Exhibit 4.11
APOLLO GOLD CORPORATION
SUBSCRIPTION AGREEMENT
TWO COMPLETED AND ORIGINALLY EXECUTED COPIES OF THIS SUBSCRIPTION AGREEMENT AND
APPLICABLE SCHEDULES MUST BE DELIVERED IN ACCORDANCE WITH ARTICLE 4 OF THIS
SUBSCRIPTION AGREEMENT AS SOON AS POSSIBLE, AND, IN ANY EVENT, NO LATER THAN
11:00 A.M. (TORONTO TIME) ON DECEMBER 20, 2002.
TO: APOLLO GOLD CORPORATION
AND TO: BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ INC. (THE "AGENT")
The undersigned (the "SUBSCRIBER") hereby confirms its irrevocable subscription
for and offer to purchase from Apollo Gold Corporation (the "CORPORATION") that
number of units of the Corporation (the "UNITS") set out below at a price of
$2.40 per Unit. Each Unit consists of one common share in the capital of the
Corporation (a "PURCHASED SHARE") and one-half of one common share purchase
warrant (each whole common share purchase warrant, a "WARRANT"). Each Warrant
entitles the holder, upon exercise at any time on or before the day that is four
years from the Closing Date (as defined below), to acquire from the Corporation,
at a price of $3.25 per Warrant, one common share in the capital of the
Corporation (a "WARRANT SHARE"). The Subscriber agrees to be bound by the terms
of this Subscription Agreement and, without limitation, agrees that the
Corporation and the Agent may rely upon the Subscriber's covenants,
representations and warranties herein.
______________________________________________________
(Name of Subscriber - please print)
Account Reference:____________________________________
By:___________________________________________________
Authorized Signature
______________________________________________________
(Official Capacity or Title - please print)
______________________________________________________
(Please print name of individual whose signature appears above if different than
the name of the subscriber printed above.)
______________________________________________________
(Subscriber's Address)
______________________________________________________
______________________________________________________
______________________________________________________
(Telephone Number)
REGISTER THE PURCHASED SHARES, THE WARRANTS AND THE
---------------------------------------------------
WARRANT SHARES AS SET FORTH BELOW:
----------------------------------
______________________________________________________
(Name)
______________________________________________________
(Account Reference, if applicable)
______________________________________________________
(Address)
______________________________________________________
(Telephone Number)
Number of Units:______________________________________
Aggregate Subscription Price:_________________________
(the "SUBSCRIPTION PRICE")
IF THE SUBSCRIBER IS SIGNING AS AGENT FOR A PRINCIPAL
(BENEFICIAL PURCHASER) AND IS NOT PURCHASING AS TRUSTEE OR
AGENT FOR ACCOUNTS FULLY MANAGED BY IT, COMPLETE THE
FOLLOWING:
______________________________________________________
(Name of Principal)
______________________________________________________
(Principal's Address)
______________________________________________________
DELIVER THE PURCHASED SHARES, THE WARRANTS AND THE
--------------------------------------------------
WARRANT SHARES AS SET FORTH BELOW:
----------------------------------
______________________________________________________
(Name)
______________________________________________________
(Account Reference, if applicable)
______________________________________________________
(Address)
______________________________________________________
(Contact Name) (Telephone Number)
ii.
TABLE OF CONTENTS
ARTICLE 1 - INTERPRETATION
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.2 Gender and Number . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.3 Accounting Principles . . . . . . . . . . . . . . . . . . . . . . . . .2
1.4 Currency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.5 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
ARTICLE 2 - SCHEDULES
2.1 Description of Schedules. . . . . . . . . . . . . . . . . . . . . . . .2
ARTICLE 3 - SUBSCRIPTION AND DESCRIPTION OF UNITS
3.1 Subscription for the Units. . . . . . . . . . . . . . . . . . . . . . .3
3.2 Acceptance and Rejection of Subscription by the Corporation . . . . . .3
ARTICLE 4 - CLOSING
4.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
4.2 Conditions of Closing . . . . . . . . . . . . . . . . . . . . . . . . .4
4.3 Authorization of the Agent. . . . . . . . . . . . . . . . . . . . . . .5
ARTICLE 5 - REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CORPORATION
ARTICLE 6 - ACKNOWLEDGEMENTS, COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE
SUBSCRIBER
6.1 Representations and Warranties of the Subscriber. . . . . . . . . . . .7
6.2 Acknowledgments of the Subscriber . . . . . . . . . . . . . . . . . . .9
ARTICLE 7 - SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
7.1 Survival of Representations, Warranties and Covenants of the
Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.2 Survival of Representations, Warranties and Covenants of the
Subscriber. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 8 - MISCELLANEOUS
8.1 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . . 11
8.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8.3 Time of the Essence . . . . . . . . . . . . . . . . . . . . . . . . . 12
8.4 Costs and Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . 12
8.5 Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
8.6 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
8.7 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
8.8 Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
8.9 Enurement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
iii.
