NON-U.S. AND NON-CANADIAN PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
NON-U.S. AND NON-CANADIAN
PRIVATE PLACEMENT
THESE SECURITIES HAVE NOT
BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR
THE LAWS OF ANY STATE, AND ARE BEING ISSUED IN RELIANCE UPON REGULATION S
PROMULGATED UNDER THE ACT. THESE SECURITIES MAY NOT BE OFFERED, SOLD,
TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE U.S. OR TO U.S. PERSONS IN THE
ABSENCE OF REGISTRATION OR THE AVAILABILITY OF AN EXEMPTION FROM SUCH
REGISTRATION. BY SUBSCRIBING TO THIS OFFER YOU ARE WARRANTING THAT YOU ARE NOT A
U.S. RESIDENT OR OTHERWISE SUBJECT TO THE JURISDICTION OF THE
U.S.
REQUIREMENTS
TO SUBSCRIBE - Subscribers please note that to fulfill this subscription
properly you must (a) read this document carefully
and acquire independent legal and investment advice as this document constitutes
a binding legal document, (b) fill in the amount of
securities subscribed for in the section “Amount Subscribed and Method of
Payment” at page 2 below, (c) check off the appropriate
exemption in Appendix I and sign Appendix I, (d) complete the signature and
information page at page 3, and (e) deliver this subscription
agreement and payment, in accordance with the section “Amount Subscribed and
Method of Payment” on page 2.
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To:
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TECHMEDIA
ADVERTISING, INC. (referred to as the “Company”), with an
address for notice and delivery for the purposes of this agreement located
at c/o Jensen ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Law Corporation, ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇.
▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇
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The Company is offering to eligible
investors, including the subscriber (hereinafter referred to as the “Subscriber”) entering into
this Subscription Agreement (the “Agreement”) with the Company,
on an exempt private placement basis and on the terms of this Agreement, shares
(the “Shares”) at a
subscription price of US$1.75
per Share.
The
Shares are also herein referred to as the “Securities”.
This
offering is not subject to the receipt of a minimum subscription amount and any
received subscription monies may be placed into the Company’s accounts and
employed by the Company immediately upon receipt and prior to acceptance and
issuance of any Shares. The Company offers, and the Subscriber
accepts, the Shares on the terms and conditions as set forth in this
Agreement. This Agreement is made specifically subject to the terms
of the attached Schedule “A” and Appendices, which are incorporated herein as
terms.
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AMOUNT SUBSCRIBED AND METHOD
OF PAYMENT
1.1 Subscription
for Shares. Based upon the terms and representations of this
Agreement given by each party to the other, the Subscriber hereby irrevocably
subscribes for and agrees to purchase_
Shares, at a subscription
price of US$1.75 per
Share, for aggregate consideration of
$ (the “Subscription
Price”).
1.2 Method of
Subscription. Subscriptions for Shares shall be made
by:
(a) delivering to ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Law Corporation (the “Company lawyers”) at ▇.▇. ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ – ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇ ▇▇▇, an originally executed copy of this Agreement (Note –
please fill in the above section 1.1, complete and execute the Appendix I, and
fully complete the signature and information page at page 3), and
(b)
payment of the Subscription Price in the following manner:
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(i)
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by
delivery of a bank draft or cashier’s cheque to “▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Law
Corporation in trust” for the Company with the completed
Subscription Agreement for the Subscription Price;
or
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(ii)
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by
wire transfer to the Company’s lawyers by the following wiring
instructions:
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For
US Funds originating outside Canada:
Bank to
Bank
Info.: ▇▇
▇▇▇▇▇▇ Chase Bank, New York
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Bank
Address:
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▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
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ABA#:
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021
000 021
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For
Credit to:
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Royal
Bank Toronto
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UID:
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055253
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Swift
Number:
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▇▇▇▇▇▇▇▇
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For
Further Credit to:
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Royal
Bank, Hastings and
Granville,
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▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇
▇▇▇
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Transit
Number:
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6550
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Account
Name:
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▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Law Corporation Client’s Trust – U.S.
Account
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| Account Number: | ▇▇▇-▇▇▇-▇ | |
| Beneficiary’s address: | 2550 – ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇ |
NOTICE
- Should the Subscriber’s subscription agreement and/or subscription payment be
submitted to ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Law Corporation, the lawyers for the Company,
in trust or otherwise, then the Subscriber agrees that the Company’s lawyers
shall have no accountability to the Subscriber whatsoever and acknowledges that
the Company’s lawyers are merely recipients for the Company. The
Subscriber agrees that submission of the payment to the Company’s lawyers in
trust is to be deposited into the trust account of the Company and shall be the
property of the Company immediately. The Company’s lawyers shall have
the right to transact the subscription monies solely by the direction of the
Company or its agents and the Company’s lawyers shall require no instruction
from the Subscriber. Under no circumstances shall the Company’s
lawyers be considered to be giving legal or other advice or services to the
Subscriber and no communication between the Subscriber and the Company’s lawyers
shall be considered advice (at the most only administrative subscription
assistance on behalf of the Company) but the Subscriber shall rely solely and
exclusively on his own judgment and the advice of his own
counsel.
