EXHIBIT 99.C
SUBSCRIPTION
AGREEMENT
(Canadian and other Non-United States Subscribers)
A completed and
originally executed copy of this Subscription Agreement, including all applicable
schedules hereto, must be delivered by no later
than 12:00 p.m. (Toronto time) on June 27, 2006 to: Orion Securities Inc., ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, Attn:
▇▇▇▇▇▇▇ ▇▇▇▇▇, Fax # (▇▇▇) ▇▇▇-▇▇▇▇.
THE LEAD UNDERWRITER HAS BEEN ENGAGED
TO ACT AS AN ADVISOR TO THE COMPANY IN CONNECTION WITH THE ACQUISITION (AS HEREINAFTER
DEFINED) AND WILL RECEIVE A FEE UPON THE SUCCESSFUL COMPLETION OF SUCH ACQUISITION, A
CONDITION PRECEDENT OF WHICH IS THE CLOSING OF THE OFFERING. ACCORDINGLY, IN CONNECTION
WITH THE OFFERING, THE COMPANY MAY BE CONSIDERED A “CONNECTED ISSUER” OF THE
LEAD UNDERWRITER UNDER APPLICABLE SECURITIES LAWS. SEE SECTION 1 AND SUBSECTION 10(K)
BELOW.
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GLENCAIRN
GOLD CORPORATION (the "Company") |
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ORION SECURITIES INC. (the "Lead Underwriter") |
| AND TO: |
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CANACCORD ▇▇▇▇▇ INC., DUNDEE SECURITIES CORPORATION and BLACKMONT CAPITAL INC.
(together with the Lead Underwriter, the "Underwriters") |
The undersigned (the
“Purchaser”), 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 securities of the Company set out below to be issued for
the aggregate consideration set out below, subject to the following terms and conditions.
This agreement, which for greater certainty includes and incorporates the attached
schedules, is referred to herein as the “Subscription Agreement”. The
Purchaser agrees to be bound by the terms and conditions set forth in the attached
“Terms and Conditions of Subscription” including without limitation the
representations, warranties and covenants set forth in the schedules attached thereto. The
Purchaser further agrees, without limitation, that the Company, the Underwriters, and
their respective counsel, may rely on the Purchaser’s representations, warranties and
covenants contained in such documents.
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| Issuer: Glencairn Gold Corporation |
Issue: Subscription Receipts (Each Subscription Receipt exercisable to
acquire one common share and one-half of one common share purchase warrant of the Company.) |
Price Per Subscription Receipt:
$0.60
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| No. of Subscription Recipets Purchased: 4,200,000 |
Total Subscription Price: $2,520,000.00 |
Number of Common Shares of the
Company Currently Owned (directly and indirectly): 5,822,500
DATED this 27th day of
June, 2006.
Name and Address of Purchaser
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| YAMANA RESOURCES LTD. |
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c/o YAMANA GOLD INC. |
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| (Name of Purchaser - please print) |
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(Purchaser's Address) |
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| Director |
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ |
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| Authorized Signature |
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(Telephone Number) |
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(▇▇▇) ▇▇▇-▇▇▇▇ |
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different than the name of the Purchaser printed above.) |
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(Facsimile Number) |
Details of Beneficial Purchaser
(if the Purchaser is purchasing as agent for a principal and is not purchasing as agent or
trustee for accounts fully managed by it):
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(Beneficial Purchaser's Address) |
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| (if space is inadequate please attach a schedule containing
the necessary information) |
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| Registration Instructions: |
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Delivery Instructions: |
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| ▇▇▇▇▇▇▇ ▇▇▇▇▇ LIMITED |
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YAMANA GOLD INC. |
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| For the account of YAMANA GOLD |
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| Account reference, if applicable |
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Account reference, if applicable |
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Contact Name |
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| Vancouver, B.C. |
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Facsimile Number |
ACCEPTANCE
The
foregoing is acknowledged, accepted and agreed to this 6th day of July, 2006.
GLENCAIRN GOLD CORPORATION
Per: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Authorized
Signing Officer
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TERMS AND CONDITIONS
OF SUBSCRIPTION
1.
Subscription. The Purchaser hereby tenders to the Company this
Subscription Agreement which, upon acceptance by the Company, will constitute an
irrevocable agreement of the Purchaser to purchase from the Company and, of the
Company to sell to the Purchaser, the number of subscription receipts of the
Company (“Subscription Receipts”) set out on the face page
hereof (the “Purchaser’s Securities”) at the price of
$0.60 per Purchaser’s Security (the “Purchase Price”), all
on the terms and subject to the conditions set out in this Subscription
Agreement. Each Subscription Receipt shall be automatically exercised (without
any further action by the holders thereof) for one unit of the Company (a
“Unit”) without payment of any consideration in addition
to the Purchase Price of such Subscription Receipt, upon the completion of the
acquisition of the La Libertad gold mine in Nicaragua (“La
Libertad”) and a 60% interest in the Cerro Quema gold deposit in Panama
(the “Acquisition”) on terms previously disclosed and otherwise
reasonably acceptable to the Underwriters, including, for greater certainty, the
delivery to the Underwriters of a favourable legal opinion with respect to title
of La Libertad (the “Escrow Condition”).
Each
Unit will consist of one common share of the Company (a “Common
Share”) and one-half of one common share purchase warrant (each whole
common share purchase warrant a “Warrant”). Each Warrant shall entitle
the holder to purchase one common share of the Company (a “Warrant
Share”) for a purchase price of $0.80 until the earlier of (i) two years
following the Closing Date (as hereinafter defined), and (ii) at the option of the
Company, the date that is 30 days following provision of notice to warrantholders from the
Company that the closing price of its common shares on the TSX (as hereinafter defined)
has been at least $1.20 for 30 consecutive trading days (such notice not to be provided
prior to the date which is four months and one day following the Closing Date), subject to
adjustment in certain events.
The
gross proceeds of the Offering less the Underwriters’ Commission (as hereinafter
defined) (the “Escrowed Proceeds”) will be held in escrow on behalf of
the Purchasers by an escrow agent acceptable to the Lead Underwriter in an interest
bearing account. The Escrowed Proceeds (and accrued interest) will be released to the
Company upon satisfaction of the Escrow Condition, at which time each Subscription Receipt
shall automatically be exercised for one Unit.
If
the Escrow Condition is not satisfied on or before 5:00 p.m. (Toronto time) on July 31,
2006 (the “Escrow Deadline”), the Escrowed Proceeds (plus accrued
interest) shall be used by the Company to repurchase the Subscription Receipts at a
redemption price per Subscription Receipt equal to the Purchase Price thereof plus a pro
rata amount of any interest accrued in respect of the Escrowed Proceeds to the date of
redemption. To the extent that the Escrowed Proceeds (plus accrued interest) are not
sufficient to purchase all of the Subscription Receipts, the Company will contribute such
amounts as are necessary to satisfy any shortfall.
The
Subscription Receipts shall be created and issued pursuant to a subscription receipt
agreement (the “Subscription Receipt Agreement”) to be entered into
between Equity Transfer Services Inc. (or such other trust company as may be acceptable to
the Company and the Lead Underwriter), in its capacity as subscription receipt agent
thereunder, the Lead Underwriter and the Company to be dated as of the Closing Date (as
hereinafter defined). The specific attributes of the Subscription Receipts shall be set
forth in the Subscription Receipt Agreement. The Warrants shall be created and issued
pursuant to a warrant indenture (the “Warrant Indenture”) to be entered
into between Equity Transfer Services Inc. (or such other trust company as may be
acceptable to the Company and the Lead Underwriter), in its capacity as warrant agent
thereunder and the Company to be dated as of the Closing Date. The specific attributes of
the Warrants shall be set forth in the Warrant Indenture.
The
Purchaser (and, if applicable, such others on behalf of whom it is contracting hereunder)
acknowledges and agrees that the rights of the holders of the Subscription Receipts may be
modified under the Subscription Receipt Agreement pursuant to an extraordinary resolution
approved either by holders of Subscription Receipts representing at least 66 2/3% of the
outstanding Subscription Receipts that attend or are represented at a duly convened
meeting of Subscription Receipt holders or by written consent of holders of Subscription
Receipts representing at least 66 2/3% of the outstanding Subscription Receipts.
