EXHIBIT 1
SUBSCRIPTION AGREEMENT
for Common Shares
| FROM: |
|
JIPANGU CANADA INC. (the
“Purchaser”) |
| TO: |
|
TWIN
MINING CORPORATION |
| RE: |
|
SUBSCRIPTION
FOR AND PURCHASE OF COMMON SHARES |
This amended and restated initial
subscription agreement amends and restates the initial subscription agreement executed by
Jipangu Inc. on December 10, 2005 and accepted by Twin Mining Corporation on December 13,
2005 in its entirety.
The undersigned (the
“Purchaser”) understands that TWIN MINING CORPORATION (the
“Company”) intends to issue and sell (the “Offering”) common shares of
the Company (the “Securities”) at a price of CDN$0.12 per common share
(the “Subscription Price”).
THE SECURITIES HAVE NOT BEEN AND
WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED OR THE
SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES EXCEPT
PURSUANT TO EXEMPTIONS FROM APPLICABLE U.S. SECURITIES LAWS.
THE PURCHASER IS ADVISED TO
CONSULT HIS/HER/ITS OWN LEGAL ADVISORS REGARDING THE PURCHASE OF THE SECURITIES AND THE
RESALE OF THE SECURITIES AND NEITHER THE COMPANY NOR ITS LEGAL ADVISORS WILL PROVIDE ANY
ADVICE ON THESE MATTERS TO THE PURCHASER.
The Purchaser hereby irrevocably
subscribes for and agrees to purchase 36,000,000 common shares of the Company (the
“Securities”) at the purchase price of CDN$0.12 per common share subject
to the terms and conditions set out in this Subscription Agreement and tenders herewith
the sum of CDN$4,320,000.00, payable to Twin Mining Corporation in
full payment of such subscription. This subscription by the Purchaser is subject to
acceptance by the Company, whereupon this will constitute an irrevocable agreement between
the Purchaser and the Company for the Purchaser to purchase and the Company to sell the
common shares on the terms and conditions hereof.
(Initials)
▇▇▇
-2-
DATED at
Tokyo, this 15th day of December, 2005.
Name:
Jipangu Canada Inc.
____________________________________
(Name of Purchaser –
Please print)
|
Address:
▇-▇-▇, ▇▇▇▇-▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇-▇▇,
▇▇▇▇▇, ▇▇▇-▇▇▇
▇▇▇▇▇
____________________________________
(Purchaser’s Address)
|
By:
/s/ Tamisuke Matsufuji
____________________________________
(Signature of Authorized Representative) |
____________________________________ |
Tamisuke Matsufuji
____________________________________
(Print Name of Person Signing if different from
Purchaser) |
____________________________________
(City / Province or State / Country) |
Director
____________________________________
(Title, if Purchaser is not an individual)
Purchaser) |
▇▇▇-▇-▇▇▇▇-▇▇▇▇
____________________________________
(Telephone Number) |
|
|
–
(Number of shares of the Company currently held,
excluding those subscribed for under this
Subscription Agreement) |
(Initials)
▇▇▇
-3-
REGISTRATION INFORMATION
Registration Instructions: Register the
securites as set forth below:
Jipangu Canada Inc.
_______________________________________
(Name) |
Delivery Instructions: Deliver the securities to:
_______________________________________
(Address) |
|
_______________________________________ |
_______________________________________ |
_______________________________________
(Account reference, if any) |
_______________________________________ |
▇-▇-▇- ▇▇▇▇-▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇-▇▇
▇▇▇▇▇, ▇▇▇-▇▇▇
▇▇▇▇▇
_______________________________________
(Address)
|
_______________________________________
(Contact Name) |
|
_______________________________________ |
_______________________________________
(Telephone Number) |
The Company hereby accepts and agrees
to the above-mentioned offer to purchase the Securities.