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IN
WITNESS WHEREOF the Parties hereto have hereunto set their respective
hands and seals in the presence of their duly authorized signatories effective
as at the date first above written.
SUBSCRIPTION
BY SUBSCRIBER:
SUBSCRIBER STATEMENT
– I, the Subscriber, have sought such independent counsel as I consider
necessary and I have read this Agreement carefully and accept, agree and
acknowledge the representations and terms thereof in full and without exception
and agree that this Agreement constitutes the entire agreement between us and
there are no collateral representations or agreements.
Dated
at ,
on this
day of ,
20__.
REMEMBER: The
Subscriber must also carefully read Schedule “A” additional terms of this
Agreement and complete and sign Appendix I to declare his exemption qualifying
the subscriber as an eligible purchaser.
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Name of Subscriber - please
print
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By:
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Signature of
Subscriber
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Subscriber’s Address
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Telephone Number
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Please print name of signing officer
whose
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signature appears above if different
than
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the name of the Subscriber printed
above
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e-mail address
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for
an individual - Country
ID# or Passport #
for
an entity – Corporate
Registration Number and place of incorporation
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ACCEPTANCE
BY THE COMPANY:
TECHMEDIA
ADVERTISING, INC. hereby
accepts the above subscription by the Subscriber on this _____ day of,
20__.
________________________________________________________
By:
Authorized Signatory
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APPENDIX
I
FOREIGN
EXEMPTION CERTIFICATE
IN
THE MATTER OF TECHMEDIA ADVERTISING, INC.
(the
“Company”)
In
addition to the covenants, representations and warranties contained in the
Private Placement Subscription Agreement, to which this Appendix is attached,
the undersigned Subscriber covenants, represents and warrants to the Company as
follows:
The
Subscriber warrants the Subscriber is not a US or Canadian
subscriber. The Subscriber further warrants that the Subscriber is an
eligible exempt investor under the laws of the Subscriber’s country of
domicile. The Subscriber therefore has no restriction in law to his
right to subscribe for the Shares and acknowledges that the Company is relying
upon this in issuing the Securities. The Subscriber advises the
Company that the Subscriber is exempt from investment restriction in the
Subscriber’s country of domicile by one or more of the following (check
appropriate category):
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( )
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the
Subscriber’s domicile laws do not restrict a citizen’s
investment;
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( )
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the
Subscriber is subscribing for an amount which constitutes an exempt
purchase amount in the Subscriber’s jurisdiction which is $
;
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( )
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the
Subscriber is exempt from registration in his jurisdiction due to his net
wealth (the minimum net amount of which is $
);
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( )
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the
Subscriber is exempt due to a further exemption which is described
as:
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The
statements made in this Certificate are true.
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DATED
,
20__.
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Name
of Subscriber [Please Print]
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Signature
of Subscriber or Authorized Signatory of Subscriber
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Name
and Office of Authorized Signatory [Please Print]
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Address
of
Subscriber
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SCHEDULE
“A”
TO THE PRIVATE PLACEMENT
SUBSCRIPTION AGREEMENT
OF
Article
1
SUBSCRIPTION FOR SECURITIES
AND CONDITIONS OF SUBSCRIPTION
1.1 Acceptance
of subscription or return of Subscription Price by the
Company. The Company, upon acceptance by its board of
directors of all or part of this Subscription Agreement, hereby agrees to issue
the Shares as fully paid and non-assessable shares and to refund to the
Subscriber any excess subscription monies of the Subscription Price of any
non-accepted portion of this Subscription Agreement. The Subscriber
agrees and directs that where the Subscriber has omitted to complete certain
sections of this Agreement the Company or its agents may complete such sections
from the Company’s knowledge or logic (such as, by way of example only and
without limitation, inserting the number of Shares subscribed based upon the
funds tendered) or by direction by the Subscriber by phone or
otherwise.
1.2 Use of
Funds before and after acceptance. The subscription monies
shall be advanced immediately to the Company’s general fund to reserve the
Subscriber’s subscription, shall not be held in trust, may be employed by the
Company for its business purposes immediately and prior to acceptance and shall
constitute solely a reservation of subscription and advance of funds
therefore. The Subscriber shall not demand return of its subscription
unless the Shares have not been issued for a period in excess of one year from
the date of this subscription and such demand may be fulfilled by acceptance and
delivery of subscribed Shares or return of funds, at the sole discretion of the
Company. The Subscriber acknowledges that the funds to be raised from
the Shares are to be employed for the business of the Company in accordance with
management’s determination as to the best use of the same for the Company’s
business plan. Notwithstanding any disclosure document or offering
memorandum or prospectus provided concurrent with this subscription, the Company
reserves the right at any time to alter its business plan in accordance with
management’s appreciation of the market for the goods and services of the
Company and the best use of the Company’s funds to advance its business, whether
present or future.
