PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT (UNITS – CANADIAN TSX VENTURE EXCHANGE LISTED ISSUER)
THE ALKALINE WATER COMPANY INC.
(the “Issuer”)
(the “Issuer”)
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1.
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2.
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3.
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If you are a “U.S. Purchaser”, as defined in Exhibit B, you must complete and sign Exhibit B “United States Accredited Investor Questionnaire” that starts on page 29.
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4.
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All individual accredited investors (not corporations, partnerships or trusts) must fill in and execute Form 45-106F9 which starts on page 27.
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5.
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Unless you are subscribing through a person registered as a broker, an exempt market dealer (as defined in National Instrument 31-103 – Registration Requirements and Exemptions) or you are subscribing directly from the Issuer without involvement of a finder, you must complete and sign Exhibit C “Risk Acknowledgement Form” that starts on page 34.
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6.
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If you are not an individual (that is, the purchaser is a corporation, partnership, trust or entity other than an individual) or you are a portfolio manager, then complete and sign Exhibit D “Corporate Placee Registration Form” (Form 4C) that starts on page 35. If you have previously submitted this form to the TSX Venture Exchange, and there have been no changes to its content, then please check the box to that effect on page 2.
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7.
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If you are paying for your subscription with funds drawn from a Canadian bank, you may pay by certified cheque or bank draft drawn on a Canadian chartered bank or by wire transfer to the Issuer pursuant to wiring instructions to be provided by the Issuer upon request. If the funds are wired or sent to the Issuer’s legal counsel, you irrevocably authorize such legal counsel to immediately deliver the funds to the Issuer.
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8.
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If you are paying for your subscription with funds drawn on any source other than a Canadian chartered bank, you may only pay by wire transfer to the Issuer pursuant to wiring instructions to be provided by the Issuer upon request. If the funds are wired or sent to the Issuer’s legal counsel, you irrevocably authorize such legal counsel to immediately deliver the funds to the Issuer.
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THE ALKALINE WATER COMPANY INC.
PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
The undersigned (the “Subscriber”) hereby irrevocably subscribes for and agrees to purchase from The Alkaline Water Company Inc. (the “Issuer”) that number of units of the Issuer (each, a “Unit”) set out below at a price of $2.50 per Unit. Each Unit is comprised of one common share in the capital of the Issuer (each, a “Share”) and one non-transferable common share purchase warrant (each warrant, a “Warrant”). Each Warrant will entitle the holder thereof to acquire one Share (each, a “Warrant Share”) at a price of $2.90 per Warrant Share until 5:00 p.m. (Vancouver time) on the date of expiration of the Warrant, which is two (2) years following the Closing Date (as defined herein). The Subscriber agrees to be bound by the terms and conditions set forth in the attached “Terms and Conditions of Subscription for Units”.
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Subscriber Information
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Units to be Purchased
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(Name of Subscriber)
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(Number of Units)
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Account Reference (if applicable):
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X
(Signature of Subscriber – if the Subscriber is an Individual) |
Total Subscription Price:
(the “Subscription Amount”, plus wire fees if applicable)
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X
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(Signature of Authorized Signatory – if the Subscriber is not an Individual)
(Name and Title of Authorized Signatory – if the Subscriber is not an Individual)
(SIN, SSN, or other Tax Identification Number of the Subscriber)
(Subscriber’s Address, including postal or zip code)
(Telephone Number) (Email Address)
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Please complete if purchasing as agent or trustee for a principal (beneficial purchaser) (a “Disclosed Principal”) and not purchasing as trustee or agent for accounts fully managed by it.
(Name of Disclosed Principal)
(Address of Disclosed Principal)
(Account Reference, if applicable)
(SIN, SSN, or other Tax Identification Number of Disclosed Principal)
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Register the Shares and Warrants as set forth below:
(Name to Appear on Share and Warrant Certificate)
(Account Reference, if applicable)
(Address, including postal or zip code)
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Deliver the Shares and Warrants as set forth below:
(Attention - Name)
(Account Reference, if applicable)
(Street Address, including postal or zip code – no PO Boxes permitted)
(Telephone Number)
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ACCEPTANCE
The Issuer hereby accepts the Subscription (as defined herein) on the terms and conditions contained in this private placement subscription agreement (this “Agreement”) as of the _____ day of September, 2018 (the “Closing Date”).
THE ALKALINE WATER COMPANY INC.
Per: _________________________________
Authorized Signatory
Per: _________________________________
Authorized Signatory
Address: 00000 X. Xxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Email: xxxxx@xxxxxx.xxx
Attention: Xxxxxxx X. Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Email: xxxxx@xxxxxx.xxx
Attention: Xxxxxxx X. Xxxxxx
TERMS AND CONDITIONS OF SUBSCRIPTION FOR UNITS
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1.
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Subscription
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1.1 On the basis of the representations and warranties, and subject to the terms and conditions, set forth in this Agreement, the Subscriber hereby irrevocably subscribes for and agrees to purchase such number of Units as is set forth on page 2 of this Agreement at a price of $2.50 per Unit for the Subscription Amount shown on page 2 of this Agreement, which is tendered herewith (such subscription and agreement to purchase being the “Subscription”), and the Issuer agrees to sell the Units to the Subscriber, effective upon the Issuer’s acceptance of this Agreement.
1.2 Each Unit will consist of one Share and one Warrant. The Warrants will not be transferable. Each Warrant will entitle the holder thereof to purchase one Warrant Share, as presently constituted, for a period of two (2) years commencing from the Closing Date at an exercise price of $2.90 per Warrant Share. The Units, the Shares, the Warrants and the Warrant Shares are referred to herein as the “Securities”.
1.3 The Subscriber acknowledges that the Units have been offered to the Subscriber as part of an offering by the Issuer of additional Units to other subscribers (the “Offering”).
1.4 All dollar amounts referred to in this Agreement are in lawful money of Canada, unless otherwise indicated.
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2.
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Payment
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2.1 The Subscription Amount must accompany this Subscription and will be paid: (i) if the Subscriber is drawing funds from a Canadian bank to pay for this Subscription, by a certified cheque or bank draft drawn on a Canadian chartered bank or by wire transfer to the Issuer pursuant to wiring instructions to be provided by the Issuer upon request from the Subscriber; or (ii) if the Subscriber is drawing funds from any source other than a Canadian chartered bank to pay for this Subscription, then only by wire transfer to the Issuer pursuant to wiring instructions to be provided by the Issuer upon request from the Subscriber. If the Subscription Amount is wired or sent to Xxxxx Xxxxxx LLP, the Issuer’s lawyers (the “Issuer’s Counsel”), the Subscriber irrevocably authorizes the Issuer’s Counsel to immediately deliver the Subscription Amount to the Issuer upon receipt of the Subscription Amount from the Subscriber, notwithstanding that such delivery may be made by the Issuer’s Counsel to the Issuer prior to the closing of the Offering (the “Closing”). The Subscriber authorizes the Issuer to treat the Subscription Amount as an interest free loan until the Closing.
2.2 The Subscriber acknowledges and agrees that this Agreement, the Subscription Amount and any other documents delivered in connection herewith will be held by or on behalf of the Issuer. In the event that this Agreement is not accepted by the Issuer for whatever reason, which the Issuer expressly reserves the right to do, the Issuer will return the Subscription Amount (without interest thereon) to the Subscriber at the address of the Subscriber as set forth on page 2 of this Agreement, or as otherwise directed by the Subscriber.
3.1 The Subscriber must complete, sign and return to the Issuer the following documents:
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(a)
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this Agreement;
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(b)
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if the Subscriber is a resident of Canada, the Canadian Investor Questionnaire (the “Canadian Questionnaire”) attached as Exhibit A that starts on page 15;
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(c)
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if the Subscriber is a U.S. Purchaser (as defined in Exhibit B), the United States Accredited Investor Questionnaire (the “U.S. Questionnaire” and, together with the Canadian Questionnaire, the “Questionnaires”) attached as Exhibit B that starts on page 29;
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(d)
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all individual accredited investors (not corporations, partnerships or trusts) must fill in and execute Form 45-106F9 which starts on page 27;
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(e)
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if the Subscriber is not subscribing through a person registered as a broker or an exempt market dealer (as defined in National Instrument 31-103 – Registration Requirements and Exemptions) or the Subscriber is not acquiring the Securities directly from the Issuer without involvement of a finder, the “Risk Acknowledgement Form” attached as Exhibit C that is on page 34;
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(f)
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if the Subscriber is not an individual or is a portfolio manager and does not have a current Corporate Placee Registration Form on file with the TSX Venture Exchange (the “Exchange”), the Corporate Placee Registration Form attached as Exhibit D that starts on page 36, unless the Subscriber has previously submitted this form to the Exchange, there have been no changes to its content, and the Subscriber has checked the box to that effect on page 2 of this Agreement;
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(g)
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the Selling Stockholder Questionnaire attached as Exhibit F that starts on page 39; and
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(h)
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such other supporting documentation that the Issuer or the Issuer’s Counsel may request to establish the Subscriber’s qualification as a qualified investor,
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and the Subscriber acknowledges and agrees that the Issuer will not consider the Subscription for acceptance unless the Subscriber has provided all such documents to the Issuer.
3.2 As soon as practicable upon any request by the Issuer, the Subscriber will complete, sign and return to the Issuer any additional documents, questionnaires, notices and undertakings as may be required by any regulatory authorities or applicable laws.
3.3 The Issuer and the Subscriber acknowledge and agree that the Issuer’s Counsel has acted as counsel only to the Issuer and is not protecting the rights and interests of the Subscriber. The Subscriber acknowledges and agrees that the Issuer and the Issuer’s Counsel have given the Subscriber the opportunity to seek, and are hereby recommending that the Subscriber obtain, independent legal advice with respect to the subject matter of this Agreement and, further, the Subscriber hereby represents and warrants to the Issuer and the Issuer’s Counsel that the Subscriber has sought independent legal advice or waives such advice.