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2. Underwriting
Agreement. The Purchaser acknowledges that the Purchaser’s
Securities will be issued in connection with the issue of 30,000,000Subscription
Receipts for an aggregate subscription price of $18,000,000 (the “Offering”)which
are to be sold by the Company in accordance with an underwriting agreement
(the “Underwriting Agreement”) to be dated on or before
the Closing Date between the Company and the Underwriters. By its
acceptance of this offer, the Company covenants, agrees and confirms that
the Purchaser will have the benefit of all representations, warranties,
covenants and conditions provided to or for the benefit of the Purchaser
under the Underwriting Agreement other than as may be modified or waived
by the Underwriters.
3. Definitions.
In this Subscription Agreement, unless the context otherwise requires:
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(a) |
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“affiliate”and“distribution” have
the respective meanings ascribed to them in the Securities Act (Ontario); |
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(b) |
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“Closing” means
the completion of the issue and sale by the Company and the purchase by
the Purchasers of the Subscription Receipts pursuant to the provisions of
the Underwriting Agreement and this Subscription Agreement; |
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(c) |
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“Closing
Date” means June 30, 2006 or such other date as the Company and
the Lead Underwriter may agree pursuant to the provisions of the
Underwriting Agreement; |
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(d) |
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“Closing
Time” means 9:00 a.m. (Toronto time) on the Closing Date or such
other time as the Company and the Lead Underwriter may agree pursuant to
the provisions of the Underwriting Agreement; |
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(e) |
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“Designated
Provinces” means all of the provinces of Canada, to the extent
that any Purchasers are resident therein; |
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(f) |
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“NI45-106” means
National Instrument 45-106 Prospectus and Registration Exemptions as
such instrument is in effect at Closing in the Designated Province in
which the Purchaser resides; |
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(g) |
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“Personal
Information” means any information about a Purchaser disclosed by
the Purchaser in this Subscription Agreement and the Schedules hereto; |
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(h) |
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“Public
Record” means, without limitation, the prospectuses, annual
information forms, information circulars, offering memoranda, material
change reports, press releases and any other documents or reports filed by
the Company with the TSX and any applicable Canadian securities regulatory
authority during the 24 months preceding the date hereof; |
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(i) |
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“Purchasers” means
all purchasers of the Subscription Receipts, including the Purchaser; |
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(j) |
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“Securities
Commissions” means, collectively, the applicable securities
commission or other securities regulatory authority in each of the
Designated Provinces; |
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(k) |
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“Securities
Laws” means, collectively, the applicable securities laws of each
of the Designated Provinces and the respective regulations and rules made
and forms prescribed thereunder together with all applicable and legally
enforceable published policy statements, multilateral or national
instruments, blanket orders, rulings and notices of the Securities
Commissions, as well as the policies and rules of the TSX; |
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(l) |
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“TSX” means
the Toronto Stock Exchange; |
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(m) |
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“Underwriters’ Commission” means
a cash commission equal to 6.0% of the gross proceeds of the Offering; |
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(n) |
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“United
States” means the United States of America, its territories and
possessions, any State of the United States and the District of Columbia; |
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(o) |
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“U.S.
Person” means a U.S. person as defined in Rule 902(k) of
Regulation S under the U.S. Securities Act; and |
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(p) |
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“U.S.
Securities Act” means the United States Securities Act of 1933,
as amended. |
4. Delivery
and Payment. The Purchaser agrees that the following shall be
delivered to the Lead Underwriter, on behalf of the Underwriters, at the
address and by the date and time set out on the face page hereof, or such
other time, date or place as the Underwriters may advise:
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(b) |
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if
the Purchaser is resident in or otherwise subject to the laws of the provinces
ofBritish Columbia, Alberta, Saskatchewan, Manitoba,
Ontario, Québec, Nova Scotia, New Brunswick, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Island
or Newfoundland and Labrador and is purchasing the Purchaser’s
Securities as an “accredited investor” as defined in
NI45-106, a duly completed and executed copy of the Accredited Investor
Status Certificate in the form attached hereto as Schedule A; |
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(c) |
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if
the Purchaser is resident in or otherwise subject to the laws of the provinces
ofBritish Columbia, Alberta, Saskatchewan, Manitoba,
Ontario, Québec, Nova Scotia, New Brunswick, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Island
or Newfoundland and Labrador and is purchasing the Purchaser’s
Securities as principal for its own account and not for the benefit of any
other person and is purchasing a sufficient number of Subscription
Receipts so that the aggregate Purchase Price payable by the Purchaser in
respect of the Purchaser’s Securities will not be less than $150,000,
a duly completed and executed copy of the Minimum Amount Investment Status
Certificate in the form attached hereto as Schedule B; |
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(d) |
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if
the Purchaser is resident in or otherwise subject to the laws of the provinces
ofBritish Columbia, Alberta, Saskatchewan, Manitoba,
Ontario, Québec, Nova Scotia, New Brunswick, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Island
or Newfoundland and Labrador and is purchasing the Purchaser’s
Securities as an “employee”, “executive officer”,
“director” or “consultant” of the Company as
such terms are defined in NI45-106, a duly completed and executed copy of
the Employee, Executive Officer, Director or Consultant Status Certificate
in the form attached hereto as Schedule C; |
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(e) |
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a
certified cheque or bank draft made payable on or before the Closing Date (or
such other date as the Underwriters may advise) in same day freely
transferable Canadian funds at par in Toronto, Ontario to “Orion
Securities Inc.” representing the aggregate Purchase Price payable by
the Purchaser for the Purchaser’s Securities, or such other method of
payment of the same amount against delivery of the Purchaser’s
Securities as the Underwriters may accept; and |
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any
other documents required by the Securities Laws and the TSX which the
Underwriters or the Company request. |
The
Purchaser, and each beneficial purchaser, if any, for whom it is acting as trustee or
agent, acknowledges and agrees that such documents, when executed and delivered by the
Purchaser, will form part of and will be incorporated into this Subscription Agreement
with the same effect as if each constituted a representation and warranty or covenant of
the Purchaser hereunder in favour of the Company and the Underwriters. The Purchaser and
each such beneficial purchaser consents to the filing of such documents as may be
required to be filed with the TSX in connection with the transactions contemplated
hereby. The Purchaser and each such beneficial purchaser acknowledges and agrees that
this offer, the Purchase
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Price and any other documents
delivered in connection herewith will be held by the Underwriters until such time as the
conditions set out in the Underwriting Agreement are satisfied by the Company or waived
by the Underwriters.
5.
Closing. The transactions contemplated hereby will be completed on the
Closing Date at the Closing Time at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ or such other date or time as the Lead Underwriter and the
Company may agree upon.
The
Purchaser acknowledges that the certificates representing the Subscription Receipts
comprising the Purchaser’s Securities will be available for delivery to the
Underwriters or as directed by the Underwriters at the Closing against payment of the
amount of the aggregate Purchase Price for the Purchaser’s Securities.
The
Underwriters are hereby appointed as the Purchaser’s agents and attorneys to
represent the Purchaser at the Closing for the purpose of all closing matters, deliveries
of documents, including without limitation the delivery of the certificates representing
the Purchaser’s Securities to the Purchasers, and payment of funds to the Company,
and are hereby irrevocably authorized by the Purchaser for and on behalf of the Purchaser,
and any beneficial purchaser for whom the Purchaser is acting as agent or trustee, to
extend such time periods and modify or waive such conditions as may be contemplated herein
or in the Underwriting Agreement or, in their absolute discretion, as they deem
appropriate. Without limiting the generality of the foregoing, the Underwriters are
specifically and exclusively authorized:
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to
waive representations and warranties, covenants or conditions contained in
the Underwriting Agreement; and |
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(b) |
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to
correct manifest errors or omissions in the information provided by the
Purchaser in this Subscription Agreement, the Schedules attached hereto
and any other documents or forms delivered by the Purchaser in connection
with the transactions contemplated hereby, if any. |
In
addition, the Purchaser and each beneficial purchaser, if any, for whom it is acting as
trustee or agent, acknowledges and agrees that each of the Underwriters is entitled to
exercise or not to exercise, in its absolute discretion, the rights of termination under
the Underwriting Agreement.
The
Purchaser will take up, purchase and pay for the Purchaser’s Securities at the
Closing upon acceptance of this offer by the Company and the satisfaction by the Company,
or waiver on behalf of the Purchaser by the Underwriters, of the conditions set out in the
Underwriting Agreement.