SCHEDULE "A" - THE TORONTO STOCK EXCHANGE
PRIVATE PLACEMENT QUESTIONNAIRE . . . . . . . . . . . . . . . . . . . . . . . A1
UNDERTAKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A2
SCHEDULE "B" - CERTIFICATE OF AN ACCREDITED OFFICER
EXHIBIT "A" - ACCREDITED INVESTORS IN BRITISH COLUMBIA AND ALBERTA. . . . . . ▇▇
▇▇▇▇▇▇▇ "▇" - ACCREDITED INVESTORS IN ONTARIO . . . . . . . . . . . . . . . . B3
SCHEDULE "C" - CERTIFICATE OF PURCHASER
FORM 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C1
SCHEDULE "D" - ACKNOWLEDGEMENT OF INDIVIDUAL PURCHASER
BC FORM 45-903F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D1
SCHEDULE "E" - LIST OF CONVERTIBLE SECURITIES
OUTSTANDING CONVERTIBLE SECURITIES OF APOLLO GOLD CORPORATION AS AT
DECEMBER 17, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E1
1.
ARTICLE 1 - INTERPRETATION
1.1 DEFINITIONS
Whenever used in this Subscription Agreement, unless there is
something in the subject matter or context inconsistent therewith, the following
words and phrases shall have the respective meanings ascribed to them as
follows:
"AGENT" means BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc.
"AGENCY AGREEMENT" means the agency agreement dated as of the Closing Date
between the Agent and the Corporation in respect of the offering of Units.
"AUDITED FINANCIAL STATEMENTS" means the audited financial statements of
the Corporation as at, and for the years ended, December 31, 1999, 2000 and
2001 as filed with the Canadian securities regulators pursuant to the
Securities Laws.
"BUSINESS DAY" means a day other than a Saturday, Sunday or any other day
on which the principal chartered banks located in Toronto are not open for
business.
"CLOSING" has the meaning ascribed to the term in Section 4.1.
"CLOSING DATE" has the meaning ascribed to the term in Section 4.1.
"CLOSING TIME" has the meaning ascribed to the term in Section 4.1.
"COMMON SHARES" means the common shares in the capital of the Corporation.
"CONTROL PERSON" means a person, company or combination of persons or
companies described in clause (c) of the definition of "distribution" in
subsection 1(1) of the Securities Act (Ontario).
"CORPORATION" means Apollo Gold Corporation and includes any successor
corporation to or of the Corporation.
"MELLON" means CIBC Mellon Trust Company.
"PERSON" means any individual, corporation, firm, partnership, sole
proprietorship, syndicate, joint venture, trustee, trust, unincorporated
organization or association, and pronouns have a similar extended meaning.
"PURCHASED SHARES" has the meaning ascribed to the term on the face page
hereof.
"SECURITIES" means, collectively, the Purchased Shares, the Warrants and
the Warrant Shares.
"SECURITIES LAWS" means, as applicable, the securities laws, the
regulations, rules, rulings and orders in British Columbia, Alberta,
Manitoba and Ontario, the applicable policy statements issued by the
securities regulators in each of these provinces, and the rules of the TSX.
"SUBSCRIPTION AGREEMENT" means this subscription agreement and any
instrument amending this Subscription Agreement; "HEREOF", "HERETO",
"HEREUNDER" and similar expressions mean and refer to this Subscription
Agreement and not to a particular Article or Section; and the expression
2.
"ARTICLE" or "SECTION" followed by a number means and refers to the
specified Article or Section of this Subscription Agreement.
"SUBSCRIPTION PRICE" has the meaning ascribed to the term on the face page
of this Subscription Agreement.
"TSX" means The Toronto Stock Exchange.