1.3 Subscriber’s
eligibility for subscription. The Subscriber acknowledges and
warrants (and has made diligent inquiries to so determine or has the
sophistication and knowledge to know his status without concern of error), on
which the Company relies, that the Subscriber is purchasing the Shares on a
private basis and without infraction of or impedance by his domicile laws, and,
the Subscriber has completed Appendix I to this Agreement, and the completion of
the same, whether signed or not, constitutes a true and accurate statement by
the Subscriber.
1.4 Securities
issued at different prices and characteristics. The Subscriber
acknowledges that the Company may issue shares at different prices which may
occur sequentially, from time to time, or at the same time and prices in the
future may be lower than now. The Company may also issue offerings
which have warrants, or other benefits, attached and some offerings which do
not. Not all subscribers will receive common shares, or other share
classes, of the Company at the same price and such may be issued at vastly
different prices to that of the Subscriber. For example, the Company
will or may issue common shares at nominal prices as “founder’s shares” (which
may or will constitute millions of common shares, as determined solely by the
Company’s board) or for developmental assets (which cannot be valued and so may
be assigned a nominal value on the Company’s books) or for services or to
attract expertise or management talent or other circumstances considered
advisable by the board of directors of the Company. Such issuances at
different prices are made by the board in its judgment as to typical structuring
for a company such as the Company, to provide incentive, reward, and to provide
a measure of developmental control, to acquire assets or services which the
board considers necessary or advisable for the Company’s development and
success, and other such considerations in the board’s judgment. The
Company may or will acquire debt and/or undertake equity financings in the
future required or advisable, as determined by the Company’s board, in the
course of the Company’s business development. The Subscriber
acknowledges these matters, understands that the Subscriber’s investment is not
necessarily the most advantageous investment in the Company and authorizes the
board of the Company now and hereafter to use its judgment to make such
issuances whether such issuances are at a lesser, equal or greater price than
that of the Subscriber and whether such is prior to, concurrent with, or
subsequent to the Subscriber’s investment.
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Article
2
INVESTMENT SUBSCRIPTION
TERMS, CORPORATE DISCLOSURE AND GENERAL SUBSCRIBER ACKNOWLEDGEMENTS AND
WARRANTIES
2.1 Release
of liability and indemnity. The Subscriber agrees that in
consideration, in part, of the Company’s within acceptance of this subscription,
the Subscriber does hereby release, remise and forever discharge the Company and
its subsidiaries, directors, officers, employees, attorneys, agents, executors,
administrators, successors and assigns, of and from all manner of action and
causes of action, suits, debts, dues, accounts, bonds, covenants, trusts,
contracts, claims, damages and demands, whether known or unknown, suspected or
unsuspected and whether at law or in equity, which against the Company and/or
any of its subsidiaries, directors, officers, employees, attorneys, agents,
executors, administrators, successors and assigns, the Subscriber ever had, now
has, or which the Subscriber or any of them hereafter can, shall or may have by
reason of any matter arising from the within subscription or the use of funds or
the operation of the Company (collectively, the “Release”) except only for
gross negligence or fraud (and such shall constitute only objective willful act
of objective material wrongdoing, and such exception shall only apply against
the Company committing such gross negligence or fraud). The
Subscriber shall hold harmless and indemnify the Company from and against, and
shall compensate and reimburse the same for, any loss, damage, claim, liability,
fee (including reasonable attorneys’ fees), demand, cost or expense (regardless
of whether or not such loss, damage, claim, liability, fee, demand, cost or
expense relates to a third-party claim) that is directly or indirectly suffered
or incurred by the Company, or to which the Company becomes subject, and that
arises directly or indirectly from, or relates directly or indirectly to, any
inaccuracy in or breach of any representation, warranty, covenant or obligation
of the Subscriber contained in this Agreement. This Release is
irrevocable and will not terminate in any circumstances.
2.2 The
Subscriber’s representations, warranties and
understandings. The Subscriber acknowledges, represents and
warrants to the Company and understands that:
(a) Experience and
counsel. The Subscriber has the requisite knowledge and
experience in financial and business matters for properly evaluating the risks
of an investment in the Company and has sought all such counsel as the
Subscriber has considered advisable.
(b) Adequacy of
information. The Subscriber has been given the opportunity to
ask questions of, and to receive answers from, the Company concerning the terms
and conditions of the offering and the Subscriber has received all information
regarding the Company reasonably requested by the Subscriber in order to
evaluate an investment in the Company.
(c) Independent
investigation. In making a decision to invest in the Company
the Subscriber has relied solely upon independent investigations made by the
Subscriber, and the particular tax consequences arising from an investment in
the Company will depend upon the Subscriber’s individual circumstances and is at
his sole risk.
