EXHIBIT 4.138
This is page 1 of 16 pages of a subscription agreement and related appendixes,
schedules and forms. Collectively, these pages together are referred to as the
"Subscription Agreement".
▇▇▇▇▇▇ GOLD CORP.
SUBSCRIPTION AGREEMENT
INSTRUCTIONS TO PURCHASER
1. All purchasers complete all the information in the boxes on page 2 and
sign where indicated with an "X".
2. If you are an "accredited investor" in British Columbia or Ontario,
then complete the "Accredited Investor Questionnaire" that starts on
page 5. The purpose of the questionnaire is to determine whether you
meet the standards for participation in a private placement under
section 2.3 of National Instrument 45-106.
3. If you are not an individual (that is, the Purchaser is a corporation,
partnership, trust or entity other than an individual or if you are a
portfolio manager), then complete and sign the "Corporate Placee
Registration Form" (Form 4C) that starts on page 8.
PRIVATE PLACEMENT
SUBSCRIPTION AGREEMENT
TO: ▇▇▇▇▇▇ GOLD CORP. (the "Issuer"), of Suite ▇▇▇ - ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇ ▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇; Fax: (604)
685-3764
Subject and pursuant to the terms set out in the Terms on pages 3 to 4, the
General Provisions on pages 10 to 16 and the other schedules and appendixes
incorporated by reference, the Purchaser hereby irrevocably subscribes for, and
on Closing will purchase from the Issuer, the following securities at the
following price:
SUBSCRIPTION AND SUBSCRIBER INFORMATION
PLEASE PRINT ALL INFORMATION (OTHER THAN SIGNATURES), AS APPLICABLE,
IN THE SPACE PROVIDED BELOW
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(Name of Subscriber)
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Account Reference (if applicable):
By:
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Authorized Signature
By signing, the Purchaser agrees to disclosure of all information contained
herein to the Exchange and the collection, use and disclosure of the information
contained herein for the purposes described in Appendix 6B of the Exchange Rules
or as otherwise identified by the Exchange from time to time.
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(Official Capacity or Title - if the Subscriber is not an individual)
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(Name of individual whose signature appears above if different than the name of
the subscriber printed above.)
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(TELEPHONE NUMBER) (EMAIL ADDRESS)
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ACCOUNT REGISTRATION INFORMATION:
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(Name)
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(Account Reference, if applicable)
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(Address, including Postal Code)
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The Company hereby accepts the subscription for Units as set
forth herein (including all applicable schedules) this
day of March, 2008.
▇▇▇▇▇▇ GOLD CORP.
Per: Authorized Signing Officer
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Number of Units: X $0.25
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=
Aggregate Subscription Price:
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(the "SUBSCRIPTION PRICE")
IF THE SUBSCRIBER IS SIGNING AS AGENT FOR A PRINCIPAL (BENEFICIAL PURCHASER) AND
IS NOT PURCHASING AS TRUSTEE OR AGENT FOR ACCOUNTS FULLY MANAGED BY IT, COMPLETE
THE FOLLOWING:
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(Name of Pricipal)
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(Principal's Address)
NUMBER AND KIND OF SECURITIES OF THE CORPORATION HELD, DIRECTLY (SUBSCRIBER'S
ADDRESS, INCLUDING MUNICIPALITY AND PROVINCE) OR INDIRECTLY, IF ANY:
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DELIVERY INSTRUCTIONS AS SET FORTH BELOW:
----------------------------------------
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(Name)
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(Account Reference, if applicable)
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(Address)
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(Contact Name) (Telephone Number)
1. State whether Subscriber is an insider of the Corporation:
Yes [_] No [_]
2. State whether Subscriber is a member of the Pro Group:
Yes [_] No [_]
By signing this acceptance, the Issuer agrees to be bound by the Terms on pages
3 to 4, the General Provisions on pages 10 to 16 and the other schedules and
appendixes incorporated by reference.
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TERMS
REFERENCE DATE OF THIS AGREEMENT March 19, 2008 (the "Agreement Date")
THE OFFERING
THE ISSUER ▇▇▇▇▇▇ Gold Corp.
THE OFFERING The offering consists of units (the "Units") at a price of
$0.25 per Unit.
PURCHASED
SECURITIES The "Purchased Securities" herein are Units. Each Unit
consists of one previously unissued common share, as presently
constituted (a "Share") and one share purchase warrant (a
"Warrant") of the Issuer. Each Warrant will entitle the
holder, on exercise, to purchase one additional common share
of the Issuer (a "Warrant Share") for a period of two years
from the date of issue of the warrant at a price of CAD$0.30
per Warrant Share.
PRICE CAD $0.25 per Unit
WARRANTS The Warrants will be issued and registered in the name of the
purchasers or their nominees.
The Warrants will be non-transferable.