"UNAUDITED FINANCIAL STATEMENTS" means the unaudited financial statements
of the Corporation as at September 30, 2002, and for the periods then
ended, as filed with the Canadian securities regulators pursuant to the
Securities Laws.
"UNIT" has the meaning ascribed to the term on the face page hereof.
"WARRANT" has the meaning ascribed to the term on the face page hereof.
"WARRANT SHARES" means the Common Shares issuable upon the exercise of the
Warrants.
1.2 GENDER AND NUMBER
Words importing the singular number only shall include the plural and
vice versa, words importing the masculine gender shall include the feminine
gender and words importing persons shall include firms and corporations and vice
versa.
1.3 ACCOUNTING PRINCIPLES
In this Subscription Agreement, "GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES" means the accounting principles from time to time approved by the
Canadian Institute of Chartered Accountants, or any successor entity, applicable
as at the date on which such principles are applied.
1.4 CURRENCY
Unless otherwise stated, all dollar amounts herein are expressed in
Canadian dollars.
1.5 HEADINGS
The division of this Subscription Agreement into Articles and Sections
and the use of a table of contents and headings are for convenience of reference
only and shall not affect the interpretation of this Subscription Agreement.
ARTICLE 2 - SCHEDULES
2.1 DESCRIPTION OF SCHEDULES
The following are the Schedules attached to and incorporated in this
Subscription Agreement by reference and deemed to be a part hereof:
Schedule "A" - TSX Private Placement Questionnaire and Undertaking
Schedule "B" - Alberta, British Columbia and Ontario Residents -
Certificate of an Accredited Investor
Schedule "C" - Manitoba Residents - Certificate of Purchaser
3.
Schedule "D" - Acknowledgement of Individual Purchaser
Schedule "E" - List of Convertible Securities
ARTICLE 3 - SUBSCRIPTION AND DESCRIPTION OF UNITS
3.1 SUBSCRIPTION FOR THE UNITS
The Subscriber hereby confirms its irrevocable subscription for and
offer to purchase the Units from the Corporation, on and subject to the terms
and conditions set out in this Subscription Agreement and the Warrants for the
Subscription Price which is payable as described in Article 4.
3.2 ACCEPTANCE AND REJECTION OF SUBSCRIPTION BY THE CORPORATION
The Subscriber acknowledges and agrees that the Corporation reserves
the right, in its absolute discretion, to reject this subscription for Units, in
whole or in part, at any time prior to the Closing Time notwithstanding prior
receipt by the Subscriber of a notice of acceptance of this subscription. If
this subscription is rejected in whole, any cheques or other forms of payment
delivered to the Agent representing the Subscription Price will be promptly
returned to the Subscriber without interest or deduction. If this subscription
is accepted only in part, a cheque representing any refund of the Subscription
Price for that portion of the subscription for the Units which is not accepted
will be promptly delivered to the Subscriber without interest or deduction.
ARTICLE 4 - CLOSING
4.1 CLOSING
Delivery and payment of the Subscription Price will be completed (the
"CLOSING") at the offices of Fogler, ▇▇▇▇▇▇▇▇ LLP, Toronto, at 2:00 p.m.
(Toronto time) or such earlier or later time as agreed between the Corporation
and the Agent (the "CLOSING TIME") on December 23, 2002 or such other place or
date or time as the Corporation acting reasonably may decide (the "CLOSING
DATE"). If by the Closing Time, the terms and conditions contained in this
Subscription Agreement have been complied with to the satisfaction of the
Corporation or waived by it, the Corporation shall deliver to the Subscriber
(1) a certificate representing the Purchased Shares;
(2) a certificate representing the Warrants; and
(3) an opinion of counsel in form and content satisfactory to the
Subscriber which shall include the following:
(a) the corporate status and capital structure of the Corporation;
(b) the enforceability of this Subscription Agreement and the
Warrants;
(c) the conditional issue and listing of the Purchased Shares;
(d) the conditional issue and listing of the Warrant Shares; and
(e) resale restrictions under Securities Laws applicable to the
Securities.
4.
Contemporaneously therewith, the Subscriber will deliver to or to the
direction of the Corporation, the Subscription Price by certified cheque or bank
draft and such other documentation as may be required pursuant to the terms of
this Subscription Agreement. If by the Closing Time, the terms and conditions
contained in this Subscription Agreement (other than the documents required to
be delivered by the Corporation to the Subscriber as described in section 4.1)
have not been complied with to the satisfaction of the Corporation or waived by
it, the Corporation will have no further obligations under this Subscription
Agreement.
