Exhibit 4.12
SUBSCRIPTION AGREEMENT
To: Cedara Software Corp.
The undersigned (the "Purchaser") hereby irrevocably subscribes for
and agrees to purchase from Cedara Software Corp. (the "Company") on the terms
and conditions set forth in this subscription agreement that number of common
shares (the "Shares") of the Company set forth below under the heading
"Subscription Particulars". This subscription is in consideration of services
rendered by the Purchaser to the Company.
1. Conditions of Purchase
The Purchaser acknowledges that the Company's obligation to sell the
Shares to the Purchaser is subject to, among other things, the conditions
that:
(a) the Purchaser executes and returns to the Company all
documents required by applicable securities legislation and
The Toronto Stock Exchange for delivery on behalf of the
Purchaser;
(b) all necessary regulatory approvals being obtained by the
Company prior to the Closing;
(c) the sale of the Shares is exempt from the requirement to
file a prospectus and the requirement to deliver an offering
memorandum under applicable securities legislation relating
to the sale of the Shares or the Company shall have received
such orders, consents or approvals as may be required to
permit such sale without the requirement of filing a
prospectus or delivering an offering memorandum; and
(d) the representations and warranties of the Purchaser remain
true and correct as at the Closing.
2. Delivery
The Purchaser agrees that the following shall be delivered to the
Company prior to the Closing:
(a) one completed and duly signed copy of this subscription
agreement;
(b) all other documentation as may be required by applicable
securities legislation and The Toronto Stock Exchange,
including a duly completed Private Placement Questionnaire
and Undertaking in the form annexed hereto as Schedule "A";
and
(c) a full and final release in respect of all fees and
disbursements owing to the Purchaser in the form annexed
hereto as Schedule "B".
Delivery by the Company of the certificates representing the Shares
shall be completed at a closing (the "Closing") to be held at such time and
place as may be mutually agreed upon by the Company and the Purchaser,
provided that the Closing is held no later than on the day mandated by The
Toronto Stock Exchange for the closing of the offering.
3. Purchaser's Acknowledgements
The Purchaser acknowledges that:
(a) the sale and delivery of the Shares to the Purchaser is
conditional upon such sale being exempt from the prospectus
filing requirements of any applicable statute relating to
the sale of the Shares or upon the issuance of such orders,
rulings, consents or approvals as may be required to permit
such sale without the requirement of filing a prospectus;
(b) the Company will be required to disclose to applicable
securities regulatory authorities the identity of the
Purchaser;
(c) the Shares will be subject to resale restrictions under
applicable securities legislation, rules, regulations and
policies and the Purchaser will comply with all relevant
securities legislation, rules, regulations and policies
concerning any resale of the Shares and will consult with
its legal advisers or counsel to the Company with respect to
complying with all restrictions applying to any such resale;
(d) no agency, governmental authority, regulatory body, stock
exchange or other entity has made any finding or
determination as to the merit for investment of, nor have
any such agencies or governmental authorities made any
recommendation or endorsement with respect to, the Shares;
(e) the purchase of the Shares has not been or will not be (as
applicable) made through, or as a result of, and the
distribution of the Shares is not being accompanied by, a
general solicitation or advertisement including articles,
notices or other communications published in any newspaper,
magazine or similar media or broadcast over radio or
television, or any seminar or meeting whose attendees have
been invited by general solicitation or general advertising;
(f) the Shares are being offered for sale only on a "private
placement" basis;
(g) upon the issuance of the Shares, the certificates
representing the Shares shall bear the following legend
until the expiration of the applicable hold period:
"Unless permitted under securities legislation, the holder
of the securities shall not trade the securities before
[insert the date that is four months and a day after the
distribution date]."; and
(h) the representations, warranties and covenants contained in
this subscription agreement are made by it with the intent
that they may be relied upon by the Company in determining
its eligibility to purchase the Shares. The Purchaser
further agrees that by accepting the Shares the Purchaser
shall be representing and warranting that the foregoing
representations and warranties are true as at the Closing
with the same force and effect as if they had been made by
the Purchaser at the Closing and that they shall survive the
purchase by the Purchaser of the Shares and shall continue
in full force and effect notwithstanding any subsequent
disposition by it of the Shares.