The certificates representing the Warrants will, among other
things, include provisions for the appropriate adjustment in
the class, number and price of the Warrant Shares issued upon
exercise of the Warrants upon the occurrence of certain
events, including any subdivision, consolidation or
reclassification of the Issuer's common shares, the payment of
stock dividends and the amalgamation of the Issuer.
The issue of the Warrants will not restrict or prevent the
Issuer from obtaining any other financing, or from issuing
additional securities or rights, during the period within
which the Warrants may be exercised.
Once resale restrictions on the shares having expired and upon
the Company's shares trading at or above a weighted average
trading price of $1.00 for 30 consecutive trading days the
Company may give notice that the Warrants will expire 30 days
from the date of providing such notice in writing to Warrant
holders and via a news release.
SELLING
JURISDICTIONS The Units may be sold in British Columbia, Ontario and in
certain "offshore" jurisdictions outside Canada and the United
States (the "Selling Jurisdictions") in accordance with the
provisions of this Subscription Agreement.
EXEMPTIONS The Offering will be made in accordance with the "Accredited
Investor" exemption from the prospectus requirements (section
2.3 of National Instrument 45-106) or the "Family, Friends and
Business Associates" exemption from the prospectus
requirements (section 2.5 of National Instrument 45-106).
RESALE
RESTRICTIONS
AND LEGENDS (ALL
PURCHASERS) The Securities will be subject to a four month hold period
that starts to run on Closing.
The Purchaser acknowledges that the certificates representing
the Securities will bear the following legends:
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"UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE
HOLDER OF THE SECURITIES SHALL NOT TRADE THE
SECURITIES BEFORE [date that is four months and a day
after the Closing.]."
"Without prior written approval of the TSX Venture
Exchange and compliance with all applicable
securities legislation, the securities presented by
this certificate may not be sold, transferred,
hypothecated or otherwise traded on or through the
facilities of the TSX Venture Exchange or otherwise
in Canada or to or for the benefit of a Canadian
resident until [insert the date following the fourth
month after the distribution]."
Purchasers are advised to consult with their own legal counsel
or advisors to determine the resale restrictions that may be
applicable to them.
CLOSING DATE The closing of the Offering (the "Closing") will take place in
one or more Closings, at the discretion of the Issuer. The
Closing will take place within 5 days after approval by the
TSX Venture Exchange, unless otherwise agreed between the
Issuer and the Purchaser.
ADDITIONAL
DEFINITIONS In the Subscription Agreement, the following words have the
following meanings unless otherwise indicated:
(a) "Securities" means the Shares, the Warrants and the
Warrant Shares;
(b) "Warrants" includes the certificates representing the
Warrants.
THE ISSUER
JURISDICTION OF
ORGANIZATION The Issuer is incorporated under the laws of the British
Columbia.
AUTHORIZED
CAPITAL The authorized capital of the Issuer consists of an unlimited
number of common shares without par value.
STOCK EXCHANGE
LISTINGS Shares of the Issuer are listed on the TSX Venture Exchange
(the "Exchange").
"SECURITIES
LEGISLATION
APPLICABLE TO
THE ISSUER" The "Securities Legislation Applicable to the Issuer" are the
SECURITIES ACT (British Columbia) and the SECURITIES ACT
(Alberta) and the "Commissions with Jurisdiction over the
Issuer" are the British Columbia Securities Commission and the
Alberta Securities Commission.
END OF TERMS
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ACCREDITED INVESTOR QUESTIONNAIRE
(Capitalized terms not specifically defined in this Questionnaire have the
meaning ascribed to them in the Subscription Agreement to which this Schedule is
attached.)