DATED as of this
15th day of December, 2005.
| |
TWIN MINING CORPORATION
By: /s/ Hermann Derbuch
_______________________________
Authorized Signing Officer
I have authority to bind the corporation.
|
(Initials)
▇▇▇
-4-
The Purchaser shall cause the
following to be delivered to the Company (at Suite 1250, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, Attention: Chief Executive Officer):
| (b) |
|
a
properly completed and duly executed copy of the Accredited Investor
Certificate in the form attached to this Subscription Agreement as
Schedule “A”; and |
| (c) |
|
a
certified cheque, bank draft or electronic transfer of immediately available
Canadian funds at par in Toronto, Ontario for the aggregate amount of
the Subscription Price, payable to or to the order of: |
“Twin Mining
Corporation”
In addition, the Purchaser by
executing this Subscription Agreement, agrees to provide all other documentation, if any,
required by the securities laws of the jurisdiction in which the Purchaser is resident,
the securities laws of Ontario and as required by the Toronto Stock Exchange (the
“TSX”). The Purchaser acknowledges and hereby consents to the filing of such
documents with the TSX and applicable securities commissions.
| 3. |
|
Closing
and Conditions of Closing |
The sale of the Securities to the
Purchaser will be subject to the following conditions precedent:
| (a) |
|
receipt
by the Company of all the documents referred to in Section 2 hereof,
duly executed and completed by the Purchaser, together with the
aggregate Subscription Price for the number of common shares
subscribed for; |
| (b) |
|
receipt
by the Company of (i) the approval of the Toronto Stock Exchange for the
Offering and (ii) confirmation of the Toronto Stock Exchange that no
personal information form is required from the Purchaser (which
approval and confirmation the Company shall forthwith seek to
obtain); |
| (c) |
|
the
representations and warranties of the Purchaser contained herein being true
and correct as at the time of Closing (as hereinafter defined); and |
| (d) |
|
acceptance
of the Purchaser’s offer to purchase the Securities by the
Company in its sole and absolute discretion. |
The completion of the purchase and
sale of the Securities (the “Closing”) will occur at the offices of the Company
on or before the third business day after the last of the conditions precedent have been
satisfied. A “business day” means a day on which the TSX is open for the
transaction of business, at which time certificates representing the Securities will be
delivered to the Purchaser in accordance with the Purchaser’s delivery instructions.
-5-
| 4. |
|
Prospectus
Exemptions and Purchaser’s Acknowledgements |
The Purchaser acknowledges and agrees
(on its own behalf and, if applicable, on behalf of those for whom the Purchaser is
contracting hereunder) with the Company (which acknowledgements and agreements shall
survive Closing) that:
| (a) |
|
the
sale and delivery of the Securities to the Purchaser are conditional upon
such sale being exempt from the prospectus filing and registration
requirements and the requirement to deliver an offering memorandum under
applicable securities laws in connection with the distribution of the
Securities; |
| (b) |
|
the
Securities are subject to resale restrictions under applicable securities
laws, which include, for greater certainty, the rules, regulations and
policies of the TSX, and the Purchaser will comply with all relevant
securities laws concerning any resale of the Securities and will consult
with its own legal advisors with respect to such compliance; |
| (c) |
|
the
Purchaser is solely responsible for obtaining its own legal advice and tax
advice as it considers appropriate in connection with the execution,
delivery and performance by it of this Subscription Agreement and the
transactions contemplated hereunder; |
| (d) |
|
the
Purchaser has not received nor has it requested, a prospectus or any
offering memorandum (as defined under applicable securities laws), or any
other document describing the business and affairs of the Company, which
has been prepared for delivery to, and reviewed by, prospective purchasers
in order to assist in making an investment decision in respect of the
Securities; |
| (e) |
|
the
Purchaser’s decision to execute this Subscription Agreement and
purchase the Securities has been based entirely on the information
contained in this Subscription Agreement and upon publicly available
information concerning the Company and has not been based upon any verbal
or written representations as to fact or otherwise made by or on behalf of
the Company except as set out in this Subscription Agreement; |
| (f) |
|
the
purchase of the Securities has not been made through, or as a result of, any
general solicitation or advertising or any seminar or meeting whose
invitees had been invited by general solicitation or general advertising
