LEGEND INTERNATIONAL HOLDINGS, INC. PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT FOR SHARES OF COMMON STOCK
EXHIBIT 10.7
LEGEND
INTERNATIONAL HOLDINGS, INC.
PRIVATE
PLACEMENT SUBSCRIPTION AGREEMENT FOR SHARES OF COMMON STOCK
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HAVE
YOU COMPLETED THIS SUBSCRIPTION AGREEMENT PROPERLY?
The
following items in this Subscription Agreement must be completed. Please
check each applicable box. If the Subscriber is acting on behalf of more
than one disclosed principal, a separate subscription agreement must be
completed for each disclosed principal.
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All
Subscribers
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The sections on the next page of this Subscription
Agreement
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Subscribers in CANADA
other than the Province of Québec
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Schedule “B” indicating which category is applicable
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Subscribers located in
UNITED STATES
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Schedule “C” indicating which category is applicable
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You
may not change any part of this agreement without the consent of Legend
International Holdings,
Inc.
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SUBSCRIPTION
AGREEMENT
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TO:
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LEGEND
INTERNATIONAL HOLDINGS, INC. (THE “COMPANY”)
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AND
TO:
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BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ INC. (“BMO
▇▇▇▇▇▇▇ ▇▇▇▇▇”), WELLINGTON WEST CAPITAL MARKETS
INC. AND BBY
LTD. (TOGETHER
WITH BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇, THE
“AGENTS”).
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The
undersigned subscriber (the “Subscriber”), on its own
behalf and, if applicable, on behalf of those for whom the undersigned is
contracting hereunder, hereby irrevocably subscribes for and agrees to
purchase the number of Common Shares (as defined herein) of the Company to
be issued for the aggregate subscription price set out below (the “Subscription Amount”).
For certainty, all schedules are incorporated herein by reference and are
integral parts of this agreement (this subscription agreement together
with all schedules, the “Subscription
Agreement”). The Subscriber is responsible for obtaining such legal
advice as it considers appropriate in connection with the execution,
delivery and performance by it of this Subscription
Agreement.
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_________________________________________________
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Number
of Common Shares: __________________________
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Name
of Subscriber - please print
_________________________________________________
Signature
(of individual or authorized signatory)
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Subscription
Price per Common Share: US$2.50
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_________________________________________________
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Aggregate Subscription
Price: US$_____________________
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Official
Capacity/Title (of authorized signatory) - please print
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_________________________________________________
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Please
print name of individual whose signature appears above if different than
the name of the subscriber printed above.
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Disclosed Principal
Information:
Please
complete if purchasing as agent or trustee for a principal (beneficial
purchaser) (a “Disclosed Principal”) and not purchasing as trustee or
agent for accounts fully managed by it.
__________________________________________________
Name
of Principal
___________________________________________________
Principal’s
Street Address
___________________________________________________
City
and Province/State or
Country Postal/Zip
Code
___________________________________________________
Telephone
Number Facsimile
Number
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_________________________________________________
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Subscriber’s
Street Address
_________________________________________________
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City
and Province/State or Country Postal/Zip Code
_________________________________________________
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Telephone
Number
Email Address
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Register the Common
Shares as set forth below:
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Deliver the Common
Shares as set forth below:
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__________________________________________
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_______________________________________________
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Name
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Name
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__________________________________________
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_______________________________________________
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Account
reference, if applicable
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Account
reference, if applicable
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__________________________________________
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_______________________________________________
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Address,
including postal code
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Address,
including postal code
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__________________________________________
Phone
Number:
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_______________________________________________
Phone
Number:
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A COMPLETED AND EXECUTED COPY
OF THIS SUBSCRIPTION AGREEMENT, INCLUDING THE SCHEDULE(S), MUST BE
DELIVERED OR FAXED BY 4:00 p.m. ON MAY 29, 2008
TO:
BMO
Capital Markets Corp., ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, Fax: (▇▇▇)
▇▇▇-▇▇▇▇
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ARTICLE
1 - INTERPRETATION
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1.1
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Definitions
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Whenever
used in this Subscription Agreement, unless there is something in the subject
matter or context inconsistent therewith, the following words and phrases shall
have the respective meanings ascribed to them as follows:
“Agency Agreement” means the
Agency Agreement to be entered into between the Agents and the Company in
respect of the Offering.
“Agents” means, collectively, BMO
▇▇▇▇▇▇▇ ▇▇▇▇▇, Wellington West Capital Markets Inc. and BBY Ltd., and their
broker-dealer affiliates as well as the U.S. Agents.
“BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇” means BMO
▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc.
“Business Day” means a day
other than a Saturday, Sunday or any other day on which the principal chartered
banks located in Toronto, Ontario are not open for business.
“Closing” shall have the
meaning ascribed to such term in Section 4.1.
“Closing Date” shall have the
meaning ascribed to such term in Section 4.1.
“Closing Time” shall have the
meaning ascribed to such term in Section 4.1.
“Common Shares” means shares of
common stock in the capital of the Company.
“Company” means Legend
International Holdings, Inc.
“Disclosed
Principal”
shall have the meaning ascribed to such term on the second page of this
Subscription Agreement.
“NI 45-106” means National
Instrument 45-106 Prospectus
and Registration Exemptions.
“Offering” means the offering of
Common Shares pursuant to this Subscription Agreement and the Agency
Agreement.
“person” means any individual
(whether acting as an executor, trustee administrator, legal representative or
otherwise), corporation, firm, partnership, sole proprietorship, syndicate,
joint venture, trustee, trust, unincorporated organization or association, and
pronouns have a similar extended meaning.
“Securities Laws” means, as
applicable, the securities laws, regulations, rules, rulings and orders in each
of the provinces and territories of Canada, and in the United States and each
state of the United States.
“Subscriber” means the
subscriber for the Common Shares as set out on the second page of this
Subscription Agreement and includes, as applicable, each Disclosed Principal for
whom it is acting.
“Subscription Agreement” means
this subscription agreement (including any schedules hereto) and any instrument
amending this Subscription Agreement.
“Subscription Amount” shall
have the meaning ascribed to such term on the second page of this Subscription
Agreement.
“Term Sheet” means the term
sheet delivered to potential purchasers of Common Shares, a copy of which is
attached hereto as Schedule “A”.
“United States” means the
United States of America, its territories and possessions, any State of the
United States and the District of Columbia.
“U.S. Accredited Investor”
means “accredited investor” as defined in Rule 501(a) of Regulation D adopted
pursuant to the U.S. Securities Act.
“U.S. Agents” means the U.S.
broker-dealer affiliates of the Agents.
“U.S. Person” has the meaning
set forth in Rule 902(k) of Regulation S under the U.S. Securities
Act. Without limiting the foregoing, but for greater clarity in this
Agreement, a U.S. Person includes, subject to the exclusions set forth in
Regulation S, (1) any natural person resident in the United
States, (2) any partnership or corporation organized or incorporated
under the laws of the United States, (3) any estate or trust of which any
executor, administrator or trustee is a U.S. Person, (4) any discretionary
account or similar account (other than an estate or trust) held by a dealer or
other fiduciary organized, incorporated, or (if an individual) resident in the
United States, and (5) any partnership or corporation organized or incorporated
under the laws of any non-U.S. jurisdiction which is formed by a U.S. Person
principally for the purpose of investing in securities not registered under the
U.S. Securities Act, unless it is organized or incorporated, and owned, by U.S.
Accredited Investors who are not natural persons, estates or
trusts.
“U.S. Securities Act” means the
United States Securities Act
of 1933, as amended.
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1.2
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Gender
and Number
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Words
importing the singular number only shall include the plural and vice versa,
words importing the masculine gender shall include the feminine gender and words
importing persons shall include firms and corporations and vice
versa.