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4.
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Conditions and Closing
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4.1 The Closing Date will occur on such date as may be determined by the Issuer in its sole discretion. The Issuer may, at its discretion, elect to close the Offering in one or more closings.
4.2 The Closing is conditional upon and subject to:
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(a)
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the Issuer having obtained all necessary approvals and consents, including regulatory approvals for the Offering;
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(b)
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the issue and sale of the Units being exempt from the requirement to file a prospectus and the requirement to deliver an offering memorandum under applicable securities laws relating to the sale of the Units, or the Issuer having received such orders, consents or approvals as may be required to permit such sale without the requirement to file a prospectus or deliver an offering memorandum; and
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(c)
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the Issuer having obtained approval of the Exchange for the Offering.
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4.3 The Subscriber acknowledges that the certificates representing the Shares and the Warrants will be available for delivery within five business days of the Closing Date, provided that the Subscriber has satisfied the requirements of Section 3 hereof and the Issuer has accepted this Agreement.
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5.
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Acknowledgements and Agreements of the Subscriber
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5.1 The Subscriber acknowledges and agrees that:
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(a)
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none of the Securities have been or will be registered under the United States Securities Act of 1933, as amended, (the “1933 Act”), or under any securities or “blue sky” laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to any U.S. Person (as defined in Section 6.2), except in accordance with the provisions of Regulation S under the 1933 Act (“Regulation S”), pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act, and in each case only in accordance with all applicable state, provincial and foreign securities laws;
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(b)
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the Issuer has not undertaken, and will have no obligation, to register any of the Securities under the 1933 Act or any other applicable securities laws;
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(c)
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the Issuer will refuse to register the transfer of any of the Securities to a U.S. Person not made pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act and in each case in accordance with all applicable laws;
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(d)
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the decision to execute this Agreement and to acquire the Securities has not been based upon any oral or written representation as to fact or otherwise made by or on behalf of the Issuer and such decision is based entirely upon a review of any public information which has been filed by the Issuer with the United States Securities and Exchange Commission (the “SEC”) and applicable Canadian provincial securities commissions (collectively, the “Public Record”);
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(e)
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the Issuer and others will rely upon the truth and accuracy of the acknowledgements, representations, warranties, covenants and agreements of the Subscriber contained in this Agreement and the Questionnaires, as applicable, and agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, the Subscriber will promptly notify the Issuer;
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(f)
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there are risks associated with the purchase of the Securities, as more fully described in the Issuer’s periodic disclosure forming part of the Public Record;
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(g)
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the Subscriber and the Subscriber’s advisor(s) have had a reasonable opportunity to ask questions of, and receive answers from, the Issuer in connection with the distribution of the Securities hereunder, and to obtain additional information, to the extent possessed or obtainable without unreasonable effort or expense, necessary to verify the accuracy of the information about the Issuer;
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(h)
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a portion of this Offering may be sold pursuant to an agreement between the Issuer and one or more agents registered in accordance with applicable securities laws, in which case the Issuer will pay a fee and/or compensation securities on terms as set out in such agreement;
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(i)
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finder’s fees or broker’s commissions may be payable by the Issuer to finders who introduce subscribers to the Issuer;
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(j)
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the books and records of the Issuer were available upon reasonable notice for inspection, subject to certain confidentiality restrictions, by the Subscriber during reasonable business hours at its principal place of business, and all documents, records and books in connection with the distribution of the Securities hereunder have been made available for inspection by the Subscriber, its legal counsel and/or its advisor(s);
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(k)
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all of the information which the Subscriber has provided to the Issuer is correct and complete and if there should be any change in such information prior to the Closing, the Subscriber will immediately notify the Issuer, in writing, of the details of any such change;
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(l)
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the Issuer is entitled to rely on the representations and warranties of the Subscriber contained in this Agreement and the Questionnaires, as applicable, and the Subscriber will hold harmless the Issuer from any loss or damage it or they may suffer as a result of the Subscriber’s failure to correctly complete this Agreement or the Questionnaires, as applicable;
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(m)
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any resale of the Securities by the Subscriber will be subject to resale restrictions contained in the securities laws applicable to the Issuer, the Subscriber and any proposed transferee and it is the responsibility of the Subscriber to find out what those restrictions are and to comply with such restrictions before selling any of the Securities;
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(n)
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the Subscriber has been advised to consult the Subscriber’s own legal, tax and other advisors with respect to the merits and risks of an investment in the Securities and with respect to applicable resale restrictions, and it is solely responsible (and the Issuer is not in any way responsible) for compliance with:
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(i)
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any applicable laws of the jurisdiction in which the Subscriber is resident in connection with the distribution of the Securities hereunder, and
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(ii)
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applicable resale restrictions;
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(o)
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there may be material tax consequences to the Subscriber of an acquisition or disposition of the Securities and the Issuer gives no opinion and makes no representation to the Subscriber with respect to the tax consequences to the Subscriber under federal, state, provincial, local or foreign tax laws that may apply to the Subscriber’s acquisition or disposition of the Securities;
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(p)
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UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THESE SECURITIES SHALL NOT TRADE THE SECURITIES BEFORE [four months and one day from the Closing Date.]
and, if applicable:
WITHOUT PRIOR WRITTEN APPROVAL OF THE TSX VENTURE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE TSX VENTURE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL [four months and one day from the Closing Date.];
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(q)
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the Issuer has advised the Subscriber that the Issuer is relying on an exemption from the requirements to provide the Subscriber with a prospectus and to sell the Securities through a person registered to sell securities under provincial securities laws and other applicable securities laws, and, as a consequence of acquiring the Securities pursuant to such exemption, certain protections, rights and remedies provided by applicable securities laws (including the various provincial securities acts), including statutory rights of rescission or damages, will not be available to the Subscriber;
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(r)
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no securities commission or similar regulatory authority has reviewed or passed on the merits of any of the Securities;
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(s)
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there is no government or other insurance covering any of the Securities; and
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(t)
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this Agreement is not enforceable by the Subscriber unless it has been accepted by the Issuer and the Issuer reserves the right to reject this Subscription for any reason.
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6.1 The Subscriber hereby represents and warrants to the Issuer (which representations and warranties will survive the Closing) that:
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(a)
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unless the Subscriber has completed Exhibit B, the Subscriber is not a U.S. Person;
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(b)
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the Subscriber is resident in the jurisdiction set out on page 2 of this Agreement;
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(c)
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if the Subscriber is resident outside of Canada:
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(i)
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the Subscriber is knowledgeable of, or has been independently advised as to, the applicable securities laws having application in the jurisdiction in which the Subscriber is resident (the “International Jurisdiction”) which would apply to the offer and sale of the Securities,
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(ii)
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the Subscriber is purchasing the Securities pursuant to exemptions from prospectus or equivalent requirements under applicable laws or, if such is not applicable, the Subscriber is permitted to purchase the Securities under applicable securities laws of the International Jurisdiction without the need to rely on any exemptions,
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(iii)
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the applicable securities laws of the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any kind from any securities regulator of any kind in the International Jurisdiction in connection with the offer, issue, sale or resale of any of the Securities,
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(iv)
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the purchase of the Securities by the Subscriber does not trigger:
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A.
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any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction, or
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B.
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any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction, and
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(v)
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the Subscriber will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably;
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(e)
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the entering into of this Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to, or, if applicable, the constating documents of, the Subscriber or of any agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound;
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(f)
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the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of the Subscriber enforceable against the Subscriber;
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(g)
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the Subscriber has received and carefully read this Agreement;
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(h)
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the Subscriber is aware that an investment in the Issuer is speculative and involves certain risks, including those risks disclosed in the Public Record and the possible loss of the entire Subscription Amount;
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(i)
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the Subscriber has made an independent examination and investigation of an investment in the Securities and the Issuer and agrees that the Issuer will not be responsible in any way for the Subscriber’s decision to invest in the Securities and the Issuer;
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(j)
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the Subscriber is not an underwriter of, or dealer in, any of the Securities, nor is the Subscriber participating, pursuant to a contractual agreement or otherwise, in the distribution of the Securities;
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(k)
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the Subscriber is not aware of any advertisement of any of the Securities and is not acquiring the Securities as a result of any form of 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; and
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(l)
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no person has made to the Subscriber any written or oral representations:
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(i)
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that any person will resell or repurchase any of the Securities,
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(ii)
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that any person will refund the purchase price of any of the Securities, or
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(iii)
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as to the future price or value of any of the Securities.
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6.2 In this Agreement, the term “U.S. Person” will have the meaning ascribed thereto in Regulation S, and for the purpose of this Agreement includes, but is not limited to: (a) any person in the United States; (b) any natural person resident in the United States; (c) any partnership or corporation organized or incorporated under the laws of the United States; (d) any partnership or corporation organized outside the United States by a U.S. Person principally for the purpose of investing in securities not registered under the 1933 Act, unless it is organized or incorporated, and owned, by accredited investors who are not natural persons, estates or trusts; or (e) any estate or trust of which any executor or administrator or trustee is a U.S. Person.
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7.