In connection with the execution of the Subscription Agreement to which this
Schedule is attached, the undersigned (the "Purchaser") represents and warrants
to the Issuer that:
IF I AM AN INDIVIDUAL (THAT IS, A NATURAL PERSON AND NOT A CORPORATION,
PARTNERSHIP, TRUST OR OTHER ENTITY), THEN I SATISFY ONE OR MORE OF THE
CATEGORIES INDICATED BELOW (PLEASE PLACE AN "X" ON THE APPROPRIATE LINES):
____ Category 1 an individual who, either alone or with a spouse, beneficially
owns, directly or indirectly, financial assets having an
aggregate realizable value that before taxes, but net of any
related liabilities, exceeds $1,000,000, where "financial
assets" means cash, securities, or a contract of insurance, a
deposit or an evidence of a deposit that is not a security for
the purposes of securities legislation and "related
liabilities" means (i) liabilities incurred or assumed for the
purpose of financing the acquisition or ownership of financial
assets, or (ii) liabilities that are secured by financial
assets
____ Category 2 an individual whose net income before taxes exceeded $200,000
in each of the two most recent calendar years or whose net
income before taxes combined with that of a spouse exceeded
$300,000 in each of the two most recent calendar years and
who, in either case, reasonably expects to exceed that net
income level in the current calendar year
____ Category 3 A person registered under the securities legislation of a
jurisdiction of Canada as an adviser or dealer, other than a
person registered solely as a limited market dealer registered
under one or both of the SECURITIES ACT (Ontario) or the
SECURITIES ACT (Newfoundland and Labrador)
____ Category 4 an individual registered or formerly registered under the
securities legislation of a jurisdiction of Canada as a
representative of a person referred to in Category 3
____ Category 5 an individual who, either alone or with a spouse, has net
assets of at least $5,000,000
____ Category 6 a person that is recognized or designated by the securities
regulatory authority or, except in Ontario and Quebec, the
regulator as (i) an accredited investor, or (ii) an exempt
purchaser in Alberta and British Columbia
____ Category 7 a person acting on behalf of a fully managed account managed
by that person, if that person (i) is registered or authorized
to carry on business as an adviser or the equivalent under the
securities legislation of a jurisdiction of Canada or a
foreign jurisdiction, and (ii) in Ontario, is purchasing a
security that is not a security of an investment fund
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IF THE PURCHASER IS NOT AN INDIVIDUAL (THAT IS, THE PURCHASER IS A CORPORATION,
PARTNERSHIP, TRUST OR OTHER ENTITY OTHER THAN AN INDIVIDUAL), THEN THE PURCHASER
SATISFIES ONE OR MORE OF THE CATEGORIES INDICATED BELOW (PLEASE PLACE AN "X" ON
THE APPROPRIATE LINES):
INSTITUTIONAL INVESTORS
____ Category 8 A person in respect of which all of the owners of interests,
direct, indirect or beneficial, except the voting securities
required by law to be owned by directors, are persons that are
accredited investors
____ Category 9 An association governed by the COOPERATIVE CREDIT ASSOCIATION
S ACT (Canada) or a central cooperative credit society for
which an order has been made under section 473(1) of that Act,
or a bank, loan corporation, trust company, trust corporation,
insurance company, treasury branch, credit union, caisse
populaire, financial services cooperative, or league that, in
each case, is authorized by an enactment of Canada or a
jurisdiction of Canada to carry on business in Canada or a
jurisdiction of Canada, or a bank named in Schedule I, II or
III of the BANK Act (Canada)
____ Category 10 the Business Development Bank of Canada incorporated under the
BUSINESS DEVELOPMENT BANK OF CANADA ACT (Canada)
____ Category 11 a subsidiary of any person referred to in Categories 9 or 10,
if the person owns all of the voting securities of the
subsidiary, except the voting securities required by law to be
owned by directors of that subsidiary
____ Category 12 a pension fund that is regulated by either the Office of the
Superintendent of Financial Institutions (Canada) or a pension
commission or similar regulatory authority of a jurisdiction
of Canada
____ Category 13 a trust company or trust corporation registered or authorized
to carry on business under the TRUST AND LOAN COMPANIES ACT
(Canada) or under comparable legislation in a jurisdiction of
Canada or a foreign jurisdiction, acting on behalf of a fully
managed account managed by the trust company or trust
corporation, as the case may be
GOVERNMENT ORGANIZATIONS
____ Category 14 the government of Canada or a jurisdiction of Canada, or any
crown corporation, agency or wholly owned entity of the
Government of Canada or a jurisdiction of Canada
____ Category 15 a municipality, public board or commission in Canada and a
metropolitan community, school board, the Comite de gestion de
la taxe scolaire de l'ile de Montreal or an intermunicipal
management board in Quebec
____ Category 16 any national, federal, state, provincial, territorial or
municipal government of or in any foreign jurisdiction, or any
agency of that government
OTHER CORPORATIONS, PARTNERSHIPS, TRUSTS & CHARITIES
____ Category 17 a registered charity under the INCOME TAX ACT (Canada) that,
in regard to the trade, has obtained advice from an
eligibility adviser or an adviser registered under the
securities legislation of the jurisdiction of the registered
charity to give advice on the securities being traded
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____ Category 18 a person, other than an individual or investment fund, that
has net assets of at least $5,000,000 as shown on its most
recently prepared financial statements
____ Category 19 an investment fund that distributes or has distributed its
securities only to: (i) a person that is or was an accredited
investor at the time of the distribution, (ii) a person that
acquires or acquired securities in the circumstances referred
to in sections 2.10 [MINIMUM AMOUNT INVESTMENT] and 2.19
[ADDITIONAL INVESTMENT IN INVESTMENT FUNDS]of National
Instrument 45-106, or (iii) a person described in paragraph
(i) or (ii) that acquires or acquired securities under section
2.8 [INVESTMENT FUND REINVESTMENT] of National Instrument
45-106
____ Category 20 an investment fund that distributes or has distributed
securities under a prospectus in a jurisdiction of Canada for
which the regulator or, in Quebec, the securities regulatory
authority, as issued a receipt
____ Category 21 an investment fund that is advised by a person registered as
an advisor or a person that is exempt from registration as an
advisor
____ Category 22 any entity organized in a foreign jurisdiction that is
analogous to any of the entities referred to in Category 3 and
Categories 9 through 12 in form and function
The statements made in this Questionnaire are true and accurate to the best of
my information and belief and I will promptly notify the Issuer of any changes
in the answers.