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1.3
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Currency
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Unless
otherwise specified, the symbol “US$” means in U.S. dollars and “Cdn$”, means in
Canadian dollars.
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1.4
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Subdivisions
and Headings
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The
division of this Subscription Agreement into Articles, Sections, Schedules and
other subdivisions and the inclusion of headings are for convenience of
reference only and shall not affect the construction or interpretation of this
Subscription Agreement. The headings in this Subscription Agreement
are not intended to be full or precise descriptions of the text to which they
refer. Unless something in the subject matter or context is
inconsistent therewith, references herein to an Article, Section, Subsection,
paragraph, clause or Schedule are to the applicable article, section,
subsection, paragraph, clause or schedule of this Subscription
Agreement.
ARTICLE
2 – SCHEDULES
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2.1
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Description
of Schedules
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The
following are the Schedules attached to and forming part of this Subscription
Agreement:
Schedule
“A” - Term
Sheet
Schedule
“B” - Canadian
Accredited Investor Status Certificate
Schedule
“C” - U.S.
Accredited Investor Certificate
Schedule
“D” - Form
of Declaration for Removal of Legend
ARTICLE
3 - SUBSCRIPTION AND DESCRIPTION OF COMMON SHARES
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3.1
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Subscription
for Common Shares
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The
Subscriber hereby confirms its irrevocable subscription for and offer to
purchase the Common Shares from the Company, on and subject to the terms and
conditions set out in this Subscription Agreement and for the Subscription
Amount which is payable as described in Article 4 hereto and set forth on the
second page hereof.
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3.2
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Acceptance
and Rejection of Subscription by the
Company
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The
Subscriber acknowledges and agrees that the Company reserves the right, in its
absolute discretion, to reject this subscription for Common Shares, or to
terminate the Offering, in whole or in part, at any time prior to the Closing
Time. If this subscription is rejected in whole, or the Offering is
terminated, any cheques or other forms of payment delivered to the Agents
representing the Subscription Amount will be promptly returned to the Subscriber
without interest or deduction. If this subscription is accepted only in part, a
cheque representing any refund of the Subscription Amount for that portion of
the subscription for the Common Shares which is not accepted, will be promptly
delivered to the Subscriber without interest or deduction.
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3.3
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Settlement
of Common Shares
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Settlement
of the Common Shares will be effected by means of physical Common Share
certificates registered in the name of one of the Agents on behalf of such
Subscriber, or as the Subscriber otherwise directs.
Promptly
after the Closing, the Canadian or off-shore Subscriber will receive a written
ownership statement containing the legend detailing the resale restrictions that
apply to the Common Shares under applicable securities
legislation. By executing this Subscription Agreement, the Subscriber
agrees that if such Subscriber transfers the Common Shares during any applicable
hold periods, the Subscriber will deliver such ownership statement to the
subsequent transferee and will comply with all applicable Securities
Laws.
ARTICLE
4 - CLOSING
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4.1
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Closing
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Delivery
and sale of the Common Shares and payment of the Subscription Amount will be
completed (the “Closing”) at the offices of
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP (666 Fifth Avenue, New York, NY) at or about 12:00 p.m. (the
“Closing Time”) on June
3, 2008 or such other place, date or time as the Company and the Agents may
agree (the “Closing
Date”). If, prior to the Closing Time, the terms and conditions contained
in this Subscription Agreement and the Agency Agreement have been complied with
to the satisfaction of the Agents, or waived by the Agents, the Agents shall
deliver to the Company at the Closing Time all completed Subscription Agreements
and payment of the aggregate Subscription Amount for all of the Common Shares
sold pursuant to the Agency Agreement against delivery of certificates
representing the Common Shares and such other documentation as may be required
pursuant to the Subscription Agreement and the Agency Agreement.
If, prior
to the Closing Time, the terms and conditions contained in this Subscription
Agreement (other than delivery by the Company, if and as applicable, to the
Agents on behalf of the Subscriber of certificates representing the Common
Shares) and the Agency Agreement have not been complied with to the satisfaction
of the Agents, or waived by them, the Agents, the rights and obligations of the
Subscribers hereunder shall cease and determine (but without prejudice to any
accrued rights the Company may have in respect of any prior breach by the
Subscriber of the terms hereof) and any monies that the Subscriber has paid to
the Agents in respect of its subscription for the Common Shares will be returned
to the Subscriber, without interest, or deduction, as soon as practicable. The
Agents have the right, inter
alia, to terminate the Agency Agreement in their absolute discretion (and
the Subscribers’ obligations hereunder) in certain circumstances set out in the
Agency Agreement.
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4.2
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Conditions
of Closing
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The
Subscriber acknowledges and agrees that the obligations of the Company hereunder
are conditional on the accuracy of the representations and warranties of the
Subscriber contained in this Subscription Agreement as of the date of this
Subscription Agreement, and as of the Closing Time as if made at and as of the
Closing Time, and the fulfillment of the following additional conditions as soon
as possible and in any event not later than the Closing Time:
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a)
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payment
by the Subscriber of the Subscription Amount by wire transfer or certified
cheque payable to the Agents or as otherwise directed by the
Agents;
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b)
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the
Subscriber having properly completed, signed and delivered this
Subscription Agreement to:
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BMO
Capital Markets Corp.
▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
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c)
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the
Subscriber having properly completed, signed and delivered one of either
Schedule “B” or “C”
as applicable:
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a.
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if
the Subscriber is resident in or otherwise subject to the Securities Laws
of the provinces of British Columbia, Alberta, Saskatchewan, Manitoba,
Ontario, Nova Scotia, New Brunswick, Newfoundland and Labrador or ▇▇▇▇▇▇
▇▇▇▇▇▇ Island and is purchasing as an “accredited investor”, a duly
completed and executed Canadian Accredited Investor Status Certificate in
the form attached hereto as Schedule “B”;
or
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b.
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if
the Subscriber is a U.S. Person or was present in the United States at the
time the offer was made or this Subscription Agreement was signed, a duly
completed and executed U.S. Accredited Investor certificate in the Form
attached hereto to as Schedule “C”.
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4.3
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Power
of Attorney
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The
Subscriber irrevocably authorizes BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ in its discretion, to act as
the Subscriber’s representative at the Closing, and hereby appoints BMO ▇▇▇▇▇▇▇
▇▇▇▇▇, with full power of substitution, as its true and lawful attorney with the
full power and authority to act for and in the name of the Subscriber, to
execute and deliver such documents, instruments or agreements and do all acts
necessary to effect the following:
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a)
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if
delivered, to receive certificates representing the Common Shares, to
execute in the Subscriber’s name and on its behalf all closing receipts
and required documents, if any, to complete and correct any manifest
errors or omissions in any form or document provided by the Subscriber,
including this Subscription Agreement and the Schedules hereto, in
connection with the subscription for the Common Shares and to exercise any
rights of termination contained in the Agency
Agreement;
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b)
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to
negotiate and settle documents related to the Offering including any
opinions, certificates or other documents addressed to the
Subscriber;
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c)
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to
extend or shorten any time periods and to modify or waive, in whole or in
part, any representations, warranties, covenants or conditions for the
Subscriber’s benefit contained in this Subscription Agreement and the
Agency Agreement or any ancillary or related document, provided that such
extensions, modifications, or waivers do not materially affect the
Subscriber’s obligations or economic benefits under this Subscription
Agreement;
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d)
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to
make payment of the Subscription Amount for the Common Shares purchased
hereby on behalf of the Subscriber or any Disclosed
Principal;
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e)
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to
terminate this Subscription Agreement if any condition precedent is not
satisfied, in such manner and on such terms and conditions as the Agents
in their sole discretion may determine and the Agents shall have no
liability to any Subscriber whatsoever in connection with any decision to
waive any of such conditions or to extend the time for satisfaction of
such conditions or any decision to exercise or not exercise or extend the
right to terminate the Agency Agreement;
and
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f)
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without
limiting the generality of the foregoing, to negotiate, settle, execute,
deliver and amend the Agency
Agreement.