4.2 CONDITIONS OF CLOSING
The Subscriber acknowledges and agrees that the obligations of the
Corporation hereunder are conditional on the accuracy of the representations and
warranties of the Subscriber contained in this Subscription Agreement as of the
date of this Subscription Agreement, and as of the Closing Time as if made at
and as of the Closing Time, and the fulfillment of the following additional
conditions as soon as possible and in any event not later than the Closing Time:
(1) payment by the Subscriber of the Subscription Price by certified
cheque or bank draft in Canadian dollars payable to "BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇
Inc.";
(2) the Subscriber having properly completed, signed and delivered two
copies of this Subscription Agreement to:
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc.
Investment and Corporate Banking
1 First Canadian Place
5th Floor, P.O. Box 150
Toronto, ON M5X 1H3
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(3) the Subscriber having properly completed, signed and delivered a
Private Placement Questionnaire and Undertaking to the TSX in the form
attached hereto as Schedule "A"; and
(4) the Subscriber having properly completed, signed and delivered the
following documents as applicable:
(a) if the Subscriber is a resident of British Columbia, Alberta or
Ontario, a certificate set forth in Schedule "B" evidencing the
Subscriber's (or others for whom the Subscriber is contracting)
status as an accredited investor;
(b) if the Subscriber is a resident of Manitoba, Form 8 attached
hereto as Schedule "C"; and
(c) if the Subscriber is an individual resident of British Columbia,
B.C. Form 45-903F1 attached hereto as Schedule "D".
5.
4.3 AUTHORIZATION OF THE AGENT
The Subscriber irrevocably authorizes the Agent, in its discretion, to
act as the Subscriber's representative at the Closing, and hereby appoints the
Agent, with full power of substitution, as its true and lawful attorney with
full power and authority in the Subscriber's place and stead:
(1) to receive certificates representing the Purchased Shares and the
Warrants, to execute in the Subscriber's name and on its behalf all
closing receipts and required documents, and to complete and correct
any document relating to the transactions contemplated by this
Subscription Agreement and the Agency Agreement;
(2) to extend such time periods and to waive, in whole or in part, any
representations, warranties, covenants or conditions for the
Subscriber's benefit contained in this Subscription Agreement, the
Agency Agreement or any ancillary or related document;
(3) to terminate this Subscription Agreement if any condition precedent is
not satisfied, in such manner and on such terms and conditions as the
Agent in its sole discretion may determine; and
(4) without limiting the generality of the foregoing, to negotiate,
settle, execute, deliver and amend the Agency Agreement and to
negotiate, settle and amend the terms of the Warrants.
ARTICLE 5 - REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE CORPORATION
The Corporation hereby represents and warrants to the Subscriber as
follows and acknowledges that the Subscriber and the Agent are relying on such
representations and warranties in connection with the transactions contemplated
herein:
(1) The Corporation is a corporation duly organized and validly existing
under the laws of its jurisdiction of incorporation and is in good
standing under such laws. No proceedings have been instituted or are
pending for the dissolution or liquidation of the Corporation.
(2) The Corporation has all requisite legal and corporate power and
authority to execute and deliver this Subscription Agreement, to sell,
issue and deliver the Securities and to carry out and perform its
obligations under the terms of this Subscription Agreement. This
Subscription Agreement constitutes, and, once executed by the
Corporation, the Securities will constitute, legal, valid and binding
obligations of the Corporation enforceable against the Corporation in
accordance with their terms.
(3) The Corporation has taken all corporate and legal action necessary for
the due authorization, execution and delivery by the Corporation of
this Subscription Agreement, to sell and issue the Purchased Shares
and the Warrants, and to carry out and perform its obligations under
the terms of this Subscription Agreement and the Agency Agreement. The
Corporation has reserved and allotted the Warrant Shares and, upon the
exercise of the Warrants in accordance with their terms, the Warrant
Shares will be issued and outstanding as fully paid and non-assessable
Common Shares.
(4) The authorized capital of the Corporation consists of an unlimited
number of Common Shares.
6.
(5) At the close of business on December 16, 2002, 40,190,878 Common
Shares were outstanding as fully paid and non-assessable shares.