Dated _______________ 2008.
X
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Signature of individual (if Purchaser IS an individual)
X
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Authorized signatory (if Purchaser is NOT an individual)
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Name of Purchaser (PLEASE PRINT)
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Name of authorized signatory (PLEASE PRINT)
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Official capacity of authorized signatory (PLEASE PRINT)
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FORM 4C
CORPORATE PLACEE REGISTRATION FORM
Where subscribers to a Private Placement are not individuals, the following
information about the placee must be provided. This Form will remain on file
with the Exchange. The corporation, trust, portfolio manager or other entity
(the "Placee") need only file it on one time basis, and it will be referenced
for all subsequent Private Placements in which it participates. If any of the
information provided in this Form changes, the Placee must notify the Exchange
prior to participating in further placements with Exchange listed companies. If
as a result of the Private Placement, the Placee becomes an Insider of the
Issuer, Insiders of the Placee are reminded that they must file a Personal
Information Form (2A) or, if applicable, Declarations, with the Exchange.
1. Placee Information:
(a) Name:
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(b) Complete Address:
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(c) Jurisdiction of Incorporation or Creation:
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2. (a) Is the Placee purchasing securities as a portfolio manager
(Yes/No)?
(b) Is the Placee carrying on business as a portfolio manager
outside of Canada (Yes/No)?
3. If the answer to 2(b) above was "Yes", the undersigned certifies that:
(a) It is purchasing securities of an Issuer on behalf of managed
accounts for which it is making the investment decision to
purchase the securities and has full discretion to purchase or
sell securities for such accounts without requiring the
client's express consent to a transaction;
(b) it carries on the business of managing the investment
portfolios of clients through discretionary authority granted
by those clients (a "portfolio manager" business) in
____________________ [jurisdiction], and it is permitted by
law to carry on a portfolio manager business in that
jurisdiction;
(c) it was not created solely or primarily for the purpose of
purchasing securities of the Issuer;
(d) the total asset value of the investment portfolios it manages
on behalf of clients is not less than $20,000,000; and
(e) it has no reasonable grounds to believe, that any of the
directors, senior officers and other insiders of the Issuer,
and the persons that carry on investor relations activities
for the Issuer has a beneficial interest in any of the managed
accounts for which it is purchasing.
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4. If the answer to 2(a). above was "No", please provide the names and
addresses of control persons of the Placee:
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Name City Province or State Country
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The undersigned acknowledges that it is bound by the provisions of applicable
Securities Law, including provisions concerning the filing of insider reports
and reports of acquisitions (See for example, sections 87 and 111 of the
SECURITIES ACT (British Columbia) and sections 176 and 182 of the SECURITIES ACT
(Alberta).
ACKNOWLEDGEMENT - PERSONAL INFORMATION
"Personal Information" means any information about an identifiable individual,
and includes information contained in sections 1, 2 and 4, as applicable, of
this Form.
The undersigned hereby acknowledges and agrees that it has obtained the express
written consent of each individual to:
(a) the disclosure of Personal Information by the undersigned to
the Exchange (as defined in Appendix 6B) pursuant to this
Form; and
(b) the collection, use and disclosure of Personal Information by
the Exchange for the purposes described in Appendix 6B or as
otherwise identified by the Exchange, from time to time.
Dated at on .