(d) Principal. The
Subscriber is purchasing the Shares as principal for the Subscriber’s own
account and not for the benefit of any other person, except as otherwise stated
herein, and not with a view to the resale or distribution of all or any of the
Securities.
(e) Decision to
purchase. The decision of the Subscriber to enter into this
Agreement and to purchase Shares pursuant hereto has been based only on the
representations of this Agreement and any accompanying offering memorandum, if
any. It is not made on other information relating to the Company and
not upon any oral representation as to fact or otherwise made by or on behalf of
the Company or by any person which contradicts this Agreement or any offering
memorandum. The Subscriber agrees that the Company assumes no
responsibility or liability of any nature whatsoever for the accuracy, adequacy
or completeness of any business plan information which has been created based
upon the Company’s management experience. In particular, and without
limiting the generality of the foregoing, the decision to subscribe for Shares
has not been influenced by:
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(i) newspaper,
magazine or other media articles or reports related to the Company or
their businesses;
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(ii) promotional
literature or other materials used by the Company for sales or marketing
purposes; or
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(iii) any
representations, oral or otherwise, that the Company will become a listed
company, that any of the Securities will be repurchased or have any
guaranteed future realizable value or that there is any certainty as to
the success of the Company or the liquidity or value of any of the
securities of the Company.
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(f) Advertisements. The
Subscriber acknowledges that the Subscriber has not purchased Shares as a result
of any general solicitation or general advertising, including advertisements,
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.
(g) Information not
received. The Subscriber has not received, nor has the
Subscriber requested, nor does the Subscriber have any need to receive, any
offering memorandum or any other document (other than documents the content of
which is prescribed by statute or regulation) describing the business and
affairs of the Company which has been prepared for delivery to, and review by,
prospective purchasers in order to assist them in making an investment decision
in respect of the Shares, and the Subscriber has not become aware of any
advertisement in printed media of general and regular paid circulation, radio or
television with respect to the distribution of the Shares.
(h) Economic
risk. The Subscriber has such knowledge and experience in
financial and business affairs as to be capable of evaluating the merits and
risks of the Subscriber’s investment in and to any of the Securities, and the
Subscriber is able to bear the economic risk of a total loss of the Subscriber’s
investment in and to any of the Securities. The Subscriber
understands that an investment in any of the Securities is a speculative
investment and that there is no guarantee of success of the plans of the
Company’s management. Such plans are an effort to apply present
knowledge and experience to project a future course of action which is hoped
will result in financial success employing the Company’s assets and with the
present level of management’s skills and of those whom the Company will need to
attract (which cannot be assured). Additionally, all plans are
capable of being frustrated by new or unrecognized or unappreciated present or
future circumstances which can typically not be predicted, accurately or at
all.
(i) No Representations as to
resale. No person has made to the Subscriber any written or
oral representations:
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(i) that
any person will resell or repurchase any of the
Securities;
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(ii) that
any person will refund the purchase of any of the
Securities;
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(iii) as
to the future price or value of any of the Securities;
or
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(iv) that
any of the Securities will be listed and posted for trading on any stock
exchange, over-the-counter or bulletin board market, or that application
has been made to list and post any of the Securities for trading on any
stock exchange, over-the-counter or bulletin board
market.
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(j) Resale
restrictions. The Subscriber has been independently advised as
to the applicable hold period imposed in respect of the Securities by securities
legislation in the jurisdiction in which the Subscriber resides and confirms
that no representation has been made respecting the applicable hold periods for
the Securities (including their component parts) and is aware of the risks and
other characteristics of the Securities and of the fact that the Subscriber may
not be able to resell the Securities except in accordance with the applicable
securities legislation and regulatory policy. In this regard the
Subscriber agrees that if the Subscriber decides to offer, sell or otherwise
transfer any of the Securities, the Subscriber will not offer, sell or otherwise
transfer any of such Securities, directly or indirectly, in the U.S. or to U.S.
residents unless:
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(i) the
sale is to the Company;
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(ii) the
sale is made outside the United States in compliance with the requirements
of Rule 904 of Regulation S under the United States Securities Act of 1933
(the “1933 Act”)
and in compliance with applicable state securities
laws;
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(iii) the
sale is made pursuant to an exemption from registration under the 1933 Act
provided by Rule 144 thereunder and in compliance with applicable state
securities laws; or
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(iv) with
the prior written consent of the Company, the sale is made pursuant to
another applicable exemption from registration under the 1933 Act and in
compliance with applicable state securities
laws.
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(k) Reports and
undertakings. If required by applicable securities
legislation, policy or order or by any securities commission, stock exchange or
other regulatory authority, the Subscriber will execute and otherwise assist the
Company in filing such reports, undertakings and other documents as may be
reasonably required with respect to the issue of the Securities.