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The power
of attorney is irrevocable, is coupled with an interest, and has been given for
valuable consideration, the receipt and adequacy of which is
acknowledged. The power of attorney and other rights and privileges
granted under this Section 4.3 will survive any legal or mental incapacity,
dissolution, bankruptcy or death of the Subscriber. The power of attorney
extends to the heirs, executors, administrators, other legal representatives and
successors, transferees and assigns of the Subscriber. Any person dealing with
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ may conclusively presume and rely upon the fact that any
document, instrument or agreement executed by BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ pursuant to this
power of attorney is authorised and binding on the Subscriber, without further
inquiry. The Subscriber agrees to be bound by any representations or actions
made or taken by BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ pursuant to this power of attorney, and
waives any and all defences that may be available to contest, negate or
disaffirm any action of BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ taken in good faith under this power
of attorney.
ARTICLE
5 - REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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5.1
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Representations,
Warranties and Covenants of the
Company
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The
Subscriber shall be entitled to rely on the representations, warranties and
covenants made by the Company to the Agents and set forth in the Agency
Agreement, to the extent they have not been amended or waived by the
Agents. Such representations and warranties shall form an integral
part of this Subscription Agreement and shall survive the closing of the
purchase and sale of the Common Shares and shall continue in full force and
effect for the benefit of the Subscriber in accordance with the Agency Agreement
and this Subscription Agreement.
ARTICLE
6 - ACKNOWLEDGEMENTS, COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE
SUBSCRIBER
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6.1
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Acknowledgements,
Representations, Warranties and Covenants of Subscribers who are NOT U.S.
Persons and who were NOT in the
United States when this offer of Common Shares was received or
signed
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The
Subscriber, which is not a U.S. Person, was not offered the Common Shares in the
United States, and which did not sign this Subscription Agreement in the United
States, on its own behalf and, if applicable, on behalf of others for whom it is
acting hereunder, hereby represents and warrants to, and covenants with, the
Company and the Agents as follows, and acknowledges that the Company and the
Agents are relying on such representations and warranties in connection with the
transactions contemplated herein:
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a)
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The
Subscriber certifies that it is resident in the jurisdiction set out on
the second page of this Subscription Agreement. Such address
was not created and is not used solely for the purpose of acquiring the
Common Shares and the Subscriber was solicited to purchase in such
jurisdiction.
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b)
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The
Subscriber has properly completed, executed and delivered to the Company
the applicable certificate(s) (dated as of the date hereof) set forth in
Schedule “B” and the information contained therein is true and correct,
both as of the date of execution of this Subscription Agreement and as of
the Closing Time.
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c)
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The
Subscriber is not a U.S. Person nor subscribing for the Common Shares for
the account of a U.S. Person or for resale in the United States and the
Subscriber confirms that the Common Shares have not been offered to the
Subscriber in the United States and that this Subscription Agreement has
not been signed in the United
States.
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d)
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The
Subscriber will not offer, sell or otherwise dispose of the Common Shares
in the United States or to a U.S. Person unless the Company has consented
to such offer, sale or distribution and such offer, sale or disposition is
made in accordance with an exemption from the registration requirements
under the U.S. Securities Act and the securities laws of all applicable
states of the United States or the U.S. Securities and Exchange Commission
has declared effective a registration statement in respect of such
securities.
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e)
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If
the Subscriber is not a person resident in Canada, the subscription for
the Common Shares by the Subscriber does not contravene any of the
applicable securities legislation in the jurisdiction in which the
Subscriber resides and does not give rise to any obligation of the Company
or the Agents to prepare and file a prospectus or similar document or to
register the Common Shares or to be registered with or to file any report
or notice with any governmental or regulatory
authority.
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f)
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The
Subscriber is not a national or resident of the United States, Australia
or the Republic of Ireland or Japan or a company, partnership or other
entity organised under the laws of the United States, Australia or the
Republic of Ireland or Japan and the Subscriber will not offer, sell or
deliver directly or indirectly any of the Common Shares in the United
States, Australia, the Republic of Ireland or Japan or to or for the
benefit of any person resident in such
jurisdictions.
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g)
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The
Subscriber will not sell, transfer or dispose of the Common Shares except
in accordance with all applicable securities laws, and the Subscriber
acknowledges that the Company and Agents shall have no obligation to
register any purported sale, transfer or disposition which violates such
securities laws.
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h)
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The
subscription for the Common Shares has not been made through or as a
result of, and the distribution of the Common Shares is not being
accompanied by any advertisement, including without limitation in printed
public media, radio, television or telecommunications, including
electronic display, or as part of a general
solicitation.
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i)
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If
the Subscriber is resident in or otherwise subject to the Securities Laws
applicable in the Province of Ontario, the information provided by the
Subscriber on the second page of this Subscription Agreement identifying
the name, address and telephone number of the Subscriber, the number of
Common Shares being purchased hereunder and the total purchase price as
well as the Closing Date and the exemption that the Subscriber is relying
on in purchasing the Common Shares will be disclosed to the Ontario
Securities Commission, and such information is being indirectly collected
by the Ontario Securities Commission under the authority granted to it
under securities legislation. This information is being collected for the
purposes of the administration and enforcement of the securities
legislation of Ontario. Each Subscriber (for certainty including each
Disclosed Principal) hereby authorizes the indirect collection of such
information to the Ontario Securities Commission. In the event the
Subscriber has any questions with respect to the indirect collection of
such information by the Ontario Securities Commission, the Subscriber
should contact the Ontario Securities Commission, Administrative Assistant
to the Director of Corporate Finance at (▇▇▇) ▇▇▇-▇▇▇▇ or in person or
writing at ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇.
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6.2
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Acknowledgements,
Representations, Warranties and Covenants of the Subscriber that IS a U.S.
Person or was in the United States at the time this offer of Common Shares
was received or signed
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The
Subscriber, which is a U.S. Person, was offered the Common Shares in the United
States, or which signed this Subscription Agreement in the United
States, on its own behalf and, if applicable, on behalf of others for
whom it is acting hereunder, hereby represents and warrants to, and covenants
with, the Company and the Agents as follows and acknowledges that the Company
and the Agents are relying on such representations and warranties in connection
with the transactions contemplated herein:
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a)
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The
Subscriber is a U.S. Accredited Investor and is acquiring the Common
Shares for its own account or for the account of another U.S. Accredited
Investor over which the Subscriber exercises sole investment direction and
not with a view to resale for distribution of the Common Shares in
violation of United States Securities Laws and the Subscriber certifies
that it and each Disclosed Principal is a resident in the jurisdiction set
out on the second page of this Subscription Agreement and that the
investment decision with respect to the Common Shares was made in such
jurisdiction. Such address was not created and is not used
solely for the purpose of acquiring the Securities and the Subscriber was
solicited to purchase in such
jurisdiction.
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b)
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The
Subscriber has properly completed, executed and delivered to the Company
the applicable certificate(s) (dated as of the date hereof) set forth in
Schedule “C”, as applicable, and the information contained therein is true
and correct, both as of the date of execution of this Subscription
Agreement and as of the Closing
Time.
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c)
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In
the event that the Subscriber requests that the certificates representing
the Common Shares be registered and/or delivered in the name of someone
with an address in a state other than the state of its residence as set
out on the face page hereof, it has done so only for safekeeping or as a
bare trusteeship with respect to such certificate in accordance with its
normal business practice.