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Representations and Warranties will be Relied Upon by the Issuer
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7.1 The Subscriber acknowledges and agrees that the representations and warranties contained in this Agreement are made by it with the intention that such representations and warranties may be relied upon by the Issuer and the Issuer’s Counsel in determining the Subscriber’s eligibility to purchase the Securities under applicable laws, or, if applicable, the eligibility of others on whose behalf the Subscriber is contracting hereunder to purchase the Securities under applicable laws. The Subscriber further agrees that, by accepting delivery of the certificates representing the Shares and the Warrants, it will be representing and warranting that the representations and warranties contained herein are true and correct as at the Closing Date with the same force and effect as if they had been made by the Subscriber on the Closing Date and that they will survive the purchase by the Subscriber of the Securities and will continue in full force and effect notwithstanding any subsequent disposition by the Subscriber of such Securities.
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8.
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Acknowledgement and Waiver
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8.1 The Subscriber has acknowledged that the decision to acquire the Securities was solely made on the basis of the Public Record. The Subscriber hereby waives, to the fullest extent permitted by law, any rights of withdrawal, rescission or compensation for damages to which the Subscriber might be entitled in connection with the distribution of any of the Securities.
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9.
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Legending and Registration of Subject Securities
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9.1 The Subscriber hereby acknowledges that a legend or legends may be placed on the certificates representing the Securities to the effect that the Securities represented by such certificates are subject to a hold period and may not be traded until the expiry of such hold period except as permitted by applicable securities laws, and the Subscriber consent to the placement of such legend(s) on any certificate representing the Securities.
9.2 The Subscriber hereby acknowledges and agrees to the Issuer making a notation on its records or giving instructions to the registrar and transfer agent of the Issuer in order to implement the restrictions on transfer set forth and described in this Agreement.
10.1 The Issuer will prepare and file a registration statement with respect to the Shares and the Warrant Shares (the “Registration Statement”) with the SEC on or before November 30, 2018 following the Closing and will use commercially reasonable efforts to have the Registration Statement declared effective by the SEC as soon as possible after filing. The Registration Statement shall state, to the extent permitted by Rule 416 under the 1933 Act, that it also covers such indeterminate number of additional Shares in order to prevent dilution resulting from stock splits, stock dividends or similar events. Notwithstanding any other provision in this Section 8, if the Issuer receives a comment from the staff of the SEC that effectively results in the Issuer having to reduce the number of Shares included in such Registration Statement, then the Issuer, after having first used commercially reasonable efforts to persuade the staff of the SEC to withdraw such comment, may in its sole discretion reduce on a pro rata basis (among all subscribers in the Offering) the number of Shares to be included in the Registration Statement.
10.2 In connection with the preparation and filing of the Registration Statement, the Subscriber will furnish to the Issuer, in writing, such information and representations with respect to itself and the proposed distribution by it as are reasonably necessary in order to assure compliance with applicable federal and state securities laws. The Issuer will require the Subscriber to furnish to the Issuer, among other things as may be determined by the Issuer in its sole discretion, a certified statement as to the number of securities of the Issuer beneficially owned by the Subscriber and the name of the natural person that has voting and dispositive control over the Shares and the Warrant Shares. The Subscriber will be responsible for payment of any legal fees it incurs in connection with the Registration Statement.
10.3 The Subscriber shall indemnify and hold harmless the Issuer, its directors, officers, agents and employees, each person who controls the Issuer (within the meaning of Section 15 of the 1933 Act and Section 20 of the Securities Exchange Act of 1934), and the directors, officers, agents or employees of such controlling persons, to the fullest extent permitted by applicable law, from and against all losses, as incurred, to the extent arising out of or based solely upon: (a) the Subscriber’s failure to comply with the prospectus delivery requirements of the 1933 Act; (b) any untrue or alleged untrue statement of a material fact contained in the Registration Statement, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading to the extent that: (i) such untrue statement or omission is contained in any information so furnished in writing by the Subscriber to the Issuer specifically for inclusion in the Registration Statement, (ii) such untrue statements or omissions are based solely upon information regarding the Subscriber furnished in writing to the Issuer by the Subscriber expressly for use therein, or (iii) such information relates to the Subscriber or the Subscriber’s proposed method of distribution of the Shares and the Warrant Shares and was reviewed and expressly approved in writing by the Subscriber expressly for use in the Registration Statement or in any amendment or supplement thereto; or (c) the use by the Subscriber of an outdated or defective Registration Statement after the Issuer has notified the Subscriber in writing that the Registration Statement is outdated or defective.
10.4 If a claim for indemnification hereunder is unavailable to the Issuer (by reason of public policy or otherwise), then the Subscriber, in lieu of indemnifying the Issuer, shall contribute to the amount paid or payable by the Issuer as a result of such losses, in such proportion as is appropriate to reflect the relative fault of the Subscriber and the Issuer in connection with the actions, statements or omissions that resulted in such losses, as well as any other relevant equitable considerations. The relative fault of the Subscriber and the Issuer shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, the Subscriber or the Issuer, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any losses shall be deemed to include, subject to the limitations set forth in this Agreement, any reasonable attorneys’ or other reasonable fees or expenses incurred by such party in connection with any proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in this section was available to such party in accordance with its terms.
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11.
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Collection of Personal Information
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11.1 The Subscriber acknowledges and consents to the fact that the Issuer is collecting the Subscriber’s personal information for the purpose of fulfilling this Agreement and completing the Offering. The Subscriber acknowledges that its personal information (and, if applicable, the personal information of those on whose behalf the Subscriber is contracting hereunder) may be included in record books in connection with the Offering and may be disclosed by the Issuer to: (a) stock exchanges or securities regulatory authorities, (b) the Issuer's registrar and transfer agent, (c) Canadian tax authorities, (d) authorities pursuant to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) and (e) any of the other parties involved in the Offering, including the Issuer’s Counsel. By executing this Agreement, the Subscriber is deemed to be consenting to the foregoing collection, use and disclosure of the Subscriber's personal information (and, if applicable, the personal information of those on whose behalf the Subscriber is contracting hereunder) for the foregoing purposes and for the purposes described in Exhibit E to this Agreement and to the retention of such personal information for as long as permitted or required by applicable laws. Notwithstanding that the Subscriber may be purchasing the Units as agent on behalf of an undisclosed principal, the Subscriber agrees to provide, on request, particulars as to the nature and identity of such undisclosed principal, and any interest that such undisclosed principal has in the Issuer, all as may be required by the Issuer in order to comply with the foregoing.
Furthermore, the Subscriber is hereby notified that:
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(b)
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such information is being collected indirectly by the Commissions under the authority granted to them in applicable securities laws;
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(c)
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such information is being collected for the purposes of the administration and enforcement of applicable securities laws; and
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(d)
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the Subscriber may contact the following public official in Ontario with respect to questions about the Ontario Securities Commission’s indirect collection of such information at the following address and telephone number:
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Administrative Assistant to the Director of Corporate Finance
Ontario Securities Commission
Xxxxx 0000, Xxx 00
00 Xxxxx Xxxxxx Xxxx
Xxxxxxx, XX X0X 0X0
Telephone: (000) 000-0000.
Ontario Securities Commission
Xxxxx 0000, Xxx 00
00 Xxxxx Xxxxxx Xxxx
Xxxxxxx, XX X0X 0X0
Telephone: (000) 000-0000.
|
12.
|
Costs
|
12.1 The Subscriber acknowledges and agrees that all costs and expenses incurred by the Subscriber (including any fees and disbursements of any special counsel retained by the Subscriber) relating to the purchase of the Units will be borne by the Subscriber.
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13.
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Governing Law
|
13.1 This Agreement is governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein. The Subscriber, in its personal or corporate capacity and, if applicable, on behalf of each beneficial or undisclosed purchaser for whom it is acting, irrevocably attorns to the exclusive jurisdiction of the courts of the Province of British Columbia.
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14.
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Survival
|
14.1 This Agreement, including, without limitation, the representations, warranties and covenants contained herein, will survive and continue in full force and effect and be binding upon the Issuer and the Subscriber, notwithstanding the completion of the purchase of the Securities by the Subscriber.
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15.
|
Assignment
|
15.1 This Agreement is not transferable or assignable.
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16.
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Severability
|
16.1 The invalidity or unenforceability of any particular provision of this Agreement will not affect or limit the validity or enforceability of the remaining provisions of this Agreement.
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17.
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Entire Agreement
|
17.1 Except as expressly provided in this Agreement and in the exhibits, agreements, instruments and other documents attached hereto or contemplated or provided for herein, this Agreement contains the entire agreement between the parties with respect to the sale of the Units and there are no other terms, conditions, representations or warranties, whether expressed, implied, oral or written, by statute or common law, by the Issuer or by anyone else.
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18.
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Notices
|
18.1 All notices and other communications hereunder will be in writing and will be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication, including facsimile, electronic mail or other means of electronic communication capable of producing a printed copy. Notices to the Subscriber will be directed to the address of the Subscriber set forth on page 2 of this Agreement and notices to the Issuer will be directed to it at the address of the Issuer set forth on page 3 of this Agreement.
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19.
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Beneficial Subscribers
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19.1 Whether or not explicitly stated in this Agreement, any acknowledgement, representation, warranty, covenant or agreement made by the Subscriber in this Agreement, including the exhibits hereto, will be treated as if made by the Disclosed Principal, if any.
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20.
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Execution of Subscription Agreement
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20.1 The Issuer and the Issuer’s Counsel will be entitled to rely on delivery by facsimile machine or other means of electronic communication capable of producing a printed copy of an executed copy of this Agreement, and acceptance by the Issuer of such facsimile or electronic copy will be equally effective to create a valid and binding agreement between the Subscriber and the Issuer in accordance with the terms hereof. If less than a complete copy of this Agreement is delivered to the Issuer or the Issuer’s Counsel prior to or at Closing, the Issuer and the Issuer’s Counsel are entitled to assume that the Subscriber accepts and agrees to all of the terms and conditions of the pages not delivered prior to or at Closing unaltered.