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(Name of Purchaser - please print)
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(Authorized Signature)
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(Official Capacity - please print)
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(please print name of individual whose signature appears above)
THIS IS NOT A PUBLIC DOCUMENT
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GENERAL PROVISIONS
1. DEFINITIONS
1.1 In the Subscription Agreement (including the first (cover) page, the
Terms on pages 3 to 4, the General Provisions on pages 10 to 16 and the other
schedules and appendixes incorporated by reference), the following words have
the following meanings unless otherwise indicated:
(a) "1933 Act" means the United States Securities Act of 1933, as
amended;
(c) "Applicable Legislation" means the Securities Legislation
Applicable to the Issuer (as defined on page 4) and all
legislation incorporated in the definition of this term in
other parts of the Subscription Agreement, together with the
regulations and rules made and promulgated under that
legislation and all administrative policy statements, blanket
orders and rulings, notices and other administrative
directions issued by the Commissions;
(e) "Closing" means the completion of the sale and purchase of the
Purchased Securities;
(f) "Closing Date" has the meaning assigned in the Terms;
(g) "Commissions" means the Commissions with Jurisdiction over the
Issuer (as defined on page 4) and the securities commissions
incorporated in the definition of this term in other parts of
the Subscription Agreement;
(h) "Exchange" has the meaning assigned in the Terms;
(i) "Final Closing" means the last closing under the Private
Placement;
(j) "General Provisions" means those portions of the Subscription
Agreement headed "General Provisions" and contained on pages
10 to 16;
(l) "Offering Memorandum" means any offering memorandum prepared
by the Issuer in connection with the Private Placement, as it
may be amended from time to time;
(n) "Private Placement" means the offering of the Purchased
Securities on the terms and conditions of this Subscription
Agreement;
(o) "Purchased Securities" has the meaning assigned in the Terms;
(r) "Regulation S" means Regulation S promulgated under the 1933
Act;
(s) "Regulatory Authorities" means the Commissions and the
Exchange;
(u) "Securities" has the meaning assigned in the Terms;
(v) "Subscription Agreement" means the first (cover) page, the
Terms on pages 3 to 4, the General Provisions on pages 10 to
16 and the other schedules and appendixes incorporated by
reference; and
(w) "Terms" means those portions of the Subscription Agreement
headed "Terms" and contained on pages 3 to 4.
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1.2 In the Subscription Agreement, the following terms have the meanings
defined in Rule 902 of Regulation S: "Directed Selling Efforts", "Foreign
Issuer", "Substantial U.S. Market Interest", "U.S. Person" and "United States".
1.3 In the Subscription Agreement, unless otherwise specified, currencies
are indicated with the ISO 4217 currency code so that, as examples, Canadian
dollars are indicated with the prefix "CAD", United States dollars are indicated
with the prefix "USD", British pounds sterling are indicated with the prefix
"GBP" and the euro is indicated with the prefix "EUR".
1.4 In the Subscription Agreement, other words and phrases that are
capitalized have the meaning assigned in the Subscription Agreement.
2. REPRESENTATIONS AND WARRANTIES OF PURCHASER
2.1 ACKNOWLEDGEMENTS CONCERNING OFFERING
The Purchaser acknowledges that:
(a) no securities commission or similar regulatory authority has
reviewed or passed on the merits of the Securities;
(b) there is no government or other insurance covering the
Securities;
(c) there are risks associated with the purchase of the
Securities;
(d) 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;
(e) 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 Applicable
Legislation and, as a consequence of acquiring securities
pursuant to this exemption, certain protections, rights and
remedies provided by the Applicable Legislation, including
statutory rights of rescission or damages, will not be
available to the Purchaser;
(f) no prospectus has been filed by the Issuer with the
Commissions in connection with the issuance of the Purchased
Securities, the issuance is exempted from the prospectus and
registration requirements of the Applicable Legislation and:
(i) the Purchaser is restricted from using most of the
civil remedies available under the Applicable
Legislation;
(ii) the Purchaser may not receive information that would
otherwise be required to be provided to the Purchaser
under the Applicable Legislation; and
(iii) the Issuer is relieved from certain obligations that
would otherwise apply under the Applicable
Legislation;
(g) the Purchaser acknowledges that the Securities have not been
registered under the 1933 Act and may not be 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 has no obligation or present
intention of filing a registration statement under the 1933
Act in respect of the Purchased Securities or any of the
Securities;
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(h) the Purchaser acknowledges that the Warrants have not been
registered under the 1933 Act and may not be exercised by or
on behalf of a person in the United States unless the Warrant
and the underlying Warrant Shares have been 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;
(i) the Purchaser acknowledges that certificates representing the
Warrants, as well as all certificates issued in exchange for
or in substitution of the foregoing, until such time as is no
longer required under the applicable requirements of the 1933
Act or applicable state securities laws, will bear, on the
face of such certificate, the following legend:
"THIS WARRANT AND THE SECURITIES DELIVERABLE UPON EXERCISE
HEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "U.S. SECURITIES
ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES. THIS WARRANT MAY NOT BE EXERCISED BY OR ON BEHALF OF A
PERSON IN THE UNITED STATES UNLESS THE WARRANT AND THE
UNDERLYING SECURITIES HAVE BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT AND THE APPLICABLE SECURITIES LEGISLATION OF
ANY SUCH STATE OR AN EXEMPTION FROM SUCH REGISTRATION
REQUIREMENTS IS AVAILABLE. "UNITED STATES" AND "U.S. PERSON"
ARE AS DEFINED BY REGULATION S UNDER THE U.S. SECURITIES ACT."
(j) the Purchaser acknowledges that the Warrants are
non-transferable.
