EXHIBIT 4.24
SUBSCRIPTION AGREEMENT
To: Cedara Software Corp.
The undersigned (the "Purchaser") hereby irrevocably subscribes
for and agrees to purchase from Cedara Software Corp. (the "Corporation"),
on the terms and conditions set forth in this subscription agreement,
200,000 common shares in the capital of the Corporation (the "Shares" and
individually a "Share"). Each Share will be issued at a price of US.$0.75
per Share.
Conditions of Purchase
The Purchaser acknowledges that the Corporation's obligation to
sell the Shares to the Purchaser is subject to, among other things, the
conditions that:
(a) the Purchaser executes and returns to the Corporation all
documents required by applicable legislation and The Toronto
Stock Exchange for delivery on behalf of the Purchaser;
(b) all necessary regulatory approvals being obtained by the
Corporation prior to the Closing;
(c) the sale of the Shares is exempt from the requirement to
file a prospectus and the requirement to deliver an offering
memorandum under applicable securities legislation relating
to the sale of the Shares or the Corporation shall have
received such orders, consents or approvals as may be
required to permit such sale without the requirement of
filing a prospectus or delivering an offering memorandum;
and
(d) the representations and warranties of the Purchaser remain
true and correct as at the Closing.
Delivery and Payment
The Purchaser agrees that the following shall be delivered to the
Corporation prior to the Closing:
(a) one completed and duly signed copy of this subscription
agreement;
(b) all other documentation as may be required by applicable
securities legislation and The Toronto Stock Exchange,
including a duly completed Private Placement Questionnaire
and Undertaking in the form annexed hereto as Schedule "A";
and
(c) a certified cheque, bank draft or evidence of a wire
transfer in Canadian funds to the Corporation representing
the aggregate purchase price payable by the Purchaser for
the Shares. The entire subscription price for the Shares
must be paid at the time of subscription.
Delivery of the Shares by the Corporation and payment for the
Shares by the Purchaser shall be completed at a closing (the "Closing") to
be held on the first business day following receipt of approval from the
Toronto Stock Exchange of the issuance of the Shares contemplated hereby or
at such time and place as may be mutually agreed upon by the Corporation
and the Purchaser, provided that the Closing is held no later than on the
day mandated by The Toronto Stock Exchange for the closing of the issuance
of the Shares contemplated hereby.
The Corporation agrees that it shall deliver certificates
representing the Shares at the Closing for delivery against payment of the
subscription price. If the Purchaser chooses not to attend the Closing to
receive the Share certificates, then the Purchaser shall deliver such
certificates to the undersigned at the address set forth below promptly
after the Closing.
Purchaser's Representations and Warranties
The Purchaser represents, warrants and covenants to the
Corporation that:
(a) it (A) is an Accredited Investor, as defined in Paragraph 6
of Schedule "B" hereto, and (B) is aware that any sale of
Shares to it will be made in reliance on a private placement
exemption from registration under the United States
Securities Act of 1933, as amended (the "U.S. Securities
Act");
(b) it is purchasing the Shares for its own account and not with
a view to any resale, distribution or other disposition of
the Shares in violation of the United States federal, state
or any other securities laws;
(c) if it decides to offer, sell or otherwise transfer any of
the Shares it will not offer, sell or otherwise transfer any
of such securities, directly or indirectly, unless (i) the
sale is to the Corporation; or (ii) the sale is made outside
the United States in compliance with the requirements of
Rule 904 of Regulation S under the U.S. Securities Act; or
(iii) the sale is made within the United States pursuant to
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;
(d) it has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits
and risks of its investment in the Shares and is able to
bear the economic risks of such investment;
(e) it has had access to such information concerning the
Corporation as it has considered necessary in connection
with its investment decision to acquire the Shares,
including without limitation the information available
through SEDAR, (xxx.xxxxx.xxx) which the Corporation is
required to file as a consequence of being publicly listed
in Canada;
(f) it consents to the Corporation making a notification on its
records or giving instructions to any transfer agent of the