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21.
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Counterparts and Electronic Means
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21.1 This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, will constitute an original and all of which together will constitute one instrument. Delivery of an executed copy of this Agreement by electronic mail (email) transmission or other means of electronic communication capable of producing a printed copy will be deemed to be execution and delivery of this Agreement as of the Closing Date.
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22.
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Exhibits
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22.1 The exhibits attached hereto form part of this Agreement.
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23.
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Indemnity
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23.1 The Subscriber will indemnify and hold harmless the Issuer and, where applicable, its directors, officers, employees, agents, advisors and shareholders, from and against any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all fees, costs and expenses whatsoever reasonably incurred in investigating, preparing or defending against any claim, lawsuit, administrative proceeding or investigation whether commenced or threatened) arising out of or based upon any representation or warranty of the Subscriber contained in this Agreement, the Questionnaires, as applicable, or in any document furnished by the Subscriber to the Issuer in connection herewith being untrue in any material respect, or any breach or failure by the Subscriber to comply with any covenant or agreement made by the Subscriber to the Issuer in connection therewith.
EXHIBIT A
CANADIAN INVESTOR QUESTIONNAIRE
(ALBERTA, BRITISH COLUMBIA, MANITOBA, NEWFOUNDLAND AND LABRADOR, NEW BRUNSWICK, NOVA SCOTIA, ONTARIO, XXXXXX XXXXXX ISLAND, QUEBEC, AND SASKATCHEWAN)
TO: The Alkaline Water Company Inc. (the “Issuer”)
RE: Purchase of units (the “Units”) of the Issuer
Capitalized terms used in this Canadian Questionnaire (this “Questionnaire”) and not specifically defined have the meaning ascribed to them in the Private Placement Subscription Agreement between the Subscriber and the Issuer to which this Exhibit A is attached.
In connection with the purchase by the Subscriber (being the undersigned, or if the undersigned is purchasing the Units as agent on behalf of a disclosed beneficial Subscriber, such beneficial Subscriber, will be referred herein as the “Subscriber”) of the Units, the Subscriber hereby represents, warrants and certifies to the Issuer that the Subscriber:
| (i) |
is purchasing the Units as principal (or deemed principal under the terms of National Instrument 45-106 – Prospectus Exemptions adopted by the Canadian Securities Administrators (“NI 45-106”));
|
| (ii) | (A) |
is resident in or is subject to the laws of one of the following (check one):
|
|
☐ Alberta
|
☐ New Brunswick
|
☐ Xxxxxx Xxxxxx Xxxxxx
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|
x Xxxxxxx Xxxxxxxx
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☐ Nova Scotia
|
☐ Quebec
|
|
☐ Manitoba
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☐ Ontario
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☐ Saskatchewan
|
|
☐ Newfoundland and Labrador
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☐ Yukon
|
|
|
☐ Northwest Territories
|
||
or
| (B) |
☐ is resident in a country other than Canada; and
|
| (iii) |
In connection with the purchase of the Units, the Subscriber hereby represents, warrants, covenants and certifies that the Subscriber meets one or more of the following criteria:
|
I. SUBSCRIBERS PURCHASING UNDER THE “ACCREDITED INVESTOR” EXEMPTION
|
|||
|
(a)
|
the Subscriber is not a trust company or trust company registered under the laws of Xxxxxx Xxxxxx Island that is not registered or authorized under the Trust and Loan Companies Act (Canada) or under comparable legislation in another jurisdiction of Canada,
|
||
|
(b)
|
the Subscriber is an “accredited investor” within the meaning of NI 45-106, by virtue of satisfying the indicated criterion below (YOU MUST INITIAL OR PLACE A CHECK-XXXX ON THE APPROPRIATE LINE(S) AND ALSO COMPLETE AND SIGN APPENDIX “A” TO THIS CERTIFICATE) (see certain guidance with respect to accredited investors that starts on page 21 below)
|
||
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1.
|
☐
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(i)
|
except in Ontario, a person registered under the securities legislation of a jurisdiction of Canada as an adviser or dealer,
|
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2.
|
☐
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(ii)
|
an individual registered under the securities legislation of a jurisdiction of Canada as a representative of a person referred to in paragraph (ix),
|
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3.
|
☐
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(iii)
|
an individual formerly registered under the securities legislation of a jurisdiction of Canada, other than an individual formerly registered solely as a representative of a limited market dealer under one or both of the Securities Act (Ontario) or the Securities Act (Newfoundland and Labrador),
|
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4.
|
☐
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(iv)
|
an individual who, either alone or with a spouse, beneficially owns financial assets having an aggregate realizable value that, before taxes but net of any related liabilities, exceeds $1,000,000,
|
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5.
|
☐
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(v)
|
an individual who beneficially owns financial assets having an aggregate realizable value that, before taxes but net of any related liabilities, exceeds $5,000,000,
|
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6.
|
☐
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(vi)
|
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,
|
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7.
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☐
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(vii)
|
an individual who, either alone or with a spouse, has net assets of at least $5,000,000,
|
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8.
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☐
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(viii)
|
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 and that has not been created or used solely to purchase or hold securities as an accredited investor as defined in this paragraph (viii),
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9.
|
☐
|
(ix)
|
an investment fund that distributes or has distributed its securities only to
(i) a person that is or was an accredited investor at the time of the distribution,
(ii) a person that acquires or acquired securities in the circumstances referred to in sections 2.10 [Minimum amount investment] of NI 45-106, or 2.19 [Additional investment in investment funds] of NI 45-106, or
(iii) a person described in paragraph (i) or (ii) that acquires or acquired securities under section 2.18 [Investment fund reinvestment] of NI 45-106,
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10.
|
☐
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(x)
|
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,
|
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11.
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☐
|
(xi)
|
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,
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12.
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☐
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(xii)
|
a person acting on behalf of a fully managed account managed by that person, if that person 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,
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13.
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☐
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(xiii)
|
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,
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14.
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☐
|
(xiv)
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an entity organized in a foreign jurisdiction that is analogous to the entity referred to in paragraph (i) in form and function,
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|
15.
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☐
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(xv)
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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, and
|
|
(c)
|
if the Subscriber is an “accredited investor” within the meaning of NI 45-106 by virtue of satisfying the indicated criterion as set out in paragraphs (iv), (vi) or (vii) above, the Subscriber has provided the Issuer with the signed risk acknowledgment form set out in Appendix “A” to this certificate;
|
||
|
II. SUBSCRIBERS PURCHASING UNDER THE “FAMILY, FRIENDS AND BUSINESS ASSOCIATES” EXEMPTION
|
|||
|
(a)
|
the Subscriber is (please initial or place a check-xxxx on the appropriate line below and provide the requested information, as applicable):
|
||
|
☐
|
(i)
|
a director, executive officer or control person of the Issuer, or of an affiliate of the Issuer,
|
|
|
☐
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(ii)
|
a spouse, parent, grandparent, brother, sister, child or grandchild of _________________________________ (print name of person), who is a director, executive officer or control person of the Issuer or of an affiliate of the Issuer,
|
|
|
☐
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(iii)
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a parent, grandparent, brother, sister, child or grandchild of the spouse of ___________________________________ (print name of person), who is a director, executive officer or control person of the Issuer or of an affiliate of the Issuer,
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|
|
☐
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(iv)
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a close personal friend (see guidance on making this determination that starts on page 25 below) of ___________________________________ (print name of person), who is a director, executive officer, founder or control person of the Issuer, or of an affiliate of the Issuer, and has been for __________________________ years based on the following factors: ____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________(explain the nature of the close personal friendship),
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|
|
☐
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(v)
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a close business associate (see guidance on making this determination that starts on page 24 below) of ___________________________________ (print name of person), who is a director, executive officer, founder or control person of the Issuer, or of an affiliate of the Issuer, and has been for __________________________ years based on the following factors
____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ (explain the nature of the close business association), |
|
|
☐
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(vi)
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a founder of the Issuer or a spouse, parent, grandparent, brother, sister, child, grandchild, close personal friend or close business associate (see guidance on making these determinations that starts on page 24 below) of ________________________________ (print name of person), who is a founder of the Issuer, and, if a close personal friend or close business associate of such person, has been for __________________________ years based on the following factors:
_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________(explain the nature of the close personal friendship or business association),
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|
|
☐
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(vii)
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a parent, grandparent, brother, sister, child or grandchild of the spouse of ______________________________ (print name of person), who is a founder of the Issuer,
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☐
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(viii)
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a company of which a majority of the voting securities are beneficially owned by, or a majority of the directors are, persons or companies described in subsections II(a)(i) to II(a)(vii) above, or
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☐
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(ix)
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a trust or estate of which all of the beneficiaries or a majority of the trustees or executors are persons or companies described in subsections II(a)(i) to II(a)(viii) above;
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|
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(b)
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if the Subscriber is resident in the Province of Ontario or is subject to the securities laws of the Province of Ontario, the Subscriber has provided the Issuer with a signed risk acknowledgement form (to be provided by the Issuer on request);
|
||
|
(c)
|
if the Subscriber is resident in the Province of Saskatchewan or is subject to the securities laws of the Province of Saskatchewan, and the Subscriber is relying on the indicated criterion as set out in subsections II(a)(iv), II(a)(v) or II(a)(viii) or II(a)(ix) if the distribution is based in whole or in part on a close personal friendship or a close business association, the Subscriber has provided the Issuer with a signed risk acknowledgement form (to be provided by the Issuer on request);
|
||
|
III. SUBSCRIBERS PURCHASING UNDER THE MINIMUM AMOUNT INVESTMENT
|
|
|
(a)
|
the Subscriber is not an individual as that term is defined in applicable Canadian securities laws,
|
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(b)
|
the Subscriber is purchasing the Units as principal for its own account and not for the benefit of any other person,
|
|
(c)
|
the Units have an acquisition cost to the Subscriber of not less than $150,000, payable in cash at the Closing, and
|
|
(d)
|
the Subscriber was not created and is not being used solely to purchase or hold securities in reliance on the prospectus exemption provided under Section 2.10 of NI 45-106, it pre-existed the Offering and has a bona fide purpose other than investment in the Units.