(l) No prospectus
filing. The Subscriber acknowledges that this is an offering
made on a private basis without a prospectus and that no federal, state,
provincial or other agency has made any finding or determination as to the
merits of the investment nor made any recommendation or endorsement of the
Securities, and that:
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(i) the
Subscriber may be or is restricted from using most of the civil remedies
available under applicable securities
legislation;
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(ii) no
securities commission or similar regulatory authority has reviewed or
passed on the merits of the
Securities;
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(iii) the
Subscriber may not receive information that would otherwise be required to
be provided to the Subscriber under such securities legislation;
and
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(iv) in
addition to releases contained in this Agreement, the Company is relieved
from certain obligations that would otherwise apply under applicable
securities legislation.
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(m) Withdrawal. This
Agreement is given for valuable consideration and, except as permitted by this
Agreement, shall not be withdrawn or revoked by the Subscriber once tendered to
the Company with the Subscription Price.
(n) Disclosure of Subscriber
information. By providing personal information to the Company,
the Subscriber and each person for whom it is contracting is consenting to the
Company’s collection, use and disclosure of that information for the purpose of
the subscription of the Shares, the offering and general corporate
purposes. The Subscriber, and each person for whom it acts, consents
to disclosure of personal information by the Company to regulators or any other
person or entity the Company considers advisable or necessary for their
securities, corporate or other purposes.
(o) Waiver of pre-emptive
rights. The Subscriber hereby grants, conveys and vests unto
the President of the Company, or unto such other nominee or nominees of the
President as he may determine from time to time, in the President’s sole and
absolute discretion, to the extent permitted by law, the right to act as the
Subscriber’s power of attorney solely for the purpose of waiving any prior or
pre-emptive rights which the Subscriber may have to further issues of equity or
debt by the Company under applicable corporate and securities laws.
(p) Age of
majority. The Subscriber, if an individual, has attained the
age of majority and is legally competent to execute this Agreement and to take
all actions required pursuant hereto.
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(q) Authorization and formation
of subscriber. The Subscriber, if a corporation, partnership,
trust or other form of business entity, is authorized and otherwise duly
qualified to purchase and hold the Securities, and such entity has not been
formed for the specific purpose of acquiring Securities in this issue and has
not acted to acquire Securities in this issue in violation of the provisions of
Regulation S or Rule 144 under the securities laws of the United States or in
violation of any of the exemptions provided by the securities laws of any other
jurisdiction. If the Subscriber is one of the aforementioned entities
it hereby agrees that, upon request of the Company, it will supply the Company
with any additional written information that may be requested by the
Company. In addition, the entering into of this Agreement and the
transactions contemplated hereby will not result in the violation of any of the
terms of and provisions of any law applicable to, or the constating documents,
if a corporation, of, the Subscriber or of any agreement, written or oral, to
which the Subscriber may be a party or by which the Subscriber may be
bound.
(r) Legal
obligation. This Agreement has been duly and validly
authorized, executed and delivered by and constitutes a legal, valid, binding
and enforceable obligation of the Subscriber.
(s) Compliance with applicable
laws. The Subscriber knows of no reason (and is sufficiently
knowledgeable to determine the same or has sought legal advice) why the delivery
of this Agreement, the acceptance of it by the Company and the issuance of the
Securities to the Subscriber will not comply with all laws applicable to the
Subscriber and the Subscriber has no reason to believe that the Subscriber’s
subscription hereby will cause the Company to become subject to or required to
comply with any disclosure, prospectus or reporting requirements or to be
subject to any civil or regulatory review or proceeding. In addition,
the Subscriber will comply with all applicable securities laws and will assist
the Company in all reasonable manners to comply with all applicable securities
laws.
(t) Encumbrance or transfer of
Securities. The Subscriber will not sell, assign, gift, pledge
or encumber in any manner whatsoever any of the Securities herein subscribed for
except in accordance with applicable securities legislation and this
Agreement.
2.3 Truth of
Subscriber’s representations and warranties. The Subscriber
understands that the Company will rely on the acknowledgments, representations
and covenants of the Subscriber contained in this Agreement in determining
whether a sale of the Shares to the Subscriber is in compliance with applicable
securities laws and in the best interest of the Company. All of the
information set forth in this Agreement with respect to the Subscriber are
correct and complete as of the date hereof and if there should be any material
change in such information prior to the acceptance of this Agreement by the
Company the Subscriber will immediately furnish the revised or corrected
information to the Company.