Shares in order to implement the restriction on transfer set
forth and described herein;
(g) the address set forth below is the true and correct address
of the place of business of the Purchaser at which it
received and accepted the offer to purchase the Shares;
(h) it has been independently advised as to and is aware of the
restrictions with respect to trading in the Shares pursuant
to the securities laws, regulations, rules, published policy
statements, rulings and orders of securities regulatory
authorities applicable to the Corporation or the Purchaser's
purchase hereunder (the "Securities Laws") and any
applicable stock exchanges;
(i) the Shares may not be sold in Canada or to Canadian
residents unless, in addition to the requirements of
paragraph (c)(ii), if applicable, the sale is made pursuant
to an available exemption from the prospectus and
registration requirements under the securities legislation
in the Canadian purchaser's province or territory of
residence or the required "hold" period has expired since
the acquisition by the Purchaser of the securities to be
sold;
(j) the Purchaser, and any purchaser for whom the Purchaser is
acting, will comply with all applicable Securities Laws and
with the rules and policies of any applicable stock
exchanges concerning the purchase of, the holding of and
resale restrictions on the Shares;
(k) if required by applicable Securities Laws or order of a
securities regulatory authority, stock exchange or other
regulatory authority, the Purchaser will execute, deliver,
file and otherwise assist the Corporation in filing such
reports, undertakings and other documents with respect to
the issuance of the Shares as may be required;
(l) the Purchaser's place of business is in the jurisdiction set
forth in its address in this subscription agreement;
(m) the Purchaser is capable of assessing its proposed
investment hereunder as a result of the Purchaser's
financial or investment experience, understands that an
investment in the Corporation involves a high risk and a
substantial risk of loss, and is able to bear the economic
loss of its investment;
(n) this subscription agreement has been duly and validly
authorized, executed and delivered by and upon acceptance by
the Corporation will constitute a legal, valid and binding
agreement of the Purchaser enforceable in accordance with
its terms;
(o) the Corporation has not made any representation to the
Purchaser regarding the intention of the Corporation to list
the Shares on any stock exchange or to make arrangements to
have the Shares quoted for trading;
(p) it is responsible for obtaining such legal advice as it
considers necessary in connection with the execution,
delivery and performance by it of this subscription
agreement and the transactions contemplated herein and it
represents and warrants that such execution, delivery and
performance shall not contravene any applicable laws of the
jurisdiction in which it is resident; and
(q) the purchase of the Shares by the Purchaser hereunder is not
a transaction in which any director or officer of the
Corporation, or any beneficial owner of securities carrying
more than 10% of the voting rights attaching to all
outstanding voting securities of the Corporation, has a
direct or indirect beneficial interest.
Purchaser's Acknowledgements
The Purchaser acknowledges that:
(a) none of the Shares have been, or will be, registered under
the U.S. Securities Act or the securities laws of any state,
and that the Shares are being offered in a transaction not
requiring registration under the U.S. Securities Act;
(b) no agency, governmental authority, regulatory body, stock
exchange or other entity (including, without limitation, the
United States Securities and Exchange Commission or any
state securities commission) has made any finding or
determination as to the merit for investment of, nor have
any such agencies or governmental authorities made any
recommendation or endorsement with respect to the Shares;
(c) the purchase of the Shares has not been made through, or as
a result of, and the distribution of the Shares is not being
accompanied by, a general solicitation or advertisement
including articles, notices or other communications
published in any newspaper, magazine or similar media or
broadcast over radio or television, or any seminar or
meeting whose attendees have been invited by general
solicitation or general advertising;
(d) the Shares are being offered for sale only on a "private
placement" basis;
(e) the representations and warranties and covenants contained
in this subscription agreement are made by it with the
intent that they may be relied upon by the Corporation in
determining its eligibility to purchase the Shares, and the