2.2 REPRESENTATIONS BY ALL PURCHASERS
The Purchaser represents and warrants to the Issuer that, as at the Agreement
Date and at the Closing:
(a) the Purchaser has received a copy of the Offering Memorandum,
if any;
(b) to the best of the Purchaser's knowledge, the Securities were
not advertised;
(c) 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
Purchased Securities;
(iii) as to the future price or value of any of the
Securities; or
(iv) that any of the Securities will be listed and posted
for trading on a stock exchange or that application
has been made to list and post any of the Securities
for trading on any stock exchange, other than the
Exchange;
(d) the Purchaser is either:
(i) an accredited investor and has properly completed and
delivered an Accredited Investor Questionnaire; or
(ii) a person or company who is purchasing the Securities
as principal and is:
(A) a director, executive officer or control
person of the Issuer, or an affiliate of the
Issuer;
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(B) a spouse, parent, grandparent, brother,
sister or child of a director, executive
officer or control person of the Issuer, or
of an affiliate of the Issuer;
(C) a parent, grandparent, brother, sister or
child of the spouse of a director, executive
officer or control person of the Issuer, or
of an affiliate of the Issuer;
(D) a direct close personal friend of a
director, executive officer or control
person of the Issuer, or of an affiliate of
the Issuer and has known such person well
enough and for a sufficient period of time
to be in a position to assess the
capabilities and trustworthiness of that
person and is not a close personal friend
solely because the individual is a relative,
a member of the same organization,
association or religious group nor because
the individual is a client, customer, former
client or former customer;
(E) a direct close business associate of a
director, executive officer or control
person of the Issuer, or of an affiliate of
the Issuer and has had sufficient prior
business dealings with such person to be in
a position to assess the capabilities and
trustworthiness of that person and is not a
close business associate solely because the
individual is a client, customer, former
client or former customer;
(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 provided the
friend or business associate has had
sufficient prior dealings or has knows such
person well enough for a sufficient period
of time to be in a position to assess the
capabilities and trustworthiness of the
founder and is not a close personal friend
or business associate solely because the
individual is a relative, a member of the
same organization, association or religious
group nor because the individual is a
client, customer, former client or former
customer;
(G) a parent grandparent, brother, sister or
child of a spouse of a founder of the
Issuer;
(H) a person of which a majority of the voting
securities are beneficially owned by, or a
majority of the directors are , persons
described in paragraphs (i) to (vii), or
(I) a trust or estate of which all of the
beneficiaries or a majority of the trustees
or executors are persons described in
paragraphs (a) to (g);
(e) this subscription has not been solicited in any other manner
contrary to the Applicable Legislation or the 1933 Act;
(f) the Purchaser is at arm's length (as that term is customarily
defined) with the Issuer;
(g) the Purchaser (or 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 others for whom it is contracting
hereunder) is solely responsible for compliance with
applicable resale restrictions and applicable tax legislation;
(h) the Purchaser has no knowledge of a "material fact" or
"material change" (as those terms are defined in the
Applicable Legislation) in the affairs of the Issuer that has
not been generally disclosed to the public, except knowledge
of this particular transaction;
(i) the offer made by this subscription is irrevocable (subject to
the Purchaser's right to withdraw the subscription and to
terminate the obligations as set out in this Agreement) and
requires acceptance by the Issuer and approval of the
Exchange;
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(j) the Purchaser has the legal capacity and competence to enter
into and execute this Agreement and to take all actions
required pursuant to the Subscription Agreement and, if the
Purchaser is a corporation, it is duly incorporated and
validly subsisting under the laws of its jurisdiction of
incorporation and all necessary approvals by its directors,
shareholders and others have been given to authorize execution
of this Agreement on behalf of the Purchaser;
(k) 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 party or by
which the Purchaser is or may be bound;
(l) this Agreement has been duly executed and delivered by the
Purchaser and constitutes a legal, valid and binding agreement
of the Purchaser enforceable against the Purchaser;
(m) 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;
(n) the Purchaser is capable of assessing the proposed investment
as a result of the Purchaser's financial and business
experience or as a result of advice received from a registered
person other than the Issuer or any affiliates of the Issuer;
and
(o) if required by applicable securities legislation, policy or
order or by any securities commission, stock exchange or other
regulatory authority, the Purchaser will execute, deliver,
file and otherwise assist the Issuer in filing, such reports,
undertakings and other documents with respect to the issue of
the Securities as may be required.
2.3 RELIANCE, INDEMNITY AND NOTIFICATION OF CHANGES
The representations and warranties in the Subscription Agreement (including the
first (cover) page, the Terms on pages 3 to 4, the General Provisions on pages
10 to 16 and the other schedules and appendixes incorporated by reference) are
made by the Purchaser with the intent that they be relied upon by the Issuer in
determining its suitability as a purchaser of Purchased Securities, and the
Purchaser hereby agrees to indemnify the Issuer against all losses, claims,
costs, expenses and damages or liabilities which any of them may suffer or incur
as a result of 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 (including the
first (cover) page, the Terms on pages 3 to 4, the General Provisions on pages
10 to 16 and the other schedules and appendixes incorporated by reference) which
takes place prior to the Closing.