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d)
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The
Subscriber is not a national or resident of Australia or the Republic of
Ireland or Japan or a company, partnership or other entity organised under
the laws of the Australia or the Republic of Ireland or Japan and the
Subscriber will not offer, sell or deliver directly or indirectly any of
the Common Shares in Australia or the Republic of Ireland or Japan or to
or for the benefit of any person resident in Australia or the Republic of
Ireland or Japan.
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e)
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The
subscription for the Common Shares has not been made through or as a
result of, and the distribution of the Common Shares is not being
accompanied by any general solicitation or general advertising (as those
terms are used in Regulation D in the U.S. Securities Act), including
advertisements, articles, notices or other communication published in any
printed public media, radio, television or telecommunications, including
electronic display, or any seminar or meeting whose attendees have been
invited by any general solicitation or general
advertising.
|
|
|
f)
|
The
Subscriber agrees to indemnify and hold harmless the Company and the
Agents and each of their respective officers, directors, employees and
agents from and against any and all costs, liabilities and expenses,
including attorneys’ fees, arising out of or related in any way to any
breach of any confirmation, representation, warranty or undertaking
contained in this Subscription
Agreement.
|
|
|
g)
|
The
Subscriber understands that the Common Shares will be “restricted
securities” as defined in Rule 144(a)(3) under the U.S. Securities Act and
agrees that if it decides to offer, sell or otherwise transfer any of the
Common Shares, such Common Shares may be offered, sold or otherwise
transferred only (A) to the Company; (B) outside the United States in
accordance with Rule 904 of Regulation S under the U.S. Securities Act;
(C) within the United States in accordance with (i) Rule 144A to a person
who the seller reasonably believes is a Qualified Institutional Buyer that
is purchasing for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale, or
transfer is being made in reliance on Rule 144A, if available, or (ii) the
exemption from registration under the U.S. Securities Act provided by Rule
144 thereunder, if applicable; (D) in a transaction that does not require
registration under the U.S. Securities Act or any applicable U.S. state
laws and regulations governing the offer and sale of securities; or (E)
pursuant to an effective registration statement under the U.S. Securities
Act, provided that with respect to sales or transfers under clauses
(C)(ii) or (D), only if the holder has furnished to the Company an opinion
of counsel, reasonably satisfactory to the Company, prior to such sale or
transfer and in each case in accordance with any applicable state
securities laws in the United States or securities laws of any other
applicable jurisdiction;
|
|
|
h)
|
The
Subscriber understands and acknowledges that all certificates representing
the Common Shares originally issued to a U.S. Person or a person in the
United States, or a person for the account or benefit of a U.S. Person, as
well as all certificates in exchange for or in substitution of the
foregoing securities, until such time as the same is no longer required
under applicable requirements of the U.S. Securities Act or applicable
state securities laws, shall bear the following
legend:
|
“THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR UNDER ANY
STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THESE SECURITIES, AGREES
FOR THE BENEFIT OF THE COMPANY THAT THESE SECURITIES MAY BE OFFERED, SOLD
PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) TO THE COMPANY, (B) OUTSIDE THE UNITED
STATES IN ACCORDANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT AND IN
COMPLIANCE WITH CANADIAN LOCAL LAWS AND REGULATIONS, (C) IN COMPLIANCE WITH (I)
RULE 144A OF THE U.S. SECURITIES ACT TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER THAT IS PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE OFFER, SALE OR TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
OR (II) THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE U.S.
SECURITIES ACT, IF APPLICABLE, AND, IN EACH CASE, IN ACCORDANCE WITH APPLICABLE
STATE SECURITIES LAWS, OR (D) IN ANOTHER TRANSACTION THAT DOES NOT REQUIRE
REGISTRATION UNDER THE U.S. SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES
LAWS, AND, IN THE CASE OF (C)(II) AND (D), THE SELLER FURNISHES TO THE COMPANY
AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE COMPANY TO SUCH EFFECT.”
Provided
that If any such securities are being sold under clause h(C)(ii) or h(D) above,
the legend may be removed by delivery to the transfer agent for the Company and
the Company of an opinion of counsel, of recognized standing reasonably
satisfactory to the Company, that such legend is no longer required under
applicable requirements of the U.S. Securities Act or state securities
laws.
|
|
i)
|
The
Common Shares have not been registered under the U.S. Securities Act or
any applicable state securities laws, the offer and sale are being made in
reliance on a private placement exemption provided by Rule 506 of
Regulation D under the U.S. Securities Act thereunder to investors who are
U.S. Accredited Investors and the Common Shares may not be offered or sold
in the United States or to U.S. Persons unless such securities are
registered under such Act or an exemption from the registration
requirements of such Act is available. The Subscriber further
understands that there is no assurance that any exemption from
registration under the U.S. Securities Act will be available and that,
even if available, such exemption may not allow the Subscriber to transfer
all or any portion of the Common Shares under the circumstances, in the
amounts or at the times that the Subscriber may
propose.
|
|
|
j)
|
The
Subscriber understands that the Company may instruct its registrar and
transfer agent not to record any transfer of the Common Shares without
first being notified by the Company that it is satisfied that such
transfer is exempt from, or not subject to, the registration requirements
of the U.S. Securities Act and applicable state securities
laws.
|
|
|
k)
|
The
Subscriber consents to the Company making a notation on its records and/or
giving instruction to the registrar and transfer agent of the Company in
order to implement the restrictions on transfer set forth and described
herein.
|
|
|
l)
|
The
Subscriber understands and agrees that there may be material tax
consequences to the Subscriber of an acquisition, disposition or exercise
of any of the Common Shares. The Company gives no opinion and
makes no representation with respect to the tax consequences to the
Subscriber under United States, state, local or foreign tax law of the
undersigned’s acquisition or disposition of such securities. In
particular, no determination has been made whether the Company will be a
“passive foreign investment company” (“PFIC”) within the meaning of
Section 1291 of the United States Internal Revenue
Code.
|
|
6.3
|
Further
Representations, Acknowledgments and Covenants of ALL
Subscribers
|
The
Subscriber, on its own behalf and, if applicable, on behalf of others for whom
it is acting hereunder, acknowledges, covenants and agrees as follows and
acknowledges, that the Company and the Agents are relying on such representations and warranties in
connection with the transactions contemplated herein:
|
|
a)
|
There are risks associated with
the purchase of and investment in the common shares, including the risks
disclosed in the company’s annual report on form 10-k dated march 17,
2008, and the Subscriber is knowledgeable and has substantial experience
in business and financial matters and is capable of evaluating the merits
and risks of an investment in the common shares and protecting the
Subscriber’s own interest, and fully understands the restrictions on
resale of the common shares and is capable of bearing the economic risk of
the LOSS OF THE ENTIRE investment IN COMMON
SHARES.
|
|
|
b)
|
No
securities commission, agency, governmental authority, regulatory body,
stock exchange or other regulatory body has reviewed or passed on the
investment merits of the Common
Shares.
|
|
|
c)
|
The
Agents and/or their directors, officers, employees, agents, affiliates,
and representatives assume no responsibility or liability of any nature
whatsoever for the accuracy or adequacy of any such publicly available
information concerning the Company or as to whether all information
concerning the Company that is required to be disclosed or filed by the
Company under the Securities Laws has been so disclosed or
filed.
|
|
|
d)
|
If
required by applicable Securities Laws or the Company, the Subscriber will
execute, deliver and file or assist the Company in filing such reports,
undertakings and other documents with respect to the issue and/or sale of
the Common Shares as may be required by any securities commission, stock
exchange or other regulatory
authority.