Purchaser hereby agrees to indemnify the Corporation against
all losses, claims, costs, expenses and damages or
liabilities which they may suffer or incur caused or arising
from their reliance thereon. The Purchaser further agrees
that by accepting the Shares the Purchaser shall be
representing and warranting that the foregoing
representations and warranties are true as at the Closing
with the same force and effect as if they had been made by
the Purchaser at the Closing and that they shall survive the
purchase by the Purchaser of the Shares and shall continue
in full force and effect notwithstanding any subsequent
disposition by it of the Shares;
(f) the sale and delivery of the Shares to the Purchaser is
conditional upon such sale being exempt, under applicable
Securities Laws or upon the issuance of such orders,
consents or approvals as may be required to permit such sale
without the requirement of filing a prospectus or delivering
an offering memorandum, from the requirement to file a
prospectus and the requirement to deliver an offering
memorandum;
(g) upon the original issuance thereof, and until such time as
the same is no longer required under applicable requirements
of the U.S. Securities Act or applicable state securities
laws, certificates representing the Shares, and all
certificates issued in exchange therefor or in substitution
thereof, shall bear the following legend:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933 AS AMENDED (THE "U.S. SECURITIES ACT"), AND MAY BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE
COMPANY, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE
WITH RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES
ACT, OR (C) WITHIN THE UNITED STATES PURSUANT TO 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."
"THE PRESENCE OF THIS LEGEND MAY IMPAIR THE ABILITY OF
THE HOLDER HEREOF TO EFFECT GOOD DELIVERY OF THE
SECURITIES REPRESENTED HEREBY ON A CANADIAN STOCK
EXCHANGE. PROVIDED THAT THE COMPANY IS A "FOREIGN
ISSUER" WITHIN THE MEANING OF REGULATION S AT THE TIME
OF SALE, A CERTIFICATE WITHOUT A LEGEND MAY BE OBTAINED
FROM THE REGISTRAR AND TRANSFER AGENT IN CONNECTION
WITH A SALE OF THE SECURITIES REPRESENTED HEREBY UPON
DELIVERY OF THIS CERTIFICATE AND AN EXECUTED
DECLARATION, IN A FORM SATISFACTORY TO THE REGISTRAR
AND TRANSFER AGENT AND THE COMPANY, TO THE EFFECT THAT
SUCH SALE IS BEING MADE IN ACCORDANCE WITH RULE 904 OF
REGULATION S UNDER THE U.S. SECURITIES ACT."
provided, that if the Shares are being sold outside the United
States in compliance with the requirements of Rule 904 of
Regulation S under the U.S. Securities Act, and provided that the
Corporation is a "foreign issuer" within the meaning of Regulation
S at the time of sale, the legends may be removed by providing a
declaration to the registrar and transfer agent, to the following
effect (or as the Corporation may prescribe from time to time):
"The undersigned (A) acknowledges that the sale of the
securities of Cedara Software Corp. (the "Company") to
which this declaration relates is being made in
reliance on Rule 904 of Regulation S under the United
States Securities Act of 1933, as amended (the "U.S.
Securities Act") and (B) certifies that (1) the
undersigned is not an affiliate of the Company as that
term is defined in the U.S. Securities Act, (2) the
offer of such securities was not made to a person in
the United States and either, (a) at the time the buy
order was originated, the buyer was outside the United
States, or the seller and any person acting on its
behalf reasonably believe that the buyer was outside
the United States or (b) the transaction was executed
on or through the facilities of The Toronto Stock
Exchange and neither the seller nor any person acting
on its behalf knows that the transaction has been
prearranged with a buyer in the United States, (3)
neither the seller nor any affiliate of the seller nor
any person acting on their behalf has engaged or will
engage in any directed selling efforts in the United
States in connection with the offer and sale of such
securities, (4) the sale is bona fide and not for the
purpose of "washing off" the resale restrictions
imposed because the securities are "restricted
securities" (as such term is defined in Rule 144(a)(3)
under the U.S. Securities Act), (5) the seller does not
intend to replace the securities sold in reliance on
Rule 904 of the U.S. Securities Act with fungible
unrestricted securities, and (6) the contemplated sale
is not a transaction, or part of a series of
transactions which, although in technical compliance
with Regulation S, is part of a plan or scheme to evade
the registration provisions of the U.S. Securities Act.
Terms used herein have the meanings given to them by
Regulation S."
and, provided further, that if any such Shares are being sold pursuant to
Rule 144 under the U.S. Securities Act, the legend may be removed by
delivery to the registrar and transfer agent of an opinion of counsel of
recognized standing reasonably satisfactory to the Corporation, that such
legend is no longer required under applicable requirements of the U.S.
Securities Act or state securities laws.
General
Each of the Corporation and the Purchaser acknowledges that:
(a) time shall, in all respects, be of the essence hereof;
(b) all references herein to "US$" are to lawful money of the
United States;
(c) the headings contained herein are for convenience only and
shall not affect the meaning or interpretation hereof;
(d) this subscription agreement constitutes the only agreement
between the parties with respect to the subject matter
hereof and shall supersede any and all prior negotiations
and understandings. This subscription agreement may be
amended or modified in any respect by written instrument
only;
(e) the terms and provisions of this subscription agreement
shall be binding upon and enure to the benefit of the
Purchaser and the Corporation and their respective
successors and assigns; provided that, except as herein
provided, this subscription agreement shall not be
assignable by any party without the written consent of the
others;
(f) the Corporation shall be entitled to rely on delivery of a
facsimile copy of this executed subscription agreement, and
acceptance by the Corporation of such facsimile shall be
legally effective to create a valid and binding agreement
between the Purchaser and the Corporation in accordance with
the terms hereof; and
(g) this agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the
laws of Canada applicable therein.
Subscription Particulars
(a) The aggregate number of Shares being subscribed for is
200,000
(b) The aggregate price of the Shares being subscribed for is
US$150,000
(c) The Shares are to be registered in the name of:
Cerner Investment Corp.
_______________________________________________________________________________
______________________________________________________________________________
(d) The certificate representing the Shares is to be delivered to:
Ms. Xxxx Xxxxx
at its office at:
0000 Xxxxxxxxx Xxxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
CERNER CORPORATION
Per: /s/ XXXX X. XXXXX
------------------------------
Name: XXXX X. XXXXX
Title: Vice President
Address of Purchaser
0000 Xxxxxxxxx Xxxxxxx
-------------------------------
Xxxxxx Xxxx, Xxxxxxxx 00000
-------------------------------
This subscription agreement is accepted by the Corporation as of
November 14, 2001.
CEDARA SOFTWARE CORP.
Per: /s/ XXXXXX XXXXXXXX
------------------------------
Name: XXXXXX XXXXXXXX
Title: CHIEF FINANCIAL OFFICER
AND CORPORATE SECRETARY
SCHEDULE "A"
THE TORONTO STOCK EXCHANGE
PRIVATE PLACEMENT QUESTIONNAIRE AND UNDERTAKING
To be completed by each proposed private placement purchaser of
listed securities or securities which are convertible into listed
securities.
QUESTIONNAIRE
1. DESCRIPTION OF TRANSACTION
(a) Name of Issuer of the Securities
Cedara Software Corp.
(b) Number and Class of Securities to be Purchased
200,000 common shares.
(c) Purchase Price: US.$0.75 per common share for an aggregate
purchase price of US$150,000
(d) Penalty
None.
2. DETAILS OF PURCHASER
(a) Name of Purchaser Cerner Corporation
(b) Address of Purchaser 0000 Xxxxxxxxx Xxxxxxx
Xxxxxx Xxxx Xxxxxxxx 00000
(c) Names and addresses of persons having a greater than 10%
beneficial interest in the Purchaser
Xxxx X. Xxxxxxxxx, 0000 Xxxxxxxxx Xxxxxxx,
Xxxxxx Xxxx Xxxxxxxx 00000
FMR Corp., 00 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
3. RELATIONSHIP TO ISSUER
(a) Is the Purchaser, or any person named in response to 2(c)
above, an insider of the issuer for the purposes of the
Securities Act (Ontario) (before giving effect to this
private placement)? If so, state the capacity in which the
purchaser qualifies as an insider
No
________________________________________________________________
________________________________________________________________
________________________________________________________________
(b) If the answer to (a) is "no", are the Purchaser and the
issuer controlled by the same person or company? If so, give
details
No
________________________________________________________________
________________________________________________________________
________________________________________________________________
4. DEALINGS OF PURCHASER IN SECURITIES OF THE ISSUER
Give details of all trading by the Purchaser, as principal, in the
securities of the issuer (other than debt securities which are not
convertible into equity securities), directly or indirectly, within the 60
days preceding the date hereof
No Trading
__________________________________________
UNDERTAKING
TO: The Toronto Stock Exchange
The undersigned has subscribed for and agreed to purchase, as
principal, the securities described in Item 1 of this Private Placement
Questionnaire and Undertaking. The undersigned undertakes not to sell or
otherwise dispose of any of the said securities so purchased or any
securities derived therefrom for a period of six months from the date of
the closing of the transaction described herein or for such period as is
prescribed by applicable securities laws, whichever is longer, without the
prior consent of The Toronto Stock Exchange and any other regulatory body
having jurisdiction.
DATED AT Cerner Corporation
(Name of Purchaser - please print)
this ____ day of ____________, 2001 /s/ Xxxx X. Xxxxx
(Authorized Signature)
Vice President
(Official Capacity - please print)
(please print here name of individual whose signature appears above, if
different from name of purchaser printed above)
SCHEDULE "B"
DEFINITION OF ACCREDITED INVESTOR
"Accredited Investor" means any person who comes within any of the
following categories:
1. Any natural person whose individual net worth, or joint net worth
with that person's spouse, at the time of his purchase exceeds
US$1,000,000;
2. Any natural person who had an individual income in excess of
US$200,000 in each of the two most recent years or joint income
with that person's spouse in excess of US$300,000 in each of those
years and has a reasonable expectation of reaching the same income
level in the current year;
3. Any entity in which all of the equity owners are accredited
investors;
4. Any bank as defined in Section 3(a)(2) of the U.S. Securities Act
or any savings and loan association or other institution as
defined in Section 3(a)(5)(A) of the U.S. Securities Act whether
acting in its individual or fiduciary capacity; any broker dealer
registered pursuant to Section 15 of the Securities Exchange Act
of 1934; any insurance company as defined in Section 2(13) of the
U.S. Securities Act; any investment company registered under the
Investment Company Act of 1940 or a business development company
as defined in section 2(a)(48) of that Act; any 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 1958; any plan established and maintained by a
state, its political subdivisions, or any agency or
instrumentality of a state or its political subdivisions, for the
benefit of its employees, if such plan has total assets in excess
of US$5,000,000; any employee benefit plan within the meaning of
the Employee Retirement Income Security Act of 1974, if the
investment decision is 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, with
investment decisions made solely by persons that are accredited
investors;
5. Any private business development company as defined in Section
202(a)(22) of the Investments Advisers Act of 1940;
6. Any organization described in section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts or similar business
trust, or partnership, not formed for the specific purpose of
acquiring the securities offered, with total assets in excess
of US$5,000,000;
7. Any director, executive officer, or general partner of the issuer
of the securities being offered or sold, or any director,
executive officer, or general partner of a general partner of that
issuer; and
8. Any trust with total assets in excess of US$5,000,000, not formed
for the specific purpose of acquiring the securities offered,
whose purchase is directed by a sophisticated person, being
defined as a person who has such knowledge and experience in
financial and business matters that he or she is capable of
evaluating the merits and risks of the prospective investment.