|
For the purposes of the Canadian Investor Questionnaire and Appendix “A” attached to the Canadian Investor Questionnaire:
(a) an issuer is “affiliated” with another issuer if
| (i) |
one of them is the subsidiary of the other, or
|
| (ii) |
each of them is controlled by the same person;
|
(b) “control person” means
| (i) |
a person who holds a sufficient number of the voting rights attached to all outstanding voting securities of an issuer to affect materially the control of the issuer, or
|
| (ii) |
each person in a combination of persons, acting in concert by virtue of an agreement, arrangement, commitment or understanding, which holds in total a sufficient number of the voting rights attached to all outstanding voting securities of an issuer to affect materially the control of the issuer,
|
and, if a person or combination of persons holds more than 20% of the voting rights attached to all outstanding voting securities of an issuer, the person or combination of persons is deemed, in the absence of evidence to the contrary, to hold a sufficient number of the voting rights to affect materially the control of the issuer;
(c) “director” means
| (i) |
a member of the board of directors of a company or an individual who performs similar functions for a company, and
|
| (ii) |
with respect to a person that is not a company, an individual who performs functions similar to those of a director of a company;
|
| (i) |
a person that is registered as an investment dealer and authorized to give advice with respect to the type of security being distributed; and
|
| (A) |
have a professional, business or personal relationship with the issuer, or any of its directors, executive officers, founders or control persons, and
|
(e) “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, or
|
| (iii) |
performing a policy-making function in respect of the issuer;
|
(f) “financial assets” means
| (i) |
cash,
|
| (iii) |
a contract of insurance, a deposit or an evidence of a deposit that is not a security for the purposes of securities legislation;
|
| (g) |
“foreign jurisdiction” means a country other than Canada or a political subdivision of a country other than Canada;
|
(h) “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 distribution or trade is actively involved in the business of the issuer;
|
| (j) |
“individual” means a natural person, but does not include
|
| (i) |
a partnership, unincorporated association, unincorporated syndicate, unincorporated organization or trust, or
|
| (ii) |
a natural person in the person's capacity as a trustee, executor, administrator or personal or other legal representative;
|
| (k) |
“investment fund” means a mutual fund or a non-redeemable investment fund, and, for great certainty in British Columbia, includes an employee venture capital corporation and a venture capital corporation as such terms are defined in National Instrument 81-106 Investment Fund Continuous Disclosure;
|
| (l) |
“jurisdiction” or “jurisdiction of Canada” means a province or territory of Canada except when used in the term foreign jurisdiction;
|
| (A) |
for the purpose of exercising or seeking to exercise control of an issuer, other than an issuer that is a mutual fund or a non-redeemable investment fund, or
|
| (B) |
for the purpose of being actively involved in the management of any issuer in which it invests, other than an issuer that is a mutual fund or a non-redeemable investment fund, and
|
| (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;
|
| (i) |
liabilities incurred or assumed for the purpose of financing the acquisition or ownership of financial assets, or
|
| (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).
|
An individual accredited investor is an individual:
|
(a)
|
who, either alone or with a spouse, beneficially owns financial assets (please see the guidance below regarding what financial assets are) having an aggregate realizable value that. before taxes but net of any related liabilities (please see the guidance below regarding what related liabilities are), exceeds $1,000,000;
|
|
(b)
|
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;
|
|
(c)
|
who, either alone or with a spouse, has net assets (please see the guidance below regarding calculating net assets) of at least $5,000,000; and
|
|
(d)
|
who beneficially owns financial assets (please see the guidance below regarding what financial assets are) having an aggregate realizable value that, before taxes but net of any related liabilities (please see the guidance below regarding what related liabilities are), exceeds $5,000,000.
|
The monetary thresholds above are intended to create bright-line standards. Subscribers who do not satisfy these monetary thresholds do not qualify as accredited investors.
Spouses
Sections (a), (b) and (c) above are designed to treat spouses as a single investing unit, so that either spouse qualifies as an accredited investor if the combined financial assets of both spouses exceed $1,000,000, the combined net income of both spouses exceeds $300,000, or the combined net assets of both spouses exceed $5,000,000. Section (d) above does not treat spouses as a single investing unit.
If the combined net income of both spouses does not exceed $300,000, but the net income of one of the spouses exceeds $200,000, only the spouse whose net income exceeds $200,000 qualifies as an accredited investor.
Financial Assets and Related Liabilities
For the purposes of Sections (a) and (d) above, “financial assets” means: (1) cash, (2) securities, or (3) a contract of insurance, a deposit or an evidence of a deposit that is not a security for the purposes of securities legislation. These financial assets are generally liquid or relatively easy to liquidate. The value of a subscriber’s personal residence is not included in a calculation of financial assets.
The calculation of financial assets must exclude “related liabilities”, meaning: (1) liabilities incurred or assumed for the purpose of financing the acquisition or ownership of financial assets, or (2) liabilities that are secured by financial assets.
As a general matter, it should not be difficult to determine whether financial assets are beneficially owned by an individual, an individual’s spouse, or both, in any particular instance. However, in the case where financial assets are held in a trust or in another type of investment vehicle for the benefit of an individual, there may be questions as to whether the individual beneficially owns the financial assets. The following factors are indicative of beneficial ownership of financial assets:
|
·
|
physical or constructive possession of evidence of ownership of the financial asset;
|
|
·
|
entitlement to receipt of any income generated by the financial asset;
|
|
·
|
risk of loss of the value of the financial asset; and
|
|
·
|
the ability to dispose of the financial asset or otherwise deal with it as the individual sees fit.
|
For example, securities held in a self-directed RRSP for the sole benefit of an individual are beneficially owned by that individual.
In general, financial assets in a spousal RRSP can be included for the purposes of the $1,000,000 financial asset test in Section (a) above because Section (a) takes into account financial assets owned beneficially by a spouse. However, financial assets in a spousal RRSP cannot be included for purposes of the $5,000,000 financial asset test in Section (d) above.
Financial assets held in a group RRSP under which the individual does not have the ability to acquire the financial assets and deal with them directly do not meet the beneficial ownership requirements in either Sections (a) or (d) above.
Net Assets
For the purposes of Section (c) above, “net assets” means all of a subscriber’s total assets minus all of the subscriber’s total liabilities. Accordingly, for the purposes of the net asset test, the calculation of total assets includes the value of a subscriber’s personal residence, and the calculation of total liabilities includes the amount of any liability (such as a mortgage) in respect of the subscriber’s personal residence.
To calculate a subscriber’s net assets under the net asset test, subtract the subscriber’s total liabilities from the subscriber’s total assets. The value attributed to assets should reasonably reflect their estimated fair value. Income tax is considered a liability if the obligation to pay it is outstanding at the time of the distribution of the security to the subscriber by the Company.
Guidance On Accredited Investor Exemptions for Corporations, Trusts and Other Entities
Accredited investors that are corporations, trusts or other entities include:
|
(a)
|
a corporation, trust or other entity, other than an investment fund, that has net assets (please see the guidance below regarding calculating net assets) of at least $5,000,000 as shown on its most recently prepared financial statements in accordance with applicable generally accepted accounting principles and that has not been created or used solely to purchase or hold securities as an accredited investor;
|
|
(b)
|
a corporation, trust or other entity 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; and
|
|
(c)
|
a trust established by an accredited investor for the benefit of the accredited investor’s family members of which a majority of the trustees are accredited investors and all of the beneficiaries are the accredited investor’s spouse, a former spouse of the accredited investor or a parent, grandparent, brother, sister, child or grandchild of that accredited investor, of that accredited investor’s spouse or of that accredited investor’s former spouse.
|
Net Assets
For the purposes of Section (a) above, “net assets” means all of the subscriber’s total assets minus all of the subscriber’s total liabilities. The minimum net asset threshold of $5,000,000 specified in Section (a) above must be shown on the entity’s most recently prepared financial statements. The financial statements must be prepared in accordance with applicable generally accepted accounting principles.
Guidance on Close Personal Friend and Close Business Associate Determination
A “close personal friend” of a director, executive officer, founder or control person of an issuer is an individual who knows the director, executive officer, founder or control person well enough and has known them for a sufficient period of time to be in a position to assess their capabilities and trustworthiness and to obtain information from them with respect to the investment.
The following factors are relevant to this determination:
| (a) |
the length of time the individual has known the director, executive officer, founder or control person,
|
| (b) |
the nature of the relationship between the individual and the director, executive officer, founder or control person including such matters as the frequency of contacts between them and the level of trust and reliance in the other circumstances, and
|
| (c) |
the number of “close personal friends” of the director, executive officer, founder or control person to whom securities have been distributed in reliance on the private issuer exemption or the family, friends and business associates exemption.
|
An individual is not a close personal friend solely because the individual is:
| (a) |
a relative,
|
| (b) |
a member of the same club, organization, association or religious group,
|
| (c) |
a co-worker, colleague or associate at the same workplace,
|
| (d) |
a client, customer, former client or former customer,
|
| (e) |
a mere acquaintance, or
|
| (f) |
connected through some form of social media, such as Facebook, Twitter or LinkedIn.
|
The relationship between the individual and the director, executive officer, founder or control person must be direct. For example, the exemption is not available to a close personal friend of a close personal friend of a director of the issuer. Further, a relationship that is primarily founded on participation in an internet forum is not considered to be that of a close personal friend.