4. Purchaser's Representations and Warranties
The Purchaser hereby represents, warrants and covenants to the
Company (which representations, warranties and covenants shall survive Closing
and continue in full force and effect) that:
(a) the Purchaser was offered the Shares in, and is resident in,
the Province of Ontario and intends that the securities laws
of the Province of Ontario govern the Purchaser's
subscription;
(b) the Purchaser is an "accredited investor" within the meaning
of Rule 45-501 promulgated under the Securities Act
(Ontario) and has completed the certificate set forth in
Schedule "C";
(c) the Purchaser acknowledges that in addition to compliance
with the restrictions on resale applicable under applicable
securities legislation to which the Shares may be subject,
the Purchaser is required to file with the Ontario
Securities Commission, within 10 days of the initial trade
(other than a trade exempted from the prospectus
requirements) in any of the Shares, a report in Form
45-501F2 (along with the accompanying fee);
(d) the Purchaser will execute and deliver all documentation as
may be required by applicable securities legislation, rules,
regulations and policies to permit the purchase of the
Shares on the terms herein set forth;
(e) this agreement has been duly authorized, executed and
delivered by, and constitutes a legal, valid and binding
agreement of, the Purchaser subject to:
(i) any applicable bankruptcy, insolvency or other laws
affecting the enforcement of creditors' rights
generally; and
(ii) general principles of equity, including that the
granting of equitable remedies is within the
discretion of a court of competent jurisdiction.
The Purchaser further acknowledges that it is not a person within the
United States (as such term is defined in Rule 902 of Regulation S under the
United States Securities Act of 1933, as amended), and is not acquiring the
Shares for the account or benefit of a person within the United States. The
Shares were not offered to the Purchaser in the United States and this
agreement has not been signed in the United States.
5. Right of Action and Waiver
The Purchaser hereby waives and releases the Company from, to the
fullest extent permitted by law, all rights of withdrawal to which it might
otherwise be entitled under applicable securities legislation, rules,
regulations and policies.
6. Governing Law
This agreement shall be governed by and construed in accordance with
the laws of the Province of Ontario and the federal laws of Canada applicable
therein. The Purchaser hereby irrevocably attorns to the non-exclusive
jurisdiction of the courts of the Province of Ontario with respect to any
matters arising out of this agreement.
7. Assignment
This agreement is not transferable or assignable by the parties
hereto.
8. Entire Agreement
This agreement contains the entire agreement of the parties hereto
relating to the subject matter hereof and there are no representations,
covenants or other agreements relating to the subject matter hereof except as
stated or referred to herein or therein.
9. Successors and Assigns
This agreement shall be binding upon and enure to the benefit of the
parties hereto and their respective successors and permitted assigns.
10. Currency
Except where otherwise expressly provided, all amounts in this
agreement are stated and shall be paid in United States currency.
11. Time of Essence
Time shall be of the essence of this agreement.
12. Headings
The headings contained herein are for convenience only and shall not
affect the meaning or interpretation of this agreement.
13. Subscription Particulars
(a) The Purchaser hereby agrees to purchase Shares as set forth
below:
Number of Shares: 25,000 Shares
Name of Purchaser: Standard Securities Capital
Corporation
Street Address: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
City and Province: Toronto, Ontario
Postal Code: M5R 2E2
Contact: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) Registration of the certificates representing the Shares
should be made as follows (if space is insufficient, attach
a list):
Name: Standard Securities Capital
Corporation
Registration Address: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ and Province: Toronto, Ontario
Postal Code: ▇▇▇ ▇▇▇
Registration Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) The certificates representing the Shares are to be delivered
as follows (if different from the address(es) set forth in
section (a) above):
Name: Same as above
Address: ____________________________________________________
City and Province: __________________________________________
Postal Code: ________________________________________________
Telephone/Contact: __________________________________________
14. Signature of Purchaser
Signature of Purchaser.
Standard Securities Capital Corporation
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(Full Name of Purchaser - please print)
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------
(Authorized Signature)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, C.O.O.
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(Name and Official Capacity - please print)
15. Confirmation and Acceptance
This agreement is confirmed and accepted as to 25,000 Shares by the
Company.