6. Representations,
Warranties and Covenants of the Company. By accepting this offer, the
Company agrees that the Purchaser will have the benefit of all the
representations, warranties and covenants given by the Company in the
Underwriting Agreement and further agrees that all such representations,
warranties and covenants will be deemed to be incorporated herein as if
they were reproduced in their entirety, with such changes as are necessary
in order to reflect that such representations, warranties and covenants
are being made by the Company to the Purchaser, to the extent that such
representations, warranties and covenants are not amended or waived by the
Underwriters.
7. Conditions
of Closing. The Purchaser acknowledges that the Company’s
obligation to sell the Subscription Receipts to the Purchaser is subject
to, among other things, the following conditions:
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the
Purchaser or beneficial purchaser, if any, for whom the Purchaser is acting
as trustee or agent executing and returning to the Company all documents
required by applicable Securities Laws for delivery on behalf of the
Purchaser or beneficial purchaser, if any, for whom the Purchaser is
acting as trustee or agent including, without limitation, all applicable
Schedules attached hereto, by no later than 12:00 p.m. (Toronto time) on
June 27, 2006; |
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(b) |
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the
fulfilment at or before the Closing Time of each of the conditions of the
Closing set out in the Underwriting Agreement except those conditions that
are waived by the Underwriters; |
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(c) |
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the
Company having obtained all required regulatory approvals to permit the
completion of the transactions contemplated hereby; |
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(d) |
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the
issue, sale and delivery of the Purchaser’s Securities being exempt
from the requirements to file a prospectus or deliver an offering
memorandum (as defined in applicable Securities Laws, including Ontario
Securities Commission Rule 14-501) or any similar document under
applicable Securities Laws and other applicable securities laws relating
to the sale of the Purchaser’s Securities, or the Company having
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 or any similar document; and |
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the
representations and warranties set out herein, including in the Schedules
attached hereto, of the Purchaser being true and correct as at the Closing
Time. |
The
Purchaser and each beneficial purchaser, if any, for whom it is acting as trustee or
agent, acknowledges and agrees that as the sale of the Purchaser’s Securities
will not be qualified by a prospectus, such sale is subject to the condition that the
Purchaser (or, if applicable, any others for whom the Purchaser is contracting hereunder)
sign and return to the Company or the Underwriters all relevant documentation required by
the Securities Laws.
The
Purchaser and each beneficial purchaser, if any, for whom it is acting as trustee or
agent, acknowledges and agrees that the Company will be required to provide to the
Securities Commissions and to the TSX a list setting out the identities of the beneficial
purchasers of the Subscription Receipts. Notwithstanding that the Purchaser may be
purchasing Subscription Receipts as an agent on behalf of an undisclosed principal (if
permissible under the relevant securities laws), the Purchaser agrees to provide, on
request, particulars as to the identity of such undisclosed principal as may be required
by the Underwriters or the Company in order to comply with the foregoing and Securities
Laws.
8.
Acceptance or Rejection. The Company will have the right, in its sole
discretion, to accept or reject this Subscription Agreement in whole or in part
at any time at or prior to the Closing Time. The Company will be deemed to have
accepted this Subscription Agreement upon the Company’s execution of the
acceptance at page 2 of this Subscription Agreement and the delivery at the
Closing of the certificate(s) representing the Purchaser’s Securities to or
upon the direction of the Underwriters, in accordance with the provisions hereof
and the Underwriting Agreement.
If
this Subscription Agreement is rejected in whole, the Purchaser and each beneficial
purchaser, if any, for whom the Purchaser is acting as agent or trustee, understands that
any funds, certified cheques and bank drafts delivered by the Purchaser to the
Underwriters representing the purchase price for the Purchaser’s Securities will be
returned by the Underwriters to the Purchaser without interest. If this Subscription
Agreement is accepted only in part, the Purchaser understands that a cheque representing
the portion of the purchase price for that portion of its subscription for the
Purchaser’s Securities that is not accepted will be promptly delivered by the
Underwriters to the Purchaser without interest.
9. Purchaser’s
Representations and Warranties. The Purchaser represents and warrants
to the Company and the Underwriters as follows and acknowledges that the
Company and the Underwriters are relying on such representations and
warranties in connection with the transactions contemplated in this
Subscription Agreement:
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Authorization
and Effectiveness. If the Purchaser is an individual, it is
of the full age of majority and has all requisite legal capacity and
competence to execute and deliver this Subscription Agreement and to
observe and perform its covenants and obligations hereunder, orif the
Purchaser is a corporation, the Purchaser is duly incorporated and is a
valid and existing corporation, has the necessary corporate capacity and
authority to execute and deliver this Subscription Agreement, to subscribe
for the Purchaser’s Securities and to observe and perform its
covenants and obligations hereunder and has taken all necessary corporate
action in respect thereof, or, if the Purchaser is a partnership,
syndicate or other form of unincorporated organization, the Purchaser has
the necessary legal capacity and authority to |
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execute
and deliver this Subscription Agreement, to subscribe for the Purchaser’s
Securities and to observe and perform its covenants and obligations
hereunder and has obtained all necessary approvals in respect thereof,
and, in any case, upon acceptance by the Company, this Subscription
Agreement will constitute a legal, valid and binding agreement of the
Purchaser enforceable against the Purchaser in accordance with its terms
and will not result in a violation of or create a state of facts which,
after notice, lapse of time or both, would constitute a default or breach
of any of the Purchaser’s constating documents, by-laws or
authorizing resolutions (if applicable), any agreement to which the
Purchaser is a party or by which it is bound or any law applicable to the
Purchaser or any judgment, decree, order, statute, rule or regulation
applicable to the Purchaser; |
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(b) |
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Residence.
The Purchaser, and each beneficial purchaser, if any, for whom it is
acting as trustee or agent, was offered the Purchaser’s Securities
in, and is a resident of, the jurisdiction referred to under “Name
and Address of Purchaser” and “Details of Beneficial Purchaser”,
respectively, set out on the face page and page 2 hereof, intends that the
Securities Laws of that jurisdiction do and shall govern the subscription
of the Purchaser or any beneficial purchaser for whom it is contracting
hereunder and that such addresses were not created and are not used solely
for the purpose of acquiring the Purchaser’s Securities; |
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(c) |
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Private
Placement Exemptions. The Purchaser has properly completed,
executed and delivered to the Company the applicable certificate(s) (dated
as of the date hereof) set forth in Schedules A and B attached hereto and
the information contained therein is true and correct and the
representations, warranties and covenants contained in the applicable
schedules attached hereto will be true and correct both as of the date of
execution of this Subscription Agreement and as at the Closing Time; |
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(d) |
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Purchasing
as Principal. Unless paragraph (g) below applies, the
Purchaser is purchasing the Purchaser’s Securities as principal (as
defined in all applicable Securities Laws) for its own account, and not
for the benefit of any other person; |
| |
(e) |
|
Purchasing
for Investment Only. Unless paragraph (g) below applies,
the Purchaser is purchasing the Purchaser’s Securities for investment
only and not with a view to resale or distribution of all or any of the
Purchaser’s Securities or the Common Shares issuable upon exercise
thereof; |
| |
(f) |
|
No
Syndication. Unless paragraph (g) below applies, the
Purchaser was not created solely to purchase or hold securities as an
accredited investor as described in paragraph (m) of the definition of
“accredited investor” provided in Schedule A; |
| |
(g) |
|
Purchasing
as Agent or Trustee. |
| |
|
(i) |
|
In the
case of the purchase by the Purchaser of the Purchaser’s Securities as
agent or trustee for any principal whose identity is disclosed or identified,
each beneficial purchaser of the Purchaser’s Securities for whom the
Purchaser is acting, is purchasing its Purchaser’s Securities (1) as
principal for its own account and not for the benefit of any other person; (2)
for investment only and not with a view to resale or distribution and was not
created or used solely to purchase or hold securities in reliance on the
“Minimum Amount Investment” exemption provided under Section 2.10 of
NI45-106 and it pre-existed the Offering and has a bona fide purpose other than
investment in the Subscription Receipts; and (3) either (A) at an aggregate
acquisition cost to such beneficial purchaser of not less than $150,000, or (B)
the beneficial purchaser is an “accredited investor” as defined in
NI45-106; |
| |
|
(ii) |
|
In
the case of the purchase by the Purchaser of the Purchaser’s Securities
as agent or trustee for any principal, the Purchaser is the duly
authorized trustee or agent of such disclosed beneficial purchaser with
due and proper power and authority to execute and deliver, on behalf of
each such beneficial purchaser, |
- 8 -
| |
this
Subscription Agreement and all other documentation in connection with the
purchase of the Purchaser’s Securities hereunder, to agree to the
terms and conditions herein and therein set out and to make the
representations, warranties, acknowledgements and covenants herein and
therein contained, all as if each such beneficial purchaser were the
Purchaser and the Purchaser’s actions as trustee or agent are in
compliance with applicable law and the Purchaser and each beneficial
purchaser acknowledges that the Company is required by law to disclose to
certain regulatory authorities the identity of each beneficial purchaser
of Purchaser’s Securities for whom it may be acting; and |
| |
|
(iii) |
|
In
the case of the purchase by the Purchaser of the Purchaser’s Securities
on behalf of an undisclosed beneficial purchaser, the Purchaser is deemed
under applicable Securities Laws to be purchasing as principal; |
| |
(h) |
|
Broker.