|
|
|
e)
|
The
Subscriber will consult its own legal advisors with respect to trading in
the Common Shares when issued and with respect to the resale restrictions
imposed by the Securities Laws of the jurisdiction in which the Subscriber
resides and other applicable securities laws, and acknowledges that no
representation has been made respecting the applicable hold periods
imposed by the Securities Laws or other resale restrictions applicable to
such securities which restrict the ability of the Subscriber (or others
for whom it is contracting hereunder) to resell such securities, that the
Subscriber (or others for whom it is contracting hereunder) is solely
responsible to find out what these restrictions are and the Subscriber is
solely responsible (and neither the Company nor the Agents are in any way
responsible) for compliance with applicable resale restrictions and the
Subscriber is aware that it (or Disclosed Principals for whom it is
contracting hereunder) may not be able to resell such securities except in
accordance with limited exemptions under the Securities Laws and other
applicable securities laws.
|
|
|
f)
|
The
Subscriber has been offered the opportunity to ask questions and receive
answers from management concerning the Company, the Common Shares and the
terms and conditions of this Offering and any such request for information
has been complied with to the Subscriber's
satisfaction.
|
|
|
g)
|
The
Subscriber acknowledges that the Company is still in the process of
applying for exploration licences in respect of certain properties and
that there can be no assurance that the Company will ever be granted such
licences.
|
|
|
h)
|
The
Subscriber has not received or been provided with a prospectus, an
offering memorandum, or any other offering document (other than the Term
Sheet) describing the business and affairs of the Company, and has relied
solely upon the Term Sheet and information about the Company which is
publicly available and not upon any other representation as to fact or
otherwise made by or on behalf of the
Company.
|
|
|
i)
|
The
Subscriber’s decision to subscribe for the Common Shares was based solely
upon the Term Sheet attached hereto as Schedule “A” and information about
the Company which is publicly available (any such information having been
obtained by the Subscriber without independent investigation or
verification by the Agents).
|
|
|
j)
|
No
person has made any written or oral
representations:
|
|
|
a.
|
that
any person will resell or repurchase the Common Shares,
or;
|
|
|
b.
|
as
to the future price or value of the Common
Shares.
|
|
|
k)
|
In
the case of a subscription for the Common Shares by the Subscriber acting
as principal, this Subscription Agreement has been duly authorized,
executed and delivered by, and constitutes a legal, valid and binding
agreement of, the Subscriber. This Subscription Agreement is
enforceable in accordance with its terms against the
Subscriber.
|
|
|
l)
|
If
the Subscriber is:
|
|
|
a.
|
a
corporation, the Subscriber is duly incorporated and is validly subsisting
under the laws of its jurisdiction of incorporation and has all requisite
legal and corporate power and authority to execute and deliver this
Subscription Agreement, to subscribe for the Common Shares as contemplated
herein and to carry out and perform its obligations under the terms of
this Subscription Agreement;
|
|
|
b.
|
a
partnership, syndicate or other form of unincorporated organization, the
Subscriber has the necessary legal capacity and authority to execute and
deliver this Subscription Agreement and to observe and perform its
covenants and obligations hereunder and has obtained all necessary
approvals in respect thereof; or
|
|
|
c.
|
an
individual, the Subscriber is of the full age of majority and is legally
competent to execute this Subscription Agreement and to observe and
perform his or her covenants and obligations
hereunder.
|
|
|
m)
|
The
Subscriber is responsible for obtaining such legal and tax advice as it
considers appropriate in connection with the execution, delivery and
performance of this Subscription Agreement and the transactions
contemplated under this Subscription Agreement. The Subscriber
acknowledges that it is not relying on legal or tax advice provided by the
Company or the Agents or their respective
counsel.
|
|
|
n)
|
There
is no government or other insurance covering the Common
Shares.
|
|
|
o)
|
The
execution and delivery of this Subscription Agreement, the performance and
compliance with the terms hereof, the subscription for the Common Shares
and the completion of the transactions described herein by the Subscriber
will not result in any material breach of, or be in conflict with or
constitute a material default under, or create a state of facts which,
after notice or lapse of time, or both, would constitute a material
default under any term or provision of the constating documents, by-laws
or resolutions of the Subscriber if the Subscriber is not an individual,
the Securities Laws or any other laws applicable to the Subscriber, any
agreement to which the Subscriber is a party, or any judgment, decree,
order, statute, rule or regulation applicable to the
Subscriber.
|
|
|
p)
|
The
Subscriber has obtained all necessary consents and authorities to enable
it to agree to subscribe for the Common Shares and to perform its
obligations under this Subscription Agreement and the Subscriber has
otherwise observed all applicable laws, obtained any requisite
governmental or other consents, complied with all requisite formalities
and paid any issue, transfer or other taxes due in any territory in
connection with its acceptance and the Subscriber has not taken any action
which will or may result in the Company or the Agents acting in breach of
any regulatory or legal requirements of any territory in connection with
the offering or the Subscriber’s
subscription.
|
|
|
q)
|
The
Subscriber acknowledges that this Subscription Agreement and the exhibits
and schedules hereto require the Subscriber to provide certain personal
information to the Company. Such information is being collected by the
Company for the purposes of completing the offering, which includes,
without limitation, determining the Subscriber’s eligibility to purchase
the Common Shares under Securities Laws and other applicable securities
laws, and preparing and registering certificates representing Common
Shares to be issued to the Subscriber, as the case may be, and completing
filings required by any stock exchange or securities regulatory
authority. The Subscriber’s personal information may be
disclosed by the Company to: (a) stock exchanges or securities regulatory
authorities, (b) revenue or taxing authorities, and (c) any of the other
parties involved in the Offering, including legal counsel and may be
included in record books in connection with the Offering. By executing
this Subscription Agreement, the Subscriber is deemed to be consenting to
the foregoing collection, use and disclosure of the Subscriber’s personal
information. The Subscriber also consents to the filing of copies or
originals of any of the Subscriber’s documents may be required to be filed
with any stock exchange or securities regulatory authority in connection
with the transactions contemplated hereby. The Subscriber
represents and warrants that it has the authority to provide the consents
and acknowledgements set out in this paragraph on behalf of each Disclosed
Principal.
|
|
|
r)
|
The
Subscriber is not entitled to be paid any commission in relation to its
participation in the Offering.
|
|
|
s)
|
The
Subscriber is a U.S. Accredited Investor and is acquiring the Common
Shares for its own account or for the account of another U.S. Accredited
Investor over which the Subscriber exercises sole investment direction and
not with a view to resale for distribution of the Common Shares in
violation of United States Securities Laws and the Subscriber certifies
that it and each Disclosed Principal is a resident in the jurisdiction set
out on the second page of this Subscription Agreement and that the
investment decision with respect to the Common Shares was made in such
jurisdiction. Such address was not created and is not used
solely for the purpose of acquiring the Securities and the Subscriber was
solicited to purchase in such
jurisdiction.
|
|
|
t)
|
In
the case of a subscription for the Common Shares by the Subscriber acting
as trustee or agent for a fully managed account or as agent for a
Disclosed Principal, the Subscriber is duly authorized to execute and
deliver this Subscription Agreement and all other necessary documentation
in connection with such subscription on behalf of the fully managed
account or Disclosed Principal, as applicable, and this Subscription
Agreement has been duly authorized, executed and delivered by or on behalf
of and constitutes a legal, valid and binding agreement of, the fully
managed account or Disclosed Principal, as
applicable.
|
|
|
u)
|
Other
than the Agents, there is no person acting or purporting to act in
connection with the transactions contemplated herein who is entitled to
any brokerage or finder’s fee.
|
|
|
v)
|
The
funds representing the Subscription Amount which will be advanced by the
Subscriber to the Company hereunder, as applicable, will not represent
proceeds of crime for the purposes of the Proceeds of Crime (Money
Laundering) and Terrorist Financing Act (Canada) (the “PCMLTFA”) and the
Subscriber acknowledges that the Company may in the future be required by
law to disclose the Subscriber’s name and other information relating to
this Subscription Agreement and the Subscriber's subscription hereunder,
on a confidential basis, pursuant to the PCMLTFA. To the best
of its knowledge (a) none of the subscription funds to be provided by the
Subscriber (i) have been or will be derived from or related to any
activity that is deemed criminal under the laws of Canada, the United
States of America or any other jurisdiction, or (ii) are being tendered on
behalf of a person or entity who has not been identified to the
Subscriber, and (b) it shall promptly notify the Company if the Subscriber
discovers that any of such representations ceases to be true, and to
provide the Company with appropriate information in connection
therewith.
|
|
|
w)
|
The
Subscriber agrees to indemnify and hold harmless the Company and the
Agents and each of their respective officers, directors, employees and
agents from and against any and all costs, liabilities and expenses,
including attorneys’ fees, arising out of or related in any way to any
breach of any confirmation, representation, warranty or undertaking
contained in this Subscription
Agreement.
|
|
|
x)
|
The
Subscriber acknowledges that the Common Shares do not give rights to
participate in new issues of securities of the
Company.
|
ARTICLE
7 - SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
|
7.1
|
Survival
of Representations, Warranties and Covenants of the
Company
|
The
representations, warranties and covenants of the Company contained in this
Subscription Agreement shall survive the Closing and, notwithstanding such
Closing or any investigation made by or on behalf of the Subscriber with respect
thereto, shall continue in full force and effect for the benefit of the
Subscriber and the Agents.
|
7.2
|
Survival
of Representations, Warranties and Covenants of the
Subscriber
|
The
representations, warranties and covenants of the Subscriber contained in this
Subscription Agreement shall survive the Closing and, notwithstanding such
Closing or any investigation made by or on behalf of the Company or the Agents
with respect thereto and notwithstanding any subsequent disposition by the
Subscriber of any of the Common Shares and shall continue in full force and
effect for the benefit of the Company and the Agents.
ARTICLE
8 – FEES
|
8.1
|
Fees
to the Agents
|
The
Subscriber understands that in connection with the issue and sale of the Common
Shares pursuant to the Offering, the Agents will receive from the Company on
Closing, the fees set forth in the attached Term Sheet. No other fee
or commission is payable by the Company in connection with the completion of the
Offering. However, the Company will pay certain fees and expenses of
the Agents in connection with the Offering, as set out in the Agency
Agreement.
ARTICLE
9 – MISCELLANEOUS
|
9.1
|
Further
Assurances
|
Each of
the parties hereto upon the request of each of the other parties hereto, whether
before or after the Closing Time, shall do, execute, acknowledge and deliver or
cause to be done, executed, acknowledged and delivered all such further acts,
deeds, documents, assignments, transfers, conveyances, powers of attorney and
assurances as may reasonably be necessary or desirable to complete the
transactions contemplated herein.
|
9.2
|
Notices |
|
|
a)
|
Any
notice, direction or other instrument required or permitted to be given to
any party hereto shall be in writing and shall be sufficiently given if
delivered personally, or transmitted by facsimile to such party, as
follows:
|
|
|
a.
|
in
the case of the Company, to:
|
Legend
International Holdings, Inc.
▇▇▇▇▇ ▇,
▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇▇, President and Chief Executive Officer
Fax: 613
8532 2805
|
|
b.
|
in
the case of the Subscriber at the address specified herein with a copy to
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ (on behalf of the
Agents):
|
BMO
▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc.
▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇
▇. Attew
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
|
|
b)
|
Any
such notice, direction or other instrument, if delivered personally, shall
be deemed to have been given and received on the day on which it was
delivered, provided that if such day is not a Business Day then the
notice, direction or other instrument shall be deemed to have been given
and received on the first Business Day next following such day and if
transmitted by fax, shall be deemed to have been given and received on the
day of its transmission, provided that if such day is not a Business Day
or if it is transmitted or received after the end of normal business hours
then the notice, direction or other instrument shall be deemed to have
been given and received on the first Business Day next following the day
of such transmission.
|
|
|
c)
|
Any
party hereto may change its address for service from time to time by
notice given to each of the other parties hereto in accordance with the
foregoing provisions.
|
|
9.3
|
Time
of the Essence
|
Time shall
be of the essence of this Subscription Agreement and every part
hereof.
|
9.4
|
Costs
and Expenses
|
All costs
and expenses (including, without limitation, the fees and disbursements of legal
counsel) incurred by the Subscriber in connection with this Subscription
Agreement and the transactions herein contemplated shall be paid and borne by
the Subscriber.
|
9.5
|
Applicable
Law and Venue
|
This
Subscription Agreement, any amendment, addendum, annex, exhibit, supplement, or
other document relating hereto, and any dispute arising from or related thereto,
shall be governed by and construed in accordance with the internal laws of the
Province of Ontario governing contracts made and to be performed wholly therein,
without reference to its principles governing the choice or conflict of laws,
and the parties hereto and their successors in interest irrevocably attorn and
submit to the exclusive jurisdiction of the courts of the Province of Ontario,
sitting in the City of Toronto, with respect to any dispute arising from or
related thereto.
|
9.6
|
Entire
Agreement
|
This
Subscription Agreement, including the Schedules hereto, constitutes the entire
agreement between the parties with respect to the transactions contemplated
herein and cancels and supersedes any prior understandings, agreements,
negotiations and discussions between the Company and the
Subscriber. There are no representations, warranties, terms,
conditions, undertakings or collateral agreements or understandings, express or
implied, between the parties hereto other than those expressly set forth in this
Subscription Agreement or in any such agreement, certificate, affidavit,
statutory declaration or other document as aforesaid. This
Subscription Agreement may not be amended or modified in any respect except by
written instrument executed by each of the parties hereto.
|
9.7
|
Counterparts
|
This
Subscription Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same Subscription Agreement. Counterparts may be
delivered either in original, faxed or electronically scanned form and the
parties adopt any signature received by a receiving fax machine or computer as
original signatures of the parties.
|
9.8
|
Assignment
|
This
Subscription Agreement may not be assigned by either party except with the prior
written consent of the other parties hereto.
|
9.9
|
Enurement
|
This
Subscription Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors, successors (including any
successor by reason of the amalgamation or merger of any party), administrators
and permitted assigns.
|
9.10
|
Language
|
It is the
express wish of the Subscriber that the Subscription Agreement and any related
documentation be drawn up in English. Il est de la volonté expressed
du souscripteur que la convention de souscription ainsi que tout document
connexe soient rédigés en langue anglaise.
The
Company hereby accepts the subscription for Common Shares set forth in this
Subscription Agreement on the terms and conditions contained in the Subscription
Agreement (including all applicable schedules) as of the Closing
Date.
|
LEGEND
INTERNATIONAL HOLDINGS, INC.
|
|||
|
Per:
|
|||
|
Authorized
Signing Officer
|
|||
SCHEDULE
“A”
TERM
SHEET
INDICATIVE
TERMS AND CONDITIONS
|
Issuer:
|
Legend
International Holdings, Inc. (“Legend” or the “Company”).
|
|
Offering:
|
Treasury
offering of 42,000,000 common shares (“Common Shares”)
|
|
Offering
Size:
|
US$105,000,000
|
|
Offering
Price:
|
US$2.50
per Common Share
|
|
Use
of Proceeds:
|
The
net proceeds from the Offering will be used to advance Lady ▇▇▇▇▇, Lady
▇▇▇▇, D-Tree and other phosphate properties in the Queensland Territory
that Legend has identified to a feasibility stage and for general working
capital purposes.
|
|
Form
of Offering:
|
Marketed
private placement of Common Shares, provided that such sales will be
completed in accordance with applicable securities laws and under
available exemptions from prospectus and registration requirements, and
without the use of an offering memorandum.
All
offers and sales will be made in all provinces of Canada to purchasers who
are “Accredited Investors” (as defined in National Instrument 45-106) or
otherwise eligible to purchase without a prospectus under other available
prospectus exemptions. U.S. sales will be made by
private placement to “accredited investors” (as defined in
Regulation D) pursuant to Regulation D, with subsequent Registration
Rights. The private placement may also be sold internationally, as
permitted.
|
|
Registration
Rights:
|
The
Company will enter into a registration rights agreement with the Lead
Agent for the benefit of the holders of the Common Shares pursuant to
which the Company will agree to use commercially reasonable efforts to
register the Common Shares sold in the Offering by filing a post-effective
amendment (“P/E Amendment”) to the Company’s registration statement on
form S-1 (file No. 333-145082) (or by filing a new registration statement
(“New Registration Statement”) if the P/E Amendment is not available) with
the United States Securities and Exchange Commission in order for the P/E
Amendment or the New Registration Statement to be become effective within
120 days of closing of the Offering.
If
the Company fails to comply with this obligation within the specified time
period, the Company will pay to the purchasers as a penalty for such
failure, a penalty of additional Common Shares equal to 1.2% of the number
of shares purchased by the purchaser in the Offering. This
penalty shall be paid monthly, until the Company complies with such
obligation.
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|
Listing:
|
The
existing common shares trade OTC under the symbol “LGDI”. Application will
be made to list the Common Shares on the American Stock
Exchange.
|
|
Syndicate:
|
BMO
Capital Markets 80% / BBY Australia 10%, Wellington West 10%
BMO
Capital Markets – Lead Agent & Sole Bookrunner
|
|
Selling
Concession:
|
$0.065
per Common Share
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|
Closing:
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June
3, 2008
|
SCHEDULE
“B”
CANADIAN
ACCREDITED INVESTOR STATUS CERTIFICATE
The
categories listed herein contain certain specifically defined
terms. If you are unsure as to the meanings of those terms, or are
unsure as to the applicability of any category below, please contact your broker
and/or legal advisor before completing this certificate.
In
connection with the purchase by the undersigned Subscriber of the Common Shares,
the Subscriber, on its own behalf and on behalf of each Disclosed Principal for
whom the Subscriber is contracting (collectively, the “Subscriber”), hereby
represents, warrants, covenants and certifies to the Company (and acknowledges
that the Company and its counsel are relying thereon) that:
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|
(a)
|
the
Subscriber is resident in or otherwise subject to the securities laws of
one of the provinces of British Columbia, Alberta, Saskatchewan, Manitoba,
Ontario, Newfoundland and Labrador, Nova Scotia, New Brunswick or ▇▇▇▇▇▇
▇▇▇▇▇▇ Island;
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|
|
(b)
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the
Subscriber is purchasing the Common Shares as principal for its own
account and not for the benefit of any other
person;
|
|
|
(c)
|
the
Subscriber is an “accredited investor” within the meaning of NI 45-106 on
the basis that the undersigned fits within one of the categories of an
“accredited investor” reproduced below beside which the undersigned has
indicated the undersigned belongs to such
category;
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|
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(d)
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the
Subscriber was not created or used solely to purchase or hold securities
as an accredited investor as described in paragraph (m) below;
and
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|
|
(e)
|
upon
execution of this Schedule “B” by the Subscriber, this Schedule “B” shall
be incorporated into and form a part of the Subscription
Agreement.
|
(PLEASE
CHECK THE BOX OF THE APPLICABLE CATEGORY OF ACCREDITED INVESTOR)
| o | (a) |
a
Canadian financial institution, or a Schedule III bank;
|
| o | (b) | the Business Development Bank of Canada incorporated under the Business Development Bank of Canada Act (Canada); |
| o | (c) |
a
subsidiary of any person referred to in paragraphs (a) or (b), if the
person owns all of the voting securities of the subsidiary, except the
voting securities required by law to be owned by directors of that
subsidiary;
|
| o | (d) |
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 under one or both of the Securities Act
(Ontario) or the Securities
Act (Newfoundland
and Labrador);
|
| o | (e) | an individual registered or formerly registered under the securities legislation of a jurisdiction of Canada as a representative of a person referred to in paragraph (d); |
| o | (f) |
the
Government of Canada or a jurisdiction of Canada, or any crown
corporation, agency or wholly owned entity of the Government of Canada or
a jurisdiction of Canada;
|
| o | (g) |
a
municipality, public board or commission in Canada and a metropolitan
community, school board, the Comité de gestion de la taxe scolaire de
l’île de Montréal or an intermunicipal management board in
Québec;
|
| o | (h) |
any
national, federal, state, provincial, territorial or municipal government
of or in any foreign jurisdiction, or any agency of that
government;
|
| o | (i) |
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;
|
| o | (j) |
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;
|
| o | (k) |
an
individual whose net income before taxes exceeded $200,000 in each of the
two most recent calendar years or whose net income before taxes combined
with that of a spouse exceeded $300,000 in each of the two most recent
calendar years and who, in either case, reasonably expects to exceed that
net income level in the current calendar year;
|
| o | (l) |
an
individual who, either alone or with a spouse, has net assets of at least
$5,000,000;
|
| o | (m) |
a
person, other than an individual or investment fund, that has net assets
of at least $5,000,000 as shown on its most recently prepared financial
statements;
|
| o | (n) | an investment fund that distributes or has distributed its securities only to (i) a person that is or was an accredited investor at the 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 NI45-106, or (iii) a person described in paragraph (i) or (ii) that acquires or acquired securities under section 2.18 [Investment fund reinvestment] of NI45-106; |
| o | (o) |
an
investment fund that distributes or has distributed securities under a
prospectus in a jurisdiction of Canada for which the regulator or, in
Québec, the securities regulatory authority, has issued a
receipt;
|
| o | (p) |
a
trust company or trust corporation registered or authorized to carry on
business under the Trust
and Loan Companies Act (Canada) or under comparable legislation in
a jurisdiction of Canada or a foreign jurisdiction, acting on behalf of a
fully managed account managed by the trust company or trust corporation,
as the case may be;
|
| o | (q) |
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;
|
| o | (r) |
a
registered charity under the Income Tax Act (Canada)
that, in regard to the trade, has obtained advice from an eligibility
adviser or an adviser registered under the securities legislation of the
jurisdiction of the registered charity to give advice on the securities
being traded;
|
| o | (s) |
an
entity organized in a foreign jurisdiction that is analogous to any of the
entities referred to in paragraphs (a) to (d) or paragraph (i) in form and
function;
|
| o | (t) |
a
person in respect of which all of the owners of interests, direct,
indirect or beneficial, except the voting securities required by law to be
owned by directors, are persons that are accredited
investors;
|
| o | (u) |
an
investment fund that is advised by a person registered as an adviser or a
person that is exempt from registration as an adviser,
or
|
| o | (v) |
a
person that is recognized or designated by the securities regulatory
authority or, except in Ontario and Québec, the regulator as (i) an
accredited investor, or (ii) an exempt purchaser in Alberta or British
Columbia.
|
For the
purposes hereof, the following definitions are included for
convenience:
|
|
(a)
|
“Canadian
financial institution” means (i) an
association governed by the Cooperative Credit
Associations Act (Canada) or a central cooperative credit society
for which an order has been made under section 473(1) of that Act, or (ii)
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;
|
|
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(b)
|
“control
person” has
the same meaning as in securities legislation except in Manitoba,
Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut,
Ontario, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Island and Québec where control person means any
person that holds or is one of a combination of persons that holds (i) a
sufficient number of any of the securities of an issuer so as to affect
materially the control of the issuer, or (ii) more than 20% of the
outstanding voting securities of an issuer except where there is evidence
showing that the holding of those securities does not affect materially
the control of the issuer;
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|
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(c)
|
“entity”
means a company, syndicate, partnership, trust or unincorporated
organization;
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(d)
|
“financial
assets” means cash, securities, or any a contract of insurance, a deposit
or an evidence of a deposit that is not a security for the purposes of
securities legislation;
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|
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(e)
|
“founder” means, in respect
of an issuer, a person who, (i) acting alone, in conjunction, or in
concert with one or more persons, directly or indirectly, takes the
initiative in founding, organizing or substantially reorganizing the
business of the issuer, and (ii) at the time of the trade is actively
involved in the business of the
issuer;
|
|
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(f)
|
“fully
managed account” means an account of a client for which a person makes the
investment decisions if that person has full discretion to trade in
securities for the account without requiring the client’s express consent
to a transaction;
|
|
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(g)
|
“investment
fund” means a mutual fund or a non-redeemable investment fund, and, for
greater certainty in British Columbia, includes an employee venture
capital corporation that does not have a restricted constitution, and is
registered under Part 2 of the Employee Investment Act
(British Columbia), R.S.B.C. 1996 c. 112, and whose business objective is
making multiple investments and a venture capital corporation registered
under Part 1 of the Small Business Venture Capital
Act (British Columbia), R.S.B.C. 1996 c. 429 whose business
objective is making multiple
investments;
|
|
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(h)
|
“mutual
fund” means an issuer whose primary purpose is to invest money provided by
its security holders and whose securities entitle the holder to receive on
demand, or within a specified period after demand, an amount computed by
reference to the value of a proportionate interest in the whole or in part
of the net assets, including a separate fund or trust account, of the
issuer;
|
|
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(i)
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“non-redeemable
investment fund” means an issuer,
|
(A) whose
primary purpose is to invest money provided by its securityholders,
(B) that
does not invest,
|
|
(i)
|
for
the purpose of exercising or seeking to exercise control of an issuer,
other than an issuer that is a mutual fund or a non-redeemable investment
fund, or
|
|
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(ii)
|
for
the purpose of being actively involved in the management of any issuer in
which it invests, other than an issuer that is a mutual fund or a
non-redeemable investment fund, and
|
(C) that
is not a mutual fund;
|
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(j)
|
“related
liabilities” means liabilities incurred or assumed for the purpose of
financing the acquisition or ownership of financial assets and liabilities
that are secured by financial
assets;
|
|
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(k)
|
“Schedule
III bank” means an
authorized foreign bank named in Schedule III of the Bank Act
(Canada);
|
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(l)
|
“spouse”
means an individual who (i) is married to another individual and is not
living separate and apart within the meaning of the Divorce Act (Canada),
from the other individual, (ii) is living with another individual in a
marriage-like relationship, including a marriage-like relationship between
individuals of the same gender, or (iii) in Alberta, is an individual
referred to in paragraph (i) or (ii), or is an adult interdependent
partner within the meaning of the Adult Interdependent
Relationships Act (Alberta);
and
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|
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(m)
|
“subsidiary”
means an issuer that is controlled directly or indirectly by another
issuer and includes a subsidiary of that
subsidiary.
|
In NI
45-106 a person or company is an affiliate of another person or company if one
of them is a subsidiary of the other, or if each of them is controlled by the
same person.
In NI
45-106 a person (first person) is considered to control another person (second
person) if (a) the first person, directly or indirectly, beneficially owns or
exercises control or direction over securities of the second person carrying
votes which, if exercised, would entitle the first person to elect a majority of
the directors of the second person, unless that first person holds the voting
securities only to secure an obligation, (b) the second person is a partnership,
other than a limited partnership, and the first person holds more than 50% of
the interests of the partnership, or (c) the second person is a limited
partnership and the general partner of the limited partnership is the first
person.
The
foregoing representations contained in this certificate are true and accurate as
of the date of this certificate and will be true and accurate as of the Closing
Time. If any such representations shall not be true and accurate
prior to the Closing Time, the undersigned shall give immediate written notice
of such fact to the Company prior to the Closing Time.
|
Dated:
|
____________________
|
Signed:
|
_______________________________
|
|
|
_________________________________
Witness
(If Subscriber is an individual)
|
________________________________________
Print
the name of Subscriber
|
|||
|
_________________________________
Print
the name of Witness
|
________________________________________
If
Subscriber is a corporation,
print
name and title of Authorized Signing
Officer
|
|||
SCHEDULE
“C”
U.S. ACCREDITED INVESTOR
STATUS CERTIFICATE
The
undersigned Subscriber hereby certifies that it is an Accredited Investor as
that term is defined in Regulation D adopted pursuant to the Securities Act of
1933, as amended (the “Act”). The specific category(ies) of
Accredited Investor applicable to the undersigned is/are initialled
below.
ALL
REFERENCES TO DOLLAR AMOUNTS IN THIS SCHEDULE “B” ARE TO THE LAWFUL CURRENCY OF
THE UNITED STATES.
|
_____
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(1) a
bank as defined in Section 3(a)(2) of the Act, or any savings and loan
association or other institution as defined in Section 3(a)(5)(A) of the
Act, whether acting in its individual or fiduciary capacity; any broker or
dealer registered pursuant to Section 15 of the Securities Exchange Act of
1934; any insurance company as defined in Section 2(a)(13) of the Act; any
investment company registered under the Investment Company Act of 1940
(the “1940 Act”) or a business development company as defined in Section
2(a)(48) of the 1940 Act; a Small Business Investment Company licensed by
the U.S. Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958; any plan established and maintained
by a state, its political subdivisions or any agency or instrumentality of
a state or its political subdivisions, for the benefit of its employees,
if such plan has total assets in excess of $5,000,000; or any employee
benefit plan within the meaning of Title I of the Employee Retirement
Income Security Act of 1974 (“ERISA”), if the investment decision is made
by a plan fiduciary, as defined in Section 3(21) of ERISA, which is either
a bank, savings and loan association, insurance company or registered
investment adviser, or if the employee benefit plan has total assets in
excess of $5,000,000 or, if a self-directed plan, with investment
decisions made solely by persons that are Accredited
Investors;
|
|
_____
|
(2) any
private business development company as defined in Section 202(a)(22) of
the 1940 Act;
|
|
_____
|
(3) any
organization described in Section 501(c)(3) of the Internal Revenue Code,
corporation, Massachusetts or similar business trust, or partnership, not
formed for the specific purpose of acquiring the Common Shares, with total
assets in excess of $5,000,000;
|
|
_____
|
(4) any
trust, with total assets in excess of $5,000,000, not formed for the
specific purpose of acquiring the Common Shares, whose purchase is
directed by a sophisticated person as described in Rule 506(b)(2)(ii) of
Regulation D under the Act;
|
|
_____
|
(5) any
director or executive officer of the
Company;
|
|
_____
|
(6) any
natural person whose individual net worth, or joint net worth with that
person’s spouse, at the date hereof exceeds
US$1,000,000;
|
|
_____
|
(7) any
natural person who had an individual income in excess of US$200,000 in
each of the two most recent years or joint income with that person’s
spouse in excess of US$300,000 in each of those years and has a reasonable
expectation of reaching the same income level in the current year;
or
|
|
_____
|
(8) any
entity in which all of the equity owners are Accredited
Investors.
|
IN WITNESS
WHEREOF, the undersigned has executed this U.S. Accredited Investor Certificate
this
day of ________________________, 2008.
______________________________________
Name of
Subscriber
By:
___________________________________
Authorized
Individual