and the Offering was not accompanied by any advertisement, including
without limitation, in printed public media, radio, television,
telecommunications or the Internet or by any other form of electronic
media or communications or as part of a general solicitation; |
| (g) |
|
in
accepting this Subscription Agreement, the Company is relying upon the
representations, warranties, covenants and acknowledgements of the
Purchaser set out in this Subscription Agreement (including the Schedules
hereto) including, without limitation, in connection with determining the
eligibility of the Purchaser to purchase the Securities under applicable
securities laws. The Purchaser agrees to notify the Company immediately of
any change in any representation, warranty, covenant or other information
relating to the Purchaser contained in this Subscription Agreement, which
takes place prior to Closing; |
| (h) |
|
the
Purchaser understands that all certificates representing the Securities and
all certificates issued in exchange therefor or in substitution or
transfer thereof shall bear legends regarding restrictions on transfer as
required pursuant to applicable securities laws; and |
| (i) |
|
the
Purchaser understands that the Company will be required by law or otherwise
to disclose to regulatory authorities the identity of the Purchaser and
agrees that such information may be provided by the Company. |
-6-
| 5. |
|
Representations,
Warranties and Covenants of the Purchaser |
The Purchaser, by its execution of
this Subscription Agreement, represents, warrants and covenants to the Company (which
representations, warranties and covenants shall survive Closing) that:
| (a) |
|
the
Purchaser is ordinarily resident in the jurisdiction set forth in the
Purchaser’s address on page 2 hereof, the Purchaser is an
“accredited investor” as such term is defined in applicable
securities laws in Canada, is purchasing the Securities as principal and
the Purchaser has properly completed and duly executed the Accredited
Investor Certificate attached to this Subscription Agreement as Schedule
“A” indicating the means by which the Purchaser is an accredited
investor, and the Purchaser hereby confirms the truth and accuracy of all
statements made by the Purchaser in such Accredited Investor Certificate; |
| (b) |
|
the
Purchaser is duly incorporated and is validly existing under the laws of its
jurisdiction of incorporation and has the legal capacity and has obtained
all necessary approvals to enter into and be bound by this Subscription
Agreement; |
| (c) |
|
if
the Purchaser is a resident of a jurisdiction other than Canada, the sale of
the Securities to the Purchaser complies with or is exempt from the
applicable securities laws of the jurisdiction of residence and does not
create any obligation of the Company to file a prospectus, registration
statement or similar document; |
| (d) |
|
the
Purchaser has such knowledge and experience in financial, business and
investment matters as to be capable of assessing and evaluating the merits
and risks of an investment in the Securities and is able to bear the
economic risk of loss of such investment; |
| (e) |
|
the
Purchaser is purchasing the Securities for the Purchaser’s own account,
for investment purposes only and not with a view to any resale or
distribution thereof and the Purchaser does not have any contracts,
understandings, agreements or arrangements with any person or entity to
sell, transfer or grant a participation interest with respect to any of
the Securities; |
| (f) |
|
the
Purchaser confirms that the Securities have not been offered to the
Purchaser in the United States and that this Subscription Agreement has
not been signed by the Purchaser in the United States; |
| (g) |
|
the
Purchaser shall comply with all relevant securities legislation (including
those of Canada, the United States and of the jurisdiction of residence of
the Purchaser) concerning any resale of the Securities and all related
restrictions; |
| (h) |
|
the
Purchaser will promptly execute and deliver within the applicable time
periods all documentation and undertakings as may be required by
applicable securities legislation, regulations, rules and policies
(including for greater certainty, but not limited to, those of the TSX) to
permit the purchase of the Securities on the terms of this Subscription
Agreement and the Purchaser will assist the Company in filing any and all
reports, undertakings and other documents with respect to the issuance of
the Securities; |
| (i) |
|
the
Purchaser acknowledges that no prospectus has been filed by the Company with
any securities commission or similar regulatory authority in any
jurisdiction in connection with the issuance of the Securities and the
issuance is exempted from the prospectus requirements available under the
provisions of applicable securities laws and as a result: |
| |
(i) |
|
the