Other than the Underwriters and the soliciting dealer group members, if
any, 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 and if any person establishes a claim that any fee or other
compensation is payable in connection with this subscription for the
Purchaser’s Securities, the Purchaser covenants to indemnify and hold
harmless the Company and the Underwriters with respect thereto and with
respect to all costs reasonably incurred in the defence thereof; |
| |
(i) |
|
Illegal
Use of Funds. None of the funds being used to purchase the
Purchaser’s Securities are to the Purchaser’s knowledge proceeds
obtained or derived directly or indirectly as a result of illegal
activities. The funds being used to purchase the Purchaser’s
Securities which will be advanced by the Purchaser to the Company
hereunder will not represent proceeds of crime for the purposes of the Proceeds
of Crime (Money Laundering) Act (Canada) (the “PCMLA”)
and the Purchaser acknowledges that the Company may in the future be
required by law to disclose the Purchaser’s name and other
information relating to this Subscription Agreement and the Purchaser’s
subscription hereunder, on a confidential basis, pursuant to the PCMLA. To
the best of its knowledge (i) none of the funds to be provided by the
Purchaser are being tendered on behalf of a person or entity who has not
been identified to the Purchaser, and (ii) it shall promptly notify
the Company if the Purchaser discovers that any of such representations
cease to be true, and to provide the Company with appropriate information
in connection therewith; |
| |
(j) |
|
Resale
Restrictions. The Purchaser, and each beneficial purchaser
for whom it is contracting hereunder, have been advised to consult their
own legal advisors with respect to trading in the Purchaser’s
Securities, the Common Shares and Warrants issuable upon exercise thereof
and the Warrant Shares issuable upon exercise of the Warrants and with
respect to the resale restrictions imposed by the Securities Laws of the
province in which the Purchaser or any beneficial purchaser for whom it is
contracting hereunder 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 Purchaser (or any beneficial purchaser for whom it is contracting
hereunder) to resell such securities, that the Purchaser (or any
beneficial purchaser for whom it is contracting hereunder) is solely
responsible to find out what these restrictions are and the Purchaser (or
any beneficial purchaser for whom it is contracting hereunder) is solely
responsible (and neither the Company nor the Underwriters are in any way
responsible) for compliance with applicable resale restrictions and the
Purchaser is aware that it (or any beneficial purchaser for whom it is
contracting hereunder) may not be able to resell such securities (or the
Common Shares and Warrants issuable upon exercise of the Subscription
Receipts and the Warrant Shares issuable upon exercise of the Warrants)
except in accordance with limited exemptions under the Securities Laws and
other applicable securities laws; |
| |
(k) |
|
No
Purchase or Offer in United States. The Purchaser, or
beneficial purchaser, if any, for whom it is acting as trustee or agent: |
- 9 -
| |
|
(i) |
|
is
a discretionary account or similar account (other than an estate or trust)
held for the benefit or account of a non-U.S. Person by a professional
fiduciary organized, incorporated, or (if an individual) resident in the
United States; or |
| |
|
(ii) |
|
is
not, and is not purchasing the Purchaser’s Securities for the account or
benefit of, a U.S. Person under the U.S. Securities Act or for resale in
the United States or to a U.S. Person in violation of United States
federal or state securities laws, was not offered the Purchaser’s
Securities in the United States, at the time the purchase order originated
was outside the United States, did not execute or deliver this
Subscription Agreement or related documents in the United States and
confirms that no act, solicitation, conduct or negotiation directly or
indirectly in furtherance of the purchase of the Purchaser’s
Securities hereunder has occurred in the United States, |
| |
and
acknowledges that neither the Purchaser’s Securities nor the Common Shares and
Warrants issuable upon exercise of such Subscription Receipts nor the Warrant Shares
issuable upon exercise of the Warrants have been, nor will they be, registered under the
U.S. Securities Act or the securities laws of any state, and may not be offered or sold
in the United States or to a U.S. Person, unless an exemption from the registration
requirements under the U.S. Securities Act and applicable state securities laws is
available, and agrees not to offer, or sell the Purchaser’s Securities or the Common
Shares, Warrants or Warrant Shares in the United States or to a U.S. Person, unless the
Company consents to such offer or sale and an exemption from registration under the U.S.
Securities Act and applicable state securities laws is available; |
| |
(l) |
|
Company
or Unincorporated Organization. If the Purchaser, or any
beneficial purchaser for whom it is acting as trustee or agent, is a
corporation or a partnership, syndicate, trust, association, or any other
form of unincorporated organization or organized group of persons, the
Purchaser or such beneficial purchaser was not created or being used
solely to permit purchases of or to hold securities without a prospectus
in reliance on a prospectus exemption; |
| |
(m) |
|
Absence
of Offering Memorandum or Similar Document. The Purchaser,
and each beneficial purchaser, if any, for whom the Purchaser is acting as
trustee or agent, has not received, nor has it requested, any offering
memorandum or any other document describing the business and affairs of
the Company (other than this Subscription Agreement), nor has any document
been prepared for delivery to, or review by, prospective purchasers in
order to assist them in making an investment decision in respect of the
Subscription Receipts; |
| |
(n) |
|
Absence
of Advertising. The offering and sale of the Subscription
Receipts to the Purchaser or beneficial purchaser, if any, for whom the
Purchaser is acting as trustee or agent, was not made or solicited through,
and the Purchaser and each such beneficial purchaser is not aware of, any
general solicitation or general advertising with respect to this Offering,
including advertisements, articles, notices or other communications
published in any printed public media, radio, television or
telecommunications, including electronic display (such as the Internet,
including but not limited to the Company’s website), or any seminar
or meeting whose attendees have been invited by general solicitation or
general advertising; |
| |
(o) |
|
No
Undisclosed Information. |
| |
|
(i) |
|
The
Purchaser’s Securities are not being purchased by the Purchaser (or if
applicable by a beneficial purchaser for whom the Purchaser is acting as
trustee or agent) as a result of any material information not in the Public
Record concerning the Company and the decision of the Purchaser or beneficial
purchaser, if any, for whom the Purchaser is acting as trustee or agent, to
tender this Subscription Agreement and acquire the Purchaser’s Securities
has not been made as a result of any oral or written representation as to fact
or otherwise made by or on behalf of the Company, the Underwriters or any other
person and is based entirely upon the Public Record; and |
- 10 -
| |
|
(ii) |
|
the
Purchaser, or beneficial purchaser, if any, for whom the Purchaser is acting as
trustee or agent, has relied solely upon the term sheet attached as Schedule D
to this Subscription Agreement (the “Term Sheet”) and publicly
available written information concerning, and issued by, the Company and not
upon any verbal or other written representation as to fact or otherwise made by
or on behalf of the Company or the Underwriters or any employees, agents or
affiliates thereof and the Underwriters assume no responsibility or liability
of any nature whatsoever for the accuracy or adequacy of the publicly available
information upon which the investment decision has been made or as to whether
all information concerning the Company required to be disclosed by the Company
has been disclosed. In the event of an inconsistency between the provisions of
Schedule D and this Subscription Agreement, the provisions of this Subscription
Agreement shall prevail; |
| |
(p) |
|
Investment
Suitability. The Purchaser, or beneficial purchaser, if
any, for whom the Purchaser is acting as trustee or agent, has such
knowledge and experience in financial and business affairs as to be capable
of evaluating the merits and risks of the investment hereunder in the
Purchaser’s Securities and is able to bear the economic risk of total
loss of such investment; |
| |
(q) |
|
Not
a “Control Person”. The Purchaser, or beneficial
purchaser, if any, for whom the Purchaser is acting as trustee or agent,
is not a “control person” of the Company, as that term is
defined in applicable Securities Laws, and will not become a “control
person” of the Company by virtue of the purchase of the Purchaser’s
Securities under this Subscription Agreement and does not act or intend to
act in concert with any other person to form a control group in respect of
the Company; |
| |
(r) |
|
Resale.