(6) The outstanding Common Shares of the Corporation are listed and posted
for trading solely on the TSX. No order ceasing or suspending trading
in any securities of the Corporation has been issued and no
proceedings for such purpose are pending or, to the knowledge of the
Corporation, threatened. As of the Closing Time, the Purchased Shares
will be listed and posted for trading on the TSX subject to
satisfaction of the usual conditions imposed by the TSX.
(7) Mellon at its principal office in the City of Toronto has been duly
appointed transfer agent and registrar for the Purchased Shares and
Warrant Shares.
(8) Except as disclosed in Schedule "E", no person, firm or corporation
has any right, agreement or option, present or future, contingent or
absolute, or any right or privilege capable of becoming a right,
agreement or option, for the purchase, subscription or issuance of any
preference shares of the Corporation or any Common Shares or any other
security convertible into or exchangeable for preference shares or
Common Shares.
(9) The Corporation is a reporting issuer, or the equivalent thereof,
under the Securities Laws of British Columbia, Alberta, Manitoba and
Ontario. The Corporation is not in default in any material respect of
any requirement of the Securities Laws of the foregoing jurisdictions
and the Corporation is not included on a list of defaulting reporting
issuers maintained by the securities regulators of any of the
foregoing jurisdictions.
(10) As of the Closing Time, the Corporation will be a "qualifying issuer"
under Multilateral Instrument 45-102 - Resale of Securities, such that
the Securities will be subject to a statutory four-month hold period
in Canada.
(11) The Corporation is in compliance at the date hereof with its
obligations to make timely disclosure of all material changes relating
to it and no such disclosure has been made on a confidential basis and
there is no material change relating to the Corporation which has
occurred and with respect to which the requisite material change
report has not been filed.
(12) The Audited Financial Statements and the Unaudited Financial
Statements:
(a) have been prepared in accordance with Canadian generally accepted
accounting principles applied on a basis consistent with those of
preceding fiscal periods;
(b) present fully, fairly and correctly, in all material respects,
the assets, liabilities and financial condition of the
Corporation as at the dates as of which such statements were
prepared and the results of its operations and the changes in its
financial position for the periods then ended; and
(c) contain and reflect adequate provision or allowance for all
reasonably anticipated liabilities, expenses and losses of the
Corporation.
7.
(13) The execution and delivery of this Subscription Agreement, the Agency
Agreement and the Warrants, the performance and compliance with the
terms hereof and thereof and the completion of the transactions
described herein and therein by the Corporation will not result in any
material breach of, or be in conflict with or constitute a material
default under, or create a state of facts which, after notice or lapse
of time, or both, would constitute a material default under any term
or provision of the constating documents, by-laws or resolutions of
the Corporation, the Securities Laws applicable to the Corporation,
any material agreement to which the Corporation is a party, or any
judgment, decree, order, statute, rule or regulation applicable to the
Corporation.
(14) The Corporation is not a party to any actions, suits or proceedings
which could materially affect its business or financial condition nor,
to the knowledge of the Corporation, are any such actions, suits or
proceedings threatened or pending.
ARTICLE 6 - ACKNOWLEDGEMENTS, COVENANTS, REPRESENTATIONS AND
WARRANTIES OF THE SUBSCRIBER
6.1 REPRESENTATIONS AND WARRANTIES OF THE SUBSCRIBER
The Subscriber, on its own behalf and on behalf of others for whom it
is contracting, hereby represents and warrants to, and covenants with, the
Corporation as follows and acknowledges that the Corporation and the Agent are
relying on such representations and warranties in connection with the
transactions contemplated herein:
(1) The Subscriber and each beneficial purchaser for whom it is acting:
(i) is a resident in the province set out on the face page of this
Subscription Agreement, or (ii) is not a citizen or resident of
Canada, or a corporation, partnership or other entity created in or
organized under the laws of Canada or any province or territory
thereof.
(2) If the Subscriber is a resident of British Columbia, Alberta or
Ontario, the Subscriber has completed and delivered to the Corporation
the applicable certificate (dated as of the date hereof) set forth in
Schedule "B" evidencing the Subscriber's (or if the Subscriber is
acting as agent for a disclosed principal, such disclosed principal's)
status as an eligible subscriber.
(3) If the Subscriber is a resident of Manitoba, (i) the Subscriber is
purchasing a sufficient number of Units such that the aggregate
acquisition cost to the Subscriber is not less than $97,000; and (ii)
the Subscriber has completed and delivered to the Corporation a Form 8
attached hereto as Schedule "C".