A “close business associate” is an individual who has had sufficient prior business dealings with a director, executive officer, founder or control person of the issuer to be in a position to assess their capabilities and trustworthiness and to obtain information from them with respect to the investment.
The following factors are relevant to this determination:
| (a) |
the length of time the individual has known the director, executive officer, founder or control person,
|
| (b) |
the nature of any specific business relationships between the individual and the director, executive officer, founder or control person, including, for each relationship, when it began, the frequency of contact between them and when it terminated if it is not ongoing, and the level of trust and reliance in the other circumstances,
|
| (c) |
the nature and number of any business dealings between the individual and the director, executive officer, founder or control person, the length of the period during which they occurred, and the nature and date of the most recent business dealing, and
|
| (d) |
the number of “close business associates” of the director, executive officer, founder or control person to whom securities have been distributed in reliance on the private issuer exemption or the family, friends and business associates exemption.
|
An individual is not a close business associate solely because the individual is:
| (a) |
a member of the same club, organization, association or religious group,
|
| (b) |
a co-worker, colleague or associate at the same workplace,
|
| (c) |
a client, customer, former client or former customer,
|
| (d) |
a mere acquaintance, or
|
| (e) |
connected through some form of social media, such as Facebook, Twitter or LinkedIn.
|
The relationship between the individual and the director, executive officer, founder or control person must be direct. For example, the exemptions are not available for a close business associate of a close business associate of a director of the issuer. Further, a relationship that is primarily founded on participation in an internet forum is not considered to be that of a close business associate.
The Subscriber agrees that the above representations and warranties will be true and correct both as of the execution of this Questionnaire and as of the Closing and acknowledges that they will survive the completion of the issue of the Units.
The Subscriber acknowledges that the foregoing representations and warranties are made by the Subscriber with the intent that they be relied upon in determining the suitability of the Subscriber to acquire the Units and that this Questionnaire is incorporated into and forms part of the Agreement and the undersigned undertakes to immediately notify the Issuer of any change in any statement or other information relating to the Subscriber set forth herein which takes place prior to the closing time of the purchase and sale of the Units.
The Subscriber undertakes to immediately notify the Issuer of any change in any statement or other information relating to the Subscriber set forth in the Agreement or in this Questionnaire which takes place prior to the Closing.
Page 5
By completing this Questionnaire, the Subscriber authorizes the indirect collection of this information by each applicable regulatory authority or regulator and acknowledges that such information is made available to the public under applicable laws.
DATED as of _______ day of __________________, 2018.
|
X
|
||
|
Signature of individual (if Subscriber is an individual)
|
||
|
X
|
||
|
Authorized signatory (if Subscriber is not an individual)
|
||
|
Name of Subscriber (please print)
|
||
|
Name of authorized signatory (please print)
|
APPENDIX “A”
TO CANADIAN INVESTOR QUESTIONNAIRE
TO CANADIAN INVESTOR QUESTIONNAIRE
Form 45-106F9
Form for Individual Accredited Investors
|
WARNING!
This investment is risky. Don’t invest unless you can afford to lose all the money you pay for this investment.
|
|
SECTION 1 TO BE COMPLETED BY THE ISSUER OR SELLING SECURITY HOLDER
|
||||
|
1. About your investment
|
||||
|
Type of securities: Units of the Issuer at a price of $2.50 per Unit. Each Unit will consist of one common share in the capital of the Issuer and one non-transferable warrant. Each warrant will entitle the holder thereof to purchase one common share in the capital of the Issuer, as presently constituted, for a period of two years following the date of issue of the units at an exercise price of $2.90 per share.
|
Issuer: The Alkaline Water Company Inc. (the “Issuer”)
|
|||
|
Purchased from: The Issuer.
|
||||
|
SECTIONS 2 TO 4 TO BE COMPLETED BY THE PURCHASER
|
||||
|
2. Risk acknowledgement
|
||||
|
This investment is risky. Initial that you understand that:
|
Your
initials |
|||
|
Risk of loss – You could lose your entire investment of $__________. [Instruction: Insert the total dollar amount of the investment.]
|
||||
|
Liquidity risk – You may not be able to sell your investment quickly – or at all.
|
||||
|
Lack of information – You may receive little or no information about your investment.
|
||||
|
Lack of advice – You will not receive advice from the salesperson about whether this investment is suitable for you unless the salesperson is registered. The salesperson is the person who meets with, or provides information to, you about making this investment. To check whether the salesperson is registered, go to xxx.xxxxxxxxxxxxxxxxx.xx.
|
||||
|
3. Accredited investor status
|
||||
|
You must meet at least one of the following criteria to be able to make this investment. Initial the statement that applies to you. (You may initial more than one statement.) The person identified in section 6 is responsible for ensuring that you meet the definition of accredited investor. That person, or the salesperson identified in section 5, can help you if you have questions about whether you meet these criteria.
|
Your
initials |
|||
|
· Your net income before taxes was more than $200,000 in each of the 2 most recent calendar years, and you expect it to be more than $200,000 in the current calendar year. (You can find your net income before taxes on your personal income tax return.)
|
||||
|
· Your net income before taxes combined with your spouse’s was more than $300,000 in each of the 2 most recent calendar years, and you expect your combined net income before taxes to be more than $300,000 in the current calendar year.
|
||||
|
· Either alone or with your spouse, you own more than $1 million in cash and securities, after subtracting any debt related to the cash and securities.
|
||||
|
· Either alone or with your spouse, you have net assets worth more than $5 million. (Your net assets are your total assets (including real estate) minus your total debt.)
|
||||
|
4. Your name and signature
|
||||
|
By signing this form, you confirm that you have read this form and you understand the risks of making this investment as identified in this form.
|
||||
|
First and last name (please print):
|
||||
|
Signature:
|
Date:
|
|||
|
SECTION 5 TO BE COMPLETED BY THE SALESPERSON
|
||||
|
5. Salesperson information
|
||||
|
[Instruction: The salesperson is the person who meets with, or provides information to, the purchaser with respect to making this investment. That could include a representative of the issuer or selling security holder, a registrant or a person who is exempt from the registration requirement.]
|
||||
|
First and last name of salesperson (please print):
|
||||
|
Telephone:
|
Email:
|
|||
|
Name of firm (if registered):
|
||||
|
SECTION 6 TO BE COMPLETED BY THE ISSUER OR SELLING SECURITY HOLDER
|
||||
|
6. For more information about this investment
|
||||
|
For investment in a non-investment fund
|
||||
|
The Alkaline Water Company Inc.
|
||||
|
00000 X. Xxxxxxxx Xxxx., Xxxxx 000
|
||||
|
Xxxxxxxxxx, XX 00000
|
||||
|
Telephone: 000-000-0000
|
||||
|
Attention: Xxxxxxx X. Xxxxxx
|
||||
|
Email: xxxxx@xxxxxx.xxx
|
||||
|
For more information about prospectus exemptions, contact your local securities regulator. You can find contact information at xxx.xxxxxxxxxx-xxxxxxxxxxxxxx.xx.
|
||||
EXHIBIT B
UNITED STATES ACCREDITED INVESTOR QUESTIONNAIRE
Capitalized terms used in this U.S. Questionnaire (this “Questionnaire”) and not specifically defined have the meaning ascribed to them in the Private Placement Subscription Agreement between the Subscriber and the Issuer to which this Exhibit B is attached (the “Subscription Agreement”).
This Questionnaire applies only to persons that are U.S. Purchasers. A “U.S. Purchaser” is: (a) any U.S. Person, (b) any person purchasing the Units on behalf of any U.S. Person, (c) any person that receives or received an offer of the Units while in the United States, or (d) any person that is in the United States at the time the Subscriber’s buy order was made or this Agreement was executed or delivered.
The Subscriber understands and agrees that none of the Securities have been or will be registered under the 1933 Act, or applicable state, provincial or foreign securities laws, and the Securities are being offered and sold to the Subscriber in reliance upon the exemption provided in Section 4(2) of the 1933 Act and Rule 506 of Regulation D under the 1933 Act for non-public offerings. The Securities are being offered and sold within the United States only to “accredited investors” as defined in Rule 501(a) of Regulation D. The Securities offered hereby are not transferable except in accordance with the restrictions described herein.
The Subscriber represents, warrants, covenants and certifies (which representations, warranties, covenants and certifications will survive the Closing) to the Issuer (and acknowledges that the Issuer is relying thereon) that:
|
2.
|
it has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities and it is able to bear the economic risk of loss of its entire investment;
|
|
4.
|
|
5.
|
|
6.
|
if the Subscriber is an individual (that is, a natural person and not a corporation, partnership, trust or other entity), then it satisfies one or more of the categories indicated below (please place an “X” on the appropriate lines):
|
|
7.
|
|
___________
|
an organization described in Section 501(c)(3) of the United States Internal Revenue Code, a corporation, a Massachusetts or similar business trust or partnership, not formed for the specific purpose of acquiring the Shares, with total assets in excess of US$5,000,000,
|
|
___________
|
a “bank” as defined under Section (3)(a)(2) of the 1933 Act or savings and loan association or other institution as defined in Section 3(a)(5)(A) of the 1933 Act acting in its individual or fiduciary capacity; a broker dealer registered pursuant to Section 15 of the Securities Exchange Act of 0000 (Xxxxxx Xxxxxx); an insurance company as defined in Section 2(13) of the 1933 Act; an investment company registered under the Investment Company Act of 1940 (United States) or a business development company as defined in Section 2(a)(48) of such Act; a Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 0000 (Xxxxxx Xxxxxx); a plan with total assets in excess of US$5,000,000 established and maintained by a state, a political subdivision thereof, or an agency or instrumentality of a state or a political subdivision thereof, for the benefit of its employees; an employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974 (United States) whose investment decisions are made by a plan fiduciary, as defined in Section 3(21) of such Act, which is either a bank, savings and loan association, insurance company or registered investment adviser, or if the employee benefit plan has total assets in excess of US$5,000,000, or, if a self-directed plan, whose investment decisions are made solely by persons that are accredited investors,
|
|
___________
|
a private business development company as defined in Section 202(a)(22) of the Investment Xxxxxxxx Xxx xx 0000 (Xxxxxx Xxxxxx),
|
|
___________
|
a trust with total assets in excess of US$5,000,000, not formed for the specific purpose of acquiring the Securities, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) under the 1933 Act, or
|
|
___________
|
an entity in which all of the equity owners satisfy the requirements of one or more of the categories set forth in Section 6 of this Questionnaire;
|
|
9.
|
|
(b)
|
|
(c)
|
|
(d)
|
|
(e)
|
“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”). THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF THE ALKALINE WATER COMPANY INC. (THE “ISSUER”) THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE ISSUER; (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT OR (C) IN ACCORDANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER, IF AVAILABLE, AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS; OR (D) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE U.S. SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS, AND, IN THE CASE OF PARAGRAPH (C) OR (D), THE SELLER FURNISHES TO THE ISSUER AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO SUCH EFFECT. DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE GOOD DELIVERY IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES IN CANADA.”
Delivery of certificates bearing such a legend may not constitute “good delivery” in settlement of transactions on Canadian stock exchanges or over-the-counter markets. If the Issuer is a “foreign issuer” with no “substantial U.S. market interest” (all within the meaning of Regulation S under the 0000 Xxx) at the time of sale, a new certificate, which will constitute “good delivery”, will be made available to the purchaser upon provision to the Issuer by the Subscriber of a declaration together with such other evidence of the availability of an exemption as the Issuer or its transfer agent may reasonably require.
Certificates representing the Warrants, and all certificates issued in exchange therefor or in substitution thereof, will bear the following legend in substantially the following form:
“THE SECURITIES REPRESENTED HEREBY, AND THE SECURITIES INTO WHICH THE SECURITIES REPRESENTED HEREBY ARE EXERCISABLE, HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THESE SECURITIES MAY NOT BE EXERCISED BY OR ON BEHALF OF A “U.S. PERSON” OR A PERSON IN THE UNITED STATES UNLESS THE WARRANT AND THE UNDERLYING SECURITIES HAVE BEEN REGISTERED UNDER THE U.S. SECURITIES ACT AND THE APPLICABLE SECURITIES LEGISLATION OF ANY SUCH STATE OR AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS IS AVAILABLE. “UNITED STATES” AND “U.S. PERSON” ARE AS DEFINED BY REGULATION S UNDER THE U.S. SECURITIES ACT.”;
|
13.
|
|
15.
|
The Subscriber undertakes to notify the Issuer immediately of any change in any representation, warranty or other information relating to the Subscriber set forth herein which takes place prior to the closing time of the purchase and sale of the Securities.
Dated _____________________________, 2018.
|
X
|
||
|
Signature of individual (if Subscriber is an individual)
|
||
|
X
|
||
|
Authorized signatory (if Subscriber is not an individual)
|
||
|
Name of Subscriber (please print)
|
||
|
Name of authorized signatory (please print)
|
EXHIBIT C
RISK ACKNOWLEDGEMENT FORM
|
Risk Acknowledgement under BCI 32-513
Registration exemption for trades in connection with certain prospectus-exempt distributions
Name of Issuer: THE ALKALINE WATER COMPANY INC.
Name of Seller: _______________________________________
I acknowledge that
o the person selling me these securities is not registered with a securities regulatory authority and is prohibited from telling me that this investment is suitable for me;
o the person selling me these securities does not act for me;
o this is a risky investment and I could lose all my money;
o the person selling me these securities has not provided financial services to me other than in connection with a Prospectus-Exempt Distribution;
o the person selling me these securities does not hold or have access to my assets;
o I am investing entirely at my own risk.
Date
Signature of Subscriber
Print name of Subscriber
Name of salesperson acting on behalf of seller
Sign two copies of this document. Keep one copy for your records.
|
National Instrument 45-106 Prospectus and Registration Exemptions may require you to sign an additional risk acknowledgement form. If you want advice about the merits of this investment and whether these securities are a suitable investment for you, contact a registered adviser or dealer.
XXXXXXX X
XXXX 0X
XXXXXXXXX XXXXXX REGISTRATION FORM
This Form will remain on file with the Exchange and must be completed if required under section 4(b) of Part II of Form 4B. The corporation, trust, portfolio manager or other entity (the “Placee”) need only file it on one time basis, and it will be referenced for all subsequent Private Placements in which it participates. If any of the information provided in this Form changes, the Placee must notify the Exchange prior to participating in further placements with Exchange listed Issuers. If as a result of the Private Placement, the Placee becomes an Insider of the Issuer, Insiders of the Placee are reminded that they must file a Personal Information Form (2A) or, if applicable, Declarations, with the Exchange.
|
1.
|
Placee Information:
|
|
(a)
|
Name:
|
|
(b)
|
Complete Address:
|
|
(c)
|
Jurisdiction of Incorporation or Creation:
|
|
2.
|
(a) Is the Placee purchasing securities as a portfolio manager: (Yes/No)?
|
| (b) |
Is the Placee carrying on business as a portfolio manager outside of Canada:
(Yes/No)? __________ |
|
3.
|
If the answer to 2(b) above was “Yes”, the undersigned certifies that:
|
|
(a)
|
it is purchasing securities of an Issuer on behalf of managed accounts for which it is making the investment decision to purchase the securities and has full discretion to purchase or sell securities for such accounts without requiring the client’s express consent to a transaction;
|
|
(b)
|
it carries on the business of managing the investment portfolios of clients through discretionary authority granted by those clients (a “portfolio manager” business) in ____________________ [jurisdiction], and it is permitted by law to carry on a portfolio manager business in that jurisdiction;
|
|
(c)
|
it was not created solely or primarily for the purpose of purchasing securities of the Issuer;
|
|
(d)
|
the total asset value of the investment portfolios it manages on behalf of clients is not less than $20,000,000; and
|
|
(e)
|
it has no reasonable grounds to believe, that any of the directors, senior officers and other insiders of the Issuer, and the persons that carry on investor relations activities for the Issuer has a beneficial interest in any of the managed accounts for which it is purchasing.
|
|
4.
|
If the answer to 2(a). above was “No”, please provide the names and addresses of Control Persons of the Placee:
|
|
Name *
|
City
|
Province or State
|
Country
|
* If the Control Person is not an individual, provide the name of the individual that makes the investment decisions on behalf of the Control Person.
5. Acknowledgement - Personal Information and Securities Laws
| (a) |
“Personal Information” means any information about an identifiable individual, and includes information contained in sections 1, 2 and 4, as applicable, of this Form.
|
The undersigned hereby acknowledges and agrees that it has obtained the express written consent of each individual to:
| (i) |
the disclosure of Personal Information by the undersigned to the Exchange (as defined in Appendix 6B) pursuant to this Form; and
|
| (ii) |
the collection, use and disclosure of Personal Information by the Exchange for the purposes described in Appendix 6B or as otherwise identified by the Exchange, from time to time.
|
| (b) |
The undersigned acknowledges that it is bound by the provisions of applicable Securities Law, including provisions concerning the filing of insider reports and reports of acquisitions.
|
Dated and certified (if applicable), acknowledged and agreed, at on
(Name of Purchaser - please print)
(Authorized Signature)
(Official Capacity - please print)
(Please print name of individual whose signature
appears above)
THIS IS NOT A PUBLIC DOCUMENT
EXHIBIT E
ACKNOWLEDGEMENT – PERSONAL INFORMATION
|
9.
|
TSX Venture Exchange Inc. and its affiliates, authorized agents, subsidiaries and divisions, including the TSX Venture Exchange (collectively referred to as the “Exchange”) collect Personal Information in certain Forms that are submitted by the individual and/or by an Issuer or Applicant and use it for the following purposes:
|
| (a) |
to conduct background checks;
|
| (b) |
to verify the Personal Information that has been provided about each individual;
|
| (c) |
to consider the suitability of the individual to act as an officer, director, insider, promoter, investor relations provider or, as applicable, an employee or consultant, of the Issuer or Applicant;
|
| (d) |
to consider the eligibility of the Issuer or Applicant to list on the Exchange;
|
| (e) |
to provide disclosure to market participants as to the security holdings of directors, officers, other insiders and promoters of the Issuer, or its associates or affiliates;
|
| (f) |
to conduct enforcement proceedings; and
|
| (g) |
to perform other investigations as required by and to ensure compliance with all applicable rules, policies, rulings and regulations of the Exchange, securities legislation and other legal and regulatory requirements governing the conduct and protection of the public markets in Canada.
|
As part of this process, the Exchange also collects additional Personal Information from other sources, including but not limited to, securities regulatory authorities in Canada or elsewhere, investigative, law enforcement or self-regulatory organizations, regulations service providers and each of their subsidiaries, affiliates, regulators and authorized agents, to ensure that the purposes set out above can be accomplished.