2.4 Company
confidential information. The Subscriber
acknowledges that the Company is engaged in business development including
programs of research and development and the marketing of products and
services. The Subscriber also recognizes the importance of protecting
the Company’s trade secrets, confidential information and other proprietary
information and related rights acquired through such Company’s expenditure of
time, effort and money. Therefore, in consideration of the Company
permitting the Subscriber to submit this subscription and have access to the
Company’s information and/or Company’s confidential information otherwise coming
to the Subscriber, the Subscriber agrees to be bound by the following terms and
conditions with respect to the Company:
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(a) “Confidential
Information” includes any of the
following:
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(i)any
and all versions of the trade names, trade-▇▇▇▇, business plans, products,
software, all Developments (as defined below) and all other matters owned
or marketed by the Company;
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(ii)information regarding
the Company’s business operation, methods and practices, including
marketing strategies, product pricing, margins and hourly rates for staff
and information regarding the financial affairs of the
Company;
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(iii)the
names of the Company’s clients and the names of the suppliers to the
Company, and the nature of the Company’s relationships with these clients
and suppliers; and
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(iv)
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any
other trade secret or confidential or proprietary information in the
possession or control of the Company,
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but
Confidential Information does not include information which is or becomes
generally available to the public without the Subscriber’s fault.
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(b) “Developments” include
all the following related to the products or business of the
Company:
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(i)
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copyright works, software, documentation, data, designs, scripts, photographs, music, reports, flowcharts, trade-marks, specifications, source codes, product designs or formula and any related works, including any enhancements, modifications, or additions to the products owned, marketed or used by the Company; and | |
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(ii)
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inventions, devices, discoveries, concepts, ideas, algorithms, formulae, know-how, processes, techniques, systems and improvements, whether patentable or not, developed, created, acquired, generated or reduced to practice by the Company or any person by or for the Company, including the Subscriber. |
(c) At all times the
Subscriber shall keep in strictest confidence and trust the Confidential
Information. The Subscriber shall take all necessary precautions
against unauthorized disclosure of the Confidential Information, and the
Subscriber shall not directly or indirectly disclose, allow access to, transmit
or transfer the Confidential Information to a third party, nor shall the
Subscriber use, copy or reproduce the Confidential Information except as may be
reasonably required for the Subscriber with the permission of the Company that
holds such Confidential Information.
(d) Upon the request of
the Company, the Subscriber shall immediately return to the Company all
materials, including all copies in whatever form, containing the Confidential
Information of the Company which are in the Subscriber’s possession or under the
Subscriber’s control.
(e) The Subscriber
acknowledges and agrees that he shall not acquire any right, title or interest
in or to the Confidential Information. Should any interest in the
Confidential Information come into the possession of the Subscriber by any
means, other than specific written transfer by the Company, the Subscriber
hereby assigns and transfers, now and in the future, to the Company, and agrees
that the Company shall be the exclusive owner of, all of the Subscriber’s right,
title and interest to any such throughout the world, including all trade
secrets, patent rights, copyrights and all other intellectual property rights
therein. The Subscriber further agrees to cooperate fully at all
times with respect to signing further documents and doing such acts and other
things required by the Company to confirm such transfer of ownership of
rights. The Subscriber agrees that the obligations in this Section
2.4 shall continue beyond the issue of Securities and beyond the ownership of
Securities or beyond the termination of the Subscriber’s employment, engagement
or association with the Company for a period of ten (10) years.
Article
3
PRIVACY ISSUES AND PROCEEDS
OF CRIME
3.1 The
funds representing the Subscription Price will not represent proceeds of crime
for the purposes of the Proceeds of Crime (Money Laundering) and Terrorist
Financing Act (Canada) (the “PCMLTFA”) and the Subscriber acknowledges that the
Company may in the future be required by law to disclose the Subscriber’s name
and other information relating to this Subscription Agreement and the
Subscriber’s subscription hereunder, on a confidential basis, pursuant to the
PCMLTFA. To the actual or best of the Subscriber’s knowledge (a) none of
the subscription funds to be provided by the Subscriber (i) have been or will be
derived from or related to any activity that is deemed criminal under the laws
of Canada, the United States of America, or any other jurisdiction, or (ii) are
being tendered on behalf of a person or entity who has not been identified to
the Subscriber, and (b) the Subscriber shall promptly notify the Company if the
Subscriber discovers that any of such representations ceases to be true, and to
provide the Company with appropriate information in connection
therewith.
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3.2 For
the purposes of the relevant privacy act applicable to the Subscriber, the
Subscriber:
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(a)
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acknowledges
and consents to the fact that the Company is collecting the Subscriber’s
(and any beneficial purchaser for which the Subscriber is contracting
hereunder) personal information (as that term is defined under applicable
privacy legislation, including, without limitation, the Personal Information
Protection and Electronic Documents Act (Canada) and any other
applicable similar replacement or supplemental provincial or federal
legislation or laws in effect from time to time) for the purpose of
completing the Subscriber’s subscription. The Subscriber acknowledges and
consents to the Company retaining the personal information for so long as
permitted or required by applicable law or business practices. The
Subscriber further acknowledges and consents to the fact that the Company
may determine to release such information and be required by applicable
securities laws, stock exchange rules and/or Investment Dealers
Association of Canada rules to provide regulatory authorities any personal
information provided by the Subscriber respecting itself (and any
beneficial purchaser for which the Subscriber is contracting hereunder).