(4) If the Subscriber is an individual resident of British Columbia, the
Subscriber has completed and delivered to the Corporation B.C. Form
45-903F1 attached hereto as Schedule "D".
(5) If the Subscriber, or any beneficial purchaser for whom it is acting,
is not a person resident in Canada, the purchase of the Units by the
Subscriber, or such beneficial purchaser, does not contravene any of
the applicable securities legislation in the jurisdiction in which the
Subscriber or such beneficial purchaser resides and does not give rise
to any obligation of the Corporation or the Agent to prepare and file
a prospectus or similar document or to register the Securities or to
be registered with or to file any report or notice with any
governmental or regulatory authority.
8.
(6) Neither the Subscriber nor any beneficial purchaser for whom it is
acting will offer or sell the Securities in the United States or to a
U.S. Person unless an exemption from the registration requirements
under the United States Securities Act of 1933 and the securities laws
of all applicable states of the United States is available.
(7) The Subscriber has properly completed, executed and delivered a
Private Placement Questionnaire and Undertaking to the TSX in the form
set out in Schedule "A".
(8) The execution and delivery of this Subscription Agreement, the
performance and compliance with the terms hereof, the purchase of the
Units and the completion of the transactions described herein by the
Subscriber will not result in any material breach of, or be in
conflict with or constitute a material default under, or create a
state of facts which, after notice or lapse of time, or both, would
constitute a material default under any term or provision of the
constating documents, by-laws or resolutions of the Subscriber, the
Securities Laws or any other laws applicable to the Subscriber, any
agreement to which the Subscriber is a party, or any judgment, decree,
order, statute, rule or regulation applicable to the Subscriber.
(9) In the case of a purchase of the Units by the Subscriber acting as
trustee or agent (including, for greater certainty, a portfolio
manager or comparable adviser) for a principal, the Subscriber is duly
authorized to execute and deliver this Subscription Agreement and all
other necessary documentation in connection with such subscription on
behalf of each such beneficial purchaser, each of whom is purchasing
as principal for its own account, not for the benefit of any other
person and not with a view to the resale or distribution of the Units,
and this Subscription Agreement has been duly authorized, executed and
delivered by or on behalf of and constitutes a legal, valid and
binding agreement of, such principal, and the Subscriber acknowledges
that the Corporation and/or the Agent may be required by law to
disclose the identity of each beneficial purchaser for whom the
Subscriber is acting.
(10) In the case of a purchase of the Units by the Subscriber acting as
principal, this Subscription Agreement has been duly authorized,
executed and delivered by, and constitutes a legal, valid and binding
agreement of, the Subscriber.
(11) If the Subscriber is:
(a) a corporation, the Subscriber is duly incorporated and is validly
subsisting under the laws of its jurisdiction of incorporation
and has all requisite legal and corporate power and authority to
execute and deliver this Subscription Agreement, to purchase the
Units as contemplated herein and to carry out and perform its
obligations under the terms of this Subscription Agreement;
(b) a partnership, syndicate or other form of unincorporated
organization, the Subscriber has the necessary legal capacity and
authority to execute and deliver this Subscription Agreement and
to observe and perform its covenants and obligations hereunder
and has obtained all necessary approvals in respect thereof; or
9.
(c) an individual, the Subscriber is of the full age of majority and
is legally competent to execute this Subscription Agreement and
to observe and perform his or her covenants and obligations
hereunder.
(12) Other than the Agent, 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. If any person establishes a
claim that any fee or other compensation is payable in connection with
this subscription for the Units, the Subscriber covenants to indemnify
and hold harmless the Corporation and the Agent with respect thereto
and with respect to all costs reasonably incurred in the defence
thereof.
(13) The Subscriber is not, with respect to the Corporation or any of its
affiliates, a Control Person or an "insider" as such term is defined
in the Securities Act (Ontario).
(14) The Subscriber is neither a person in the United States nor a United
States person (as such terms are defined in Regulation S under the
United States Securities Act of 1933, as amended) and the Subscriber
is not purchasing the Units for the account or benefit of a person in
the United States or a United States person or for resale in the
United States and confirms that the Units have not been offered to the
Subscriber in the United States and that this Subscription Agreement
has not been signed in the United States.
6.2 ACKNOWLEDGMENTS OF THE SUBSCRIBER
The Subscriber, on its own behalf and on behalf of others for whom it
is contracting, acknowledges and agrees as follows:
(1) No securities commission or similar regulatory authority has reviewed
or passed on the merits of the Securities.