Purchaser is restricted from using most of the civil remedies available under
applicable securities laws; |
-7-
| |
(ii) |
|
the
Purchaser may not receive information that would otherwise be required to be
provided to it under applicable securities laws; and |
| |
(iii) |
|
the
Company is relieved from certain obligations that would otherwise apply
under applicable securities laws; |
| (j) |
|
no
person has made any written or oral representation to the Purchaser: |
| |
(i) |
|
that
any person will resell or repurchase the Securities; |
| |
(ii) |
|
that
any person will refund the purchase price of the Securities other than as
provided in this Subscription Agreement; or |
| |
(iii) |
|
relating
to the future price or value of the Securities; |
| (k) |
|
the
Purchaser has been advised to seek independent legal advice in connection
with its purchase of the Securities and the Purchaser confirms that
it has not relied on the Company or the Company’s legal counsel
in any manner in connection with its purchase of the Securities; and |
| (l) |
|
this
Subscription Agreement and all documentation required thereby has been duly
authorized, executed and delivered by, and this Subscription
Agreement constitutes a legal, valid and binding agreement of, the
Purchaser, enforceable against the Purchaser in accordance with the
terms hereof. |
| 6. |
|
Reliance
Upon Representations, Warranties and Covenants |
The Purchaser acknowledges that the
representations, warranties and covenants contained in this Subscription Agreement are
made with the intent that they may be relied upon by the Company to, among other things,
determine the Purchaser’s eligibility to purchase the Securities. The Purchaser
further agrees that by accepting the Securities, the Purchaser shall be representing and
warranting that the foregoing representations and warranties are true as at the time of
Closing, with the same force and effect as if they had been made by the Purchaser at the
time of Closing and that they shall survive the purchase by the Purchaser of the
Securities and shall continue in full force and effect notwithstanding any subsequent
disposition by the Purchaser of the Securities.
| 7. |
|
Representations,
Warranties and Covenants of the Company |
The Company, by its execution of this
Subscription Agreement, represents, warrants and covenants to the Purchaser (which
representations, warranties and covenants shall be true and correct at the time of Closing
and shall survive Closing) that:
| (a) |
|
the
Company is a corporation continued and subsisting under the Business
Corporations Act (Ontario); |
| (b) |
|
the
Company has taken, or prior to Closing will take, all necessary corporate
action to authorize the execution, delivery and performance of this
Subscription Agreement, including the issuance of the Securities, and upon
execution of this Subscription Agreement on behalf of the Company, this
Subscription Agreement shall be duly executed by and shall constitute a
legal, valid and binding obligation of the Company, enforceable against
the Company in accordance with the terms hereof; |
| (c) |
|
the
execution and delivery of this Subscription Agreement and the consummation
of the transaction provided for herein will not result in the violation
of, or constitute a default |
-8-
| |
under
or conflict with the articles, by-laws or resolutions of the Company or any agreement or
contract to which the Company is a party or by which it is bound; |
| (d) |
|
the
Securities, when issued and delivered to the Purchaser, will be validly
issued as fully paid and non-assessable common shares in the capital of
the Company; |
| (e) |
|
the
Company is a “reporting issuer” as such term is defined in the Securities Act (Ontario),
the Securities Act (British Columbia), the Securities Act (Alberta)
and the Securities Act (Quebec) (collectively, the “Securities
Acts”); the Company has been a reporting issuer under each of the
Securities Acts for more than 12 months; the Company’s class of
common shares is registered under Section 12(g) of the Securities Exchange
Act of ▇▇▇▇ (▇▇▇▇▇▇ ▇▇▇▇▇▇); and the Company is not in default of any
requirement of the Securities Acts or the United States federal or state
securities laws, or the rules, regulations and policies made thereunder; |
| (f) |
|
the
Securities form part of a class of shares which are listed and posted for
trading on the TSX and prior to Closing, the TSX will have accepted notice
of the issuance of the Securities and shall have approved the listing of
the Securities, subject only to the Company filing final documentation and
the payment of additional listing fees; |
| (g) |
|
as
of the date of this Subscription Agreement, the Company has no knowledge of
any “material change” (as such term is defined in the Securities
Act (Ontario)) relating to the Company which has not been publicly
disclosed; |
| (h) |
|
the
Company is a “foreign issuer” with no “substantial U.S.