DATED as of the 22nd day of May, 2002
CEDARA SOFTWARE CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer and
Corporate Secretary
SCHEDULE "A"
THE TORONTO STOCK EXCHANGE
PRIVATE PLACEMENT QUESTIONNAIRE AND UNDERTAKING
To be completed by each proposed private placement purchaser of
listed securities or securities which are convertible into listed securities.
QUESTIONNAIRE
1. DESCRIPTION OF TRANSACTION
(a) Name of Issuer of the Securities
Cedara Software Corp. (the "Company")
(b) Number and Class of Securities to be Purchased
25,000 common shares (the "Shares")
(c) Purchase Price: Not applicable. The subscription is in
consideration of services rendered by the Purchaser to the
Company.
(d) Penalty
None
2. DETAILS OF PURCHASER
(a) Name of Purchaser Standard Securities Capital Corporation
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(b) Address of Purchaser ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
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M5R 2E2
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(c) Names and addresses of persons having a greater than 10%
beneficial interest in the Purchaser
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3. RELATIONSHIP TO ISSUER
(a) Is the Purchaser, or any person named in response to 2(c)
above, an insider of the issuer for the purposes of the
Securities Act (Ontario) (before giving effect to this
private placement)? If so, state the capacity in which the
purchaser qualifies as an insider
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(b) If the answer to (a) is "no", are the Purchaser and the
issuer controlled by the same person or company? If so, give
details
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4. DEALINGS OF PURCHASER IN SECURITIES OF THE ISSUER
Give details of all trading by the Purchaser, as principal, in the
securities of the issuer (other than debt securities which are not convertible
into equity securities), directly or indirectly, within the 60 days preceding
the date hereof
See Attached Schedule D
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UNDERTAKING
TO: The Toronto Stock Exchange
The undersigned has subscribed for and agreed to purchase, as
principal, the securities described in Item 1 of this Private Placement
Questionnaire and Undertaking. The undersigned undertakes not to sell or
otherwise dispose of any of the said securities so purchased or any securities
derived therefrom for a period of four months from the date of the closing of
the transaction described herein or for such period as is prescribed by
applicable securities laws, whichever is longer, without the prior consent of
The Toronto Stock Exchange and any other regulatory body having jurisdiction.
DATED AT Toronto _____________________
Standard Securities Capital Corporation
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(Name of Purchaser - please print)
this 22nd day of May, 2002 /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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(Authorized Signature)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, C.O.O.
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(Official Capacity - please print)
(please print here name of individual whose signature appears above, if
different from name of purchaser printed above)
SCHEDULE "B"
RELEASE
To: Cedara Software Corp.
The undersigned hereby releases and forever discharges Cedara Software Corp.
and its directors, officers, agents, employees, shareholders, representatives
and affiliates of and from all actions, causes of action, suits, duties,
debts, accounts, bonds, covenants, contracts, claims and demands whatsoever
that the undersigned, now has or hereafter can, shall or may have for or by
reason of or in any way arising out of (directly or indirectly) any cause,
matter or thing whatsoever with respect to or in connection with the payment
of any or all fees and disbursements owed to the undersigned pursuant to the
engagement agreement dated August 15, 2001 between the undersigned and Cedara
Software Corp.
DATED as of the _________ day of _________, 2002
STANDARD SECURITIES CAPITAL
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: C.O.O.
SCHEDULE "C"
CERTIFICATE
The undersigned (the "Purchaser") hereby represents, covenants and
certifies to Cedara Software Corp. (the "Company") that the Purchaser is
purchasing the securities of the Company as principal, is resident in or is
subject to the laws of the Province of Ontario and is an "accredited investor"
(as that phrase is defined in Rule 45-501 promulgated under the Securities Act
(Ontario)) by virtue of satisfying the indicated criterion on Appendix "1"
hereto.
Dated at _______ this __ day of _______, 2002.
STANDARD SECURITIES CAPITAL
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: C.O.O.
APPENDIX "1"
(Words in bold have the meanings set forth at the end of this
Appendix "1".)
