other than against the Issuer or an affiliate thereofPurchaser.
4.2 The representations, warranties, covenants, and agreements of the Purchaser or, where it is not purchasing contained in this Agreement or in any documents delivered in connection with the transactions contemplated hereby will be true at and as principal, each beneficial purchaser is able to bear of the economic loss time of its investment.
(t) Closing as though the Purchaser (ormade these representations and warranties at and as of that time. Despite any investigations the Selling Shareholder or eXeBlock may make before the signing of this Agreement or the waiver by the Selling Shareholder or eXeBlock of any condition, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(u) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by agreements of the Purchaser hereunder, with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(v) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities and will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.for one year.
Appears in 1 contract
Sources: Share Exchange Agreement
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges, hereby represents, warrants and covenants to the Company (which representations, warranties and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereundercovenants shall survive Closing and continue in full force and effect) the Issuer that, as at the date of this Agreement and at the Closing Date:
(a) The Issuer has the Purchaser is not filed a prospectus with any resident of the Commissions or any other securities commission or similar authority United States of America and that the Purchaser was offered the Shares outside of the United States of America;
(b) the Purchaser is an "accredited investor" as that term is defined in connection Regulation D promulgated by the 1933 Act by virtue of satisfying the indicated criterion in paragraph 1 of Schedule "B";
(c) the Purchaser acknowledges that in addition to compliance with the offering restrictions on resale applicable under relevant rules of the Securities Commission, the Purchaser may be subject to various reporting requirements with the Commission if Purchaser is the owner of 5% or more of a class of the issued and thatoutstanding stock of the Company;
(d) the Purchaser will execute and deliver all documentation to the Company as may be required by applicable rules, regulations and policies of the Commission and to permit the purchase of the Shares on the terms herein set forth;
(e) this agreement has been duly authorized, executed and delivered by, and constitutes a legal, valid and binding agreement of, the Purchaser subject to:
(i) any applicable bankruptcy, insolvency or other laws affecting the Purchaser is restricted from using most enforcement of the civil remedies available under the Acts;creditors' rights generally; and
(ii) general principles of equity, including that the Purchaser may not receive information that would otherwise be required to be provided to him under granting of equitable remedies is within the Actsdiscretion of a court of competent jurisdiction;
(iiif) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale of the Securities to the Purchaser is subject to not, directly or indirectly, the sale being exempt from holder of any common shares in the prospectus requirements capital of the Acts.Company other than the number of common shares of the Company included in the Units disclosed in Clause 17(d);
(bg) If the Purchaser is a resident of British Columbia or Alberta, then the Purchaser is purchasing the Securities as principal and is either:
a country (i) an "accredited investor" as defined in NI 45-106 and was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of "accredited investor" in NI 45-106
(c) The Purchaser, if not a resident of British Columbia, certifies that it is not resident in British Columbia and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(d) If the Purchaser is resident outside of Canada but not in the United States, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "Authorities") having application in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition of the Securities, if any;
(ii) is purchasing the Securities pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; and
(iv) the purchase of the Purchaser's Securities by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(f) The purchase of the Securities has not been made through or as a result of, and the distribution of the Securities has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(g) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange.
(h) The Purchaser is not a "control person" of the Issuer as defined in the BC Act, will not become a "control person" by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Act:
(i) the Purchaser is not a U.S. Person and the Securities are not being acquired by it for or on behalf of a U.S. Person;
(ii) no offers to sell the Securities were made by any person to the Purchaser while the Purchaser was in than the United States, and A. the Subscriber was outside the United States at the time of execution and delivery of this subscription;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investment.
(m) The Purchaser has no knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individualSubscription Agreement, the Purchaser has attained acceptance this Subscription Agreement by the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant heretoCompany, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(p) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms.
(q) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI 45-102 and the 1933 Act, and other securities legislation, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation.
(r) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(s) Shares and Warrants to the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result complies with all applicable laws of the Purchaser’s financial, investment or business experience or as a result 's jurisdiction of advice received from a registered person residence and all other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.
(t) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(u) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(v) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities laws and will continue in full force and effect even if not cause the Purchaser subsequently disposes of Company to become subject to or comply with any of the Securities. The Purchaser undertakes to notify the Issuer immediately of disclosure, prospectus or reporting requirements under any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.such applicable laws,
Appears in 1 contract
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges, represents, warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) the Issuer and the Agent, that, as at the date of this Agreement and at the Closing Date:
(a) The Issuer has not filed a prospectus with any of the Commissions or any other securities commission or similar authority in connection with the offering of the Securities Units and that:
(i) the Purchaser is restricted from using most of the civil remedies available under the Acts;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale of the Securities Units to the Purchaser is subject to the sale being exempt from the prospectus requirements of the Acts.
(b) If the Purchaser is a resident of British Columbia Columbia, Alberta or AlbertaOntario, then the Purchaser is purchasing the Securities Units as principal Principal and is either:
(i) an "accredited investor" as defined in NI 45-106 and was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of "accredited investor" in NI 45-106; or
(ii) purchasing the Units at an acquisition cost to the Purchaser of not less than $150,000 paid in cash and, if the Purchaser is not an individual, the Purchaser was not created or used solely to purchase or hold securities in reliance on the exemption from the dealer registration requirement or prospectus requirement available under section 2.10 of NI 45-106; and the Purchaser has completed, signed and delivered to the Corporation an Appendix II – "Certificate of B.C., Alberta and Ontario Purchasers";
(c) The Purchaser, if not a resident of British Columbia, certifies that it is not resident in British Columbia and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(d) If the Purchaser is resident outside of Canada but not in the United StatesCanada, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "“Authorities"”) having application in the jurisdiction in which the Purchaser is resident (the "“International Jurisdiction"”) which would apply to the acquisition of the SecuritiesUnits, if any;
(ii) is purchasing the Securities Units pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities Units under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the SecuritiesUnits; and
(iv) the purchase of the Purchaser's Securities Units by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the IssuerIssuer or the Agent, deliver to the Issuer and the Agent a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(f) The purchase of the Securities Units has not been made through or as a result of, and the distribution of the Securities Units has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(gf) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the SecuritiesUnits or the Warrant Shares;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange, other than the Shares and Warrant Shares on the Exchange.
(hg) The Purchaser is not a "“control person" ” of the Issuer as defined in the BC Act, will not become a "“control person" ” by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(ih) The Purchaser, on its own behalf Purchaser and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds each beneficial purchaser for whom it is acting are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, resident in the United States or by or jurisdiction indicated on the cover page to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Actthis Agreement and:
(i) the Purchaser is not a U.S. Person and is not purchasing the Securities are not being acquired by it Units for the account or on behalf benefit of a U.S. Person;
(ii) no offers to sell the Securities were made by any person Issuer did not offer the Units to the Purchaser while when the Purchaser was in the United States, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;; and
(iii) the Purchaser did not sign or deliver this Agreement in the United States.
(i) The Purchaser acknowledges that the Securities have not been registered under the 1933 Act or the securities laws of any person who acquires Securities will state of the United States, and may not be required to provide offered or sold in the United States unless registered under the 1933 Act and the securities laws of all applicable states of the United States or an exemption from such registration requirements is available, and that the Issuer with written certification that it is has no obligation or present intention of filing a registration statement under the 1933 Act regarding any of the Securities.
(j) The Units are not being acquired directly or indirectly, for the account or benefit of a U.S. Person or a person in the United States and that the Securities are Purchaser does not being acquired by it for have any agreement or on behalf of a understanding (either written or oral) with any U.S. Person or a person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);respecting:
(ivi) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect transfer or assignment of any of the Securities which would include any activities undertaken for the purpose of, rights or that could reasonably be expected to have the effect of, conditioning the market interest in the United States for the resale of any of the Securities;
(ii) the division of profits, losses, fees, commissions, or any financial stake in connection with this subscription; provided, however, that or
(iii) the Subscriber may sell or otherwise dispose of any voting of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investmentShares.
(mk) The Purchaser has no knowledge of a "“material fact" ” or "“material change" ” (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(nl) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(om) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(pn) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms.
(qo) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI MI 45-102 102, other securities legislation and the 1933 Act, and other securities legislationExchange, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI MI 45-102, the 1933 Act, and other applicable securities legislationlegislation and the Exchange’s policies.
(rp) Although the Agent may have introduced the Purchaser to the Issuer, the Purchaser and the Issuer acknowledge and agree with and for the benefit of the Agent that:
(i) the Agent and its directors, officers, employees, agents, and representatives have no responsibility or liability of any nature whatsoever for the accuracy or adequacy of the information contained in this Agreement, or any other publicly available information concerning the Issuer or as to whether the Issuer has generally disclosed all information concerning the Issuer that it was required to disclosed;
(ii) the Agent has not engaged in any independent investigation or verification regarding this Agreement or any other information;
(iii) the Agent is entitled to rely on the statements and answers of the Purchaser and the Issuer contained in this Agreement and in the Appendices, and that the Purchaser will hold harmless the Agent and the Issuer from any loss or damage it may suffer as a result of the Purchaser’s failure to correctly complete the Appendices; and
(iv) the Purchaser and the Issuer release the Agent and any of its affiliates and any of the Agent’s directors, officers, and employees from any claims, losses, damages, liabilities (or actions in respect thereof), costs, and expenses that may arise in respect of this Agreement.
(q) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(sr) the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result of the Purchaser’s financial, investment or business experience or as a result of advice received from a registered person other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.
(ts) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(t) the Purchaser acknowledges that Agent’s counsel is acting as counsel to the Agents and not as counsel to the Purchaser, and the relationship of the Agent’s counsel with the Purchaser is limited solely to the provision of customary commercial legal opinions at the Closing Date, where applicable, and responding to any questions which the Purchaser may have regarding the terms of the documents to be delivered in connection with this transaction.
(u) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunderhereunder and, if applicable, in its Corporate Placee Registration Form currently on file or to be filed with the Exchange, with the intent that the Issuer and Issuer, its professional advisors and the Agent may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the SecuritiesUnits, and the Purchaser agrees to indemnify the Issuer and the Agent against all losses, claims, costs, expenses, and damages or liabilities which the Issuer or the Agent may suffer or incur caused by or arising from its reliance thereon.
(v) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities Units and will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.
Appears in 1 contract
Sources: Subscription Agreement (Crosshair Exploration & Mining Corp)
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges, represents, warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) the Issuer that, as at the date of this Agreement and at the Closing Date:
(a) The Issuer has not filed a prospectus with any of the Commissions or any other securities commission or similar authority in connection with the offering of the Securities Units and that:
(i) the Purchaser is restricted from using most of the civil remedies available under the Acts;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and;
(iv) the issuance and sale of the Securities Units to the Purchaser is subject to the sale being exempt from the prospectus and registration requirements of the Acts; and
(v) the Purchaser has not received nor been provided with, nor has it requested, nor does it have any need to receive, any offering memorandum, prospectus, sales or advertising literature or any other document purporting to describe the business and affairs of the Issuer which has been prepared for delivery to, and review by, prospectus purchasers of Units in order to assist in making an investment decision in respect of the Units.