The Subscriber represents and warrants that it has the authority to
provide the consents and acknowledgements set out in this paragraph on
behalf of all beneficial purchasers for which the Subscriber is
contracting;
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(b)
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in
addition, the Subscriber agrees and acknowledges
that:
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(i)
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the
Company will deliver certain personal information, including information
regarding the name, address, telephone number and amount subscribed for,
to the securities regulatory authorities, including, if applicable,
Securities Commissions and stock
exchanges;
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(ii)
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the
information is being collected indirectly by the securities regulatory
authorities under authority granted to them in securities legislation and
is being collected for the purposes of the administration and enforcement
of such securities legislation.
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Article
4
RESTRICTED COMMON SHARES AND
RESTRICTED DISPOSITION
4.1 U.S. law
application. If or as the Company is or may become a U.S.
company or otherwise a company whose securities are or may be subject to U.S.
law, the Subscriber hereby agrees, represents and warrants to the Company as
follows:
(a) If
Subscriber is representing that he is not a U.S. person then such representation
is true and (i) Subscriber is not a U.S. Person as defined in Rule 902 of
Regulation S (“Regulation
S”) under the 1933 Act, which definition includes, but is not limited to,
any natural person resident in the United States, any corporation or partnership
incorporated or organized under the laws of the United States, or any estate or
trust of which any executor, administrator or trustee is a U.S. Person; (ii) is
not purchasing any of the Securities for the account or benefit of any U.S.
Person or for offering, resale or delivery for the account or benefit of any
U.S. Person or for the account of any person in any jurisdiction; and (iii) was
not offered any Securities in the United States and was outside the United
States at the time of execution and delivery of this Subscription
Agreement.
(b) The
Subscriber acknowledges that the Securities have not been registered under the
1933 Act and the Company has no obligation or present intention of filing a
registration statement under the 1933 Act in respect of the
Securities. The Subscriber agrees to resell the Securities only in
accordance with the provisions of applicable securities laws, pursuant to a
registration under the 1933 Act, or pursuant to an available exemption from such
registration (in particular the provisions of Regulation S or Rule 144, as
applicable), and that hedging transactions involving the Securities may not be
conducted unless in compliance with the 1933 Act. The Subscriber
understands that any certificate representing the Securities will bear a legend
setting forth the foregoing restrictions. The Subscriber understands
that the Securities are restricted securities within the meaning of Rule 144
promulgated under the 1933 Act, that the exemption from registration under Rule
144 will not be available in any event for twelve months from the date of
purchase and payment of the Securities by the Subscriber, and other terms and
conditions of Rule 144 are complied with, and that any sale of the Securities
may be made by the Subscriber only in limited amounts in accordance with such
terms and conditions and even then may not be available unless (i) a public
trading market then exists for the common stock of the Company that issued such
Securities, (ii) adequate information concerning the Company that issued such
Securities is then available to the public and (iii) other terms and conditions
of Rule 144 are complied with.
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(c) The
Subscriber further acknowledges and understands that, without in any way
limiting the acknowledgements and understandings as set forth hereinabove, the
Subscriber agrees that the Subscriber shall in no event make any disposition of
all or any portion of the Securities which the Subscriber is acquiring hereunder
unless and until:
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(i)
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there is then in effect a “Registration Statement” under the 1933 Act covering such proposed disposition and such disposition is made in accordance with said Registration Statement; or | |
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(ii)
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(A) the Subscriber shall have notified the Company of the proposed disposition and shall have furnished the Company with a detailed statement of the circumstances surrounding the proposed disposition, (B) the Subscriber shall have furnished the Company with an opinion of the Subscriber’s own counsel to the effect that such disposition will not require registration of any such Securities under the 1933 Act and (C) such opinion of the Subscriber’s counsel shall have been concurred in by counsel for the Company and the Company shall have advised the Subscriber of such concurrence. |
4.2 Legending
of the Securities. The Subscriber agrees and understands that
the certificates representing the Securities will be stamped with the following
legend (or substantially equivalent language) restricting transfer in the
following manner:
“The
transfer of the securities represented by this certificate is prohibited except
in accordance with the provisions of Regulation S promulgated under the United
States Securities Act of
1933, as amended (the “1933 Act”), pursuant to registration under the
1933 Act or pursuant to an available exemption from registration. In
addition, hedging transactions involving such securities may not be conducted
unless in compliance with the 1933 Act.”