The Personal Information the Exchange collects may also be disclosed:
| (a) |
to the agencies and organizations in the preceding paragraph, or as otherwise permitted or required by law, and they may use it in their own investigations for the purposes described above; and
|
| (b) |
on the Exchange’s website or through printed materials published by or pursuant to the directions of the Exchange.
|
The Exchange may from time to time use third parties to process information and/or provide other administrative services. In this regard, the Exchange may share the information with such third party service providers.
|
10.
|
The Commissions may indirectly collect the Personal Information under the authority granted to them by securities legislation. The Personal Information is being collected for the purposes of the administration and enforcement of the securities legislation of the jurisdiction of each such Commission.
|
For questions about the collection of Personal Information by the British Columbia Securities Commission, please contact the Administrative Assistant to the Director of Corporate Finance, 12th Floor, 000 Xxxx Xxxxxxx Xxxxxx, Xxx 00000, Xxxxxxxxx, XX X0X 0X0, phone: (000) 000-0000.
EXHIBIT F
SELLING STOCKHOLDER QUESTIONNAIRE
THE ALKALINE WATER COMPANY INC.
00000 X. Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxxx, XX 00000
00000 X. Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxxx, XX 00000
Ladies and Gentlemen:
The undersigned acknowledges that the undersigned is a beneficial owner of securities of The Alkaline Water Company Inc. (the “Company”). The undersigned understands that the undersigned will be named as a selling stockholder in the prospectus that forms a part of the Company’s Registration Statement on Form S-1 (the “Registration Statement”). The Registration Statement registers for resale under the Securities Act of 1933, as amended (the “Securities Act”), the securities the undersigned beneficially owns that are disclosed in response to Question 5(b) of this Selling Stockholder Questionnaire (the “Registrable Securities”). The Company will use the information that the undersigned provides in this Selling Stockholder Questionnaire (this “Questionnaire”) to ensure the accuracy of the Registration Statement and the prospectus.
Certain legal consequences arise from being named as a selling securityholder in the Registration Statement and the related prospectus. Accordingly, holders and beneficial owners of securities to be registered under the Registration Statement are advised to consult their own securities counsel regarding the consequences of being named or not being named as a selling securityholder in the Registration Statement and the related prospectus.
The undersigned acknowledges that by completing, dating, executing and returning this Questionnaire to the Company, the undersigned is giving written notice to the Company of its desire to have the securities disclosed in response to Question 5(b) of this Questionnaire included in the Registration Statement.
Please answer every question.
If the answer to any question is “none” or “not applicable,” please so state.
|
1.
|
Name. Type or print the full legal name of the selling securityholder.
|
__________________________________________________________________
|
2.
|
Contact Information. Provide the address, telephone number, fax number and email address of the selling securityholder.
|
|
Address:
|
_________________________
|
|
|
_________________________
|
|
Phone:
|
_________________________
|
|
Fax:
|
_________________________
|
|
Email:
|
_________________________
|
|
3.
|
Relationship with the Company. Describe the nature of any position, office or other material relationship the selling securityholder has had with the Company or any of its affiliates (e.g., directors, executive officers or 10% or more stockholders of the Company) during the past three years.
|
|
4.
|
Organizational Structure. Please indicate or (if applicable) describe how the selling securityholder is organized.
|
|
Is the selling securityholder a natural person?
(If so, please xxxx the box and skip to Question 5.)
|
___ Yes
|
___ No
|
|
Is the selling securityholder a reporting company under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)?
(If so, please xxxx the box and skip to Question 5.)
|
___ Yes
|
___ No
|
|
Is the selling securityholder a majority-owned subsidiary of a reporting company under the Exchange Act?
(If so, please xxxx the box and skip to Question 5.)
|
___ Yes
|
___ No
|
|
Is the selling securityholder a registered investment company under the Investment Company Act of 1940?
(If so, please xxxx the box and skip to Question 5.)
|
___ Yes
|
___ No
|
If the answer to all of the foregoing questions is “no,” please describe: (i) the exact legal description of the selling securityholder (e.g., corporation, partnership, limited liability company, etc.); (ii) whether the legal entity so described is managed by another entity and the exact legal description of such entity (repeat this step until the last entity described is managed by a person or persons, each of whom is described in any one of (a) through (d) above); (iii) the names of each person or persons having voting and investment control over the Company’s securities that the entity owns (e.g., director(s), general partner(s), managing member(s), etc.).
(a) Legal Description of Entity:
(b) Name of Entit(ies)/(y) Managing Such Entity (if any):
(c) Name of Entit(ies)/(y) Managing such Entit(ies)/(y) (if any):
|
(d)
|
Name(s) of Natural Person(s) Having Voting or Investment Control Over the Shares Held by such Entit(ies)/(y):
|
|
5.
|
Ownership of the Company’s Securities. This question covers beneficial ownership of the Company’s securities. Please consult Appendix A to this Questionnaire for information as to the meaning of “beneficial ownership.” State (a) the number of shares of the Company’s common stock (including any shares issuable upon exercise of warrants or other convertible securities) that the selling securityholder beneficially owned as of the date this Questionnaire is signed and (b) the number of such shares of the Company’s common stock that the selling securityholder wishes to have registered for resale in the Registration Statement:
|
|
(a)
|
Number of shares of common stock, convertible debentures, warrants and other equity securities or convertible securities owned:
|
|
(b)
|
Number of shares of common stock and shares of common stock underlying convertible debentures, warrants and other equity securities or convertible securities owned to be registered for resale in the Registration Statement:
|
|
6.
|
Acquisition of Shares. If the selling securityholder did not acquire the securities to be sold directly from the Company please describe below the manner in which the securities were acquired including, but not limited to, the date, the name and address of the seller(s), the purchase price and pursuant to which documents (the “Acquisition Documents”) and please forward such documents as provided below.
|
|
7.
|
Broker-Dealer Status.
|
|
(a)
|
Is the selling securityholder a broker-dealer?
|
___ Yes
|
___ No
|
|
(b)
|
If the answer to Section 7(a) is “yes,” did the selling securityholder receive the Registrable Securities as compensation for investment banking services to the Company?
Note: If the answer to 7(b) is “no,” SEC guidance has indicated that the selling securityholder should be identified as an underwriter in the Registration Statement.
|
___ Yes
|
___ No
|
|
(c)
|
Is the selling securityholder an affiliate of a broker-dealer?
|
___ Yes
|
___ No
|
|
(d)
|
If the selling securityholder is an affiliate of a broker-dealer, does the selling securityholder certify that it purchased the Registrable Securities in the ordinary course of business, and at the time of the purchase of the Registrable Securities to be resold, the selling securityholder had no agreements or understandings, directly or indirectly, with any person to distribute the Registrable Securities?
Note: If the answer to 7(d) is “no,” SEC guidance has indicated that the selling securityholder should be identified as an underwriter in the Registration Statement.
|
___ Yes
|
___ No
|
|
8.
|
Plan of Distribution. The undersigned has reviewed the proposed “Plan of Distribution” as set forth in Appendix B to this Questionnaire and agrees that the statements contained therein reflect its intended method(s) of distribution or, to the extent these statements are inaccurate or incomplete, the undersigned has communicated in writing to one of the parties listed above its signature any changes to the proposed “Plan of Distribution” that are required to make these statements accurate and complete. The undersigned acknowledges and agrees that the Company may make changes to the “Plan of Distribution” to address any comments from the Securities and Exchange Commission or may make any other changes necessary or advisable upon consultation with its counsel.
|
(Please insert an “X” to the left if you have made any changes)
|
9.
|
Legal Proceedings with the Company. Is the Company a party to any pending legal proceeding in which the selling securityholder is named as an adverse party?
|
|
___ Yes
|
___ No
|
|
State any exceptions here:
|
10.
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Reliance on Responses. The undersigned acknowledges and agrees that the Company and its legal counsel shall be entitled to rely on its responses in this Questionnaire in all matters pertaining to the Registration Statement and the sale of any Registrable Securities pursuant to the Registration Statement.
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The undersigned hereby acknowledges and is advised of the SEC’s Compliance and Disclosure Interpretation 239.10 regarding short selling:
“An Issuer filed a Form S-3 registration statement for a secondary offering of common stock which is not yet effective. One of the selling shareholders wanted to do a short sale of common stock “against the box” and cover the short sale with registered shares after the effective date. The issuer was advised that the short sale could not be made before the registration statement become effective, because the shares underlying the short sale are deemed to be sold at the time such sale is made. There would, therefore, be a violation of Section 5 if the shares were effectively sold prior to the effective date.”
By returning this Questionnaire, the undersigned will be deemed to be aware of the foregoing interpretation.
If the Company is required to file a new or additional registration statement to register Registrable Securities beneficially owned by the selling securityholder, the undersigned hereby agrees to complete and return to the Company, upon the request of the Company, a new Questionnaire (in a form substantially similar to this Questionnaire).
If the selling securityholder transfers all or any portion of its Registrable Securities after the date on which the information in this Questionnaire is provided to the Company, the undersigned hereby agrees to notify the transferee(s) at the time of transfer of its rights and obligations hereunder.
By signing below, the undersigned represents that the information provided herein is accurate and complete. The undersigned agrees to promptly notify the Company of any inaccuracies or changes in the information provided herein that may occur subsequent to the date hereof at any time while the Registration Statement remains effective.
By signing below, the undersigned consents to the disclosure of the information contained herein and the inclusion of such information in the Registration Statement and the related prospectus and any amendments or supplements thereto. The undersigned understands that such information will be relied upon by the Company in connection with the preparation or amendment of the Registration Statement and the related prospectus.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either in person or by its duly authorized agent.
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Dated: ___________________
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Beneficial Owner: ___________________________
By:___________________________
[Name:]
[Title:]
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AS SOON AS POSSIBLE, PLEASE EMAIL OR FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO:
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The Alkaline Water Company Inc.
Attn: Xxxxxx Xxxx
Fax: 0-000-000-0000
E-mail: xxxxx@xxxxxxx.xxx
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