The Purchaser, or beneficial purchaser, if any, for whom the Purchaser
is acting as trustee or agent, fully understands the restrictions on
resale on the Purchaser’s Securities and will not resell the Purchaser’s
Securities, the Common Shares and Warrants issuable upon exercise thereof
or the Warrant Shares issuable upon exercise of the Warrants, except in
accordance with the provisions of applicable Securities Laws; |
| |
(s) |
|
Other
Documents.The Purchaser, or beneficial purchaser, if any, for whom
the Purchaser is acting as trustee or agent, will execute and deliver any
other documents required by applicable Securities Laws to permit the
purchase of the Purchaser’s Securities on the terms herein set forth
which the Underwriters or the Company request; |
| |
(t) |
|
Personal
Information. The Purchaser acknowledges that this Subscription
Agreement requires the Purchaser to provide certain Personal Information
to the Company. Such information is being collected and will be used by
the Company for the purposes of completing the proposed Offering of
Subscription Receipts, which includes, without limitation, determining the
Purchaser’s eligibility to purchase the Purchaser’s Securities
under applicable Securities Laws, preparing and registering certificates
representing the Purchaser’s Securities (and the underlying Common
Shares and Warrants and Warrant Shares underlying the Warrants) and
completing filings required by the Securities Commissions and/or the TSX.
The Purchaser agrees that the Purchaser’s Personal Information may be
disclosed by the Company to: (a) stock exchanges and applicable
securities regulatory authorities, (b) the Company’s registrar and
transfer agent, and (c) any of the other parties involved in the
proposed Offering, including legal counsel, and may be included in record
books in connection with the Offering. By executing this Subscription
Agreement, the Purchaser consents to the foregoing collection, use and
disclosure of the Purchaser’s Personal Information. The Purchaser also
consents to the filing of copies or originals of any of the Purchaser’s
documents described in Section 4 hereof as may be required to be filed
with any stock exchange or securities regulatory authority in connection
with the transactions contemplated hereby; and |
| |
(u) |
|
International
Purchasers. If the Purchaser is a resident of a country
other than Canada or the United States (an “International
Jurisdiction”) then in addition to the other representations and
warranties contained herein, the Purchaser represents and warrants that: |
- 11 -
| |
|
(i) |
|
the
Purchaser is knowledgeable of, or has been independently advised as to, the
applicable securities laws of the International Jurisdiction which would
apply to this Subscription Agreement, if any; |
| |
|
(ii) |
|
the
Purchaser is purchasing the Purchaser’s Securities pursuant to
exemptions from the prospectus and registration requirements under the
applicable securities laws of that International Jurisdiction or, if such
is not applicable, the Purchaser is permitted to purchase the Purchaser’s
Securities under the applicable securities laws of the International
Jurisdiction without the need to rely on an exemption; |
| |
|
(iii) |
|
the
applicable securities laws do not require the Company to file a prospectus
or similar document or to register the Subscription Receipts (or the
Common Shares, Warrants or Warrant Shares) or to make any filings or seek
any approvals of any kind whatsoever from any regulatory authority of any
kind whatsoever in the International Jurisdiction; |
| |
|
(iv) |
|
the
delivery of this Subscription Agreement, the acceptance of it by the Company
and the issuance of the Subscription Receipts (including the Common Shares
and Warrants issuable upon exercise of the Subscription Receipts and the
Warrant Shares issuable upon exercise of the Warrants) to the Purchaser
complies with all applicable laws of the Purchaser’s jurisdiction of
residence or domicile and all other applicable laws and will not cause the
Company to become subject to or comply with any disclosure, prospectus or
reporting requirements under any such applicable laws. |
The
Purchaser and each beneficial purchaser, if any, for whom it is acting as trustee or
agent, acknowledges and agrees that the foregoing representations and warranties are made
by it with the intention that they may be relied upon by the Company and the Underwriters
in determining the Purchaser’s eligibility or (if applicable) the eligibility of
others on whose behalf it is contracting hereunder to purchase the Purchaser’s
Securities under Securities Laws. The Purchaser further agrees that by accepting delivery
of the Purchaser’s Securities on the Closing Date, it shall be representing and
warranting that the foregoing representations and warranties are true and correct as at
the Closing Time with the same force and effect as if they had been made by the Purchaser
at the Closing Time and that they shall survive the purchase by the Purchaser of the
Purchaser’s Securities and shall continue in full force and effect notwithstanding
any subsequent disposition by the Purchaser of the Subscription Receipts or the Common
Shares, Warrants or Warrant Shares. The Purchaser undertakes to notify the Company
immediately of any change in any representation, warranty or other information relating to
the Purchaser set out in this Subscription Agreement which takes place prior to the
Closing Time.
10. Purchaser’s
Acknowledgements. The Purchaser and each beneficial purchaser, if any,
for whom it is acting as trustee or agent, acknowledges and agrees that:
| |
(a) |
|
(i)
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 Purchaser’s
Securities or the offering thereof; (ii) there is no government or other
insurance covering the Purchaser’s Securities; and (iii) there are
risks associated with the purchase of the Purchaser’s Securities; |
| |
(b) |
|
the
purchase of the Purchaser’s Securities has not been or will not be (as
applicable) made through, or as a result of, and the distribution of the
Purchaser’s Securities 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; |
| |
(c) |
|
no
prospectus or other offering document has been filed by the Company with a
securities commission or other securities regulatory authority in any
province of Canada, or any other jurisdiction in or outside of Canada in
connection with the issuance of the Purchaser’s Securities or the
Common Shares and Warrants issuable |
- 12 -
| |
upon
exercise thereof or the Warrant Shares issuable upon exercise of the
Warrants, and such issuances are exempt from the prospectus requirements
otherwise applicable under the provisions of Securities Laws and, as a
result, in connection with its purchase of the Purchaser’s Securities
hereunder, as applicable: |
| |
|
(i) |
|
the
Purchaser is restricted from using most of the protections, rights and
remedies available under Securities Laws including, without limitation,
statutory rights of rescissionor damages; |
| |
|
(ii) |
|
the
Purchaser will not receive information that may otherwise be required to be
provided to the Purchaser under applicable Securities Laws or contained in
a prospectus prepared in accordance with applicable Securities Laws; and |
| |
|
(iii) |
|
the
Company is relieved from certain obligations that would otherwise apply
under such applicable Securities Laws; |
| |
(d) |
|
the
Purchaser’s Securities are being offered for sale only on a “private
placement” basis; |
| |
(e) |
|
the
Underwriters will be paid the Underwriters’ Commission, which
commission shall be paid to the Underwriters at Closing; |
| |
(f) |
|
the
Underwriters will be issued compensation warrants (the “Compensation
Warrants”) exercisable to acquire an aggregate of 1,800,000
Units, subject to adjustment in certain events. The Compensation Warrants
shall be exercisable for a period of 24 months following the Closing Date
at an exercise price of $0.64 per Unit; |
| |
(g) |
|
except
as otherwise provided herein or in the Underwriting Agreement, all costs
and expenses incurred by the Purchaser (including any fees and
disbursements of legal counsel retained by the Purchaser) relating to the
purchase of the Purchaser’s Securities shall be borne solely by the
Purchaser; |
| |
(h) |
|
none
of the Underwriters, their counsel, ▇▇▇▇▇▇▇▇▇ Dellelce LLP, or the Company’s
counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, assume any responsibility or
liability of any nature whatsoever for the accuracy or adequacy of any
publicly available information concerning the Company or as to whether all
information concerning the Company required to be disclosed by the Company
has been generally disclosed. The Purchaser, on its own behalf and on
behalf of others for whom the Purchaser is contracting hereunder, has
acknowledged that the decision to purchase the Purchaser’s Securities
was made on the basis of currently available public information. The
Underwriters, their counsel, ▇▇▇▇▇▇▇▇▇ Dellelce LLP, or the Company’s
counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, are entitled to the benefit of
this subsection; |
| |
(i) |
|
the
Purchaser’s Securities (and the Common Shares and Warrants issuable
upon exercise thereof and the Warrant Shares issuable upon exercise of the
Warrants) will be subject to certain resale restrictions under the
Securities Laws and the Purchaser agrees to comply with such restrictions.