The Purchaser hereby certifies to the Company that the Purchaser is: [Please
check the appropriate box.]
|_| (a) a bank listed in Schedule I or II of the Bank Act
(Canada), or an authorized foreign bank listed in
Schedule III of the Bank Act (Canada);
|_| (b) the Business Development Bank incorporated under the
Business Development Bank Act (Canada);
|_| (c) a loan corporation or trust corporation registered
under the Loan and Trust Corporations Act (Ontario)
or under the Trust and Loan Companies Act (Canada),
or under comparable legislation in any other
jurisdiction;
|_| (d) a co-operative credit society, credit union
central, federation of caisses populaires, credit
union or league, or regional caisse populaire, or an
association under the Cooperative Credit Associations
Act (Canada), in each case, located in Canada;
|_| (e) a company licensed to do business as an insurance
company in any jurisdiction;
|_| (f) a subsidiary of any company referred to in paragraph
(a), (b), (c), (d) or (e), where the company owns all
of the voting shares of the subsidiary;
x (g) a person or company registered under the Securities
Act (Ontario) or securities legislation in another
jurisdiction as an adviser or dealer, other than a
limited market dealer;
|_| (h) the government of Canada or of any jurisdiction, or
any crown corporation, instrumentality or agency of a
Canadian federal, provincial or territorial
government;
|_| (i) a Canadian municipality or any Canadian provincial or
territorial capital city;
|_| (j) a national, federal, state, provincial, territorial
or municipal government of or in any foreign
jurisdiction, or any instrumentality or agency
thereof;
|_| (k) a pension fund that is regulated by either the Office
of the Superintendent of Financial Institutions
(Canada) or a provincial pension commission or
similar regulatory authority;
|_| (l) a registered charity under the Income Tax Act
(Canada);
|_| (m) an individual who beneficially owns, or who
together with a spouse beneficially own, financial
assets having an aggregate realizable value that,
before taxes but net of any related liabilities,
exceeds C$1,000,000;
|_| (n) an individual whose net income before taxes
exceeded C$200,000 in each of the two most recent
years or whose net income before taxes combined with
that of a spouse exceeded C$300,000 in each of those
years and who, in either case, has a reasonable
expectation of exceeding the same net income level in
the current year;
|_| (o) an individual who has been granted registration
under the Securities Act (Ontario) or securities
legislation in another jurisdiction as a
representative of a person or company referred to in
paragraph (g), whether or not the individual's
registration is still in effect;
|_| (p) a promoter of the Company or an affiliated entity of
a promoter of the Company;
|_| (q) a spouse, parent, grandparent or child of an officer,
director or promoter of the Company;
|_| (r) a person or company that, in relation to the Company,
is an affiliated entity or a person or company
referred to clause (c) of the definition of
distribution in subsection 1(1) of the Securities Act
(Ontario) (Control Person);
|_| (s) a company, limited partnership, limited liability
partnership, trust or estate, other than a mutual
fund or non-redeemable investment fund, that has net
assets of at least C$5,000,000 as reflected in its
most recently prepared financial statements;
|_| (t) a person or company that is recognized by the
Commission as an accredited investor; [Note: A
discretionary order is required from the Ontario
Securities Commission]
|_| (u) a mutual fund or non-redeemable investment fund that,
in Ontario, distributes its securities only to
persons or companies that are accredited investors;
|_| (v) a mutual fund or non-redeemable investment fund that,
in Ontario, distributes its securities under a
prospectus for which a receipt has been granted by
the Director;
|_| (w) a managed account if it is acquiring a security that
is not a security of a mutual fund or non-redeemable
investment fund;
|_| (x) an account that is fully managed by a trust
corporation registered under the Loan and Trust
Corporations Act (Ontario);
|_| (y) an entity organized outside of Canada that is
analogous to any of the entities referred to in
paragraph (a) through (g) and paragraph (k) in form
and function; or
|_| (z) a person or company in respect of which all of
the owners of interests, direct or indirect, legal or
beneficial, are persons or companies that are
accredited investors.
For the purposes hereof:
"company" means any corporation, incorporated association, incorporated
syndicate or other incorporated organization.
"control person" means any person, company or combination of persons or
companies holding a sufficient number of any securities of the Company to
affect materially the control of the Company, but any holding of any persons,
company or combination of persons or companies holding more than 20 per cent
of the outstanding voting securities of the Company, in the absence of
evidence to the contrary, shall be deemed to affect materially the control of
the Company.
"director" where used in relation to a person, includes a person acting in a
capacity similar to that of a director of a company.
"entity" means a company, syndicate, partnership, trust or unincorporated
organization.
"financial assets" means cash, securities, or any contract of insurance or
deposit or evidence thereof that is not a security for the purposes of the
Securities Act (Ontario).
"individual" means a natural person, but does not include a partnership,
unincorporated association, unincorporated organization, trust or a natural
person in his or her capacity as trustee, executor, administrator or other
legal personal representative.
"managed account" means an investment portfolio account of a client
established in writing with a portfolio adviser who makes investment decisions
for the account and has full discretion to trade in securities of the account
without requiring the client's express consent to a transaction.
"mutual fund" includes an issuer of securities that 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 a part of the net assets, including a separate fund of trust account, of
the issuer of the securities.
"non-redeemable investment fund" means an issuer
(aa) whose primary purpose is to invest money provided by its
securityholders;
(bb) that does not invest for the purpose of exercising effective
control, seeking to exercise effective control, or being
actively involved in the management of the issuers in which
it invests, other than other mutual funds or non-redeemable
investment funds; and
(cc) that is not a mutual fund.
"officer" means the chair, any vice-chair of the board of directors, the
president, any vice president, the secretary, the assistant secretary, the
treasurer, the assistant treasurer, and the general manager of a company, and
any other person designated an officer or a company by by-law or similar
authority, or any individual acting in a similar capacity on behalf of the
Company.
"person" means an individual, partnership, unincorporated association,
unincorporated syndicate, unincorporated organization, trust, trustee,
executor, administrator, or other legal representative.
"portfolio adviser" means
(dd) a portfolio manager; or
(ee) a broker or investment dealer exempted from registration as
an adviser under subsection 148(1) of the Regulation if that
broker or investment dealer is not exempt from the by-laws
or regulations of The Toronto Stock Exchange or the
Investment Dealers' Association of Canada referred to in
that subsection.
"promoter" means (a) a person or company who, acting alone or in conjunction
with one or more other persons, companies or a combination thereof, directly
or indirectly, has taken the initiative in founding, organizing or
substantially reorganizing the business of the Company, or (b) a person or
company who, in connection with the founding, organizing or substantial
reorganizing of the business of the Company, directly or indirectly, received
in consideration of services or property, or both services and property, 10
per cent or more of any class of securities of the Company or 10 per cent or
more of the proceeds from the sale of any class of securities of a particular
issue, but a person or company who receives such securities or proceeds either
solely as underwriting commissions or solely in consideration of property
shall not be deemed a promoter within the meaning of this definition if such
person or company does not otherwise take part in founding, organizing, or
substantially reorganizing the business.
"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.
"spouse" in relation to an individual, means another individual to whom that
individual is married, or another individual of the opposite sex or the same
sex with whom that individual is living in a conjugal relationship outside
marriage.
Affiliated Entities, Control and Subsidiaries
5. A person or company is considered to be an affiliated entity of
another person or company if one is a subsidiary entity of the other,
or if both are subsidiary entities of the same person or company, or
if each of them is controlled by the same person or company.
6. A person or company is considered to be controlled by a person or
company if
(a) in the case of a person or company,
(i) voting securities of the first mentioned person or
company carrying more than 50 percent of the votes
for the election of directors are held, otherwise
than by way of security only, by or for the benefit
of the other person or company, and
(ii) the votes carried by the securities are entitled,
if exercised, to elect a majority of the directors
of the first-mentioned person or company;
(b) in the case of a partnership that does not have directors,
other than a limited partnership, the second-mentioned
person or company holds more than 50 percent of the
interests in the partnership; or
(c) in the case of a limited partnership, the general partner is
the second-mentioned person or company.
7. A person or company is considered to be a subsidiary entity of
another person or company if
(a) it is controlled by,
(i) that other, or
(ii) that other and one or more persons or companies
each of which is controlled by that other, or
(iii) two or more persons or companies, each of which is
controlled by that other; or
(b) it is a subsidiary entity of a person or company that is the
other's subsidiary entity.