4.3 Company
permission for transfer. The Subscriber agrees that unless and
until there is a public market for the Company’s Securities and a Registration
Statement is in effect for the Subscriber’s Securities received from the
Company, the Subscriber may not sell such Securities without prior notice to the
Company and until the Company’s counsel is satisfied that the Subscriber may
lawfully sell the Securities. The Subscriber acknowledges that this
is an effort by the Company to protect itself but that the Company nor its
counsel is in control of the facts of the sale and may themselves make error in
law and neither the Company nor its counsel hold out that any permission
constitutes advice to the Subscriber that he may in fact sell and all risks of
the sale, legal and otherwise, reside solely with the Subscriber.
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Article
5
GENERAL
PROVISIONS
5.1 Address
for delivery. Each notice, demand or other communication
required or permitted to be given under this Agreement shall be in writing and
shall be sent by delivery (electronic or otherwise) or prepaid registered mail
deposited in a post office addressed to the Subscriber or the Company at the
address specified in this Agreement. The date of receipt of such
notice, demand or other communication shall be the date of delivery thereof if
delivered, or, if given by registered mail as aforesaid, shall be deemed
conclusively to be the fifth day after the same shall have been so mailed,
except in the case of interruption of postal services for any reason whatsoever,
in which case the date of receipt shall be the date on which the notice, demand
or other communication is actually received by the addressee. Each
party to this Agreement may, at any time, and from time to time notify the other
party in writing of a change of address and the new address to which notice
shall be given to it thereafter until further change.
5.2 Gender
and number. This Agreement is to be read with all changes in
gender or number as required by the context and the gender of the
Subscriber.
5.3 Governing
law. This Agreement shall be governed by and construed in
accordance with the laws of the Province of British Columbia and the federal
laws of Canada applicable therein. Any dispute regarding matters as
between the Subscriber and the Company, whether as a subscriber or
securityholder and whether arising under this Agreement or pursuant to
securityholder rights pursuant to the constating documents of the Company or
applicable law, shall be adjudicated exclusively in the Courts of the Province
of British Columbia, unless the Company shall permit otherwise.
5.4 Representation
and conflict. It is hereby acknowledged by each of the parties
hereto that ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Law Corporation, Barristers and Solicitors,
acts solely for the Company, and that the Subscriber has obtained independent
legal advice with respect to its review and execution of this
Agreement. It is hereby further acknowledged and agreed by the
parties hereto that ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Law Corporation, Barristers and
Solicitors, and certain or all of its principal owners or associates, from time
to time, may have both an economic or securities interest in the Company or its
business and/or a position as a director, officer or similar relationship
arising at the request of the Company to act in such capacity while acting for
the Company as counsel. Any conflict or appearance of conflict is
hereby waived and it is agreed that such does not give rise to a duty to the
Subscriber and the Subscriber does not rely upon such solicitors for any
purpose.
5.5 Survival
of Agreement terms. The covenants, representations and
warranties contained herein shall survive the closing of the transactions
contemplated hereby. The terms of this Agreement shall bind the
Subscriber, and any successor or assignee, from the date of tendering to the
Company and both before and after issuance of the Securities, and shall continue
to bind until sale or other disposition of all the Securities by the Subscriber
but that certain provisions, such as the release, indemnity and confidentiality
provisions of this Agreement shall continue to bind for a period of ten (10)
years after the sale or other disposition of the Securities.
5.6 Enforceability. The
invalidity or unenforceability of any particular provision of this Agreement
shall not affect or limit the validity or enforceability of the remaining
provisions of this Agreement.
5.7 Counterparts. This
Agreement may be signed by the parties hereto in as many counterparts as may be
necessary, each of which so signed shall be deemed to be an original, and such
counterparts together shall constitute one and the same instrument and
notwithstanding the date of execution will be deemed to bear the execution date
as set forth in this Agreement. This Agreement may also be executed
and exchanged by facsimile and such facsimile copies shall be valid and
enforceable agreements.
5.8 Entire
Agreement. This Agreement constitutes the only agreement
between the parties with respect to the subject matter hereof and shall
supersede any and all prior negotiations and understandings. There
are no collateral agreements or understandings hereto and this Agreement, and
the documents contemplated herein, constitutes the totality of the parties’
agreement.
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5.9 Amendments. This
Agreement may be amended or modified in any respect by written instrument
only. The Company may give notice of an amendment to the terms of
this Agreement by delivery to the Subscriber of the intended amendment
addendum. In the event that the Subscriber does not refuse the
amendment within fifteen (15) days of delivery of the proposed amendment then
this Agreement will be amended to the proposed terms without any further act
required by the Subscriber.
5.10
Successors
and assigns. The terms and provisions of this Agreement shall
be binding upon and enure to the benefit of the Subscriber, the Company and its
successors and lawfully permitted assigns. This Agreement shall not
be assignable by any party without the written consent of the other parties
hereto. The benefit and obligations of this Agreement, insofar as
they extend to or affect the Subscriber, shall pass with any assignment or
transfer of any of the Securities in accordance with the terms of this
Agreement, except as otherwise noted in this Agreement.
5.11
Time of
the essence. Time is of the essence in this
Agreement.