2.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties contained in this Section will survive the
Closing.
3. REPRESENTATIONS AND WARRANTIES OF THE ISSUER
3.1 REPRESENTATIONS AND WARRANTIES OF THE ISSUER
(a) the Issuer is a corporation duly incorporated and validly
subsisting under the laws of British Columbia and has the
corporate power and authority to enter into this Agreement and
complete the transactions contemplated hereby and to own and
lease its properties and assets and to conduct its business as
currently conducted;
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(b) the Issuer shall do all acts and things necessary to reserve
or set aside sufficient shares in the treasury of the Issuer
to enable it to issue to the Purchaser the Shares and the
Warrant Shares;
(c) the common shares of the Company are duly listed and posted
for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the
Issuer nor prohibiting the sale of such securities has been
issued to the Issuer or its directors, officers or promoters
or against any other companies that have common directors,
officers or promoters and no investigations or proceedings for
such purposes are pending or threatened of which the Issuer is
or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under
the SECURITIES ACT (B.C.) and is not in material default of
any of the requirements of the SECURITIES ACT (B.C.) or the
Rules thereunder, or of any rule or requirement of the
Exchange;
(f) the execution, delivery and performance by the Issuer of this
Agreement and the transactions herein contemplated:
(i) have or will have been prior to the Closing duly
authorized by all necessary corporate action of the
Issuer and by all necessary action of the
shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer
to be in breach or default of its memorandum or
articles, or articles or by-laws, as the case may be,
or of any resolution of its respective directors or
shareholders, any trust deeds, debenture, loan
agreements or any of its other agreements or
undertakings or any judgement, decree or order to or
by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares
shall be duly issued and outstanding as fully paid and
non-assessable, the Warrants shall be duly granted and
enforceable against the Company, upon exercise of the Warrants
and payment of the exercise price therefore, the Warrant
Shares shall be duly issued and outstanding as fully paid and
non-assessable; and
(h) except as qualified by the disclosure in all prospectuses,
filing statements and press releases filed with the
Commissions or the Exchange or the Offering Memorandum, if
any, (the "Disclosure Record"), the Company is the beneficial
owner of the properties, business and assets or the interests
in the properties, business or assets referred to in the
Disclosure Record, and the properties are in good standing
under the applicable laws of the jurisdictions in which they
are situated.
3.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties contained in this Section will survive the
Closing.
4. WITHDRAWAL OF SUBSCRIPTION AND CONTRACTUAL RIGHTS
The Purchaser reserves the right to withdraw this subscription and to terminate
its obligations hereunder at any time before Closing.
5. CLOSING
5.1 The Purchaser acknowledges that, although Purchased Securities may be
issued to other purchasers under the Private Placement concurrently with the
Closing, there may be other sales of Purchased Securities under the Private
Placement, some or all of which may close before or after the Closing. The
Purchaser further acknowledges that there is a risk that insufficient funds may
be raised on the Closing to fund the Issuer's
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objectives described in the Offering Memorandum, if any, and that further
closings may not take place after the Closing.
5.2 On or before the end of the fifth business day before the Closing Date,
the Purchaser will deliver to the Issuer the Subscription Agreement and all
applicable schedules and required forms, duly executed, and payment in full for
the total price of the Purchased Securities to be purchased by the Purchaser.
5.3 After Closing, the Issuer will deliver to the Purchaser the
certificates representing the Purchased Securities purchased by the Purchaser
registered in the name of the Purchaser or its nominee.
6. USE OF PERSONAL INFORMATION
6.1 The Purchaser (on its own behalf and, if applicable, on behalf of any
person for whose benefit the Purchaser is subscribing) acknowledges and consents
to the fact the Issuer is collecting the Purchaser's (and any beneficial
purchaser's) personal information for the purpose of completing the Purchaser's
subscription. The Purchaser (on its own behalf and, if applicable, on behalf of
any person for whose benefit the Purchaser is subscribing) acknowledges and
consents to the Issuer retaining the personal information for as long as
permitted or required by applicable law or business practices. The Purchaser (on
its own behalf and, if applicable, on behalf of any person for whose benefit the
Purchaser is subscribing) further acknowledges and consents to the fact the
Issuer may be required by applicable securities laws, stock exchange rules, and
Investment Dealers Association rules to provide regulatory authorities any
personal information provided by the Purchaser respecting itself (and any
beneficial purchaser). The Purchaser represents and warrants that it has the
authority to provide the consents and acknowledgements set out in this paragraph
on behalf of all beneficial purchasers.
6.2 The Purchaser hereby acknowledges and consents to: (i) the disclosure
by the Purchaser and the Issuer of Personal Information (defined in section 9.5)
concerning the Purchaser to the Commissions or other regulatory authority, or to
the Exchange and its affiliates, authorized agent, subsidiaries and divisions;
and (ii) the collection, use and disclosure of Personal Information by the
Exchange for the following purposes (or as otherwise identified by the Exchange,
from time to time):
(a) to conduct background checks;
(b) to verify the Personal Information that has been provided
about the Purchaser;
(c) to consider the suitability of the Purchaser as a holder of
securities of the Issuer;
(d) to consider the eligibility of the Issuer to continue to list
on the Exchange;
(e) to provide disclosure to market participants as the security
holdings of the Issuer's shareholders, and their involvement
with any other reporting issuers, issuers subject to a cease
trade order or bankruptcy, and information respecting
penalties, sanctions or personal bankruptcies, and possible
conflicts of interest with the Issuer;
(f) to detect and prevent fraud;
(g) to conduct enforcement proceedings; and
(h) to perform other investigations as required by and to ensure
compliance with all applicable rules, policies, rulings and
regulations of the Exchange, securities legislation and other
legal and regulatory requirements governing the conduct and
protection of the public markets in Canada.
6.3 The Purchaser also acknowledges that: (i) the Exchange also collects
additional Personal Information from other sources, including securities
regulatory authorities in Canada or elsewhere, investigative law enforcement or
self-regulatory organizations, and regulations service providers to ensure that
the purposes set forth
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above can be accomplished; (ii) the Personal Information the Exchange collects
may also be disclosed to the agencies and organizations referred to above or as
otherwise permitted or required by law, and they may use it in their own
investigations for the purposes described above; (iii) the Personal Information
may be disclosed on the Exchange's website or through printed materials
published by or pursuant to the direction of the Exchange; and (iv) the Exchange
may from time to time use third parties to process information and provide other
administrative services, and may share the information with such providers.
6.4 If the Purchaser is resident in Ontario, the public official who can
answer questions about the Ontario Securities Commission's indirect collection
of Personal Information is the Administrative Assistant to the Director of
Corporate Finance, Ontario Securities Commission, Suite 1903, ▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, Telephone ▇▇▇-▇▇▇-▇▇▇▇.
6.5 Herein, "Personal Information" means any information about the
Purchaser required to be disclosed to the Commission or the Exchange, whether
pursuant to a Commission or Exchange form or a request made by a Commission or
the Exchange, including the Corporate Placee Registration Form attached hereto.
7. MISCELLANEOUS
7.1 The Purchaser agrees to sell, assign or transfer the Securities only in
accordance with the requirements of applicable securities laws and any legends
placed on the Securities as contemplated by the Subscription Agreement.
7.2 The Purchaser hereby authorizes the Issuer to correct any minor errors
in, or complete any minor information missing from any part of the Subscription
Agreement and any other schedules, forms, certificates or documents executed by
the Purchaser and delivered to the Issuer in connection with the Private
Placement.
7.3 The Issuer may rely on delivery by fax machine of an executed copy of
this subscription, and acceptance by the Issuer of such faxed copy will be
equally effective to create a valid and binding agreement between the Purchaser
and the Issuer in accordance with the terms of the Subscription Agreement.
7.4 Without limitation, this subscription and the transactions contemplated
by this Agreement are conditional upon and subject to the Issuer's having
obtained such regulatory approval of this subscription and the transactions
contemplated by this Agreement as the Issuer considers necessary.
7.5 This agreement is not assignable or transferable by the parties hereto
without the express written consent of the other party to this Agreement.
7.6 Time is of the essence of this Agreement and will be calculated in
accordance with the provisions of the INTERPRETATION ACT (British Columbia).
7.7 Except as expressly provided in this Agreement and in the agreements,
instruments and other documents contemplated or provided for in this Agreement,
this Agreement contains the entire agreement between the parties with respect to
the Securities and there are no other terms, conditions, representations or
warranties whether expressed, implied, oral or written, by statute, by common
law, by the Issuer, or by anyone else.
7.8 The parties to this Agreement may amend this Agreement only in writing.
7.9 This Agreement enures to the benefit of and is binding upon the parties
to this Agreement and their successors and permitted assigns.
7.10 A party to this Agreement will give all notices to or other written
communications with the other party to this Agreement concerning this Agreement
by hand or by registered mail addressed to the address given on page 1.
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7,11 This Agreement will be governed by and construed in accordance with the
internal laws of British Columbia (without reference to its rules governing the
choice or conflict of laws), and the parties hereto irrevocably attorn and
submit to the exclusive jurisdiction of the courts of British Columbia with
respect to any dispute related to this Agreement.
END OF GENERAL TERMS AND SUBSCRIPTION AGREEMENT
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