(b) If the Purchaser is a resident of British Columbia or AlbertaColumbia, then either:
(i) the Purchaser is purchasing the Securities Units as principal for its own account and not for the benefit of any other person and not with a view to the resale or distribution of all or any of the Shares or Warrants and is an “accredited investor” as defined in NI 45-106, and the Purchaser has completed, signed and delivered to the Issuer, an Appendix I – British Columbia / Alberta / Ontario Certificate; or
(ii) the Purchaser is purchasing the Units as principal for its own account and not for the benefit of any other person and not with a view to the resale or distribution of all or any of the Securities and is either:
(A) a director, senior officer or control person of the Issuer or an affiliate of the Issuer; or
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Issuer or of an affiliate of the Issuer; or
(C) a parent, grandparent, brother, sister or child of the spouse of a director, senior officer or control person of the Issuer or of an affiliate of the Issuer; or
(D) a close personal friend of a director, senior officer or control person of the Issuer or of an affiliate of the Issuer; or
(E) a close business associate of a director, senior officer or control person of the Issuer or of an affiliate of the Issuer; or
(F) a founder of the Issuer or a spouse, parent, grandparent, brother, sister, child, close personal friend or close business associate of a founder of the Issuer; or
(G) a parent, grandparent, brother, sister or child of the spouse of a founder of the Issuer; or
(H) a company of which a majority of the voting securities are beneficially owned by or a majority of the directors are persons or companies described in paragraphs (A) to (G) above; or
(I) a trust or estate of which all the beneficiaries or a majority of the trustees are persons or companies described in paragraphs (A) to (G) above; or
(iii) the Purchaser is purchasing sufficient Units so that the aggregate acquisition cost of the Units to the Purchaser is not less than $150,000, and if the Purchaser is not an individual, the Purchaser is not a person created or used solely to permit the purchase or holding of the Units (or other securities) in reliance on the “minimum amount investment” exemption from the dealer registration requirements or the prospectus requirements set out in section 2.10 of NI 45-106 and the Purchaser is either:
(A) purchasing the Units as principal for investment purposes, for its own account and not for the benefit of any other person and not with a view to the resale or distribution of all or any of the Securities, and it will be the sole beneficial owner of the Securities; or
(B) not purchasing the Units as principal, but is duly authorized to enter into this Agreement and to sign all documents in connection with the purchase on behalf of each beneficial purchaser, and it acknowledges that the Issuer may in the future be required by law to disclose on a confidential basis to securities regulatory authorities the identity of each beneficial purchaser of the Units for whom it is acting, and is either:
(1) a trust company, insurance company or a portfolio manager which is deemed under the BC Act to be purchasing the Units as principal and the aggregate acquisition cost of the Units purchased for all the accounts managed by it is not less than $150,000; or
(2) acting as agent for one or more disclosed principals, each of whom is purchasing a portion of the Units: (i) as principal for its own account; (ii) not for the benefit of any other person; (iii) not with a view to the resale or distribution of all or any of the Securities and (iv) sufficient in number so the aggregate acquisition cost of such Units for such principal is not less than $150,000, and the principal is not a person created or used solely to permit the purchase or holding of such Shares (or other securities) in reliance on the “minimum amount investment” exemption from the dealer registration requirements or the prospectus requirements set out in section 2.10 of NI 45-106; or
(c) If the Purchaser is a resident of Alberta, then either:
(i) the Purchaser is purchasing the Units as principal for its own account and not for the benefit of any other person and not with a view to the resale or distribution of all or any of the Securities and is an "accredited investor" as defined in NI 45-106, and the Purchaser has completed Section 1 of, and signed and delivered to the Issuer, an Appendix I – British Columbia/Alberta /Ontario Certificate; or
(ii) the Purchaser is purchasing the Units as principal for its own account and not for the benefit of any other person and not with a view to the resale of distribution of all or any of the Shares or Warrants and is either:
(A) a director, senior officer or control person of the Issuer or of an affiliate of the Issuer; or
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Issuer or of an affiliate of the Issuer; or
(C) a parent, grandparent, brother, sister or child of the spouse of a director, senior officer or control person of the Issuer or of an affiliate of the Issuer; or
(D) a close personal friend of a director, senior officer or control person of the Issuer or of an affiliate of the Issuer; or
(E) a close business associate of a director, senior officer or control person of the Issuer or of its affiliate; or
(F) a founder of the Issuer or a spouse, parent, grandparent, brother, sister, child, close personal friend or close business associate of a founder of the Issuer, or
(G) a parent, grandparent, brother, sister or child of the spouse of a founder of the Issuer; or
(H) a company of which a majority of the voting securities are beneficially owned by or a majority of the directors are persons or companies described in paragraphs (A) to (G) above; or
(I) a trust or estate of which all the beneficiaries or a majority of the trustees are persons or companies described in paragraphs (A) to (G) above; or
(iii) the Purchaser is purchasing sufficient Units so that the aggregate acquisition cost of the Shares to the Purchaser is not less than $150,000, and if the Purchaser is not an individual, the Purchaser is not a person created or used solely to permit the purchase or holding of the Shares and Warrants (or other securities) in reliance on the “minimum amount investment” exemption from the dealer registration requirements or the prospectus requirements set out in section 2.10 of NI 45-106 and was the Purchaser is either:
(A) purchasing the Units as principal for investment purposes, for its own account and not for the benefit of any other person and not with a view to the resale or distribution of all or any of the Shares or Warrants, and it will be the sole beneficial owner of the Shares and Warrants; or
(B) not purchasing the Units as principal, but is duly authorized to enter into this Agreement and to sign all documents in connection with the purchase on behalf of each disclosed principal, and it acknowledges that the Issuer may be required by law to disclose on a confidential basis to certain securities regulatory authorities the identity of each disclosed principal for whom it is acting, and the Purchaser is acting as agent for one or more disclosed principals, each of whom is purchasing a portion of the Units: (i) as principal for its own account; (ii) not for the benefit of any other person; (iii) not with a view to the resale or distribution of all or any of the Shares or Warrants and (iv) sufficient in number so the aggregate acquisition cost of such Units for such principal is not less than $150,000, and the principal is not a person created or used solely to permit the purchase or holding of such Units (or other securities) in reliance on the “minimum amount investment” exemption from the dealer registration requirements or the prospectus requirements set out in section 2.10 of NI 45-106; or
(d) If the Purchaser is resident in Ontario, then:
(i) the Purchaser is purchasing the Shares as principal for its own account and not for the benefit of any other person and not with a view to the resale or distribution of all or any of the Securities and is an “accredited investor” as defined in NI 45-106, and the Purchaser has completed, signed and delivered to the Issuer, an Appendix I – British Columbia / Alberta / Ontario Certificate; or
(ii) the Purchaser is purchasing the Units as principal for its own account and not for the benefit of any other person and not with a view to the resale of distribution of all or any of the Shares or Warrants and is:
(A) a founder of the issuer; or
(B) an affiliate of a founder of the issuer; or
(C) a spouse, parent, brother, sister, grandparent or child of an executive officer, director or founder of the issuer; or
(D) a person that is a control person of the issuer; or
(iii) the Purchaser is purchasing sufficient Units so that the aggregate acquisition cost of the Units to the Purchaser is not less than $150,000, and if the Purchaser is not an individual, the Purchaser is not a person created or used solely to purchase the Units (or hold securities other securities) in reliance on the “minimum amount investment” exemption from the dealer registration requirements or the prospectus requirements set out in section 2.10 of NI 45-106 and the Purchaser is either:
(A) purchasing the Units as an accredited investor as described in paragraph (m) principal for investment purposes, for its own account and not for the benefit of any other person and not with a view to the resale or distribution of all or any of the definition Shares or Warrants, and it will be the sole beneficial owner of "accredited investor" the Shares and Warrants; or
(B) not purchasing the Units as principal, but is duly authorized to enter into this Agreement and to sign all documents in connection with the purchase on behalf of each disclosed principal, and it acknowledges that the Issuer may be required by law to disclose on a confidential basis to certain securities regulatory authorities the identity of each disclosed principal for whom it is acting, and the Purchaser is acting as agent for one or more disclosed principals, each of whom is purchasing a portion of the Units: (i) as principal for its own account; (ii) not for the benefit of any other person; (iii) not with a view to the resale or distribution of all or any of the Shares or Warrants and (iv) sufficient in number so the aggregate acquisition cost of such Units for such principal is not less than $150,000, and the principal, if not an individual, is not a person created or used solely to purchase the Units (or other securities) in reliance on the “minimum amount investment” exemption from the dealer registration requirements or the prospectus requirements set out in section 2.10 of NI 45-106.
(ce) The Purchaser, if not a resident of British Columbia, certifies that it is not resident in British Columbia and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(df) If the Purchaser is resident outside of Canada but not in the United StatesCanada, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "Authorities") having application in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition of the SecuritiesUnits, if any;
(ii) is purchasing the Securities Units pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities Units under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;; and
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; andUnits.
(iv) the purchase of the Purchaser's Securities by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(fg) The purchase of the Securities Units has not been made through or as a result of, and the distribution of the Securities Units has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(gh) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the SecuritiesUnits or the Warrant Shares;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange, other than the Shares on the Exchanges.
(hi) The Purchaser is not a "“control person" of the Issuer ” (as defined in the BC Act, the Alberta Act or the Ontario Act) of the Issuer, will not become a "“control person" ” by virtue of the purchase of any of the SecuritiesShares, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term Purchaser is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, resident in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale jurisdiction indicated on page 3 of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Actthis Agreement and:
(i) the Purchaser is not a national, citizen, or resident of the United States of America or its territories or possessions (a “U.S. Person Person”) and is not purchasing the Securities are not being acquired by it Units for the account or on behalf benefit of a U.S. Person;
(ii) no offers to sell the Securities were made by any person Issuer did not offer the Units to the Purchaser while when the Purchaser was in the United States, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;; and
(iii) the Purchaser did not sign or deliver this Agreement in the United States.
(k) The Purchaser acknowledges that the Securities have not been registered under the 1933 Act or the securities laws of any person who acquires Securities will state of the United States, and may not be required to provide the Issuer with written certification that it is not a U.S. Person offered or person sold in the United States unless registered under the 1933 Act and that the Securities are not being acquired by it for or on behalf securities laws of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within all applicable states of the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investment.
(m) The Purchaser has no knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant heretoavailable, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(p) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms.
(q) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI 45-102 and the 1933 Act, and other securities legislation, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware obligation or present intention of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation.
(r) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(s) the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result of the Purchaser’s financial, investment or business experience or as a result of advice received from a registered person other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.
(t) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(u) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(v) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities and will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.statement under the
Appears in 1 contract
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges, represents, warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) the Issuer that, as at the date of this Agreement and at the Closing Date:
(a) The Issuer has not filed a prospectus with any of the Commissions or any other securities commission or similar authority in connection with the offering of the Securities and that:
(i) the Each Purchaser is restricted from using most of the civil remedies available under the Acts;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations represents that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale of the Securities to the Purchaser is subject to the sale being exempt from the prospectus requirements of the Acts.
(b) If the Purchaser is a resident of British Columbia or Alberta, then the Purchaser is purchasing the Securities Notes to be purchased by it solely for its own account and not as principal and is either:
(i) an "accredited investor" as defined in NI 45-106 and was not created nominee or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of "accredited investor" in NI 45-106
(c) The Purchaser, if not a resident of British Columbia, certifies that it is not resident in British Columbia and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(d) If the Purchaser is resident outside of Canada but not in the United States, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "Authorities") having application in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition of the Securities, if any;
(ii) is purchasing the Securities pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; and
(iv) the purchase of the Purchaser's Securities by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or agent for any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(f) The purchase of the Securities has not been made through or as a result of, and the distribution of the Securities has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(g) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange.
(h) The Purchaser is not a "control person" of the Issuer as defined in the BC Act, will not become a "control person" by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Act:
(i) the Purchaser is not a U.S. Person and the Securities are not being acquired by it for or on behalf of a U.S. Person;
(ii) no offers to sell the Securities were made by any person to the Purchaser while the Purchaser was in the United States, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale for offer or sale in connection with with, any distribution thereof (within the meaning of the Securities Act) that would be in violation of the securities laws of the United States of America or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired the Units as a result ofany state thereof, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; providedwithout prejudice, however, that the Subscriber may to each Purchaser’s right at all times to sell or otherwise dispose of all or any part of the Shares or the Warrant Shares such Notes pursuant to a registration of any of statement under the Shares Securities Act or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such the registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities Act, and confirms that subject, nevertheless, to the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks disposition of such investmenteach Purchaser’s property being at all times within its control.
(mi) The Purchaser is knowledgeable, sophisticated and experienced in business and financial matters;
(ii) has no knowledge of a "material fact" or "material change" (as those terms are defined previously invested in securities similar to the Notes and fully understand the limitations on transfer described in Section 1.3(b) and the restrictions on sales and other dispositions in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.Note Documents;
(niii) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(p) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms.
(q) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI 45-102 and the 1933 Act, and other securities legislation, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation.
(r) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(s) the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result of the Purchaser’s financial, investment or business experience or as a result of advice received from a registered person other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic risk of its investment in the Notes and is currently able to afford the complete loss of its such investment.;
(t) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunderiv) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(u) The Purchaser makes an “accredited investor” as defined in Regulation D promulgated under the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.Securities Act;
(v) The Purchaser agrees that understands that:
(A) the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of Notes have not been registered under the Securities Act and will continue are being issued by the Company in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid exempt from the registration requirements of the 1933 Securities Act; and
(B) the Notes may not be offered or sold except pursuant to an effective registration statement under the Securities Act or pursuant to an applicable exemption from registration under the Securities Act; and
(C) the exemption from registration afforded by Rule 144 (the provisions of which are known to such Purchaser) promulgated under the Securities Act depends on the satisfaction of various conditions, and that, if applicable, Rule 144 may afford the basis for sales only in limited amounts. Each Purchaser acknowledges that it has conducted its own analysis of the Company’s financial condition and other foregoing factors in determining to make an investment in the Notes. Additionally, each Purchaser acknowledges that it is a resident of the State of New York for purposes of the application of state securities laws to its purchase of the Notes.
(b) If any Purchaser desires to sell or otherwise dispose of all or any part of the Notes (other than to a Permitted Transferee or pursuant to Rule 144 or Rule 144A or an effective registration statement under the Securities Act), if requested by the Company, it will deliver to the Company an opinion of counsel, reasonably satisfactory in form and substance to the Company, that an exemption from registration under the Securities Act is available. Upon original issuance thereof, and until such time as the same is no longer required under the applicable requirements of the Securities Act, the Notes (and all securities issued in exchange therefor or substitution thereof) shall bear the following legend:
Appears in 1 contract
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges, represents, warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) the Issuer that, as at the date of this Agreement and at the Closing Date:
(a) The Issuer has not filed a prospectus with any of the Commissions Commission, the SEC or any other securities commission or similar authority in connection with the offering of the Securities Units and that:
(i) the Purchaser is restricted from using most of the civil remedies available under the ActsB.C. Act;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale of the Securities Units to the Purchaser is subject to the sale being exempt from the prospectus and registration requirements of the ActsB.C. Act and the registration requirements of the 1933 Act.
(b) If the Purchaser is a resident of British Columbia or Alberta, then the The Purchaser is purchasing the Securities Units as principal for its own account and is either:
(i) an "accredited investor" as defined in NI 45-106 not for the benefit of any other person and was not created with a view to the resale or used solely to purchase distribution of all or hold securities as an accredited investor as described in paragraph (m) any of the definition of "accredited investor" in NI 45-106Securities.
(c) The Purchaser, if not a resident of British Columbia, Purchaser certifies that it is not resident in British Columbia and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what comply with those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a registration statement or prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will may not be available to the Purchaser.
(d) If the Purchaser is resident outside of Canada but not in the United States, the The Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "“Authorities"”) having application in the jurisdiction in which the Purchaser is resident (the "“International Jurisdiction"”) which would apply to the acquisition of the SecuritiesUnits, if any;
(ii) has been advised that the Exchanges have jurisdiction over the Issuer and the Securities and that each Exchange imposes restrictions on the number of Securities that may be sold without shareholder approval below the “market price” (as defined in the rules and policies of each Exchange, respectively);
(iii) is purchasing the Securities Units pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction and the registration requirements under the 1933 Act or, if such is not applicable applicable, the Purchaser is permitted to purchase the Securities Units under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply rely on any exemption;
(iiiiv) has been advised that there may be material tax consequences to the applicable securities Purchaser of an acquisition or disposition of the Securities, that the Issuer gives no opinion and makes no representation with respect to the tax consequences to the Purchaser under United States, state, local or foreign tax laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings Purchaser’s acquisition or seek any approvals disposition of any nature whatsoever from Securities, that the Purchaser has been advised to consult its own tax advisor with respect to applicable tax legislation, and that it is solely responsible for compliance with applicable tax legislation;
(v) has no intention to distribute, and shall not transfer, either directly or indirectly, any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the SecuritiesSecurities to any person within the United States or to a U.S. Person, except pursuant to an effective registration statement under the 1933 Act or an exemption therefrom; and
(ivvi) is acquiring the purchase Securities for its own account, for investment purposes only and not with a view to any resale, distribution or other disposition of the Purchaser's Securities by the Purchaser does not trigger:
(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 violation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;United States securities laws.
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(f) The purchase of the Securities Units has not been made through or as a result of, and the distribution of the Securities Units has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(gf) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchangeexchange other than the Shares on the Exchanges.
(hg) The Purchaser is not a "“control person" ” of the Issuer as defined in the BC Act, will not become a "“control person" ” by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(ih) The Purchaser, Purchaser is resident in the jurisdiction indicated on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:page 2 hereof.
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber Purchaser acknowledges and agrees that the Securities have not been and will not be registered under the 1933 Act or the securities laws of any state of the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and States; that the Securities will be deemed "Restricted Securities" as that term sale contemplated hereby is defined under Rule 144 of the 1933 Act, and being made in reliance on an exemption from such registration requirements; that the Securities may not be offered and sold, directly or indirectly, sold in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration unless registered under the 1933 Act and any the securities laws of all applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in states of the United States or otherwise by or to a U.S. Person, unless the transferee provides an exemption from such registration requirements is available; that the Issuer with has no obligation or present intention of filing a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S registration statement under the 1933 Act and all applicable State securities laws, (ii) Rule 144 in respect of any of the Securities; that the Issuer has no obligation or present intention to take any action so as to permit sales pursuant to the 1933 Act Act; and all applicable State securities lawsthe Purchaser understands that, or (iii) another applicable exemption from absent registration, under the registration requirements rules of the SEC, the Purchaser may be required to hold the Securities indefinitely or to transfer the Securities in “private placements” which are exempt from registration under the 1933 Act Act, in which event the transferee will acquire “restricted securities” subject to the same limitations as in the hands of the Purchaser and all applicable State securities laws. the Purchaser understands that, as a consequence, the Purchaser must bear the economic risks of the investment in the Securities for an indefinite period of time.
(j) The Purchaser further acknowledges that the certificates representing the Securities (and any certificates issued in exchange or substitution for the Securities) will contain bear a legend prohibiting transfer pursuant to the 1933 Act as set out in section 7.3 hereof and that delivery of the Securities certificates bearing such legend may not constitute “good delivery” in the settlement of transactions on Canadian or United States stock exchanges or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.over-the-counter markets.
(k) The Subscriber acknowledges Purchaser has had the opportunity to ask questions and agrees that receive answers from the Warrants may not be exercised in Issuer’s representatives concerning the United States or otherwise by or terms and conditions of the Private Placement and to or for the account or benefit of a U.S. Person without registration under the 1933 Act and obtain any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes additional information which the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effectpossesses or can acquire without unreasonable effort or expense.
(l) With respect to compliance with the 1933 Act:
(i) the Purchaser is not a U.S. Person The issuance, sale and delivery of the Securities are not being acquired by it for or on behalf of a U.S. Person;
(ii) no offers to sell the Securities were made by any person to the Purchaser while are conditional upon such issuance and sale being exempt from the Purchaser was prospectus requirements of all applicable securities legislation in Canada relating to the United Statesissuance and sale of the Securities or upon the issuance of such orders, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;
(iii) any person who acquires Securities will rulings, consents or approvals as may be required to provide permit such sales without the Issuer with written certification that it is not requirement of filing a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investmentprospectus.
(m) The Purchaser has no knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(on) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(po) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms.
(qp) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI 45-102 102, other securities legislation and the 1933 Act, and other securities legislationExchanges, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislationlegislation and the Exchanges’ policies.
(q) The Purchaser has been independently advised as to the applicable hold period imposed in respect of the Securities by securities legislation in the jurisdiction in which the Purchaser resides and confirms that no representation has been made respecting the applicable hold periods for the Securities and is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with the applicable securities legislation and regulatory policies.
(r) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authorityauthority or the Issuer, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(s) The Purchaser acknowledges having been advised that the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result financial statements of the Purchaser’s financialIssuer have been prepared in accordance with Canadian generally accepted accounting principles, investment or business experience or as a result of advice received which differ in some respects from a registered person other than the Issuer or an affiliate thereofUnited States generally accepted accounting principles, and the Purchaser or, where it is thus may not purchasing as principal, each beneficial purchaser is able be comparable to bear the economic loss financial statements of its investmentUnited States companies.
(t) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(u) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, hereunder with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the SecuritiesUnits, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(vu) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities Units and will continue in full force and effect even if the Purchaser subsequently disposes of any of the SecuritiesUnits. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, warranty or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.
Appears in 1 contract
Purchaser’s Representations and Warranties. 5.1 The 6.3.1 Each Purchaser acknowledges, represents, hereby represents and warrants that it has the necessary liquidity to satisfy its portion of the payment of the Aggregate Purchase Price.
6.3.2 Infra H2O GP and covenants Infra H2O LP hereby solidarily represent and warrant to and with (on its own behalf and, if applicable, on behalf in favour of those for whom each of the Purchaser is contracting hereunder) the Issuer that, Vendors as at the date of this Agreement and at the Closing Datefollows:
(a) The Issuer has not filed each of Infra H2O GP and Infra H2O LP is a prospectus with any of the Commissions or any other securities commission or similar authority corporation duly constituted, existing and in connection with the offering of the Securities and that:
(i) the Purchaser is restricted from using most of the civil remedies available good standing under the Actslaws of Canada;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale of the Securities to the Purchaser is subject to the sale being exempt from the prospectus requirements of the Acts.
(b) If each of Infra H2O GP and Infra H2O LP has the Purchaser necessary authority, power and capacity to enter into this Agreement and the Definitive Agreements to which it is a resident of British Columbia or Alberta, then the Purchaser is purchasing the Securities as principal party and is either:
(i) an "accredited investor" as defined in NI 45-106 to perform its obligations hereunder and was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of "accredited investor" in NI 45-106thereunder;
(c) The Purchaserthis Agreement has been, if not and the Definitive Agreements to which Infra H2O GP and Infra H2O LP is a resident party will be, prior to Closing, duly and validly authorized by all requisite corporate proceedings and constitute legal, valid and binding obligations of British Columbiaeach of Infra H2O GP and Infra H2O LP enforceable against such party in accordance with their terms (subject to applicable bankruptcy, certifies insolvency, reorganization and other laws of general application limiting the enforcement of creditors’ rights generally and the fact that it specific performance is not resident an equitable remedy available only in British Columbia and acknowledges that:
(i) no securities commission or similar regulatory authority has reviewed or passed on the merits discretion of the Securitiesa court);
(ii) there is no government or other insurance covering the Securities;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(d) If neither the Purchaser entering into or the delivery of this Agreement or the Definitive Agreements to which it is resident outside a party, nor the performance by each of Canada but not in the United States, the Purchaser:
Infra H2O GP and Infra H2O LP of its obligations hereunder and thereunder will conflict with or constitute a default under: (i) is knowledgeable of, any Applicable Laws; or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "Authorities") having application in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition of the Securities, if any;
(ii) is purchasing the Securities pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws any of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws provisions of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings their constating documents or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; and
(iv) the purchase of the Purchaser's Securities by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonablyby-laws;
(e) The Issuer is entitled to rely on neither Infra H2O GP nor Infra H2O LP is, nor will it be at the representations and warranties and Time of Closing, a non-Canadian within the statements and answers meaning of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the AppendicesInvestment Canada Act (Canada);
(f) The purchase each of Infra H2O GP and Infra H2O LP is and, at the Time of Closing, will be, an “accredited investor” as such term is defined in National Instrument 45-106 – Prospectus and Registration Exemptions and has properly completed and duly executed the accredited investor certificate annexed to this Agreement as Schedule 6.3.2(f) indicating the means by which such party is an “accredited investor” and confirms the truth and accuracy of all statements made therein by it.
6.3.3 BluEarth hereby represents and warrants to and in favour of each of the Securities has not been made through or Vendors as a result of, and the distribution of the Securities has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(g) No person has made to the Purchaser any written or oral representationsfollows:
(ia) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed BluEarth is a corporation duly constituted, existing and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange.
(h) The Purchaser is not a "control person" of the Issuer as defined in the BC Act, will not become a "control person" by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal good standing under the laws of the Canada, the United States or any other jurisdiction;
(iiib) without limiting BluEarth has the foregoingnecessary authority, none of power and capacity to enter into this Agreement and the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) Definitive Agreements to which it is a party and Terrorism Financing Act (Canada) (the "PCMLA"); andto perform its obligations hereunder and thereunder;
(ivc) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be truethis Agreement has been, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges Definitive Agreements to which BluEarth is a party will be, prior to Closing, duly and agrees that the Securities have not been registered under the United States Securities Act validly authorized by all requisite corporate proceedings and constitute legal, valid and binding obligations of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except BluEarth enforceable against it in accordance with Regulation S.
their terms (k) The Subscriber acknowledges subject to applicable bankruptcy, insolvency, reorganization and agrees other laws of general application limiting the enforcement of creditors’ rights generally and the fact that the Warrants may not be exercised specific performance is an equitable remedy available only in the United States or otherwise by or to or for the account or benefit discretion of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Act:
(i) the Purchaser is not a U.S. Person and the Securities are not being acquired by it for or on behalf of a U.S. Person;
(ii) no offers to sell the Securities were made by any person to the Purchaser while the Purchaser was in the United States, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇court);
(ivd) neither the Purchaser acknowledges that entering into or the delivery of this Agreement or the Definitive Agreements to which it has not acquired is a party, nor the Units as performance by BluEarth of its obligations hereunder and thereunder will conflict with or constitute a result of, and will not itself engage in, default under: (i) any "directed selling efforts" Applicable Laws; or (as defined in Regulation S under the ▇▇▇▇ ▇▇▇ii) in the United States in respect of any of the Securities which would include any activities undertaken for provisions of its constating documents or by-laws;
(e) BluEarth is not nor will it be at the purpose of, or that could reasonably be expected to have Time of Closing a non-Canadian within the effect of, conditioning the market in the United States for the resale of any meaning of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Investment Canada Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and(Canada);
(vf) The Purchaser understands BluEarth is and, at the speculative nature Time of Closing, will be, an “accredited investor” as such term is defined in National Instrument 45-106 – Prospectus and risks of investment in Registration Exemptions and has properly completed and duly executed the Securities accredited investor certificate annexed to this Agreement as Schedule 6.3.3(e) indicating the means by which BluEarth is an “accredited investor” and confirms that the Securities would be suitable truth and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks accuracy of such investmentall statements made therein by BluEarth.
(m) The Purchaser has no knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(p) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms.
(q) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI 45-102 and the 1933 Act, and other securities legislation, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation.
(r) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(s) the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result of the Purchaser’s financial, investment or business experience or as a result of advice received from a registered person other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.
(t) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(u) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(v) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities and will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.
Appears in 1 contract
Sources: Securities Purchase Agreement (AbitibiBowater Inc.)
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges, represents, represents and warrants and covenants to and in favour of the Vendors the matters set out below and acknowledges that the Vendors are relying on such representations and warranties in connection with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) the Issuer that, as at the date of transactions contemplated by this Agreement and at the Closing DateAgreement:
(a) The Issuer has not filed Purchaser is a prospectus with any corporation duly incorporated, organized and subsisting under the laws of the Commissions or any other securities commission or similar authority in connection Canada with the offering of the Securities corporate power to own its assets and that:
(i) the Purchaser is restricted from using most of the civil remedies available under the Acts;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale of the Securities to the Purchaser is subject to the sale being exempt from the prospectus requirements of the Actscarry on its business.
(b) If The Purchaser has the corporate power and authority to enter into and deliver this Agreement and to complete the transactions to be completed by the Purchaser is a resident of British Columbia or Alberta, then the Purchaser is purchasing the Securities as principal and is either:
(i) an "accredited investor" as defined in NI 45-106 and was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of "accredited investor" in NI 45-106contemplated hereunder.
(c) The Purchaser, if not This Agreement constitutes a resident of British Columbia, certifies that it is not resident in British Columbia valid and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(d) If the Purchaser is resident outside of Canada but not in the United States, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "Authorities") having application in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition of the Securities, if any;
(ii) is purchasing the Securities pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; and
(iv) the purchase legally binding obligation of the Purchaser's Securities by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(f) The purchase of the Securities has not been made through or as a result of, and the distribution of the Securities has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(g) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange.
(h) The Purchaser is not a "control person" of the Issuer as defined in the BC Act, will not become a "control person" by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Act:
(i) the Purchaser is not a U.S. Person and the Securities are not being acquired by it for or on behalf of a U.S. Person;
(ii) no offers to sell the Securities were made by any person to the Purchaser while the Purchaser was in the United States, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investment.
(m) The Purchaser has no knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(p) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its termsterms subject to applicable bankruptcy, insolvency, reorganization and other laws of general application limiting the enforcement of creditors’ rights generally and to the fact that specific performance is an equitable remedy available only in the discretion of the court.
(qd) Neither the entering into nor the delivery of this Agreement nor the completion of the transactions contemplated by this Agreement by the Purchaser will result in a violation of:
(i) any of the provisions of the constating documents or by-laws of the Purchaser;
(ii) any agreement or other instrument to which the Purchaser is a party or by which the Purchaser is bound, where the violation would reasonably be expected to delay or materially adversely affect the consummation of the transactions contemplated by this Agreement; or
(iii) subject to Competition Act Compliance and receipt of CRTC Approval, any Applicable Law in respect of which the Purchaser must comply where the failure to so comply would reasonably be expected to delay or materially adversely affect the consummation of the transactions contemplated by this Agreement.
(e) Subject to receipt of the Transaction Approvals, the Corporation Third Party Consents and the truth and accuracy of the representation and warranty of Woodbridge in Section 3.02(a), no notices, reports or other filings are required to be made by the Purchaser with, nor are any consents, registrations, approvals, permits, or authorizations required to be obtained by the Purchaser from, any Governmental Authority or any third party in connection with the execution, delivery or performance of this Agreement by the Purchaser or the consummation by the Purchaser of the transactions contemplated by this Agreement where the failure to so obtain would reasonably be expected to delay or materially adversely affect the consummation of the transactions contemplated by this Agreement.
(f) There is no suit, action, litigation, investigation, claim, complaint, grievance or proceeding, including appeals and applications for review, in progress, or, to the knowledge of the Purchaser, pending or threatened before any Governmental Authority or arbitration panel which if determined adversely to the Purchaser would enjoin, restrict or prohibit the transactions contemplated by this Agreement or prevent the Purchaser from fulfilling all of its obligations set out in or arising from this Agreement.
(g) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI 45-102 and the 1933 Act, and other securities legislation, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation.
(r) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(s) the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result of the Purchaser’s financial, investment or business experience or as a result of advice received from a registered person other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.
(t) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(u) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(v) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities and will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid non-Canadian within the registration requirements meaning of the 1933 Investment Canada Act.
Appears in 1 contract
Sources: Transaction Agreement (Bce Inc)
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledgesrepresents and warrants to Seller that as of May 27, represents, warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) the Issuer that, as at the date of this Agreement and at the Closing Date:
(a) The Issuer has not filed a prospectus with any of the Commissions or any other securities commission or similar authority in connection with the offering of the Securities and that1998:
(i) the Purchaser is restricted from using most of the civil remedies available a duly formed and validly existing limited partnership organized under the Acts;laws of Delaware.
(ii) Purchaser has the Purchaser may not receive information that would otherwise be required full legal right, power and authority to execute and deliver this Agreement and all documents now or hereafter to be provided executed by Purchaser pursuant to him this Agreement (collectively, the "Purchaser's Documents"), to consummate the transaction contemplated hereby, and to perform its obligations hereunder and under the Acts;Purchaser's Documents.
(iii) Upon Closing, the Issuer is relieved from certain obligations that it would otherwise be required Purchaser shall deliver to give if it provided a prospectus under the Acts; andBeneficial Owner good and marketable title to the Class B Units free and clear of all liens, claims, encumbrances and restrictions, except (x) as contained in the Registration Rights Agreement and the Partnership Agreement and (y) as imposed by federal and state securities laws.
(iv) At Closing, the issuance Partnership Agreement shall be in the form attached hereto as Exhibit C, as amended only by the Partnership Amendment, and sale the Partnership Agreement shall be in full force and effect. There are no uncured defaults or breaches by the Trust or, to the knowledge of the Securities to Trust, any limited partner under the Purchaser is subject to the sale being exempt from the prospectus requirements of the ActsPartnership Agreement.
(b) If the Purchaser is a resident of British Columbia or Alberta, then the Purchaser is purchasing the Securities as principal and is either:
(i) an "accredited investor" as defined in NI 45-106 and was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of "accredited investor" in NI 45-106
(c) The Purchaser, if not a resident of British Columbia, certifies that it is not resident in British Columbia and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) At Closing, the Issuer has advised capitalization of Purchaser will be as set forth in the Partnership Agreement (after giving effect to any amendment to Exhibit A thereto after the date hereof which is permitted under Section 2.C.(ii), a copy of which Exhibit A as of the date hereof is attached hereto as a part of Exhibit C to this Agreement). There are no restrictions on the transfer of the Class B Units other than those contained in the Partnership Agreement and the Registration Rights Agreement and those arising from federal and applicable state securities laws. All Class B Units to be issued and outstanding in accordance with the terms of this Agreement are or will be duly authorized and validly issued in accordance with the terms of the Partnership Agreement and in compliance with applicable laws and are redeemable for cash or Shares as provided in the Partnership Agreement. As of the date hereof, there are no outstanding subscriptions, options, warrants, preemptive or other rights or other arrangements or commitments obligating the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to issue any Units in the Purchaser.
(d) If the Purchaser is resident outside of Canada but not , except as described in the United States, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "Authorities") having application in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition of the Securities, if any;
(ii) is purchasing the Securities pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; and
(iv) the purchase of the PurchaserTrust's Securities by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(f) The purchase of the Securities has not been made through or as a result of, and the distribution of the Securities has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(g) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange.
(h) The Purchaser is not a "control person" of the Issuer as defined in the BC Act, will not become a "control person" by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the Proxy Statement dated ▇▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) without the Prospectus Supplement dated December 17, 1997, to the Prospectus dated December 17, 1997, of the Trust, and (iii) the Trust's Report on Form 10-Q for the four-month period ending December 31, 1997 (collectively, the "Filings"), true and complete copies of which has been delivered to Seller. If and when issued, the Shares issuable upon exchange of the Class B Units will be duly authorized, validly issued, fully paid and non-assessable. At the Closing, the Beneficial Owner will, assuming that the Purchase Price includes the Class B Units, be admitted as a limited partner of Purchaser. The issuance of the Class B Units at Closing will not require any approval or consent of any person or entity, except any such approval that shall have been obtained on or prior to Closing. The issuance of the Class B Units to the Beneficial Owner hereunder is exempt from registration under the 1933 Securities Act and any applicable State state securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(lvi) With respect To the Purchaser's knowledge, the Filings taken as a whole do not, as of the date thereof, contain any untrue statement of material fact or omit to compliance with state a material fact required to be stated therein or necessary to make the 1933 Act:statements therein not misleading in light of the circumstances under which such statements were made and there has been no material adverse effect on the business, assets, financial condition or results of operation of Purchaser or the Trust since December 31, 1997.
(ivii) the Purchaser PREIT is not a U.S. Person duly organized, validly existing, in good standing and the Securities are not being acquired by it for or on behalf of a U.S. Person;
(ii) no offers qualified and empowered to sell the Securities were made by any person to the Purchaser while the Purchaser was in the United Statesconduct its business, and has full power and authority to take the Subscriber was outside actions necessary for Purchaser to fully perform under this Agreement and to fully perform under the United States at Registration Rights Agreement. Neither the time of execution and delivery of this subscription;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person or person in Registration Rights Agreement, nor the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any performance of the Securities which would include any activities undertaken for the purpose ofTrust's obligations thereunder, will conflict with or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investment.
(m) The Purchaser has no knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation breach of any of the terms and provisions of any law applicable tomaterial contract, or the constating documents of, the Purchaser or of any agreement, written law, rule or oral, regulation to which the Purchaser may be PREIT is a part party or by which it PREIT is or may be bound.
(pviii) The Purchaser has duly signed Registration Rights Agreement, and delivered each instrument to be executed by PREIT in connection with this Agreement or therewith, will, when executed and this Agreement constitutes a legaldelivered, valid, be valid and binding agreement of the Purchaser enforceable against the Purchaser PREIT in accordance with its terms.
(qix) The Purchaser has obtained independent advice Trust Agreement of PREIT, a true, complete and correct copy of which is attached as to the applicable hold period imposed on the Securities by NI 45-102 and the 1933 Act, and other securities legislation, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation.
Exhibit DD (r) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(s) the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result of the Purchaser’s financial, investment or business experience or as a result of advice received from a registered person other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.
(t) the Purchaser (or, if applicable, others for whom it is contracting hereunder"Trust Agreement") has been advised delivered to consult its own legal Seller and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(u) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(v) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities and will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securitiesat Closing. The Purchaser undertakes There are no distribution, termination or liquidation proceedings pending or contemplated with respect to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. PersonsPREIT.
(x) PREIT will elect to be taxed as a real estate investment trust for its taxable year ending December 31, 1998 and PREIT believes it is organized and will be operated in such a manner as to qualify for taxation as a "real estate investment trust" as defined in Section 856 of the current structure of this transaction and all transactions and activities contemplated hereunderCode for the taxable years ending December 31, and the 1998.
(xi) Purchaser has not been served with any litigation which is still pending that would adversely affect Purchaser's participation thereinability to perform its obligations under this Agreement, is or that would affect PREIT's ability to deliver the Shares in accordance with Section 2.C. above, nor to Purchaser's Knowledge, has any such litigation been filed but not a scheme served or threatened against Purchaser;
(xii) Neither the Partnership Agreement nor the Trust Agreement have been amended since September 30, 1997 through the date hereof, except for amendments to avoid Exhibit A to the registration requirements of the 1933 ActPartnership Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pennsylvania Real Estate Investment Trust)
Purchaser’s Representations and Warranties. 5.1 The Each of the Purchasers, severally and not jointly, represents and warrants to the Company, and agrees that:
(a) Such Purchaser acknowledgeshas full power, representsauthority and capacity to enter into this Purchase Agreement and this Purchase Agreement constitutes a valid and legally binding obligation of such Purchaser. At the time such Purchaser was offered the Securities, warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) the Issuer that, as at the date of this Agreement and at the Closing Date, (i) such Purchaser was and will be a “qualified institutional buyer” as such term is defined in Rule 144A under the Securities Act, (ii) such Purchaser had and will have such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment contemplated by this Agreement, and (iii) such Purchaser is able to bear the substantial economic risk of its investment in the Securities for an indefinite period of time, has evaluated such risks, has no need for liquidity in such investment, and is prepared to lose his entire investment in the Securities.
(b) Such Purchaser understands and acknowledges that (i) the Securities are being offered and sold to such Purchaser without registration under the Securities Act in a private placement that is exempt from the registration provisions of the Securities Act under Section 4(2) of the Securities Act or Regulation D promulgated thereunder and (ii) the availability of such exemption depends in part on, and the Company will rely upon the accuracy and truthfulness of, the representations set forth in this Section 9 and such Purchaser hereby consents to such reliance.
(c) Such Purchaser and its advisors, if any:
(ai) The Issuer has have been furnished for a reasonable period of time with all materials relating to the business, finances and operations of the Company and materials relating to the offer and sale of the Securities that have been requested by such Purchaser or its advisors (collectively with this Purchase Agreement, the “Investment Materials”). Such Purchaser and its advisors, if any, have carefully read the Investment Materials and understand and have evaluated the risks involved in an investment in the Company in general, and in the Securities in particular, and have relied solely, except as provided below in subsections (ii) and (iii) of this Section 9(c), on the information contained in the Investment Materials;
(ii) have been provided an opportunity for a reasonable period of time prior to the date hereof to obtain additional information concerning the offering of the Securities, the Company and all other information to the extent the Company possesses such information or can acquire it without unreasonable effort or expense;
(iii) have been afforded the opportunity for a reasonable period of time prior to the date hereof to ask questions of, and receive answers from, the Company or its representatives concerning the terms and conditions of the offering of the Securities and other matters pertaining to this investment, and have been given the opportunity for a reasonable period of time prior to the date hereof to obtain such additional information necessary to verify the accuracy of the information contained in the Investment Materials or that which was otherwise provided in order to evaluate the merits and risks of a purchase of the Securities to the extent the Company possesses such information or can acquire it without unreasonable effort or expense;
(iv) have not filed a prospectus been furnished with any of the Commissions oral representation or any other securities commission or similar authority oral information in connection with the offering of the Securities and that:
(i) the Purchaser is restricted from using most of the civil remedies available under the Acts;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale of the Securities to the Purchaser is subject to the sale being exempt from the prospectus requirements of the Acts.
(b) If the Purchaser is a resident of British Columbia or Alberta, then the Purchaser is purchasing the Securities as principal and is either:
(i) an "accredited investor" as defined in NI 45-106 and was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of "accredited investor" in NI 45-106
(c) The Purchaser, if not a resident of British Columbia, certifies that it is not resident contained in British Columbia and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the SecuritiesInvestment Materials; and
(v) the Issuer has advised the Purchaser have determined that the Issuer is relying Securities are a suitable investment for such Purchaser and that at this time such Purchaser could bear a complete loss of such investment. Neither such inquiries nor any other due diligence investigation conducted by such Purchaser or any of its advisors or representatives shall modify, amend or affect Purchaser’s right to rely on an exemption from the requirements to provide Company’s representations and warranties contained in Section 8 above or representations and warranties of the Company contained in any other Operative Document. Such Purchaser with understands that its investment in the Securities involves a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence significant degree of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaserrisk.
(d) If the Each Purchaser is resident outside of Canada but not in the United States, the Purchaser:
(i) is knowledgeable aware of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "Authorities") having application in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition of the Securities, if any;
(ii) is purchasing the Securities pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; and
(iv) the purchase of the Purchaser's Securities by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(f) The purchase of the Securities has not been made through or as a result ofunderstands, and acknowledges the distribution of the Securities has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(g) No person has made to the Purchaser any written or oral representations:
following: (i) that any person will resell or repurchase due to the Securities;
discovery of financial and accounting reporting errors affecting its financial statements for the years ended December 31, 2001, 2000 and 1999 and the quarter ended March 31, 2002, the Company was engaged in a restatement of such financial statements and is currently engaged in a restatement of its financial statements for the quarter ended March 31, 2002; (ii) that the Company currently has no audited financial statements to provide to the Purchasers other than the audited financial statements for the years ended December 31, 2001, 2000 and 1999, and that each Purchaser has waived access to any person will refund the purchase price other statements as a component of the Securities;
its Investment Materials; (iii) as to that the future price Company currently is not in compliance with the periodic reporting requirements of Sections 13 or value of any 15(d) of the SecuritiesExchange Act; or
(iv) that the Securities most recent quarterly or annual reports filed by the Company on forms 10-Q or 10-K, respectively, were for the quarterly period ended March 31, 2002, and the annual period ended December 31, 2001; (v) that the Company does not know when the remaining restatement and related auditing tasks will be listed and posted for trading on a stock exchange or completed; (vi) that an application the Company’s Common Stock has been made delisted from the NASDAQ National Market, effective March 4, 2003 and is not currently eligible to list trade on the OTC Bulletin Board; and post (vii) that the Company is currently the subject of a formal non-public investigation by the Securities for trading on a stock exchangeand Exchange Commission.
(he) The Such Purchaser understands that no United States federal or state agency or any other government or governmental agency or authority has passed upon or made any recommendation or endorsement of the Securities.
(f) Such Purchaser is not acquiring the Securities with a "control person" view to any distribution thereof or with any present intention of the Issuer as defined in the BC Act, will not become a "control person" by virtue of the purchase of offering or selling any of the Securities, and does not intend to act Securities in concert with any other person to form a control group of transaction that would violate the Issuer.
(i) The Purchaser, on its own behalf and on behalf Act or the securities laws of any disclosed principal, represents, warrants and agrees that:
(i) none state of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other applicable jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Each Purchaser further acknowledges that the certificates representing Company will rely upon the Securities will contain a legend prohibiting transfer accuracy and truth of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available foregoing representations and the holder of Purchasers hereby consent to such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effectreliance.
(l) With respect to compliance with the 1933 Act:
(i) the Purchaser is not a U.S. Person and the Securities are not being acquired by it for or on behalf of a U.S. Person;
(ii) no offers to sell the Securities were made by any person to the Purchaser while the Purchaser was in the United States, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investment.
(m) The Purchaser has no knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(p) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms.
(q) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI 45-102 and the 1933 Act, and other securities legislation, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation.
(r) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(s) the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result of the Purchaser’s financial, investment or business experience or as a result of advice received from a registered person other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.
(t) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(u) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(v) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities and will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.
Appears in 1 contract
Sources: Purchase Agreement (Quadramed Corp)
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges, represents, hereby represents and warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) the Issuer that, as at the date of this Agreement and at the Closing Date:
(a) The Issuer has not filed a prospectus with any of the Commissions or any other securities commission or similar authority in connection with the offering of the Securities and that:
(i) The Purchaser is acquiring the Class B Common Stock purchased hereunder or acquired pursuant hereto for its own account with the present intention of holding such securities for purposes of investment, and that it has no intention of selling such securities in a public distribution in violation of the federal securities laws or any applicable state securities laws; provided that nothing contained herein shall prevent the Purchaser is restricted and subsequent holders of Class B Common Stock from using most transferring such securities in compliance with the provisions of paragraph 4 hereof. The Purchaser understands that the civil remedies available Class B Common Stock has not been registered under the Acts;
(ii) Securities Act by reason of its issuance by the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided Company in a prospectus under the Acts; and
(iv) the issuance and sale of the Securities to the Purchaser is subject to the sale being transaction exempt from the prospectus registration requirements of the Acts.
(b) If the Purchaser is a resident of British Columbia or Alberta, then the Purchaser is purchasing the Securities as principal and is either:
(i) an "accredited investor" as defined in NI 45-106 and was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of "accredited investor" in NI 45-106
(c) The Purchaser, if not a resident of British Columbia, certifies that it is not resident in British Columbia and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser Act. Each certificate for Class B Common Stock shall be imprinted with a prospectus and to sell legend in substantially the following form: "The securities through a person registered to sell securities under the Acts andrepresented by this certificate were originally issued on June 10, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(d) If the Purchaser is resident outside of Canada but not in the United States, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "Authorities") having application in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition of the Securities, if any;
(ii) is purchasing the Securities pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; and
(iv) the purchase of the Purchaser's Securities by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(f) The purchase of the Securities has not been made through or as a result of1994, and the distribution of the Securities has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(g) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange.
(h) The Purchaser is not a "control person" of the Issuer as defined in the BC Act, will not become a "control person" by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 1933, as amended. The transfer of the securities represented by this certificate is subject to the conditions specified in the Purchase Agreement, dated as of June 10, 1994, between the issuer (the "1933 ActCompany"), as amended, or any applicable State securities laws) and a certain investor, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 Company reserves the right to refuse the transfer of the 1933 Act, such securities until such conditions have been fulfilled with respect to such transfer. The securities represented by this certificate are also subject to certain restrictions on transfer and that the Securities may not be offered and sold, directly or indirectly, other matters set forth in the United States or Company's Certificate of Incorporation. A copy of all such conditions and other matters shall be furnished by or the Company to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effecthereof upon written request and without charge.
(l) With respect to compliance with the 1933 Act:
(i) the Purchaser is not a U.S. Person and the Securities are not being acquired by it for or on behalf of a U.S. Person;"
(ii) no offers to sell the Securities were made by any person to the The Purchaser while the Purchaser was recognizes that investing in the United StatesClass B Common Stock involves a high degree of risk, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not in a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear hold the risks of such investment.
(m) The Purchaser has no knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority Class B Common Stock indefinitely and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(p) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms.
(q) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI 45-102 and the 1933 Act, and other securities legislation, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation.
(r) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(s) the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result of the Purchaser’s financial, investment or business experience or as a result of advice received from a registered person other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic risk and withstand a complete loss of its investmentinvestment in the Class B Common Stock; the Purchaser understands that it may incur a complete loss of its investment in the Class B Common Stock.
(tiii) The Purchaser is a sophisticated investor and is capable of evaluating the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult merits and risks of investing in the Company given its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislationstage of development.
(uiv) The Purchaser makes has had an opportunity to discuss the representationsCompany's business, warrantiesmanagement and financial affairs with the Company's management, covenantshas been given full and complete access to information concerning the Company, and acknowledgements contained in this Agreement has utilized such access to its satisfaction for the purpose of obtaining information or verifying information and in any other Appendices, documents, or materials signed and delivered by has had the Purchaser hereunder, with opportunity to inspect the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereonCompany's facilities.
(v) The Purchaser agrees that has had the above representations, warranties, covenantsopportunity to ask questions of, and acknowledgements will be true and correct both as receive answers from, the management of the signing date Company (and any person acting on its behalf) concerning the Class B Common Stock and the terms and conditions of this Agreement and the agreements and transactions contemplated hereby, and to obtain any additional information as the Purchaser may have requested in making its investment decision.
(vi) The Purchaser is an "accredited investor," as defined by Regulation D promulgated under the Securities Act.
(vii) The Purchaser has the power (corporate or otherwise) and requisite authority, and has taken all action (corporate or otherwise) necessary, to execute, deliver and perform this Agreement, the Trademark Agreement and all other agreements contemplated hereby and thereby to which the Purchaser is a party and to subscribe for and purchase the Class B Common Stock.
(viii) Each of this Agreement, the Trademark Agreement and all other agreements contemplated hereby and thereby to which the Purchaser is a party, upon execution by the Purchaser, will be duly authorized, executed and delivered by the Purchaser, and will be the legal and binding obligation of the Closing Date Purchaser, enforceable in accordance with its terms, subject to applicable laws of bankruptcy, insolvency and that they will survive similar laws affecting creditors' rights and the Purchaser’s purchase application of the Securities general rules of equity.
(ix) The execution and will continue in full force and effect even if delivery by the Purchaser subsequently disposes of this Agreement, the Trademark Agreement and all other agreements contemplated hereby and thereby and the fulfillment of and compliance with the respective terms hereof and thereof, do not and shall not (i) violate any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representationconstitution, warrantystatute, regulation, rule, injunction, judgement, order, decree, ruling, or other information relating restriction of any government, governmental agency, or court to which the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distributeis subject, either directly or indirectly, any provision of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation thereincharter or bylaws or other internal governing documents or (ii) conflict with, result in a breach of, or constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under, any agreement, contract, lease, permit, license, instrument, or any other arrangement to which the Purchaser is not a scheme party or by which it is bound or to avoid which its assets are subject. No notice, consent, filing, authorization or approval of any government or governmental agency is required for the registration requirements of Purchaser to consummate the 1933 Acttransactions contemplated hereby.
Appears in 1 contract
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges, hereby represents, warrants and covenants to the Company (which representations, warranties and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereundercovenants shall survive Closing and continue in full force and effect) the Issuer that, as at the date of this Agreement and at the Closing Date:
(a) The Issuer has the Purchaser is not filed a prospectus with any resident of the Commissions or any other securities commission or similar authority in connection with United States of America and that the offering Purchaser was offered the Shares outside of the Securities and that:United States of America;
(ib) the Purchaser is restricted from using most of the civil remedies available under the Acts;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale of the Securities to the Purchaser is subject to the sale being exempt from the prospectus requirements of the Acts.
(b) If the Purchaser is a resident of British Columbia or Alberta, then the Purchaser is purchasing the Securities as principal and is either:
(i) an "accredited investor" as that term is defined in NI 45-106 and was not created or used solely to purchase or hold securities as an accredited investor as described Regulation D promulgated by the 1933 Act by virtue of satisfying the indicated criterion in paragraph (m) 1 of the definition of Schedule "accredited investor" in NI 45-106B";
(c) The Purchaserthe Purchaser acknowledges that in addition to compliance with the restrictions on resale applicable under relevant rules of the Commission, the Purchaser may be subject to various reporting requirements with the Commission if not Purchaser is the owner of 5% or more of a resident class of British Columbiathe issued and outstanding stock of the Company;
(d) the Purchaser will execute and deliver all documentation to the Company as may be required by applicable rules, certifies that it is not resident in British Columbia regulations and acknowledges thatpolicies of the Commission and to permit the purchase of the Shares on the terms herein set forth;
(e) this agreement has been duly authorized, executed and delivered by, and constitutes a legal, valid and binding agreement of, the Purchaser subject to:
(i) no securities commission any applicable bankruptcy, insolvency or similar regulatory authority has reviewed or passed on other laws affecting the merits enforcement of the Securities;creditors' rights generally; and
(ii) there general principles of equity, including that the granting of equitable remedies is no government or other insurance covering within the Securitiesdiscretion of a court of competent jurisdiction;
(iiif) there are risks associated with the purchase Purchaser is not, directly or indirectly, the holder of any common shares in the capital of the SecuritiesCompany other than the number of common shares of the Company included in the Units disclosed in Clause 17(d);
(ivg) there the Units are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of being acquired by the Purchaser to find out what those restrictions in good faith, for investment purposes only, are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser not being purchased with a prospectus view to, or for the resale or distribution thereof and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(d) If the Purchaser is resident outside of Canada but not purchasing as principal or is deemed to be purchasing as principal by applicable securities legislation and if the Purchaser is deemed to be purchasing as a principal, the Purchaser will deliver to the Company prior to Closing a completed and executed Accredited Investor Certificate in the United States, form attached hereto as Schedule "B" on behalf of each beneficial purchaser;
(h) the Purchaser:
(i) if resident in Alberta or British Columbia, is knowledgeable of, or has been independently advised an "accredited investor" as to that term is defined in Canadian Securities Administrators' Multilateral Instrument 45-103 "Capital Raising Exemptions" by virtue of satisfying the applicable securities laws indicated criterion in paragraph 6 of the securities regulatory authorities (the Schedule "AuthoritiesB") having application in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition of the Securities, if any;; or
(ii) if resident in Ontario, is purchasing an "accredited investor" as that term is defined in Ontario Securities Commission Rule 45-501 by virtue of satisfying the Securities pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws indicated criterion in paragraph 7 of the Authorities in the International Jurisdiction Schedule "B"; or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) is purchasing the applicable securities laws of the Authorities Units and is a resident in the International Jurisdiction do Province of British Columbia, is purchasing the Units as principal for its own account and not require for the Issuer to make any filings or seek any approvals benefit of any nature whatsoever from any Authority other person, and is purchasing a sufficient number of any kind whatsoever in Units so that the International Jurisdiction in connection with the issue and sale or resale of the Securities; and
(iv) the purchase of the Purchaser's Securities by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect aggregate acquisition cost to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(f) The purchase of the Securities has not been made through or as a result of, and the distribution of the Securities has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(g) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the Securities;
(iii) as to the future price or value of any of the Securitiesless than $97,000; or
(iv) that the Securities will be listed and posted for trading on is a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange.
(h) The Purchaser is not a "control person" of the Issuer as defined in the BC Act, will not become a "control person" by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf resident of a person country (an "International Jurisdiction") other than Canada or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Act:
(i) the Purchaser is not a U.S. Person and the Securities are not being acquired by it for or on behalf of a U.S. Person;
(ii) no offers to sell the Securities were made by any person to the Purchaser while the Purchaser was in the United States, and A. the Subscriber was outside the United States at the time of execution and delivery of this subscription;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investment.
(m) The Purchaser has no knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individualSubscription Agreement, the Purchaser has attained acceptance this Subscription Agreement by the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant heretoCompany, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(p) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms.
(q) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI 45-102 and the 1933 Act, and other securities legislation, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation.
(r) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(s) Shares and Warrants to the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result complies with all applicable laws of the Purchaser’s financial, investment or business experience or as a result 's jurisdiction of advice received from a registered person residence and all other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.
(t) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(u) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(v) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities laws and will continue in full force and effect even if not cause the Purchaser subsequently disposes of Company to become subject to or comply with any of the Securities. The Purchaser undertakes to notify the Issuer immediately of disclosure, prospectus or reporting requirements under any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.such applicable laws,
Appears in 1 contract
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges, represents, represents and warrants to the Vendors that the following representations and covenants to and with (on its own behalf and, if applicable, on behalf warranties are true as of those for whom the Purchaser is contracting hereunder) the Issuer that, as at the date hereof and will be true as of this Agreement and at the Closing DateTime of Closing:
(a) The Issuer has not filed the Purchaser is a prospectus with any corporation duly incorporated, organized and subsisting under the laws of the Commissions or any other securities commission or similar authority in connection with the offering of the Securities and that:Yukon;
(ib) the Purchaser has good and sufficient power, authority and right to enter into and deliver this Agreement and to complete the transactions to be completed by the Purchaser contemplated hereby;
(c) the Purchaser is restricted from using most acquiring the Shares for its own account and not with a view to their distribution within the meaning of the civil remedies available under the Acts;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale of the Securities to the Purchaser is subject to the sale being exempt from the prospectus requirements of the Acts.
(b) If the Purchaser is a resident of British Columbia or Alberta, then the Purchaser is purchasing the Securities as principal and is either:
(i) an "accredited investor" as defined in NI 45-106 and was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (mSection 2(11) of the definition of "accredited investor" in NI 45-106
(c) The Purchaser, if not a resident of British Columbia, certifies that it is not resident in British Columbia and acknowledges that:
(i) no securities commission or similar regulatory authority has reviewed or passed on the merits of the Securities1933 Act;
(ii) there is no government or other insurance covering the Securities;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(d) If the Purchaser is resident outside of Canada but not in the United Statesand its officers and agents have incurred no obligation or liability, the Purchaser:
(i) is knowledgeable ofcontingent or otherwise, for brokerage or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "Authorities") having application in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition of the Securities, if any;
(ii) is purchasing the Securities pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings finders' fees or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction agents' commissions or other similar payment in connection with this Agreement other than a finder's fee in the issue amount equal to Three and sale or resale One-Half Percent (3.5%) of the Securities; and
(iv) the purchase of the Purchaser's Securities by the Purchaser does not trigger:
(A) any obligation Purchase Price payable to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(f) The purchase of the Securities has not been made through or as a result of, and the distribution of the Securities has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(g) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange.
(h) The Purchaser is not a "control person" of the Issuer as defined in the BC Act, will not become a "control person" by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of Omaha, Nebraska, payable in common shares in the capital stock of LML Payment Systems Inc. to be issued at an issue price per common share equal to the last sale price for the purchase of such common share as reported by NASDAQ on the day previous to the Closing Date and will indemnify and hold the Vendors harmless from any such payment alleged to be due by or through the Purchaser as a result of the actions of the Purchaser or its officers or agents;
(e) without registration under to the 1933 Act and Knowledge of the Purchaser, neither the Purchaser nor any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities of its affiliates has taken or agreed to take any other actions to facilitate action that would prevent the acquisition of the Shares contemplated hereby from qualifying as a reorganization under Section 368(a)(1)(B) of the Code;
(f) immediately before the Closing, there are Fifteen Million Two Hundred and Thirty-Three Thousand Nine Hundred and Eighty-Seven (15,233,987) LML Shares issued and outstanding and after the transaction none of the Vendors, either individually or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Personaggregate, unless the transferee provides the Issuer with a legal opinion stating that the sale shall own more than 5% of the Securities is being made in compliance with Shares and more than 5% of the voting control of Purchaser;
(ig) Rule 904 of Regulation S for more than thirty-six (36) months before the Closing, Legacy Promotions Inc., a company incorporated under the 1933 Act and all applicable State securities laws, (ii) Rule 144 laws of the 1933 Act and all applicable State securities lawsProvince of British Columbia, or (iii) another applicable exemption from the registration requirements one of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer provinces of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 ActCanada:
(i) has been a wholly-owned subsidiary of the Purchaser is not a U.S. Person and the Securities are not being acquired by it for or on behalf of a U.S. PersonPurchaser;
(ii) no offers to sell the Securities were made by any person to the Purchaser while the Purchaser was has had an office in the United StatesVancouver, and the Subscriber was outside the United States at the time of execution and delivery of this subscriptionBritish Columbia;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person has had no office or person other place of business in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇)America;
(iv) has carried on for profit the business of licensing a trademark to a third party licensee on an arm's length basis; and at the Closing, neither the Purchaser acknowledges that it has not acquired nor Legacy Promotions Inc. have any intention of disposing of or discontinuing the Units as a result ofbusiness of Legacy Promotions Inc.;
(h) at the Closing, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any fair market value of the Securities which would include any activities undertaken for Purchaser will exceed the purpose of, or that could reasonably be expected to have the effect of, conditioning the fair market in the United States for the resale of any value of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided hereinCorporation; and
(vi) The all of the assets acquired by the Purchaser understands pursuant to the speculative nature and risks of investment Material Acquisitions are used in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investment.
(m) The Purchaser has no knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(p) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement electronic payment processing business of the Purchaser enforceable against the Purchaser in accordance with and its terms.
(q) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI 45-102 subsidiaries and the 1933 Act, and other securities legislation, and confirms that the Issuer has made no representations regarding the applicable hold periods principal purpose for the Securities, and the Purchaser is aware acquisition of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation.
(r) If required by applicable securities legislation, policy, those assets directly or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(s) the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result of the Purchaser’s financial, investment or business experience or as a result of advice received from a registered person other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.
(t) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(u) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered indirectly by the Purchaser hereunder, with the intent that the Issuer and its professional advisors may rely on them was not to satisfy any test contained in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereonU.S. Treasury Regulation 1.367(a)-3.
(v) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities and will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.
Appears in 1 contract
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges, represents, warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) the Issuer that, as at the date of this Agreement and at the Closing Date:
(a) The Issuer has not filed a prospectus with any of the Commissions or any other securities commission or similar authority in connection with the offering of the Securities Units and that:
(i) the Purchaser is restricted from using most of the civil remedies available under the Acts;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and;
(iv) the issuance and sale of the Securities Units to the Purchaser is subject to the sale being exempt from the prospectus requirements of the Acts; and
(v) the Purchaser has not received nor been provided with, nor has it requested, nor does it have any need to receive, any offering memorandum, prospectus, sales or advertising literature or any other document purporting to describe the business and affairs of the Issuer which has been prepared for delivery to, and review by, prospectus purchasers of Units in order to assist in making an investment decision in respect of the Units.
(b) If the The Purchaser is a resident of British Columbia or Alberta, then the Purchaser is purchasing the Securities as principal and warrants that it is either:
(i) purchasing the Units as principal for its own account and not for the benefit of any other person and not with a view to the resale or distribution of all or any of the Securities and is an "“accredited investor" ” as defined in NI MI 45-106 103, and was the Purchaser has completed, signed and delivered to the Issuer, an Appendix I – British Columbia Certificate; or
(ii) purchasing the Units as principal for its own account and not for the benefit of any other person and not with a view to the resale of distribution of all or any of the Securities and is either:
(A) a director, senior officer or control person of the Issuer or an affiliate of the Issuer;
(B) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Issuer or an affiliate of the Issuer; or
(C) a parent, grandparent, brother, sister or child of the spouse of a director, senior officer or control person of the Issuer or an affiliate of the Issuer; or
(D) a close personal friend of a director, senior officer or control person of the Issuer or an affiliate of the Issuer; or
(E) a close business associate of a director, senior officer or control person of the Issuer or an affiliate of the Issuer; or
(F) a founder of the Issuer or a spouse, parent, grandparent, brother, sister, child, close personal friend or close business associate of a founder of the Issuer; or
(G) a parent, grandparent, brother, sister or child of the spouse of a founder of the Issuer; or
(H) a company of which a majority of the voting securities are beneficially owned by or a majority of the directors are persons or companies described in paragraphs (A) to (G) above; or
(I) a trust or estate of which all the beneficiaries or a majority of the trustees are persons or companies described in paragraphs (A) to (G) above; or
(iii) purchasing sufficient Units so that the aggregate acquisition cost of the Units to the Purchaser is not less than $97,000, and if the Purchaser is not an individual, the Purchaser is not a corporation, partnership, trust, fund, association, or any other organized group of persons created solely or used primarily to permit the purchase of the Units (or other similar purchases) without a prospectus by a group of individuals whose individual share of the aggregate acquisition cost of the Units is less than $97,000 and is either:
(A) purchasing the Units as principal for investment purposes, for its own account and not for the benefit of any other person and not with a view to the resale of distribution of all or any of the Securities, and it will be the sole beneficial owner of the Securities; or
(B) not purchasing the Units as principal, but is duly authorized to enter into this Agreement and to sign all documents in connection with the purchase on behalf of each beneficial purchaser, and it acknowledges that the Issuer may in the future be required by law to disclose on a confidential basis to securities regulatory authorities the identity of each beneficial purchaser of the Units for whom it is acting, and is either:
(1) a trust company, insurance company or a portfolio manager which is deemed under the BC Act to be purchasing the Units as principal and the aggregate acquisition cost of the Units purchased for all the accounts managed by it is not less than $97,000; or
(2) acting as agent for one or more disclosed principals, each of whom is purchasing a portion of the Units: (i) as principal for its own account; (ii) not for the benefit of any other person; (iii) not with a view to the resale or distribution of all or any of the Securities and (iv) sufficient in number so the aggregate acquisition cost of such Units for such principal is not less than $97,000, and the principal is not a corporation, syndicate, partnership, or other form of incorporated or unincorporated entity or organization created solely to permit the purchase of such Units (or hold securities as an accredited investor as described in paragraph (mother similar purchases) by a group of individuals whose individual share of the definition aggregate acquisition cost of "accredited investor" in NI 45-106such Units is less than $97,000.
(c) The Purchaser, if not a resident of British Columbia, Purchaser certifies that it is not resident in British Columbia and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(d) If the Purchaser is resident outside of Canada but not in the United States, the The Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "“Authorities"”) having application in the jurisdiction in which the Purchaser is resident (the "“International Jurisdiction"”) which would apply to the acquisition of the SecuritiesUnits, if any;
(ii) is purchasing the Securities Units pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities Units under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities Purchaser has been advised that there may be material tax consequences to the Purchaser of an acquisition or disposition of the Securities, that the Issuer gives no opinion and makes no representation with respect to the tax consequences to the Purchaser under United States, state, local or foreign tax laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings Purchaser’s acquisition or seek any approvals disposition of any nature whatsoever from any Authority of any kind whatsoever in Securities, that the International Jurisdiction in connection Purchaser has been advised to consult its own tax advisor with the issue respect to applicable tax legislation, and sale or resale of the Securities; andthat it is solely responsible for compliance with applicable tax legislation;
(iv) the purchase Purchaser has no intention to distribute, and shall not transfer, either directly or indirectly, any of the Purchaser's Securities by to any person within the United States or to a U.S. Person, except pursuant to an effective registration statement under the 1933 Act or an exemption therefrom; and
(v) the Purchaser does is acquiring the Securities for its own account, for investment purposes only and not trigger:
(A) with a view to any obligation to prepare and file a prospectus resale, distribution or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation disposition of the Issuer Securities in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction violation of the Issuer, acting reasonably;United States securities laws.
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(f) The purchase of the Securities Units has not been made through or as a result of, and the distribution of the Securities Units has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(gf) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the SecuritiesUnits or the Warrant Shares;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange, other than the Shares on the Exchange.
(hg) The Purchaser is not a "“control person" ” of the Issuer as defined in the BC Act, will not become a "“control person" ” by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(ih) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber Purchaser acknowledges and agrees that the Securities have not been and will not be registered under the 1933 Act or the securities laws of any state of the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and States; that the Securities will be deemed "Restricted Securities" as that term sale contemplated hereby is defined under Rule 144 of the 1933 Act, and being made in reliance on an exemption from such registration requirements; that the Securities may not be offered and sold, directly or indirectly, sold in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration unless registered under the 1933 Act and any the securities laws of all applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in states of the United States or otherwise by or to a U.S. Person, unless the transferee provides an exemption from such registration requirements is available; that the Issuer with has no obligation or present intention of filing a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S registration statement under the 1933 Act and all applicable State securities laws, (ii) Rule 144 in respect of any of the Securities; that the Issuer has no obligation or present intention to take any action so as to permit sales pursuant to the 1933 Act Act; and all applicable State securities lawsthe Purchaser understands that, or (iii) another applicable exemption from absent registration, under the registration requirements rules of the SEC, the Purchaser may be required to hold the Securities indefinitely or to transfer the Securities in “private placements” which are exempt from registration under the 1933 Act Act, in which event the transferee will acquire “restricted securities” subject to the same limitations as in the hands of the Purchaser and all applicable State securities laws. the Purchaser understands that, as a consequence, the Purchaser must bear the economic risks of the investment in the Securities for an indefinite period of time.
(i) The Purchaser further acknowledges that the certificates representing the Securities (and any certificates issued in exchange or substitution for the Securities) will contain bear a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Act:
(i) the Purchaser is not a U.S. Person and the Securities are not being acquired by it for or on behalf of a U.S. Person;
(ii) no offers to sell the Securities were made by any person to the Purchaser while the Purchaser was in the United States, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program set out on page 12 and that his delivery of certificates bearing such legend may not constitute “good delivery” in settlement of transactions on Canadian stock exchanges or her financial position enable him or her to bear the risks of such investmentover-the-counter markets.
(mj) The issuance, sale and delivery of the Securities to the Purchaser are conditional upon such issuance and sale being exempt from the prospectus requirements of all applicable securities legislation in Canada relating to the issuance and sale of the Securities or upon the issuance of such orders, rulings, consents or approvals as may be required to permit such sales without the requirement of filing a prospectus.
(k) The Purchaser has no knowledge of a "“material fact" ” or "“material change" ” (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(nl) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(om) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(pn) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms.
(qo) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI MI 45-102 102, other securities legislation and the 1933 Act, and other securities legislationExchange, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI MI 45-102, the 1933 Act, and other applicable securities legislationlegislation and the Exchange’s policies.
(rp) The Purchaser has been independently advised as to the applicable hold period imposed in respect of the Securities by securities legislation in the jurisdiction in which the Purchaser resides and confirms that no representation has been made respecting the applicable hold periods for the Securities and is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with the applicable securities legislation and regulatory policies.
(q) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authorityauthority or the Issuer, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(sr) The purchaser acknowledges that the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result financial statements of the Purchaser’s financialIssuer have been prepared in accordance with Canadian generally accepted accounting principles, investment or business experience or as a result of advice received which differ in some respects from a registered person other than the Issuer or an affiliate thereofUnited States generally accepted accounting principles, and the Purchaser or, where it is thus may not purchasing as principal, each beneficial purchaser is able be comparable to bear the economic loss financial statements of its investmentUnited States companies.
(t) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(us) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, hereunder with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the SecuritiesUnits, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty or other information relating to the Purchaser set forth in the Subscription Agreement which takes place prior to the Closing.
(vt) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities Units and will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.
Appears in 1 contract
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges, represents, warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) the Issuer and the Agent, that, as at the date of this Agreement and at the Closing Date:
(a) The Issuer has not filed a prospectus with any of the Commissions or any other securities commission or similar authority in connection with the offering of the Securities FT Units and that:
(i) the Purchaser is restricted from using most of the civil remedies available under the Acts;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale of the Securities FT Units to the Purchaser is subject to the sale being exempt from the prospectus requirements of the Acts.
(b) If the Purchaser is a resident of British Columbia Columbia, Alberta or AlbertaOntario, then the Purchaser is purchasing the Securities FT Units as principal Principal and is either:
(ic) an "accredited investor" as defined in NI 45-106 and was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of "accredited investor" in NI 45-106; or
(cd) purchasing the FT Units at an acquisition cost to the Purchaser of not less than $150,000 paid in cash and, if the Purchaser is not an individual, the Purchaser was not created or used solely to purchase or hold securities in reliance on the exemption from the dealer registration requirement or prospectus requirement available under section 2.10 of NI 45-106; and the Purchaser has completed, signed and delivered to the Corporation an Appendix II – "Certificate of B.C., Alberta and Ontario Purchasers";
(e) The Purchaser, if not a resident of British Columbia, certifies that it is not resident in British Columbia and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(df) If the Purchaser is resident outside of Canada but not in the United StatesCanada, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "“Authorities"”) having application in the jurisdiction in which the Purchaser is resident (the "“International Jurisdiction"”) which would apply to the acquisition of the SecuritiesFT Units, if any;
(ii) is purchasing the Securities FT Units pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities FT Units under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the SecuritiesFT Units; and
(iv) the purchase of the Purchaser's Securities FT Units by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the IssuerIssuer or the Agent, deliver to the Issuer and the Agent a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(fg) The purchase of the Securities FT Units has not been made through or as a result of, and the distribution of the Securities FT Units has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(gh) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the SecuritiesFT Units or the Warrant Shares;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange, other than the FT Shares and Warrant Shares on the Exchange.
(hi) The Purchaser is not a "“control person" ” of the Issuer as defined in the BC Act, will not become a "“control person" ” by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges Purchaser and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term each beneficial purchaser for whom it is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, acting are resident in the United States or by or jurisdiction indicated on the cover page to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Actthis Agreement and:
(i) the Purchaser is not a U.S. Person and is not purchasing the Securities are not being acquired by it FT Units for the account or on behalf benefit of a U.S. Person;
(ii) no offers to sell the Securities were made by any person Issuer did not offer the FT Units to the Purchaser while when the Purchaser was in the United States, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;; and
(iii) the Purchaser did not sign or deliver this Agreement in the United States.
(k) The Purchaser acknowledges that the Securities have not been registered under the 1933 Act or the securities laws of any person who acquires Securities will state of the United States, and may not be required to provide offered or sold in the United States unless registered under the 1933 Act and the securities laws of all applicable states of the United States or an exemption from such registration requirements is available, and that the Issuer with written certification that it is has no obligation or present intention of filing a registration statement under the 1933 Act regarding any of the Securities.
(l) The FT Units are not being acquired directly or indirectly, for the account or benefit of a U.S. Person or a person in the United States and that the Securities are Purchaser does not being acquired by it for have any agreement or on behalf of a understanding (either written or oral) with any U.S. Person or a person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);respecting:
(ivi) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect transfer or assignment of any of the Securities which would include any activities undertaken for the purpose of, rights or that could reasonably be expected to have the effect of, conditioning the market interest in the United States for the resale of any of the Securities;
(ii) the division of profits, losses, fees, commissions, or any financial stake in connection with this subscription; provided, however, that or
(iii) the Subscriber may sell or otherwise dispose of any voting of the FT Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investmentShares.
(m) The Purchaser has no knowledge of a "“material fact" ” or "“material change" ” (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(p) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms.
(q) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI MI 45-102 102, other securities legislation and the 1933 Act, and other securities legislationExchange, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI MI 45-102, the 1933 Act, and other applicable securities legislationlegislation and the Exchange’s policies.
(r) Although the Agent may have introduced the Purchaser to the Issuer, the Purchaser and the Issuer acknowledge and agree with and for the benefit of the Agent that:
(i) the Agent and its directors, officers, employees, agents, and representatives have no responsibility or liability of any nature whatsoever for the accuracy or adequacy of the information contained in this Agreement, or any other publicly available information concerning the Issuer or as to whether the Issuer has generally disclosed all information concerning the Issuer that it was required to disclosed;
(ii) the Agent has not engaged in any independent investigation or verification regarding this Agreement or any other information;
(iii) the Agent is entitled to rely on the statements and answers of the Purchaser and the Issuer contained in this Agreement and in the Appendices, and that the Purchaser will hold harmless the Agent and the Issuer from any loss or damage it may suffer as a result of the Purchaser’s failure to correctly complete the Appendices; and
(iv) the Purchaser and the Issuer release the Agent and any of its affiliates and any of the Agent’s directors, officers, and employees from any claims, losses, damages, liabilities (or actions in respect thereof), costs, and expenses that may arise in respect of this Agreement.
(s) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(st) the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result of the Purchaser’s financial, investment or business experience or as a result of advice received from a registered person other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.
(tu) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(uv) the Purchaser acknowledges that Agent’s counsel is acting as counsel to the Agents and not as counsel to the Purchaser, and the relationship of the Agent’s counsel with the Purchaser is limited solely to the provision of customary commercial legal opinions at the Closing Date, where applicable, and responding to any questions which the Purchaser may have regarding the terms of the documents to be delivered in connection with this transaction.
(w) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunderhereunder and, if applicable, in its Corporate Placee Registration Form currently on file or to be filed with the Exchange, with the intent that the Issuer and Issuer, its professional advisors and the Agent may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the SecuritiesFT Units, and the Purchaser agrees to indemnify the Issuer and the Agent against all losses, claims, costs, expenses, and damages or liabilities which the Issuer or the Agent may suffer or incur caused by or arising from its reliance thereon.
(vx) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities FT Units and will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.
Appears in 1 contract
Sources: Subscription Agreement (Crosshair Exploration & Mining Corp)
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges, represents, warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) the Issuer that, as at the date of this Agreement and at the Closing Date:
(a) The Issuer has not filed a prospectus with any of the Commissions Commission, the SEC or any other securities commission or similar authority in connection with the offering of the Securities Units and that:
(i) the Purchaser is restricted from using most of the civil remedies available under the ActsBC Act;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale of the Securities Units to the Purchaser is subject to the sale being exempt from the prospectus and registration requirements of the ActsBC Act and the registration requirements of the 1933 Act.
(b) If the Purchaser is a resident of British Columbia or Alberta, then the The Purchaser is purchasing the Securities Units as principal for its own account and is either:
(i) an "accredited investor" as defined in NI 45-106 not for the benefit of any other person and was not created with a view to the resale or used solely to purchase distribution of all or hold securities as an accredited investor as described in paragraph (m) any of the definition of "accredited investor" in NI 45-106Securities.
(c) The Purchaser, if not a resident of British Columbia, Purchaser certifies that it is not resident in British Columbia and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what comply with those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a registration statement or prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will may not be available to the Purchaser.
(d) If the Purchaser is resident outside of Canada but not in the United States, the The Purchaser:
(i) is knowledgeable of, or has been independently advised that the Exchanges have jurisdiction over the Issuer and the Securities and that each Exchange imposes restrictions on the number of Securities that may be sold without shareholder approval below the “market price” (as to the applicable securities laws of the securities regulatory authorities (the "Authorities") having application defined in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition rules and policies of the Securitieseach Exchange, if anyrespectively);
(ii) is purchasing the Securities Units pursuant to exemptions from the prospectus requirements under the BC Act and the registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption1933 Act;
(iii) has been advised that there may be material tax consequences to the applicable securities Purchaser of an acquisition or disposition of the Securities, that the Issuer gives no opinion and makes no representation with respect to the tax consequences to the Purchaser under United States, state, local or foreign tax laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings Purchaser’s acquisition or seek any approvals disposition of any nature whatsoever from Securities, that the Purchaser has been advised to consult its own tax advisor with respect to applicable tax legislation, and that it is solely responsible for compliance with applicable tax legislation;
(iv) has no intention to distribute, and shall not transfer, either directly or indirectly, any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the SecuritiesSecurities to any person within the United States or to a U.S. Person, except pursuant to an effective registration statement under the 1933 Act or an exemption therefrom; and
(ivv) is acquiring the purchase Securities for its own account, for investment purposes only and not with a view to any resale, distribution or other disposition of the Purchaser's Securities by the Purchaser does not trigger:
(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 violation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;United States securities laws.
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(f) The purchase of the Securities Units has not been made through or as a result of, and the distribution of the Securities Units has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(gf) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchangeexchange other than the Shares on the Exchanges.
(hg) The Purchaser is not a "“control person" ” of the Issuer as defined in the BC Act, will not become a "“control person" ” by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(ih) The Purchaser, Purchaser is resident in the jurisdiction indicated on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:page 3 hereof.
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber Purchaser acknowledges and agrees that the Securities have not been and will not be registered under the 1933 Act or the securities laws of any state of the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and States; that the Securities will be deemed "Restricted Securities" as that term sale contemplated hereby is defined under Rule 144 of the 1933 Act, and being made in reliance on an exemption from such registration requirements; that the Securities may not be offered and sold, directly or indirectly, sold in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration unless registered under the 1933 Act and any the securities laws of all applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in states of the United States or otherwise by or to a U.S. Person, unless the transferee provides an exemption from such registration requirements is available; that the Issuer with has no obligation or present intention of filing a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S registration statement under the 1933 Act and all applicable State securities laws, (ii) Rule 144 in respect of any of the Securities; that the Issuer has no obligation or present intention to take any action so as to permit sales pursuant to the 1933 Act Act; and all applicable State securities lawsthe Purchaser understands that, or (iii) another applicable exemption from absent registration, under the registration requirements rules of the SEC, the Purchaser may be required to hold the Securities indefinitely or to transfer the Securities in “private placements” which are exempt from registration under the 1933 Act Act, in which event the transferee will acquire “restricted securities” subject to the same limitations as in the hands of the Purchaser and all applicable State securities laws. the Purchaser understands that, as a consequence, the Purchaser must bear the economic risks of the investment in the Securities for an indefinite period of time.
(j) The Purchaser further acknowledges that the certificates representing the Securities (and any certificates issued in exchange or substitution for the Securities) will contain bear a legend prohibiting transfer pursuant to the 1933 Act as set out in section 7.3 hereof and that delivery of the Securities certificates bearing such legend may not constitute “good delivery” in the settlement of transactions on Canadian or United States stock exchanges or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.over-the-counter markets.
(k) The Subscriber acknowledges Purchaser has had the opportunity to ask questions and agrees that receive answers from the Warrants may not be exercised in Issuer’s representatives concerning the United States or otherwise by or terms and conditions of the Private Placement and to or for the account or benefit of a U.S. Person without registration under the 1933 Act and obtain any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes additional information which the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effectpossesses or can acquire without unreasonable effort or expense.
(l) With respect to compliance with the 1933 Act:
(i) the Purchaser is not a U.S. Person The issuance, sale and delivery of the Securities are not being acquired by it for or on behalf of a U.S. Person;
(ii) no offers to sell the Securities were made by any person to the Purchaser while are conditional upon such issuance and sale being exempt from the Purchaser was prospectus requirements of all applicable securities legislation in Canada relating to the United Statesissuance and sale of the Securities or upon the issuance of such orders, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;
(iii) any person who acquires Securities will rulings, consents or approvals as may be required to provide permit such sales without the Issuer with written certification that it is not requirement of filing a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investmentprospectus.
(m) The Purchaser has no knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(on) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part party or by which it is or may be bound.
(po) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms.
(qp) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI 45-102 102, other securities legislation and the 1933 Act, and other securities legislationExchanges, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislationlegislation and the Exchanges’ policies.
(q) The Purchaser has been independently advised as to the applicable hold period imposed in respect of the Securities by securities legislation in the jurisdiction in which the Purchaser resides and confirms that no representation has been made respecting the applicable hold periods for the Securities and is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with the applicable securities legislation and regulatory policies.
(r) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authorityauthority or the Issuer, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(s) The Purchaser acknowledges having been advised that the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result financial statements of the Purchaser’s financialIssuer have been prepared in accordance with Canadian generally accepted accounting principles, investment or business experience or as a result of advice received which differ in some respects from a registered person other than the Issuer or an affiliate thereofUnited States generally accepted accounting principles, and the Purchaser or, where it is thus may not purchasing as principal, each beneficial purchaser is able be comparable to bear the economic loss financial statements of its investmentUnited States companies.
(t) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(u) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, hereunder with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the SecuritiesUnits, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(vu) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities Units and will continue in full force and effect even if the Purchaser subsequently disposes of any of the SecuritiesUnits. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, warranty or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.
Appears in 1 contract
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledges, represents, warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) the Issuer Issuer, the Agent and the U.S. Affiliate, that, as at the date of this Agreement and at the Closing Date:
(a) The Issuer has not filed a prospectus with any of the Commissions or any other securities commission or similar authority in connection with the offering of the Securities Units and that:
(i) the Purchaser is restricted from using most of the civil remedies available under the Acts;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale of the Securities Units to the Purchaser is subject to the sale being exempt from the prospectus requirements of the Acts.
(b) If the The Purchaser is a resident U.S. Person and has duly completed, executed and delivered to the Issuer Appendix II to this Agreement (Certificate of British Columbia or AlbertaU.S. Purchaser) and represents, then warrants and covenants to the Purchaser is purchasing Issuer as to the Securities as principal and is either:
(i) an "accredited investor" as defined in NI 45-106 and was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) accuracy of the definition of "accredited investor" in NI 45-106all matters set out therein.
(c) The Purchaser, if not a resident of British Columbia, Purchaser certifies that it is not resident in British Columbia and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(d) If the Purchaser is resident outside of Canada but not in the United States, the The Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "“Authorities"”) having application in the jurisdiction in which the Purchaser is resident (the "“International Jurisdiction"”) which would apply to the acquisition of the SecuritiesUnits, if any;
(ii) is purchasing the Securities Units pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities Units under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the SecuritiesUnits; and
(iv) the purchase of the Purchaser's Securities Units by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the IssuerIssuer or the Agent, deliver to the Issuer and the Agent a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;.
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(f) The purchase of the Securities has not been made through or as a result of, and the distribution of the Securities has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(g) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the SecuritiesUnits or the Warrant Shares;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange, other than the Shares and Warrant Shares on the Exchange.
(hf) The Purchaser is not a "“control person" ” of the Issuer as defined in the BC Act, will not become a "“control person" ” by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Act:
(i) the Purchaser is not a U.S. Person and the Securities are not being acquired by it for or on behalf of a U.S. Person;
(ii) no offers to sell the Securities were made by any person to the Purchaser while the Purchaser was in the United States, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investment.
(mg) The Purchaser has no knowledge of a "“material fact" ” or "“material change" ” (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(nh) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(oi) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(pj) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms.
(qk) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI MI 45-102 102, other securities legislation and the 1933 Act, and other securities legislationExchange, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI MI 45-102, the 1933 Act, and other applicable securities legislationlegislation and the Exchange’s policies.
(rl) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(sm) the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result of the Purchaser’s financial, investment or business experience or as a result of advice received from a registered person other than the Issuer or an affiliate thereof, and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.
(tn) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(uo) the Purchaser acknowledges that Agent’s counsel is acting as counsel to the Agent and not as counsel to the Purchaser, and the relationship of the Agent’s counsel with the Purchaser is limited solely to the provision of customary commercial legal opinions at the Closing Date, where applicable, and responding to any questions which the Purchaser may have regarding the terms of the documents to be delivered in connection with this transaction.
(p) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunderhereunder and, if applicable, in its Corporate Placee Registration Form currently on file or to be filed with the Exchange, with the intent that the Issuer and Issuer, its professional advisors advisors, the Agent and the U.S. Affiliate may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the SecuritiesUnits, and the Purchaser agrees to indemnify the Issuer and the Agent against all losses, claims, costs, expenses, and damages or liabilities which the Issuer or the Agent may suffer or incur caused by or arising from its reliance thereon.
(vq) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements set forth above or in any Appendix hereto will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities Units and will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.
Appears in 1 contract
Sources: Subscription Agreement (Crosshair Exploration & Mining Corp)
Purchaser’s Representations and Warranties. 5.1 The Purchaser acknowledgesrepresents and warrants to Plus Products and acknowledges that Plus Products is relying upon such representations and warranties, represents, warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) the Issuer that, as at the date of this Agreement and at the Closing Date:
(a) The Issuer has not filed the Purchaser is a prospectus with any corporation duly formed, organized and subsisting under the laws of British Columbia;
(b) subject to obtaining the Commissions or any other securities commission or similar authority in connection with the offering of the Securities and thatSanction Order:
(i) the Purchaser is restricted from using most of has the civil remedies available necessary power, authority and capacity to enter into, execute and deliver and perform its obligations under this Agreement and consummate the ActsTransaction;
(ii) the entering into, execution and delivery by the Purchaser may not receive information that would otherwise be required to be provided to him of this Agreement and the performance of its obligations under this Agreement and the Acts;consummation of the Transaction have been duly authorized by all necessary corporate actions on the part of the Purchaser; and
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided this Agreement constitutes a prospectus under the Acts; and
(iv) the issuance legal, valid and sale binding obligation of the Securities Purchaser, enforceable against it in accordance with its terms except: (A) as limited by laws of general application relating to bankruptcy, insolvency and the Purchaser is subject to the sale being exempt from the prospectus requirements relief of the Acts.
debtors; (bB) If the Purchaser is a resident as limited by rules of British Columbia law governing specific performance, injunctive relief or Alberta, then the Purchaser is purchasing the Securities other equitable remedies; and (C) as principal and is either:
(i) an "accredited investor" as defined in NI 45-106 and was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) limited by general principles of the definition of "accredited investor" in NI 45-106equity;
(c) The Purchaser, if not a resident of British Columbia, certifies that it is not resident in British Columbia and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.
(d) If the Purchaser is resident outside of Canada but not in the United States, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "Authorities") having application in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition of the Securities, if any;
(ii) is purchasing the Securities pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any nature whatsoever from any Authority of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; and
(iv) the purchase of the Purchaser's Securities by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;
(e) The Issuer is entitled to rely on the representations and warranties and the statements and answers of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the Appendices;
(f) The purchase of the Securities has not been made through or as a result of, and the distribution of the Securities has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.
(g) No person has made to the Purchaser any written or oral representations:
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange.
(h) The Purchaser is not a "control person" of the Issuer as defined in the BC Act, will not become a "control person" by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale of the Securities is being made in compliance with (i) Rule 904 of Regulation S under the 1933 Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or for the account or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effect.
(l) With respect to compliance with the 1933 Act:
(i) the Purchaser is not a U.S. Person and party to, bound or affected by or subject to any indenture, agreement, instrument, order, judgment or decree which would be violated, contravened or breached by the Securities are not being acquired by it for or on behalf of a U.S. Person;
(ii) no offers to sell the Securities were made by any person to the Purchaser while the Purchaser was in the United States, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investment.
(m) The Purchaser has no knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on or the Purchaser’s behalf.
(o) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation performance by it of any of the terms and provisions contained in this Agreement, subject to receipt of any law applicable to, or the constating documents of, required approvals under the Purchaser or of any agreement, written or oral, to which Credit Facility;
(d) the Purchaser may be a part has filed with (or by which it is or may be bound.
(pfurnished to) The Purchaser has duly signed all applicable Canadian securities regulatory authorities true and delivered this Agreement complete copies of all documents and this Agreement constitutes a legal, valid, and binding agreement of information that the Purchaser enforceable against the Purchaser in accordance with its terms.