The Purchaser also acknowledges that it has been advised to consult its
own legal advisors with respect to applicable resale restrictions and that
it is solely responsible (and neither the Company nor the Underwriters are
in any manner responsible) for complying with such restrictions. For
purposes of complying with the Securities Laws and National Instrument
45-102 Resale of Securities, the Purchaser and each beneficial
purchaser, if any, for whom it is acting as trustee or agent, understands
and acknowledges that upon the issuance of the Purchaser’s
Securities, all the certificates representing the Purchaser’s
Securities, as well as all certificates representing the Common Shares and
Warrants issuable upon exercise thereof and all certificates representing
the Warrant Shares issuable upon exercise of the Warrants that are issued
prior to the date that is four months plus one day from the Closing Date,
shall bear a legend substantially in the following form: |
- 13 -
| |
“UNLESS
PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE
SECURITY BEFORE [THE DATE THAT IS FOUR MONTHS PLUS ONE DAY FROM THE CLOSING DATE].” |
| |
(j) |
|
the
Purchaser (and, if applicable, others for whom it is contracting hereunder)
is solely responsible for obtaining such legal advice and tax advice as it
considers appropriate in connection with the execution, delivery and
performance by it of this Subscription Agreement and the
completion of the transactions contemplated hereby; and |
| |
(k) |
|
the
Company may be considered a connected issuer of the Lead Underwriter within
the meaning of National Instrument 33-105 —Underwriting Conflicts
in connection with the Offering. The Lead Underwriter has advised the
Company in connection with the Acquisition and will receive a fee upon the
successful completion of such Acquisition, a condition precedent of which
is the closing of the Offering. |
11. Further
Acknowledgements of the Purchaser. The Purchaser hereby acknowledges,
agrees and consents to:
| |
(a) |
|
the
disclosure of Personal Information to each of the Company, the Securities
Commissions and the TSX; |
| |
(b) |
|
the
collection, use and disclosure of Personal Information by the TSX for the
purposes identified by the TSX, from time to time; and |
| |
(c) |
|
the
collection, use and disclosure of Personal Information by the Company for
corporate finance and shareholder communication purposes or such other
purposes as are necessary to the Company’s business. |
If
the Purchaser is resident in or otherwise subject to the securities laws of the Province
of Ontario, the Purchaser acknowledges and agrees that the Purchaser has been notified by
the Company (i) of the delivery to the Ontario Securities Commission (the
“OSC”) of Personal Information pertaining to the Purchaser,
including, without limitation, the full name, residential address and telephone number of
the Purchaser, the number and type of securities purchased and the total Purchase Price
paid in respect of the Purchaser’s Securities, (ii) that this information is being
collected indirectly by the OSC under the authority granted to it in securities
legislation, (iii) that this information is being collected for the purposes of the
administration and enforcement of the securities legislation of Ontario, and (iv) that the
title, business address and business telephone number of the public official in Ontario
who can answer questions about the OSC’s indirect collection of the information is
the Administrative Assistant to the Director of Corporate Finance, the Ontario Securities
Commission, Suite 1903, Box ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇.
12.
No Revocation. The Purchaser agrees that this Subscription Agreement is
made for valuable consideration and may not be withdrawn, cancelled, terminated
or revoked by the Purchaser without the consent of the Company. Further, the
Purchaser expressly waives and releases the Company and the Underwriters from
all rights of withdrawal or rescission to which the Purchaser might otherwise be
entitled pursuant to the Securities Laws or otherwise at law.
13.
Indemnity. The Purchaser agrees to indemnify and hold harmless the
Company and the Underwriters and their respective directors, officers,
employees, agents, advisers and shareholders from and against any and all loss,
liability, claim, damage and expense whatsoever (including, but not limited to,
any and all fees, costs and expenses whatsoever reasonably incurred in
investigating, preparing or defending against any claim, lawsuit, administrative
proceeding or investigation whether commenced or threatened) arising out of or
based upon any representation or warranty of the Purchaser contained herein or
in any document furnished by the Purchaser to the Company or the Underwriters in
connection herewith being untrue in any material respect or any breach or
failure by the Purchaser to comply with any covenant or agreement made by the
Purchaser herein or in any document furnished by the Purchaser to the Company or
the Underwriters in connection herewith.
- 14 -
14.
Modification. Subject to the terms hereof, neither this Subscription
Agreement nor any provision hereof shall be modified, changed, discharged or
terminated except by an instrument in writing signed by the party against whom
any waiver, change, discharge or termination is sought.
15.
Assignment. The terms and provisions of this Subscription Agreement shall
be binding upon and enure to the benefit of the Purchaser, the Company and their
respective successors and assigns; provided that this Subscription Agreement
shall not be assignable by any party without the prior written consent of the
other parties. For greater certainty this Subscription Agreement may only be
transferred or assigned by the Purchaser subject to compliance with applicable
laws (including, without limitation, applicable Securities Laws).
16.
Miscellaneous and Counterparts. All representations, warranties,
agreements and covenants made or deemed to be made by the Purchaser (and, if
applicable, others for whom it is contracting hereunder) herein will survive the
execution and delivery, and acceptance, of this Subscription Agreement and the
Closing. This Subscription Agreement may be executed in any number of
counterparts, each of which when delivered, either in original or facsimile
form, shall be deemed to be an original and all of which together shall
constitute one and the same document.
17.
Governing Law. This Subscription 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 jurisdiction of the courts of the Province of Ontario with respect to any
matters arising out of this Subscription Agreement.
18.
Facsimile Subscriptions. The Company shall be entitled to rely on
delivery by facsimile machine or other electronic means of an executed copy of
this Subscription Agreement, including the completed Schedules hereto, and
acceptance by the Company of such facsimile copy shall be legally effective to
create a valid and binding agreement between the Purchaser and the Company in
accordance with the terms hereof.
19.
Entire Agreement. This Subscription Agreement (including the Schedules
hereto) 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. This Subscription Agreement may be amended or modified in any respect by
written instrument only. In the event of any inconsistency between the
provisions of this Subscription Agreement and the Underwriting Agreement, the
provisions of the Underwriting Agreement shall prevail.
20.
Language. In connection with the proposed offering of Subscription
Receipts of Glencairn Gold Corporation, the undersigned hereby requests that all
documentation available, including the Subscription Agreement, be prepared and
forwarded in the English language only. Dans le cadre du placement
propose de reçu de souscription de Glencairn Gold Corporation, le
soussigné consent par les présentes à ce que la
documentation relative à ce placement proposé, y compris la
convention de souscription, soit rédigée et soumise en la langue
anglaise seulement.
21.
Time of Essence. Time shall be of the essence of this Subscription
Agreement.
22.
Currency. All dollar amounts referred to in this Subscription Agreement
are in Canadian dollars.
23.
Further Assurances. Each of the parties hereto shall do or cause to be
done all such acts and things and shall execute or cause to be executed all such
documents, agreements and other instruments as may reasonably be necessary or
desirable for the purpose of carrying out the provisions and intent of this
Subscription Agreement.
24.
Singular and Plural, etc. Where the context so requires, words importing
the singular number include the plural and vice versa, and words importing
gender shall include the masculine, feminine and neuter genders.
25.
Headings. The headings contained herein are for convenience only and
shall not affect the meaning or interpretation hereof.
- 15 -
SCHEDULE A
ACCREDITED INVESTOR
STATUS CERTIFICATE
TO BE COMPLETED BY
BRITISH COLUMBIA, ALBERTA, SASKATCHEWAN, MANITOBA, ONTARIO, QUEBEC, NEWFOUNDLAND AND
LABRADOR, NOVA SCOTIA, NEWBRUNSWICK
AND ▇▇▇▇▇▇ ▇▇▇▇▇▇ ISLAND ACCREDITED INVESTORS
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 Purchaser of the Purchaser’s Securities, the Purchaser, on its own
behalf and on behalf of each of the beneficial purchasers for whom the Purchaser is
acting, hereby represents, warrants, covenants and certifies to the Company and the
Underwriters (and acknowledges that the Company, the Underwriters and their respective
counsel are relying thereon) that:
| |
(a) |
|
the
Purchaser, or each of the beneficial purchasers for whom the Purchaser is
acting, is resident in or otherwise subject to the securities laws of one
of the provinces of British Columbia, Alberta, Saskatchewan, Manitoba,
Ontario, Quebec, Newfoundland and Labrador, Nova Scotia, New Brunswick or
▇▇▇▇▇▇ ▇▇▇▇▇▇ Island; |
| |
(b) |
|
the
Purchaser, or each of the beneficial purchasers for whom the Purchaser is
acting, is purchasing the Purchaser’s Securities as principal for its
own account and not for the benefit of any other person; |
| |
(c) |
|
the
Purchaser, or each of the beneficial purchasers for whom the Purchaser is
acting, is an “accredited investor” within the meaning of
NI45-106 on the basis that the undersigned fits within the category of an
“accredited investor” reproduced below beside which the
undersigned has indicated the undersigned belongs to such category; and |
| |
(d) |
|
upon
execution of this Schedule A by the Purchaser, this Schedule A shall be
incorporated into and form a part of the Subscription Agreement. |
(PLEASE CHECK THE BOX OF
THE APPLICABLE CATEGORY OF ACCREDITED INVESTOR)
 |
(a) |
|
a
Canadian financial institution, or a Schedule III bank; |
|
(b) |
|
the
Business Development Bank of Canada incorporated under the Business
Development Bank of Canada Act (Canada); |
|
(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; |
|
(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); |
|
(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); |
|
(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; |
|
(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; |
| |
(h) |
|
any
national, federal, state, provincial, territorial or municipal government of
or in any foreign jurisdiction, or any agency of that government; |
|
(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; |
|
(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; |
|
(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; |
|
(l) |
|
an
individual who, either alone or with a spouse, has net assets of at least
$5,000,000; |
 |
(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; |
| |
(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) |
|
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; |
|
(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; |
|
(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; |
|
(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; |
|
(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; |
A-2
|
(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; |
|
(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 |
|
(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; |
| |
(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 Quebéc 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; |
| |
(c) |
|
“entity” means
a company, syndicate, partnership, trust or unincorporated organization; |
| |
(d) |
|
“financial
assets” means cash, securities, or a contract of insurance, a deposit
or an evidence of a deposit that is not a security for the purposes of
securities legislation; |
| |
(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; |
| |
(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; |
| |
(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; |
| |
(h) |
|
“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; |
| |
(i) |
|
“Schedule
III bank”means an authorized foreign bank named in Schedule III of
the Bank Act (Canada); |
A-3
| |
(j) |
|
“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 |
| |
(k) |
|
“subsidiary” means
an issuer that is controlled directly or indirectly by another issuer and
includes a subsidiary of that subsidiary. |
In NI45-106 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.
In NI45-106 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.
In NI45-106 a trust company or trust
corporation described in paragraph (p) above of the definition of “accredited
investor” (other than in respect of a trust company or trust corporation registered
under the laws of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Island that is not registered or authorized under the
Trust and Loan Companies Act (Canada) or under comparable legislation in another
jurisdiction of Canada) is deemed to be purchasing as principal.
In NI45-106 a person described in
paragraph (q) above of the definition of “accredited investor” is deemed to be
purchasing as principal.
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 and the Underwriters prior to the Closing Time.
|
|
|
| |
|
|
| Dated: June 27, 2006 |
|
Signed: /s/ ▇▇▇▇▇▇▇ ▇. Main |
| |
| |
| /s/ ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
|
YAMANA RESOURCES INC. |
|
|
|
| Witness (If Purchaser is an Individual) |
|
Print the name of Purchaser |
| |
| |
| ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
|
▇▇▇▇▇▇▇ ▇. Main – Director |
|
|
|
| Print Name of Witness |
|
If Purchaser is a Corporation, print name and title of
Authorized Signing Officer |
A-4
SCHEDULE B
MINIMUM AMOUNT
INVESTMENT STATUS CERTIFICATE
TO BE COMPLETED BY BRITISH
COLUMBIA, ALBERTA, SASKATCHEWAN, MANITOBA, ONTARIO, QUEBEC, NEWFOUNDLAND AND LABRADOR,
NOVA SCOTIA, NEW BRUNSWICK AND ▇▇▇▇▇▇ ▇▇▇▇▇▇ ISLAND PURCHASERS THAT ARE SUBSCRIBING UNDER
THE “MINIMUM AMOUNT INVESTMENT” EXEMPTION
In connection with the purchase by
the undersigned Purchaser of the Purchaser’s Securities, the Purchaser, on its own
behalf and on behalf of each of the beneficial purchasers for whom the Purchaser is
acting, hereby represents, warrants, covenants and certifies to the Company and the
Underwriters (and acknowledges that the Company, the Underwriters and their respective
counsel are relying thereon) that:
| |
(a) |
|
the
Purchaser, or each of the beneficial purchasers for whom it is acting, is
resident in or otherwise subject to the securities laws of one of the
provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario,
Quebec, Newfoundland and Labrador, Nova Scotia, New Brunswick or ▇▇▇▇▇▇
▇▇▇▇▇▇ Island; |
| |
(b) |
|
the
Purchaser, or each of the beneficial purchasers for whom it is acting, is
purchasing the Purchaser’s Securities as principal for its own
account and not for the benefit of any other person; |
| |
(c) |
|
the
Purchaser’s Securities have an acquisition cost to the Purchaser of not
less than $150,000, payable in cash at the Closing; |
| |
(d) |
|
the
Purchaser’s Securities are a security of a single issuer; |
| |
(e) |
|
the
Purchaser, or each of the beneficial purchasers for whom it is acting, was
not created and is not being used solely to purchase or hold securities in
reliance on the registration and prospectus exemptions provided under
Section 2.10 of NI45-106, it pre-existed the Offering and has a bona fide
purpose other than investment in the Subscription Receipts; and |
| |
(f) |
|
upon
execution of this Schedule B by the Purchaser, this Schedule B shall be
incorporated into and form a part of the Subscription Agreement. |
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 and the Underwriters prior to the Closing Time.
|
|
|
| |
|
|
|
|
|
| Dated |
|
Signed |
| |
| |
|
|
|
| Witness (If Purchaser is an Individual) |
|
Print the name of Purchaser |
| |
| |
|
|
|
| Print Name of Witness |
|
If Purchaser is a Corporation, print name and title of
Authorized Signing Officer |
SCHEDULE C
EMPLOYEE, EXECUTIVE
OFFICER, DIRECTOR OR CONSULTANT STATUS CERTIFICATE
TO BE COMPLETED BY
EMPLOYEES, EXECUTIVE OFFICERS, DIRECTORS OR CONSULTANTS OF THE COMPANY
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 Purchaser of the Purchaser’s Securities, the Purchaser hereby
represents, warrants, covenants and certifies to the Company and the Underwriters (and
acknowledges that the Company, the Underwriters and their respective counsel are relying
thereon) that:
| |
(a) |
|
the
Purchaser is resident in or otherwise subject to the securities laws of one
of the provinces of British Columbia, Alberta, Saskatchewan, Manitoba,
Ontario, Quebec, Newfoundland and Labrador, Nova Scotia, New Brunswick or
▇▇▇▇▇▇ ▇▇▇▇▇▇ Island; |
| |
(b) |
|
the
Purchaser is purchasing the Purchaser’s Securities as principal for its
own account and not for the benefit of any other person; |
| |
(c) |
|
the
Purchaser’s participation in the trade is voluntary; |
| |
(d) |
|
the
Purchaser fits within one of the categories set out in Section 2.24 of NI
45-106 and reproduced below beside which the undersigned has indicated the
undersigned belongs to such category; and |
| |
(e) |
|
upon
execution of this Schedule C by the Purchaser, this Schedule C shall be
incorporated into and form a part of the Subscription Agreement. |
(PLEASE CHECK THE BOX OF
THE APPLICABLE CATEGORY)
|
(a) |
|
an
employee, executive officer, director or consultant of the Company; |
|
(b) |
|
an
employee, executive officer, director or consultant of a related entity of the
Company; or |
|
(c) |
|
a
permitted assign of a person referred to in paragraph (a) or (b). |
For the purposes hereof, the
following definitions are included for convenience:
| (a) |
|
“consultant” means,
for an issuer, a person, other than an employee, executive officer, or
director of the issuer or of a related entity of the issuer, that (a) is
engaged to provide services to the issuer or a related entity of the
issuer, other than services provided in relation to a distribution, (b)
provides the services under a written contract with the issuer or a
related entity of the issuer, and (c) spends or will spend a significant
amount of time and attention on the affairs and business of the issuer or
a related entity of the issuer; |
| (b) |
|
“executive
officer”means, for an issuer, an individual who is (i) a
chair, vice-chair or president, (ii) a vice-president in charge of a
principal business unit, division or function including sales, finance or
production, (iii) an officer of the issuer or any of its subsidiaries and
who performs a policy-making function in respect of the issuer, or (iv)
performing a policy-making function in respect of the issuer; |
| (c) |
|
“director” means
(i) a member of the board of directors of a company or an individual who
performs similar functions for a company, and (ii) with respect to a
person that is not a company, an individual who performs functions similar
to those of a director of a company; |
| (d) |
|
“permitted
assign”means, for a person that is an employee, executive
officer, director or consultant of an issuer or of a related entity of the
issuer, |
| |
(i) |
|
a
trustee, custodian, or administrator acting on behalf of, or for the benefit
of the person, |
| |
(ii) |
|
a
holding entity of the person, |
| |
(iii) |
|
an
RRSP or a RRIF of the person, |
| |
(iv) |
|
a
spouse of the person, |
| |
(v) |
|
a
trustee, custodian, or administrator acting on behalf of, or for the
benefit of the spouse of the person, |
| |
(vi) |
|
a
holding entity of the spouse of the person, or |
| |
(vii) |
|
an
RRSP or a RRIF of the spouse of the person; |
| (e) |
|
“related
entity”means, for an issuer, a person that controls or is
controlled by the issuer or that is controlled by the same person that controls
the issuer; and |
| (f) |
|
“related
person”means, for an issuer, (i) a director or executive
officer of the issuer or of a related entity of the issuer, (ii) an
associate of a director or executive officer of the issuer or of a related
entity of the issuer, or (iii) a permitted assign of a director or
executive officer of the issuer or of a related entity of the issuer. |
In NI45-106, a person (first person)
is considered to control another person (second person) if the first person, directly or
indirectly, has the power to direct the management and policies of the second person by
virtue of (a) ownership of or direction over voting securities in the second person, (b) a
written agreement or indenture, (c) being the general partner or controlling the general
partner of the second person, or (d) being a trustee of the second person.
In NI45-106 participation in a trade
is considered voluntary if (a) in the case of an employee or the employee’s permitted
assign, the employee or the employee’s permitted assign is not induced to participate
in the trade by expectation of employment or continued employment of the employee with the
issuer or a related entity of the issuer, (b) in the case of an executive officer or the
executive officer’s permitted assign, the executive officer or the executive
officer’s permitted assign is not induced to participate in the trade by expectation
of appointment, employment, continued appointment or continued employment of the executive
officer with the issuer or a related entity of the issuer, and (c) in the case of a
consultant or the consultant’s permitted assign, the consultant or the
consultant’s permitted assign is not induced to participate in the trade by
expectation of engagement of the consultant to provide services or continued engagement of
the consultant to provide services to the issuer or a related entity of the issuer.
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 and the Underwriters prior to the Closing Time.
|
|
|
| |
|
|
|
|
|
| Dated |
|
Signed |
| |
| |
|
|
|
| Witness (If Purchaser is an Individual) |
|
Print the name of Purchaser |
| |
| |
|
|
|
| Print Name of Witness |
|
If Purchaser is a Corporation, print name and title of
Authorized Signing Officer |
C-2
SCHEDULE D
Term Sheet
| |
Issuer: |
|
Glencairn
Gold Corporation (the "Company"). |
| |
Offering: |
|
Private
placement offering of subscription receipts of the Company (the
"Subscription Receipts"). |
| |
Type of Offering: |
|
Private placement on an underwritten basis, subject to a formal
underwriting agreement. |
| |
Issued Securities: |
|
Subscription
Receipts, each exercisable to acquire, for no additional consideration, one unit (a “Unit”)
comprised of one common share of the Company (a “Common Share”) and one-half of
one common share purchase warrant of the Company (each whole common share purchase
warrant, a Warrant”), subject to adjustment in certain events. |
| |
Warrants: |
|
Each
Warrant will entitle the holder to purchase one Common Share (a “Warrant Share”)
at a price of $0.80 per share until the earlier of (i) two years following the Closing
Date (as hereinafter defined), and (ii) at the option of the Company, the date that is 30
days following provision of notice to warrantholders from the Company that the closing
price of its common shares on the Toronto Stock Exchange (the “TSX”) has been
at least $1.20 for 30 consecutive trading days (such notice not to be provided prior to
the date which is four months and one day following the Closing Date (as hereinafter
defined)). |
| |
Size of Issue: |
|
$18,000,000. |
| |
Issue Price: |
|
$0.60 per Subscription Receipt (the "Issue Price"). |
| |
Escrow: |
|
The
gross proceeds of the Offering less the Underwriters’ Commission (as hereinafter
defined) (the “EscrowedProceeds”) will be held in escrow on behalf of
the purchasers’ of the Subscription Receipts by an escrow agent acceptable to the
Company and Orion (as hereinafter defined) in an interest bearing account. The Escrowed
Proceeds (and accrued interest) will be released to the Company upon the completion of
the acquisition of the La Libertad gold mine in Nicaragua and a 60% interest in the Cerro
Quema gold deposit in Panama (the “Acquisition”) on terms previously disclosed
and otherwise reasonably acceptable to the Underwriters, including, for greater
certainty, the delivery to the Underwriters of a favourable legal opinion with respect to
title of the La Libertad property to be acquired by the Company pursuant to the
Acquisition (the “Escrow Condition”). If the Escrow Condition is not satisfied
on or before 5:00 p.m. (Toronto time) on July 31, 2006, the Escrowed Proceeds (plus
accrued interest) shall be used by the Company to repurchase the Subscription Receipts at
a redemption price per Subscription Receipt equal to the Issue Price plus a pro rata
amount of any interest accrued in respect of the Escrowed Proceeds to the date of
redemption. To the extent that the Escrowed Proceeds (plus accrued interest) are not
sufficient to purchase all of the Subscription Receipts, the Company will contribute such
amounts as are necessary to satisfy any shortfall. |
| |
Offering
Jurisdictions: |
|
All provinces of Canada. U.S. sales by private placement to accredited
investors pursuant to Rule 506 of Regulation D under
the U.S. Securities Act of 1933, as amended. |
| |
Closing Date: |
|
June 30, 2006, or such other date as the Company and Orion mutually
agree (the "Closing Date"). |
| |
Conditions of
Closing: |
|
Conditions to completion of the Offering shall include, among other things,
evidence of all requisite approvals, including the conditional approval of the TSX; (ii)
certificates of responsible officers of the Company; and (iii) favourable legal opinions
of counsel to the Company and its subsidiaries in respect of corporate and securities
matters, in each case in a form customary for transactions of this nature and all in a
form satisfactory to the Underwriters, acting reasonably. |
| |
Underwriters: |
|
Orion
Securities Inc. ("Orion") will be lead underwriter and sole book runner of
a syndicate of underwriters (collectively, the
"Underwriters"), including Canaccord ▇▇▇▇▇ Inc.,
Dundee Securities Corporation and Blackmont Capital Inc. |
| |
Underwriters'
Commission: |
|
6.0% of the gross proceeds of the Offering (the " Underwriters' Commission").
The Company will also pay all expenses relating to the
Offering, whether or not it is completed. |
| |
Underwriters'
Compensation
Warrants: |
|
The
Underwriters will be issued compensation warrants (the "Compensation
Compensation Warrants: Warrants") exercisable to acquire an aggregate
of 1,800,000 Units. The Compensation Warrants shall be exercisable at any time up to
24 months following the Closing Date at an exercise price of $0.64 per Unit. |
| |
Listing: |
|
The
Company will obtain the necessary approvals to list the Common Shares issuable upon
exercise of the Subscription Receipts (including any Warrant Shares issued on exercise of
the Warrants) on the TSX and the American Stock Exchange, which listing shall be
conditionally approved prior to the Closing Date. |
| |
Resale and Hold
Period: |
|
The Subscription Receipts and any Common Shares and Warrants issued on
exercise thereof and any Warrant Shares issuable upon exercise of the Warrants will be
subject to a statutory hold or restricted period of four months and one day after the
Closing Date. |
D-2