(2) The Securities are subject to statutory resale restrictions under the
Securities Laws of the province in which the Subscriber resides and
under other applicable securities laws.
(3) The Subscriber, and each beneficial purchaser for whom it is
contracting hereunder, have been advised to consult legal advisors
with respect to trading in the Securities and with respect to the
resale restrictions imposed by the Securities Laws in which the
Subscriber resides and other applicable securities laws, and
acknowledges that no representation has been made respecting the
applicable hold periods or other resale restrictions applicable to
such securities, that the Subscriber (or others for whom it is
contracting thereunder) are solely responsible (and neither the
Corporation nor the Agent are in any way responsible) for compliance
with applicable resale restrictions and the Subscriber is aware that
it (or beneficial purchasers for whom it is contracting hereunder) may
not be able to resell such securities except in accordance with
limited exemptions under the Securities Laws and other applicable
securities laws.
(4) The certificate representing the Purchased Shares and the Warrants
will bear, and the certificates representing the Warrant Shares may
bear, a legend referring to the resale restrictions referred to above.
(5) The Subscriber has not received or been provided with a prospectus,
offering memorandum, or sales or advertising literature and the
Subscriber's decision to purchase the Units was not based upon, and
the Subscriber has not relied upon, any verbal or written
10.
representations as to fact made by or on behalf of the Corporation or
the Agent. The Subscriber's decision to purchase the Units was based
solely upon information about the Corporation which is publicly
available (any such information having been obtained by the Subscriber
without independent investigation or verification by the Agent).
(6) The Agent and its directors, officers, employees, agents and
representatives assumes no responsibility or liability of any nature
whatsoever for the accuracy or adequacy of any such publicly available
information concerning the Corporation or as to whether all
information concerning the Corporation that is required to be
disclosed or filed by the Corporation under the Securities Laws has
been so disclosed or filed.
(7) No person has made any written or oral representations:
(a) that any person will resell or repurchase any of the Securities;
(b) that any person will refund the Subscription Price of the Units;
or
(c) as to the future price or value of the Purchased Shares or any
other Securities.
(8) The purchase of the Units has not been made through or as a result of,
and the distribution of the Units is not being accompanied by, any
advertisement, including in electronic display, or general
solicitation.
(9) There are risks associated with the purchase of the Units and with an
investment in the Securities and the Subscriber, and each beneficial
purchaser for whom it is contracting hereunder, is knowledgeable,
sophisticated and experienced in business and financial matters and is
capable of evaluating the merits and risks of an investment in the
Units and other Securities, fully understands the terms of the
Warrants and other Securities, and the restrictions on resale of the
Securities, and is able to bear the economic risk of an investment in
the Units and other Securities.
(10) The Subscriber, and each beneficial purchaser for whom it is
contracting hereunder, shall execute, deliver, file and otherwise
assist the Corporation and the Agent with filing all documentation
required by the applicable Securities Laws to permit the purchase of
the Units and the issuance and delivery of the Purchased Shares,
Warrants and Warrant Shares.
(11) The Corporation is relying on an exemption from the requirement to
provide the Subscriber with a prospectus under the Securities Laws
and, as a consequence of acquiring the Units pursuant to such
exemption, certain protections, rights and remedies provided by the
Securities Laws, including statutory rights of rescission or damages,
will not be available to the Subscriber.
(12) Neither the Units nor any of the other Securities have been or will be
registered under the United States Securities Act of 1933 and none of
the Securities may be offered or sold in the United States or to
United States persons unless such Securities are registered under such
Act or an exemption from the registration requirements of such Act is
available.
11.
(13) The Subscriber, and each beneficial purchaser for whom it is
contracting hereunder, is responsible for obtaining such legal advice
as it considers appropriate in connection with the execution, delivery
and performance of this Subscription Agreement and the transactions
contemplated under this Subscription Agreement.
ARTICLE 7 - SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
7.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
CORPORATION
The representations, warranties and covenants of the Corporation
contained in this Subscription shall survive the Closing and, notwithstanding
such Closing or any investigation made by or on behalf of the Subscriber with
respect thereto, shall continue in full force and effect for the benefit of the
Subscriber and the Agent for a period of four years after the Closing Date.