market interest” in any class of its securities, as such terms are
defined in Regulation S under the Securities Act of 1933 (United States),
and the Company is not, and will not become as a result of this
subscription, registered or required to register as an “investment
company” under the Investment Company Act of ▇▇▇▇ (▇▇▇▇▇▇ ▇▇▇▇▇▇);
and |
| (i) |
|
the
Company agrees that the Purchaserr may transfer the Securities to any direct
or indirect wholly-owned subsidiary of the Purchaser (“Transferee”)
in a transfer or chain of transfers among direct or indirect wholly-owned
subsidiaries of the Purchaser, subject only to the receipt by the Company
of a written confirmation from the Purchaser stating that the Transferee
is a direct or indirect wholly-owned subsidiary of the Purchaser, and the
Company agrees to use its best efforts to cause a new certificate or new
certificates representing the transferred Securities to be issued to the
Transferee within three business days after the receipt thereof. |
The Purchaser acknowledges and agrees
that all costs and expenses incurred by the Purchaser (including any fees and
disbursements of any counsel retained by the Purchaser) relating to the sale of the
Securities to the Purchaser shall be borne by the Purchaser.
-9-
This Subscription Agreement will be
governed by and construed in accordance with the laws of the Province of Ontario and the
federal laws of Canada applicable therein. The Purchaser irrevocably attorns to the
jurisdiction of the courts of the Province of Ontario with respect to any matters arising
out of this Subscription Agreement.
This Subscription Agreement,
including without limitation the representations, warranties and covenants contained
herein, shall survive and continue in full force and effect and be binding upon the
Purchaser notwithstanding the completion of the purchase of the Securities by the
Purchaser pursuant hereto and any subsequent disposition by the Purchaser of the
Securities.
This Subscription Agreement is not
transferable or assignable by the parties hereto except that the Purchaser may assign this
Subscription Agreement to a Transferee. Notwithstanding the foregoing, this Subscription
Agreement shall enure to the benefit of and be binding upon each of the parties’
heirs, executors, administrators and successors by operation of law.
| 12. |
|
Facsimile
and Counterpart Subscriptions |
The Company will be entitled to rely
on delivery by facsimile of an executed copy of this Subscription Agreement, including the
completed schedules attached hereto, and acceptance by the Company of such facsimile copy
will be legally effective to create a valid and binding agreement between the Purchaser
and the Company in accordance with the terms of this Subscription Agreement. In addition,
this Subscription Agreement may be executed in counterparts, each of which will be deemed
to be an original and all of which when taken together will constitute one and the same
document.
We, the undersigned, hereby
acknowledge that we have consented and requested that all documents evidencing or relating
in any way to the sale of the Securities be drawn up in the English language only.
Nous, soussignés,
reconnaissons par les présentes avoir consenti et demandé que tous les
documents faisant foi ou se rapportant de quelque manière à la vente de ces
bons de souscription achets soient redigés en anglais seulement.
-10-
In the event that any provision of
this Subscription Agreement is deemed to be void or unenforceable, in whole or in part, it
shall be deemed not to affect or impair the validity of any other provision of this
Subscription Agreement and such void or unenforceable provision shall be severable from
this Subscription Agreement.
Neither this Subscription Agreement
nor any provision hereof shall be modified, changed, discharged or terminated except by an
instrument in writing signed by the party against whom any waiver, change, discharge or
termination is sought.
Time shall, in all respects, be of
the essence regarding this Subscription Agreement and all matters and transactions
contemplated herein.
The headings contained in this
Subscription Agreement are for convenience only and shall not affect the meaning or
interpretation of this Subscription Agreement in its entirety or of any provision hereof.
| 18. |
|
Singular
and Plural, etc. |
Where the context so requires, words
importing the singular number include the plural and vice versa, and words importing
gender shall include all genders.
Unless specified otherwise, all
statements or references to monetary funds, $, or dollars are to Canadian currency.
SCHEDULE A
ACCREDITED INVESTOR
CERTIFICATE
The Subscriber certifies that it and
any beneficial purchaser, as applicable, are each an “accredited investor” as
defined in National Instrument 45-106 – Prospectus and Registration Exemptions
(“NI 45-106”) and, as at the closing of the purchase and sale of the securities
(the “Closing”), the Subscriber or the beneficial purchaser, as applicable,
qualifies as one of more of the following and acknowledges that Twin Mining Corporation is
relying on this certificate in connection with the sale of securities to the undersigned.
(Please insert a checkmark in the box beside each applicable paragraph)
| |
“accredited
investor” means |
| |
(a) |
a Canadian financial institution, or a Schedule III bank; |
 |
| |
(b) |
the Business Development Bank of Canada incorporated under the Business
Development Bank of Canada Act (Canada); |
|
| |
(c) |
a subsidiary of any person referred to in paragraphs (a) or (b), if the person
owns all of the voting securities of the subsidiary, except the voting
securities required by law to be owned by directors of that subsidiary; |
|
| |
(d) |
a person registered under the securities legislation of a jurisdiction of Canada
as an adviser or dealer, other than a person registered solely as a limited
market dealer under one or both of the Securities Act (Ontario) or the
Securities Act (Newfoundland and Labrador); |
|
| |
(e) |
an individual registered or formerly registered under the securities legislation
of a jurisdiction of Canada as a representative of a person referred to in
paragraph (d); |
|
| |
(f) |
the Government of Canada or a jurisdiction of Canada, or any crown corporation,
agency or wholly owned entity of the Government of Canada or a jurisdiction
of Canada; |
|
| |
(g) |
a municipality, public board or commission in Canada and a metropolitan
community, school board, the Comité de gestion de la taxe scolaire de
l’île de Montréal or an intermunicipal management board in
Québec; |
|
| |
(h) |
any national, federal, state, provincial, territorial or municipal government of
or in any foreign jurisdiction, or any agency of that government; |
|
| |
(i) |
a pension fund that is regulated by either the Office of the Superintendent of
Financial Institutions (Canada) or a pension commission or similar regulatory
authority of a jurisdiction of Canada; |
|
| |
(j) |
an individual who, either alone or with a spouse, beneficially owns, directly or
indirectly, financial assets having an aggregate realizable value that
before taxes, but net of any related liabilities, exceeds $1,000,000; |
|
-2-
| |
(k) |
an individual whose net income before taxes exceeded $200,000 in each of the 2
most recent calendar years or whose net income before taxes combined with that
of a spouse exceeded $300,000 in each of the 2 most recent calendar years and
who, in either case, reasonably expects to exceed that net income level in the
current calendar year; |
|
| |
(l) |
an individual who, either alone or with a spouse, has net assets of at least
$5,000,000; |
|
| |
(m) |
a person, other than an individual or investment fund, that has net assets of at
least $5,000,000 as shown on its most recently prepared financial
statements; |
|
| |
(n) |
an investment fund that distributes or has distributed its securities only to |
|
| |
|
(i) |
a person that is or was an accredited investor at the time of the distribution, |
|
| |
|
(ii) |
a person that acquires or acquired securities in the circumstances referred to
in section 2.10 of NI 45-106 (being that (I) the person purchases as principal,
(II) the security has an acquisition cost to the purchaser of not less than
$150,000 paid in cash at the time of the trade, and (III) the trade is in the
security of a single issuer), and section 2.19 of NI 45-106 (being a trade by an
investment fund in a security of its own issue to a security holder of the
investment fund where (I) the security holder initially acquired securities of
the investment fund as principal for an acquisition cost of not less than
$150,000 paid in cash at the time of the trade, (II) the subsequent trade is for
a security of the same class or series as the initial trade, and (III) the
security holder, as at the date of the subsequent trade, holds securities of the
investment fund that have an acquisition cost of not less than $150,000 or a net
asset value of not less than $150,000); or |
|
| |
|
(iii) |
a person described in paragraph (i) or (ii) that acquires or acquired
securities under section 2.18 of NI 45-106 (being a trade by an investment fund
to a security holder of the investment fund if the trades are permitted by a
plan of the investment fund where it is (I) a trade in a security of the
investment fund’s own issue if dividends or distributions out of earnings,
surplus, capital or other sources payable in respect of the investment
fund’s securities are applied to the purchase of the security that is of
the same class or securities as the securities to which the dividends or
distributions out of earnings, surplus, capital or other sources are
attributable, or (II) a trade in a security of the investment fund’s own
issue if the security holder makes optional cash payments to purchase the
security of the investment fund that is of the same class or series of
securities described in (I) that trade on a marketplace provided that the
aggregate number of securities issued must not exceed, in any financial year of
the investment fund during which the trade takes place, 2% of the issued and
outstanding securities of the class to which the plan relates as at the
beginning of the financial year; and such trades are otherwise in accordance
with the requirements of subsections (3), (4) and (5) of section 2.18 of
NI45-106; |
|
| |
(o) |
an investment fund that distributes or has distributed securities under a
prospectus in a jurisdiction of Canada for which the regulator or, in
Québec, the securities regulatory authority, has issued a receipt; |
|
▇▇▇
(Initials)
-3-
| |
(p) |
a trust company or trust corporation registered or authorized to carry on
business under the Trust and Loan Companies Act (Canada) or under
comparable legislation in a jurisdiction of Canada or a foreign jurisdiction,
acting on behalf of a fully managed account managed by the trust company or
trust corporation, as the case may be; |
|
| |
(q) |
a person acting on behalf of a fully managed account managed by that person, if
that person |
|
| |
|
(i) |
is registered or authorized to carry on business as an
adviser or the equivalent
under the securities legislation of a jurisdiction of Canada or a foreign jurisdiction,
and |
|
| |
|
(ii) |
in Ontario, is purchasing a security that is not a security of an investment
fund; |
|
| |
(r) |
a registered charity under the Income Tax Act (Canada) that, in regard to
the trade, has obtained advice from an eligibility adviser or an adviser
registered under the securities legislation of the jurisdiction of the
registered charity to give advice on the securities being traded; |
|
| |
(s) |
an entity organized in a foreign jurisdiction that is analogous to any of the
entities referred to in paragraphs (a) to (d) or paragraph (i) in form and
function; |
|
| |
(t) |
a person in respect of which all of the owners of interests, direct, indirect or
beneficial, except the voting securities required by law to be owned by
directors, are persons that are accredited investors; |
 |
| |
(u) |
an investment fund that is advised by a person registered as an adviser or a
person that is exempt from registration as an adviser; or |
|
| |
(v) |
a person that is recognized or designated by the securities regulatory authority
or, except in Ontario and Québec, the regulator as |
|
| |
|
(i) |
an accredited investor, or |
|
| |
|
(ii) |
an exempt purchaser in Alberta or British Columbia after National Instrument
45-106 comes into force. |
|
| |
The
following definitions are included for convenience only; reference should be had to the
applicable legislation: |
▇▇▇
-4-
| |
(a) |
|
“control
person” has the same meaning as in securities legislation except
in Manitoba, Newfoundland and Labrador, Northwest Territories, Nova
Scotia, Nunavut, Ontario, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Island and Québec where
control person means any person that holds or is one of a combination of
persons that holds (i) a sufficient number of any of the securities
of an issuer so as to affect materially the control of the issuer, or (ii) more
than 20% of the outstanding voting securities of an issuer except where
there is evidence showing that the holding of those securities does not
affect materially the control of the issuer ; |
| |
|
(i) |
|
a
member of the board of directors of a company or an individual who performs
similar functions for a company, and |
| |
|
(ii) |
|
with
respect to a person that is not a company, an individual who performs functions
similar to those of a director of a company; |
| |
(c) |
|
“eligibility
adviser” means |
| |
|
(i) |
|
a
person that is registered as an investment dealer or in an equivalent category
of registration under the securities legislation of the jurisdiction of a
purchaser and authorized to give advice with respect to the type of security
being distributed, and |
| |
|
(ii) |
|
in
Saskatchewan or Manitoba, also means a lawyer who is a practicing member in
good standing with a law society of a jurisdiction of Canada or a public
accountant who is a member in good standing of an institute or association of
chartered accountants, certified general accountants or certified management
accountants in a jurisdiction of Canada provided that the lawyer or public
accountant must not |
| |
|
|
(a) |
|
have
a professional, business or personal relationship with the issuer, or any of
its directors, executive officers, founders, or control persons, and |
| |
|
|
(b) |
|
have
acted for or been retained personally or otherwise as an employee, executive
officer, director, associate or partner of a person that has acted for or been
retained by the issuer or any of its directors, executive officers, founders or
control persons within the previous 12 months; |
| |
(d) |
|
“executive
officer” means, for an issuer, an individual who is (i) a chair,
vice-chair or president, (ii) a vice-president in charge of a principal
business unit, division or function including sales, finance or
production, (iii) an officer of the issuer or any of its subsidiaries and
who performs a policy-making function in respect of the issuer, or (iv)
performing a policy-making function in respect of the issuer, other than
the individuals referred to in subparagraphs (i) to (iii) ; |
| |
(e) |
|
“financial
assets” means |
| |
|
(iii) |
|
a
contract of insurance, a deposit or an evidence of a deposit that is not a
security for the purposes of securities legislation; |
| |
(f) |
|
“founder” means,
in respect of an issuer, a person who, (i) acting alone, in conjunction, or in
concert with one or more persons, directly or indirectly, takes the
initiative in founding, organizing or substantially reorganizing the
business of the issuer, and (ii) at the time of the trade is
actively involved in the business of the issuer ; |
-5-
| |
(g) |
|
“fully
managed account” means an account of a client for which a person
makes the investment decisions if that person has full discretion to trade
in securities for the account without requiring the client’s express
consent to a transaction; |
| |
(h) |
|
“investment
fund” has the same meaning as in National Instrument 81-106 Investment
Fund Continuous Disclosure; |
| |
|
(iii) |
|
a
partnership, trust, fund and an association, syndicate, organization or other
organized group of persons, whether incorporated or not, and |
| |
|
(iv) |
|
an
individual or other person in that person’s capacity as a trustee,
executor, administrator or personal or other legal representative; |
| |
(j) |
|
“related
liabilities” means |
| |
|
(i) |
|
liabilities
incurred or assumed for the purpose of financing the acquisition or ownership
of financial assets, or |
| |
|
(ii) |
|
liabilities
that are secured by financial assets; |
| |
(k) |
|
“Schedule
III bank” means an authorized foreign bank named in Schedule III of
the Bank Act (Canada); |
| |
(l) |
|
“spouse” means,
an individual who, |
| |
|
(i) |
|
is
married to another individual and is not living separate and apart within the
meaning of the Divorce Act (Canada), from the other individual, |
| |
|
(ii) |
|
is
living with another individual in a marriage-like relationship, including a
marriage-like relationship between individuals of the same gender, or |
| |
|
(iii) |
|
in
Alberta, is an individual referred to in paragraph (i) or (ii), or is an adult
interdependent partner within the meaning of the Adult Interdependent
Relationships Act (Alberta); and |
| |
(m) |
|
“subsidiary” means
an issuer that is controlled directly or indirectly by another issuer and
includes a subsidiary of that subsidiary. |
An
issuer is an “affiliate” of another issuer if (i) one of them is the
subsidiary of the other, or (ii) each of them is controlled by the same person.
In
National Instrument 45-106 a person (first person) is considered to
“control” another person (second person) if
| |
(i) |
|
the
first person, directly or indirectly, beneficially owns or exercises control or
direction over securities of the second person carrying votes which, if
exercised, would entitle the first person to elect a majority of the directors
of the second person, unless that first person holds the voting securities only
to secure an obligation, |
-6-
| |
(ii) |
|
the
second person is a partnership, other than a limited partnership, and the first
person holds more than 50% of the interests of the partnership, or |
| |
(iii) |
|
the
second person is a limited partnership and the general partner of the limited
partnership is the first person. |
The
foregoing representation, warranty and certificate is true and accurate as of the date of
this certificate and will be true and accurate as of Closing. If any such representation,
warranty or certificate shall not be true and accurate prior to Closing, the undersigned
shall give immediate written notice of such fact to the Issuer.
|
Dated: Dec. 15th, 2005 |
Signed: /s/ Tamisuke Matsufuji
________________________________ |
_______________________________________
Witness (If Purchaser is an Individual) |
Jipangu Canada Inc.
_______________________________________
Print the name of Purchaser |
_______________________________________
Print Name of Witness |
Tamisuke Matsufuji
Director
_______________________________________
If Purchaser is a Corporation, print name and
title of Authorized Signing Officer
|
(Initials)
▇▇▇