(q) The Purchaser has obtained independent advice as is required to file therewith pursuant to the applicable hold period imposed on the Securities by NI 45-102 and the 1933 Actsecurities laws, and other each of such document at the time of its filing complied in all material respects with the applicable requirements of the applicable Canadian securities legislationlaws, and confirms that the Issuer has made no representations regarding the any rules and regulations promulgated thereunder applicable hold periods for the Securitiesto such documents, and did not contain any material misrepresentation;
(e) there are no internal investigations, and to the knowledge of the Purchaser, there are no securities regulatory authority inquiries or investigations or other inquiries or investigations by or before a Governmental Authority pending or threatened, including any inquiries or investigations regarding any accounting practices of the Purchaser;
(f) the Purchaser is aware a “reporting issuer” under the securities laws in each of the risks provinces and other characteristics territories of Canada, except Quebec, and is not in default of the Securities securities legislation in any such reporting jurisdiction in any material respect, and of does not have any securities listed for trading on any securities exchange other than the fact that Exchange and the OTCQX, nor is the Purchaser may not be able subject to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation.
(r) If required by applicable securities legislation, policy, any continuous or order or by any securities commission, stock exchange periodic or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer disclosure requirements in filing all reports, undertakings, and any other documents required jurisdiction other than with respect to the issue applicable requirements of the Securities.securities laws of the United States for foreign private issuers;
(sg) no delisting, suspension of trading or cease trade or other order or restriction with respect to any securities of the Purchaser, as applicable, is pending, in effect, or, to the knowledge of the Purchaser, is threatened or being considered, and, to the knowledge of the Purchaser, the Purchaser is not subject to any formal or informal review, enquiry, investigation or other proceeding relating to any such order or restriction;
(h) the Purchaser is capable in compliance in all material respects with the applicable provisions of assessing applicable securities laws and evaluating the risks rules and merits regulations of this investment the Exchange;
(i) the most recently filed consolidated financial statements (including any related notes or schedules thereto, the auditor’s report thereon (if applicable) and related management’s discussion and analysis) contained or incorporated by reference in the Purchaser’s publicly filed documents: (A) were prepared in accordance with U.S. GAAP applied on a consistent basis throughout the periods covered (except as a result may be indicated in the notes to such financial statements, and except that the most recently filed unaudited financial statements are subject to normal and recurring year-end adjustments that will not, individually or in the aggregate, be material in amount) and applicable securities laws in all material respects; and (B) fairly present, in all material respects, the consolidated financial position of the Purchaser and its subsidiaries as of the dates presented;
(j) the Purchaser and each of its subsidiaries has properly and timely filed all Returns required to be filed by it with any Governmental Authority on or before the applicable due date and each such Return was complete, correct and accurate in all material respects at the time of filing, including, without limitation, to the knowledge of the Purchaser’s financial, investment compliance with Section 280E of the Code. Each of the Purchaser and its subsidiaries has paid or business experience caused to be paid to the appropriate Governmental Authority on a timely basis all Taxes which are due and payable, all assessments and reassessments and all other Taxes as are due and payable by it (whether or as a result of advice received from a registered person not shown on any Return), other than the Issuer those which are being or an affiliate thereofhave been contested in good faith pursuant to Applicable Laws, and in respect of which, in the reasonable opinion of the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investment.
(t) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(u) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, with the intent that the Issuer and its professional advisors may rely on them tax advisors, adequate reserves or accruals in determining accordance with US GAAP have been provided in the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.financial statements; and
(vk) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities and will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes prior to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w, the Purchaser has not taken or agreed to take any action, or knows of any fact, agreement, plan or other circumstance that is reasonably likely to prevent the Transaction from qualifying as a reorganization within the meaning of Section 368(a) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. PersonsCode.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.
Appears in 1 contract
Purchaser’s Representations and Warranties. 5.1 11.1 The Purchaser acknowledges, represents, represents and warrants and covenants to and with (on its own behalf and, if applicable, on behalf of those for whom the Purchaser is contracting hereunder) the Issuer that, City as at the date of this Agreement and at the Closing Datefollows:
(a) The Issuer that the Purchaser has not filed inspected the Lands and agrees that upon acceptance of this offer there shall be a prospectus with any binding agreement of purchase and sale between Purchaser and City;
(b) that the Commissions or any other securities commission or similar authority in connection with the offering of the Securities and thatPurchaser is:
(i) acquiring the Lands on the basis of the current Official Plan and zoning of the Lands and an Official Plan or zoning amendment is not a condition to the Purchaser is restricted from using most of completing the civil remedies available under the Actspurchase;
(ii) responsible for satisfying itself at its cost that there are utility services including but not limited to water, sewer, storm water, natural gas, electricity and communications services (“Utility Services”) available having sufficient capacity as needed for the Purchaser may not receive information that would otherwise be required to be provided to him under the Acts;
(iii) the Issuer is relieved from certain obligations that it would otherwise be required to give if it provided a prospectus under the Acts; and
(iv) the issuance and sale Purchaser’s intended use of the Securities to the Purchaser is subject to the sale being exempt from the prospectus requirements of the Acts.
(b) If the Purchaser is a resident of British Columbia or Alberta, then the Purchaser is purchasing the Securities as principal and is either:
(i) an "accredited investor" as defined in NI 45-106 and was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of "accredited investor" in NI 45-106Lands;
(c) The Purchaser, if not a resident of British Columbia, certifies that it is not resident in British Columbia and acknowledges that:
(i) no 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;
(iii) there are risks associated with the purchase of the Securities;
(iv) there are restrictions on Purchaser will be responsible for any present and/or future costs required to upgrade existing services as may be required to satisfy the Purchaser’s ability to resell the Securities and it is the responsibility of the Purchaser to find out what those restrictions are and to comply with them before selling the Securities; and
(v) the Issuer has advised the Purchaser that the Issuer is relying on an exemption from the requirements to provide the Purchaser with a prospectus and to sell securities through a person registered to sell securities under the Acts and, as a consequence of acquiring Securities pursuant to this exemption, certain protections, rights and remedies provided by the Acts, including statutory rights of rescission or damages, will not be available to the Purchaser.particular needs;
(d) If that the Purchaser is resident outside of Canada but not in will be responsible for obtaining the United States, the Purchaser:
(i) is knowledgeable of, or has been independently advised as to the applicable securities laws of the securities regulatory authorities (the "Authorities") having application in the jurisdiction in which the Purchaser is resident (the "International Jurisdiction") which would apply to the acquisition of the Securities, if any;
(ii) is purchasing the Securities pursuant to exemptions from the prospectus and registration requirements under the applicable securities laws of the Authorities in the International Jurisdiction or, if such is not applicable the Purchaser is permitted to purchase the Securities under the applicable securities laws of the Authorities in the International Jurisdiction without the need to reply on any exemption;
(iii) the applicable securities laws of the Authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals approval of any nature whatsoever from any Authority of any kind whatsoever in other utility needed to service the International Jurisdiction in connection with the issue and sale or resale of the Securities; and
(iv) the purchase of the Purchaser's Securities by the Purchaser does not trigger:
(A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
(B) any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction; and the Purchaser will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonablyLands;
(e) The Issuer is entitled that the Purchaser shall submit an application to rely the City for site plan approval for the Lands approval within the time prescribed on the representations and warranties and the statements and answers Table of the Purchaser contained in this Agreement and the Appendices and the Purchaser will hold harmless the Issuer from any loss or damage it may suffer as a result of the Purchaser's failure to correctly complete this Agreement and the AppendicesCritical Dates;
(f) The purchase that if the site plan is approved, the Purchaser shall substantially complete construction of a building or buildings on the Securities has Lands with a minimum Lot Occupancy that is the greater of (i) the minimum Lot Occupancy prescribed by the zoning for the Lands or (ii) twenty percent (20%) being not been made through or as a result of, and the distribution of the Securities has not been accompanied by, an advertisement in printed media of general and regular paid subscription, radio, or television.less than
(g) No that prior to obtaining an occupancy permit for the building or buildings, the Purchaser shall not transfer the Lands or any part thereof to any third person has made without the prior written consent of the City, which consent may be arbitrarily refused unless such transfer is for the purpose of securing the Lands in favour of a bona fide commercial lender in connection with a builder’s mortgage; and
(h) that the Purchaser shall not transfer any portion of the Lands unencumbered by a building to any third person prior to the Purchaser any 10 year anniversary of the date of registration of the Transfer/Deed for the Lands without the prior written or oral representations:consent of the City, which consent may be arbitrarily refused.
(i) that any person will resell or repurchase the Securities;
(ii) that any person will refund the purchase price of the Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that the Securities will be listed and posted for trading on a stock exchange or that an application has been made to list and post the Securities for trading on a stock exchange.
(h) The Purchaser is this Agreement shall not a "control person" of the Issuer as defined in the BC Act, will not become a "control person" by virtue of the purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group of the Issuer.
(i) The Purchaser, on its own behalf and on behalf of any disclosed principal, represents, warrants and agrees that:
(i) none of the Subscription Funds are being tendered on behalf of a person or entity who has not been identified as the Subscriber or the disclosed principal;
(ii) to the best of its knowledge, none of the Subscription Funds have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States or any other jurisdiction;
(iii) without limiting the foregoing, none of the Subscription Funds will represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act (Canada) (the "PCMLA"); and
(iv) it shall promptly notify the Issuer if the Subscriber discovers that any of such representations and warranties are or cease to be true, and shall promptly thereafter provide the Issuer with the appropriate information in connection therewith.
(j) The Subscriber acknowledges and agrees that the Securities have not been registered under the United States Securities Act of 1933 (the "1933 Act"), as amended, or any applicable State securities laws, and that the Securities will be deemed "Restricted Securities" as that term is defined under Rule 144 of the 1933 Act, and that the Securities may not be offered and sold, directly or indirectly, in the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇▇▇ ▇▇▇) without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available. The Issuer is not obligated under any circumstances to register the Securities or to take any other actions to facilitate or permit any proposed resale or transfer thereof in the United States or otherwise by or to a U.S. Person, unless the transferee provides the Issuer with a legal opinion stating that the sale discretion of the Securities is being made City of Kingston in compliance with (i) Rule 904 of Regulation S its role as approval authority under applicable legislation including but not limited to the 1933 Planning Act and all applicable State securities laws, (ii) Rule 144 of the 1933 Act and all applicable State securities laws, or (iii) another applicable exemption from the registration requirements of the 1933 Act and all applicable State securities laws. The Purchaser further acknowledges that the certificates representing the Securities will contain a legend prohibiting transfer of the Securities in the United States or by or related to U.S. Persons (as defined in Regulation S promulgated under the 1933 Act), except in accordance with Regulation S.
(k) The Subscriber acknowledges and agrees that the Warrants may not be exercised in the United States or otherwise by or to or any planning applications submitted for the account Lands or benefit of a U.S. Person without registration under the 1933 Act and any applicable State securities laws, unless an exemption from registration is available proposed development and the holder of such Warrant furnishes the Issuer with a legal opinion of counsel satisfactory to the Issuer to that effectBuilding Code Act.
(l) With respect to compliance with the 1933 Act:
(i) the Purchaser is not a U.S. Person and the Securities are not being acquired by it for or on behalf of a U.S. Person;
(ii) no offers to sell the Securities were made by any person to the Purchaser while the Purchaser was in the United States, and the Subscriber was outside the United States at the time of execution and delivery of this subscription;
(iii) any person who acquires Securities will be required to provide the Issuer with written certification that it is not a U.S. Person or person in the United States and that the Securities are not being acquired by it for or on behalf of a U.S. Person or person in the United States; The Purchaser is not an underwriter and is acquiring the Securities solely for investment purposes for his or her own account and not with a view to, or for, resale in connection with any distribution within the United States or by or to U.S. Persons (as defined in Regulation S promulgated under the ▇▇▇▇ ▇▇▇);
(iv) the Purchaser acknowledges that it has not acquired the Units as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the ▇▇▇▇ ▇▇▇) in the United States in respect of any of the Securities which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Securities; provided, however, that the Subscriber may sell or otherwise dispose of any of the Shares or the Warrant Shares pursuant to registration of any of the Shares or the Warrant Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; and
(v) The Purchaser understands the speculative nature and risks of investment in the Securities and confirms that the Securities would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of such investment.
(m) The Purchaser has no knowledge of a "material fact" or "material change" (as those terms are defined in the Acts) in the Issuer’s affairs that has not been generally disclosed to the public, save knowledge of this particular transaction.
(n) If the Purchaser is an individual, the Purchaser has attained the age of majority and is legally competent to enter into and sign this Agreement and to take all actions required pursuant hereto, and if the Purchaser is a corporation, the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation, and its directors, shareholders, and others have given all necessary approvals to authorize the signing of this Agreement on the Purchaser’s behalf.
(o) The entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a part or by which it is or may be bound.
(p) The Purchaser has duly signed and delivered this Agreement and this Agreement constitutes a legal, valid, and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms.
(q) The Purchaser has obtained independent advice as to the applicable hold period imposed on the Securities by NI 45-102 and the 1933 Act, and other securities legislation, and confirms that the Issuer has made no representations regarding the applicable hold periods for the Securities, and the Purchaser is aware of the risks and other characteristics of the Securities and of the fact that the Purchaser may not be able to resell the Securities except in accordance with NI 45-102, the 1933 Act, and other applicable securities legislation.
(r) If required by applicable securities legislation, policy, or order or by any securities commission, stock exchange or other regulatory authority, the Purchaser will sign, deliver, file, and otherwise assist the Issuer in filing all reports, undertakings, and other documents required with respect to the issue of the Securities.
(s) the Purchaser is capable of assessing and evaluating the risks and merits of this investment as a result 11.2 All of the Purchaser’s financial, investment or business experience or as a result of advice received from a registered person other than the Issuer or an affiliate thereof, representations and the Purchaser or, where it is not purchasing as principal, each beneficial purchaser is able to bear the economic loss of its investmentwarranties shall survive closing.
(t) the Purchaser (or, if applicable, others for whom it is contracting hereunder) has been advised to consult its own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or, if applicable, others for whom it is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation.
(u) The Purchaser makes the representations, warranties, covenants, and acknowledgements contained in this Agreement and in any other Appendices, documents, or materials signed and delivered by the Purchaser hereunder, with the intent that the Issuer and its professional advisors may rely on them in determining the Purchaser’s eligibility or, if applicable, the eligibility of others on whose behalf the Purchaser is contracting to purchase the Securities, and the Purchaser agrees to indemnify the Issuer against all losses, claims, costs, expenses, and damages or liabilities which the Issuer may suffer or incur caused by or arising from its reliance thereon.
(v) The Purchaser agrees that the above representations, warranties, covenants, and acknowledgements will be true and correct both as of the signing date of this Agreement and as of the Closing Date and that they will survive the Purchaser’s purchase of the Securities and will continue in full force and effect even if the Purchaser subsequently disposes of any of the Securities. The Purchaser undertakes to notify the Issuer immediately of any change in any representation, warranty, or other information relating to the Purchaser set forth herein which takes place before the Closing Date.
(w) it has no intention to distribute, either directly or indirectly, any of the Securities in the United States or to U.S. Persons.
(x) the current structure of this transaction and all transactions and activities contemplated hereunder, and the Purchaser's participation therein, is not a scheme to avoid the registration requirements of the 1933 Act.
Appears in 1 contract
Sources: Agreement of Purchase and Sale