7.2 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SUBSCRIBER
The representations, warranties and covenants of the Subscriber
contained in this Subscription Agreement shall survive the Closing and,
notwithstanding such Closing or any investigation made by or on behalf of the
Corporation or the Agent with respect thereto, shall continue in full force and
effect for the benefit of the Corporation and the Agent for a period of four
years after the Closing Date.
ARTICLE 8 - MISCELLANEOUS
8.1 FURTHER ASSURANCES
Each of the parties hereto upon the request of each of the other
parties hereto, whether before or after the Closing Time, shall do, execute,
acknowledge and deliver or cause to be done, executed, acknowledged and
delivered all such further acts, deeds, documents, assignments, transfers,
conveyances, powers of attorney and assurances as reasonably may be necessary or
desirable to complete the transactions contemplated herein.
8.2 NOTICES
(1) Any notice, direction or other instrument required or permitted to be
given to any party hereto shall be in writing and shall be
sufficiently given if delivered personally, or transmitted by
facsimile tested prior to transmission to such party, as follows:
(a) in the case of the Corporation at:
Apollo Gold Corporation
▇/▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
12.
with a copy to:
Fogler, ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇ Trust Tower
Toronto-Dominion Centre
Toronto, ON M5K 1G8
Attention: Avi ▇▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(b) in the case of the Subscriber, at the address specified on the
face page hereof, with a copy to the Agent at:
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc.
Investment and Corporate Banking
1 First Canadian Place
5th Floor, P.O. Box 150
Toronto, ON M5X 1H3
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(2) Any such notice, direction or other instrument, if delivered
personally, shall be deemed to have been given and received on the day
on which it was delivered, provided that if such day is not a Business
Day then the notice, direction or other instrument shall be deemed to
have been given and received on the first Business Day next following
such day and if transmitted by fax, shall be deemed to have been given
and received on the day of its transmission, provided that if such day
is not a Business Day or if it is transmitted or received after the
end of normal business hours then the notice, direction or other
instrument shall be deemed to have been given and received on the
first Business Day next following the day of such transmission.
(3) Any party hereto may change its address for service from time to time
by notice given to each of the other parties hereto in accordance with
the foregoing provisions.
8.3 TIME OF THE ESSENCE
Time shall be of the essence of this Subscription Agreement and every
part thereof.
8.4 COSTS AND EXPENSES
All costs and expenses (including, without limitation, the fees and
disbursements of legal counsel) incurred in connection with this Subscription
Agreement and the transactions herein contemplated shall be paid and borne by
the party incurring such costs and expenses.
8.5 APPLICABLE LAW
This Subscription Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the Province of Ontario and the laws of Canada applicable therein. Any and all
disputes arising under this Subscription Agreement, whether as to
interpretation, performance or otherwise, shall be subject to the non-exclusive
jurisdiction of the courts of the Province of Ontario and each of the parties
hereto hereby irrevocably attorns to the jurisdiction of the courts of such
Province.
8.6 ENTIRE AGREEMENT
This Subscription Agreement, including the Schedules hereto,
constitutes the entire agreement between the parties with respect to the
transactions contemplated herein and cancels and supersedes any prior
understandings, agreements, negotiations and discussions between the parties.
There are no representations, warranties, terms, conditions, undertakings or
collateral agreements or understandings, express or implied, between the parties
hereto other than those expressly set forth in this Subscription Agreement or in
any such agreement, certificate, affidavit, statutory declaration or other
document as aforesaid. This Subscription Agreement may not be amended or
modified in any respect except by written instrument executed by each of the
parties hereto.
8.7 COUNTERPARTS
This Subscription Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same Subscription Agreement. Counterparts
may be executed either in original or faxed form and the parties adopt any
signature received by a receiving fax machine as original signatures of the
parties.
8.8 ASSIGNMENT
This agreement may not be assigned by either party except with the
prior written consent of the other party.
8.9 ENUREMENT
This Subscription Agreement shall enure to the benefit of and be
binding upon the parties hereto and their respective heirs, executors,
successors (including any successor by reason of the amalgamation or merger of
any party), administrators and permitted assigns.
IN WITNESS WHEREOF the parties have executed this Subscription
Agreement under the hands of their respective proper officers in that behalf as
of the date first above written.
APOLLO GOLD CORPORATION
Per: /s/
-------------------------------
Name:
Title:
___________________________________
Name of Subscriber
By:________________________________
Name:
Title: