EXHIBIT 4.64
SUBSCRIPTION AND RENUNCIATION AGREEMENT
TO: CANADIAN SMALL CAP RESOURCE FUND 2004 LIMITED PARTNERSHIP
RE: SALE OF UNITS
This subscription and renunciation agreement is to confirm your agreement to
purchase from XXXXXX GOLD CORP. (the "Company"), subject to the terms and
conditions set forth herein, that number of units of the Company at the price of
$.15 per unit (the "Purchase Price") set out above your name on the execution
page hereof. Each unit will be comprised of one "flow-through" common share and
one-half of one transferable non-"flow-through" share purchase warrant of the
Company, each share purchase warrant exercisable for one non-"flow-through"
common share at a price of $.20 per share for a period of 12 months. The Company
and the undersigned agree that the Flow-Through Shares will be "flow-through
shares" as defined in subsection 66(15) of the INCOME TAX ACT (Canada) and,
accordingly, the Company agrees to:
(a) incur Resource Expenses (as hereinafter defined) (the Company
will use its reasonable best efforts to ensure that such
Resource Expenses also qualify as a Flow-Through Mining
Expenditure (as hereinafter defined)) in an amount equal to
the Commitment Amount (as hereinafter defined) during the
period from and after the Closing Date (as hereinafter
defined) to and including December 31, 2005; and
(b) renounce Resource Expenses (the Company will use its
reasonable best efforts to ensure that such Resource Expenses
also qualify as a Flow-Through Mining Expenditure) equal to
the Commitment Amount to the undersigned with an effective
date no later than December 31, 2004.
1. DEFINITIONS
(a) DEFINITIONS: In this Agreement, unless the context otherwise
requires:
(i) "Agreement" means this subscription and renunciation
agreement as the same may be amended, supplemented or
restated from time to time;
(ii) "Business Day" means a day on which Canadian
chartered banks are open for the transaction of
regular business in the City of Vancouver, British
Columbia;
(iii) "Canadian Exploration Expense" or "CEE" means an
expense incurred (or deemed to be incurred) in 2004
of the nature referred to in paragraph (f) of the
definition of Canadian exploration expense in
subsection 66.1(6) of the Tax Act, other than amounts
which are prescribed to be "Canadian exploration and
development overhead expense" for the purposes of the
Tax Act or the cost of acquiring or obtaining the use
of seismic data described in paragraph 66(12.6)(b.1)
of the Tax Act or any expenses for prepaid services
or rent that do not qualify as outlays and expenses
for the period as described in the definition
"expense" in paragraph 66(15) of the Tax Act;
(iv) "Closing" means the closing of the purchase and sale
of the Securities;
(v) "Closing Date" means December 30, 2004 or such other
date as the Company and the Subscriber may mutually
agree upon in writing;
(vi) "Commitment Amount" means the aggregate amount paid
by the Subscriber for the Flow-Through Shares
pursuant to Section 4 hereof;
(vii) "Common Shares" means the common shares in the
capital of the Company as constituted on the date
hereof;
(viii) "Company" means Xxxxxx Gold Corp., a company
incorporated under the laws of British Columbia;
(ix) "Dollars" or "$" means lawful money of Canada;
(x) "Flow-Through Mining Expenditure" means an expense
which is a "flow-through mining expenditure" as
defined in subsection 127(9) of the Tax Act;
(xi) "Flow-Through Shares" means flow-through shares as
defined in subsection 66(15) of the Tax Act;
(xii) "Information" means all information regarding the
Company that is made publicly available by the
Company, or is authorized by the Company to be made
publicly available, together with all information
prepared by the Company and provided to the
Subscriber, if any, and includes but is not limited
to, all press releases, material change reports and
financial statements of the Company;
(xiii) "Person" means an individual, a firm, a corporation,
a syndicate, a partnership, a trust, an association,
an unincorporated organization, a joint venture, an
investment club, a government or an agency or
political subdivision thereof and every other form of
legal or business entity of whatsoever nature or
kind;
(xiv) "Prescribed Forms" means the forms prescribed from
time to time under subsection 66(12.7) of the Tax Act
filed or to be filed by the Company within the
prescribed times renouncing to the Subscriber the
Resource Expenses incurred pursuant to this Agreement
and all parts or copies of such forms required by
Revenue Canada to be delivered to the Subscriber;
(xv) "Prescribed Relationship" means a relationship
between the Company and the Subscriber where the
Subscriber and the Company are related or otherwise
do not deal at arm's length for purposes of the Tax
Act;
(xvi) "Purchase Price" means $.15 per Security;
(xvii) "Reporting Provinces" means the Provinces of British
Columbia and Alberta collectively;
(xviii) "Resource
Expense" means an expense which is CEE, including a
Flow-Through Mining Expenditure, which is
incurred on or after the Closing Date and on or
before the Termination Date which may be renounced by
the Company pursuant to subsections 66(12.6) and
66(12.66) of the Tax Act with an effective date not
later than December 31, 2005 and in respect of which,
but for the renunciation, the Company would be
entitled to a deduction from income for income tax
purposes;
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(xix) "Revenue Canada" means the Canada Revenue Agency;
(xx) "Securities" means the Units purchased by the
Subscriber;
(xxi) "Securities Laws" means the securities legislation
and regulations of, and the instruments, policies,
rules, orders, codes, notices and interpretation
notes of the applicable securities regulatory
authority or applicable securities regulatory
authorities of, the applicable jurisdiction or
jurisdictions collectively;
(xxii) "Stock Exchange" means the TSX Venture Exchange;
(xxiii) "Subscriber" means the Person purchasing the
Securities and whose name appears on the execution
page hereof;
(xxiv) "Tax Act" means the INCOME TAX ACT (Canada), as
amended, reenacted or replaced from time to time;
(xxv) "Termination Date" means December 31, 2005; (
xxvi) "Unit" means a unit of the Company comprised of one
Flow-Through Share and one-half of one Warrant;
(xxvii) "Warrant" means a transferable share purchase warrant
of the Company, each whole Warrant entitling the
holder to purchase one Warrant Share at a price of
$.20 per share for a period of 12 months; and
(xxviii) "Warrant Share" means a non "flow-through" common
share of the Company issued on the exercise of a
Warrant.
2. CONDITIONS OF PURCHASE
In connection with your purchase of the Securities, the following documents are
attached hereto which you are requested to complete and sign, as required, and
return together with an executed copy of this Agreement as soon as possible and
in any event no later than 12 p.m. (Vancouver time) on December 24, 2004:
(a) schedule A, Corporate Placee Registration Form required by the
Stock Exchange
(b) schedule B, with respect to registration and delivery
instructions; and
(c) schedule C, being your British Columbia "accredited investor"
certification.
The obligation of the Company to sell the Securities to you is subject to, among
other things, the conditions that:
(a) you execute and return all documents required by the
Securities Laws and the policies of the Stock Exchange for
delivery on your behalf, including the forms set out in
schedules A to C attached hereto, as applicable, to the
Company as the sale of the Securities by the Company to you
will not be qualified by a prospectus; and
(b) all necessary regulatory approvals being obtained prior to the
Closing Date.
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By returning this Agreement, you consent to the filing by the Company of all
documents required by the Securities Laws and the policies of the Stock
Exchange.
3. THE CLOSING
Delivery and payment for the Securities will be completed at the offices of the
Company on the Closing Date. At the Closing, the Subscriber will deliver to the
Company the aggregate subscription proceeds against delivery by the Company of
certificates representing the Securities and such other documentation as may be
requested by the Subscriber. For greater certainty, the Company shall perform
all acts and give or cause to be given, when requested by the Subscriber, all
certificates and opinions with respect to:
(a) the due incorporation, existence, power and capacity of the
Company;
(b) the validity and binding effect and enforceability of this
Agreement;
(c) the valid issuance of the Securities, compliance with
applicable securities laws and resale restrictions; and
(d) such other matters as may reasonably be required by counsel to
the Subscriber.
Certificates representing the Securities will be available for delivery to you
against payment to the Company of the amount of the Purchase Price for the
Securities in freely transferable Canadian funds. Such payment is to be made by
bank draft, certified cheque or other form of immediately available funds
payable in favour of the Company.
4. ALLOCATION OF SUBSCRIPTION PRICE
The Purchase Price per Security will be allocated as follows:
(a) $0.1499 as to the Purchase Price for a Flow-Through Share; and
(b) $0.0001 as to the Purchase Price of a Warrant.
5. WARRANT TERMS
The terms and conditions which govern the Warrants shall contain, inter alia,
anti-dilution provisions and provisions for the appropriate adjustment in class,
number and price of the Warrant Shares issuable pursuant to any exercise of the
right to purchase Warrant Shares under the Warrants upon the occurrence of
certain stated events, including any subdivision, consolidation or
reclassification of the common shares, or any payment of stock dividends.
6. PROSPECTUS EXEMPTIONS
The sale of the Securities by the Company to you is conditional upon such sale
being exempt from the requirements as to the filing of a prospectus and as to
the preparation of an offering memorandum or similar document contained in any
statute, regulation, instrument, rule or policy applicable to the sale of the
Securities or upon the issue 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 or similar document.
You acknowledge and agree that you:
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(a) have been independently advised as to or are aware of the
restrictions with respect to trading in, and the restricted
period or statutory hold period applicable to, the Securities
imposed by the Securities Laws of the jurisdiction in which
you reside or to which you are subject and by the policies of
the Stock Exchange, that a suitable legend or legends will be
placed on the certificates representing the Securities to
reflect the applicable restricted period and statutory hold
period to which the Securities are subject and you are hereby
advised that such securities cannot be traded through the
facilities of the Stock Exchange as the certificates
representing such securities is not freely transferable and
consequently is not "good delivery" in settlement of
transactions on the Stock Exchange and that the Stock Exchange
will deem you to be responsible for any loss incurred on a
sale made by you in such securities; and
(b) have not received or been provided with a prospectus, offering
memorandum (within the meaning of Securities Laws) or similar
document and that your decision to enter into this Agreement
and to purchase the Securities from the Company has not been
based upon any verbal or written representation as to fact or
otherwise made by or on behalf of the Company and that your
decision is based entirely upon publicly available information
concerning the Company.
By your acceptance of this Agreement, you represent and warrant to the Company
(which representations and warranties shall survive the Closing) that:
A. GENERAL:
(a) You are resident in the jurisdiction set out under the heading
"address" above your signature set forth on the execution page
of this Agreement and you were not offered the Securities, and
did not execute or deliver this Agreement, in the United
States of America.
(b) You are purchasing the Securities as principal for your own
account and not for the benefit of any other Person, you are
an "accredited investor" within the meaning of Multilateral
Instrument 45-103 of the Canadian Securities Administrators
and you have concurrently executed and delivered a certificate
in the form attached as schedule C hereto.
(c) You have the legal capacity to authorize, execute and deliver
this Agreement and the individual signing this Agreement has
been duly authorized to execute and deliver this Agreement.
(d) None of the funds being used to purchase the Securities are to
your knowledge proceeds obtained or derived directly or
indirectly as a result of illegal activities.
(e) You are at arm's-length, within the meaning of Securities Laws
and the policies of the Stock Exchange, with the Company.
(f) You are not a "promoter" of the Company within the meaning of
Securities Laws.
(g) Legal counsel retained by the Company (the "Company's
Counsel") is acting as counsel to the Company and not as
counsel to you. The relationship of the Company's Counsel with
you is limited solely to responding to any questions which you
may have regarding the terms of the documents to be delivered
in connection with this Agreement.
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(h) You are capable of assessing the proposed investment in the
Securities as a result of your financial or investment
experience or as a result of advice received from a registered
person other than the Company or an affiliate thereof and you
are able to bear the economic loss of the investment in the
Securities.
(i) You are not a U.S. Person (as that term is defined in Rule 902
of Regulation S under the SECURITIES ACT OF 1933 (United
States), as amended) and are not and will not be purchasing
Securities for the account or benefit of any U.S. Person.
(j) The Securities to be issued hereunder are not being purchased
with knowledge of any material fact about the Company that has
not been generally disclosed.
(k) You acknowledge that no agency, governmental authority,
securities commission or similar regulatory body, stock
exchange or other entity has reviewed, passed on or made any
finding or determination as to the merit for investment of the
Securities nor have any such agencies or governmental
authorities made any recommendation or endorsement with
respect to the Securities.
(l) This Agreement has been duly executed and delivered and, when
accepted by the Company, will constitute your legal, valid and
binding obligation enforceable against you in accordance with
the terms hereof.
(m) You will comply with all Securities Laws and with the policies
of the Stock Exchange concerning the purchase of, the holding
of, and the resale restrictions applicable to, the Securities.
(n) The provisions of paragraphs (a) to (m) above will be true and
correct both as of the date of execution of this Agreement and
as of the Closing Date.
7. LEGENDS
You acknowledge that the certificates representing the Securities will bear the
following legends:
"UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE SHALL NOT TRADE THESE SECURITIES BEFORE [THE
DATE WHICH IS FOUR MONTHS AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED]."
"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 [THE DATE WHICH IS FOUR MONTHS
AND ONE DAY AFTER THE CLOSING DATE WILL BE INSERTED]."
provided that subsequent to the date which four months and one day after the
Closing Date the certificate representing the Securities may be exchanged for a
certificate bearing no such legends.
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8. REPRESENTATIONS AND WARRANTIES
The Company hereby represents and warrants to the Subscriber as follows and
acknowledges and confirms that the Subscriber is relying upon each of such
representations and warranties in entering into this Agreement and completing
the transactions contemplated herein:
(a) INCORPORATION AND ORGANIZATION: The Company and each of its
subsidiaries, if any, have been incorporated and organized and
are valid and subsisting corporations under the laws of their
jurisdictions of incorporation and have all requisite
corporate power and authority to carry on their business as
now conducted or proposed to be conducted and to own or lease
and operate the property and assets thereof and the Company
has all requisite corporate power and authority to enter into,
execute and deliver this Agreement and to carry out the
obligations thereof hereunder.
(b) EXTRA-PROVINCIAL REGISTRATION: The Company or its
subsidiaries, if any, is licensed, registered or qualified as
an extra-provincial or foreign corporation in all
jurisdictions where the character of the property or assets
thereof owned or leased or the nature of the activities
conducted by it make licensing, registration or qualification
necessary and is carrying on the business thereof in
compliance with all applicable laws, rules and regulations of
each such jurisdiction.
(c) AUTHORIZED CAPITAL: The Company is authorized to issue, among
other things, 100,000,000 Common Shares, of which, as of
December 23, 2004, 23,522,915 Common Shares were issued and
outstanding as fully paid and non-assessable shares.
(d) RIGHTS TO ACQUIRE SECURITIES: No Person has any agreement,
option, right or privilege (whether pre-emptive, contractual
or otherwise) capable of becoming an agreement for the
purchase, acquisition, subscription for or issue of any of the
unissued shares or other securities of the Company, except
for, as at December 23, 2004, an aggregate of 16,076,403
Common Shares were reserved for issue pursuant to outstanding
options, warrants, share incentive plans, convertible,
exercisable and exchangeable securities and other rights to
acquire Common Shares.
(e) LISTING: The Common Shares are, and at the time of issue of
the Securities will be, listed on the Stock Exchange and the
Securities will, at the time of issue of the Securities, have
been conditionally listed on the Stock Exchange. Except for
Common Shares issued upon the exercise of existing outstanding
options, warrants or other securities of the Company
convertible into Common Shares, the Company has not issued, or
agreed to issue, any Common Shares or any securities
exchangeable or exercisable for, or convertible into, Common
Shares at an effective price per Common Share which is less
than the Purchase Price during the 60 day period immediately
preceding the date hereof.
(f) CERTAIN SECURITIES LAW MATTERS: The Common Shares are listed
only on the Stock Exchange, the Company is a reporting issuer
or the equivalent only in the Reporting Provinces and is not
in default of any requirement of the Securities Laws of any of
such provinces and the Common Shares are not registered under
the SECURITIES EXCHANGE ACT OF 1934 (United States), as
amended.
(g) QUALIFYING ISSUER AND RESALE OF SECURITIES: The Company is and
will be on the Closing Date a "qualifying issuer" within the
meaning of Multilateral Instrument 45-103 of the Canadian
Securities Administrators. The Securities will not be subject
to a restricted
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period or statutory hold period or to any resale restriction
under the policies of the Stock Exchange which extends beyond
four months and one day after the Closing Date.
(h) NO PRE-EMPTIVE RIGHTS: The issue of the Securities will not be
subject to any pre-emptive right or other contractual right to
purchase securities granted by the Company or to which the
Company is subject.
(i) SECURITIES: The execution of this Agreement and the issue by
the Company to the Subscriber of the Securities will be exempt
from the registration and prospectus requirements of
Securities Laws. The Securities will not aggregate more than
10% of the outstanding Common Shares on the Closing Date after
giving effect to the issuance of the Securities herein.
(j) ISSUE OF SECURITIES: All necessary corporate action has been
taken to authorize the issue and sale of, and the delivery of
certificates representing, the Securities and, upon payment of
the requisite consideration therefor, the Flow-Through Shares
will be validly issued as fully paid and non-assessable
shares.
(k) CONSENTS, APPROVALS AND CONFLICTS: None of the offering and
sale of the Securities, the execution and delivery of this
Agreement, the compliance by the Company with the provisions
of this Agreement or the consummation of the transactions
contemplated herein including, without limitation, the
incurring of Resource Expenses and the issue of the Securities
to the Subscriber for the consideration and upon the terms and
conditions as set forth herein, do or will (i) require the
consent, approval, or authorization, order or agreement of, or
registration or qualification with, any governmental agency,
body or authority, court, stock exchange, securities
regulatory authority or other Person, except (A) such as have
been obtained, or (B) such as may be required under Securities
Laws and the policies of the Stock Exchange and will be
obtained by the Closing Date, or (ii) conflict with or result
in any breach or violation of any of the provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, lease or other agreement or instrument to which the
Company is a party or by which it or any of the properties or
assets thereof is bound, or the memorandum or articles of the
Company or any resolution passed by the directors (or any
committee thereof) or shareholders of the Company, or any
statute or any judgment, decree, order, rule, policy or
regulation of any court, governmental authority, arbitrator,
stock exchange or securities regulatory authority applicable
to the Company or any of the properties or assets thereof
which could have a material adverse effect on the condition
(financial or otherwise), business, properties or results of
operations of the Company.
(l) AUTHORITY AND AUTHORIZATION: The Company has full corporate
power and authority to enter into this Agreement and to do all
acts and things and execute and deliver all documents as are
required hereunder to be done, observed, performed or executed
and delivered by it in accordance with the terms hereof and
the Company has taken all necessary corporate action to
authorize the execution, delivery and performance of this
Agreement and to observe and perform the provisions of this
Agreement in accordance with the provisions hereof including,
without limitation, the incurring of Resource Expenses and the
issue of the Securities to the Subscriber for the
consideration and upon the terms and conditions set forth
herein.
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(m) VALIDITY AND ENFORCEABILITY: This Agreement has been
authorized, executed and delivered by the Company and
constitutes a valid and legally binding obligation of the
Company enforceable against the Company in accordance with its
terms.
(n) PUBLIC DISCLOSURE: Each of the documents which contains any of
the Information is, as of the date thereof, in compliance in
all material respects with the Securities Laws of the
Reporting Provinces and did not contain any untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading and such documents collectively
constitute full, true and plain disclosure of all material
facts relating to the Company and do not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading, as of the date hereof. There
is no fact known to the Company which the Company has not
publicly disclosed which materially adversely affects, or so
far as the Company can reasonably foresee, will materially
adversely affect, the assets, liabilities (contingent or
otherwise), capital, affairs, business, prospects, operations
or condition (financial or otherwise) of the Company or the
ability of the Company to perform its obligations under this
Agreement or which would otherwise be material to any Person
intending to make an equity investment in the Company.
(o) TIMELY DISCLOSURE: The Company is in compliance with all
timely disclosure obligations under the Securities Laws of the
Reporting Provinces, and, without limiting the generality of
the foregoing, to the best knowledge of the Company, there has
not occurred any material adverse change in the assets,
liabilities (contingent or otherwise), capital, affairs,
business, prospects, operations or condition (financial or
otherwise) of the Company which has not been publicly
disclosed and none of the documents filed by or on behalf of
the Company pursuant to the Securities Laws of the Reporting
Provinces contains a misrepresentation (as such term is
defined in the SECURITIES ACT (British Columbia)) at the date
of the filing thereof.
(p) NO CEASE TRADE ORDER: No order preventing, ceasing or
suspending trading in any securities of the Company or
prohibiting the issue and sale of securities by the Company
has been issued and no proceedings for either of such purposes
have been instituted or, to the best of the knowledge of the
Company, are pending, contemplated or threatened.
(q) FINANCIAL STATEMENTS: The audited financial statements of the
Company for the year ended October 31, 2003, together with the
auditors' report thereon and the notes thereto, and the
unaudited interim financial statements of the Company for the
period ended July 31, 2004 and the notes thereto, have been
prepared in accordance with Canadian generally accepted
accounting principles applied on a basis consistent with prior
periods (except as disclosed in such financial statements) and
present fairly the financial condition and position of the
Company as at the dates thereof and such financial statements
contain no direct or implied statement of a material fact
which is untrue on the date of such financial statements and
do not omit to state any material fact which is required by
Canadian generally accepted accounting principles or by
applicable law to be stated or reflected therein or which is
necessary to make the statements contained therein not
misleading.
(r) CHANGES IN FINANCIAL POSITION: Since July 31, 2004:
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(i) the Company has not paid or declared any dividend or
incurred any material capital expenditure or made any
commitment therefore;
(ii) the Company has not incurred any obligation or
liability, direct or indirect, contingent or
otherwise, except in the ordinary course of business
and which is not, and which in the aggregate are not,
material; and
(iii) the Company has not entered into any material
transaction,
except in each case as disclosed in the Information.
(s) NO CONTEMPLATED CHANGES: Except as disclosed in the
Information, the Company has not approved, is not
contemplating, has not entered into any agreement in respect
of, or has no knowledge of:
(i) the purchase of any property or assets or any
interest therein or the sale, transfer or other
disposition of any property or assets or any interest
therein currently owned, directly or indirectly, by
the Company whether by asset sale, transfer of shares
or otherwise;
(ii) the change of control (by sale or transfer of shares
or sale of all or substantially all of the property
and assets of the Company or otherwise) of the
Company; or
(iii) a proposed or planned disposition of shares by any
shareholder who owns, directly or indirectly, 10% or
more of the outstanding shares of the Company.
(t) INSURANCE: The assets of the Company and the business and
operations thereof are insured against loss or damage with
responsible insurers on a basis consistent with insurance
obtained by reasonably prudent participants in a comparable
business in comparable circumstances, such coverage is in full
force and effect and the Company has not failed to promptly
give any notice or present any material claim thereunder.
(u) TAXES AND TAX RETURNS: The Company has filed in a timely
manner all necessary tax returns and notices and has paid all
applicable taxes of whatsoever nature for all tax years prior
to the date hereof to the extent that such taxes have become
due or have been alleged to be due and the Company is not
aware of any tax deficiencies or interest or penalties accrued
or accruing, or alleged to be accrued or accruing, thereon
where, in any of the above cases, it might reasonably be
expected to result in any material adverse change in the
condition (financial or otherwise), or in the earnings,
business, affairs or prospects of the Company and there are no
agreements, waivers or other arrangements providing for an
extension of time with respect to the filing of any tax return
by the Company or the payment of any material tax,
governmental charge, penalty, interest or fine against the
Company. There are no material actions, suits, proceedings,
investigations or claims now threatened or pending against the
Company which could result in a material liability in respect
of taxes, charges or levies of any governmental authority,
penalties, interest, fines, assessments or reassessments or
any matters under discussion with any governmental authority
relating to taxes, governmental charges, penalties, interest,
fines, assessments or reassessments asserted by any such
authority and the Company has withheld (where applicable) from
each payment to each of the present and former officers,
directors, employees and consultants thereof the amount of all
taxes and other amounts, including, but not limited to, income
tax and other deductions,
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required to be withheld therefrom, and has paid the same or
will pay the same when due to the proper tax or other
receiving authority within the time required under applicable
tax legislation.
(v) COMPLIANCE WITH LAWS, LICENSES AND PERMITS: The Company has
conducted and is conducting the business thereof in compliance
in all material respects with all applicable laws, rules,
regulations, tariffs, orders and directives of each
jurisdiction in which it carries on business and possesses all
material approvals, consents, certificates, registrations,
authorizations, permits and licenses issued by the appropriate
provincial, state, municipal, federal or other regulatory
agency or body necessary to carry on the business currently
carried on, or contemplated to be carried on, by it, is in
compliance in all material respects with the terms and
conditions of all such approvals, consents, certificates,
authorizations, permits and licenses and with all laws,
regulations, tariffs, rules, orders and directives material to
the operations thereof, and the Company has not received any
notice of the modification, revocation or cancellation of, or
any intention to modify, revoke or cancel or any proceeding
relating to the modification, revocation or cancellation of
any such approval, consent, certificate, authorization, permit
or license which, singly or in the aggregate, if the subject
of an unfavourable decision, order, ruling or finding, would
materially adversely affect the conduct of the business or
operations of, or the assets, liabilities (contingent or
otherwise), condition (financial or otherwise) or prospects
of, the Company.
(w) AGREEMENTS AND ACTIONS: The Company is not in violation of any
term of its memorandum or articles. The Company is not in
violation of any term or provision of any agreement, indenture
or other instrument applicable to it which would, or could,
result in any material adverse effect on the business,
condition (financial or otherwise), capital, affairs or
operations of the Company, nor is the Company in default in
the payment of any obligation owed which is now due and there
is no action, suit, proceeding or investigation commenced,
pending or, to the knowledge of the Company after due inquiry,
threatened which, either in any case or in the aggregate,
might result in any material adverse effect on the business,
condition (financial or otherwise), capital, affairs,
prospects or operations of the Company or in any of the
material properties or assets thereof or in any material
liability on the part of the Company or which places, or could
place, in question the validity or enforceability of this
Agreement or any document or instrument delivered, or to be
delivered, by the Company pursuant hereto.
(x) OWNER OF PROPERTY: The Company is the absolute legal and
beneficial owner of, and has good and marketable title to, all
of the material property or assets thereof as described in the
Information, free of all mortgages, liens, charges, pledges,
security interests, encumbrances, claims or demands
whatsoever, other than those described in the Information, and
no other property rights are necessary for the conduct of the
business of the Company as currently conducted or contemplated
to be conducted, the Company does not know of any claim or the
basis for any claim that might or could adversely affect the
right thereof to use, transfer or otherwise exploit such
property rights and, except as disclosed in the Information,
the Company does not have any responsibility or obligation to
pay any commission, royalty, licence fee or similar payment to
any Person with respect to the property rights thereof.
(y) MINERAL RIGHTS: The Company holds either freehold title,
mining leases, mining claims or other conventional property,
proprietary or contractual interests or rights, recognized in
the jurisdiction in which a particular property is located, in
respect of the ore bodies
11
and minerals located in properties in which the Company has an
interest as described in the Information under valid,
subsisting and enforceable title documents or other recognized
and enforceable agreements or instruments, sufficient to
permit the Company to explore the minerals relating thereto,
all such property, leases or claims and all property, leases
or claims in which the Company has any interest or right have
been validly located and recorded in accordance with all
applicable laws and are valid and subsisting, the Company has
all necessary surface rights, access rights and other
necessary rights and interests relating to the properties in
which the Company has an interest as described in the
Information granting the Company the right and ability to
explore for minerals, ore and metals for development purposes
as are appropriate in view of the rights and interest therein
of the Company, with only such exceptions as do not materially
interfere with the use made by the Company of the rights or
interests so held and each of the proprietary interests or
rights and each of the documents, agreements and instruments
and obligations relating thereto referred to above is
currently in good standing in the name of the Company.
(z) PROPERTY AGREEMENTS: Any and all of the agreements and other
documents and instruments pursuant to which the Company holds
the property and assets thereof (including an interest in, or
right to earn an interest in, any property) are valid and
subsisting agreements, documents or instruments in full force
and effect, enforceable in accordance with terms thereof, the
Company is not in default of any of the material provisions of
any such agreements, documents or instruments nor has any such
default been alleged, and such properties and assets are in
good standing under the applicable statutes and regulations of
the jurisdictions in which they are situated, all leases,
licences and claims pursuant to which the Company derives the
interests thereof in such property and assets are in good
standing and there has been no material default under any such
lease, licence or claim and all taxes required to be paid with
respect to such properties and assets to the date hereof have
been paid. None of the properties (or any interest in, or
right to earn an interest in, any property) of the Company is
subject to any right of first refusal or purchase or
acquisition right which is not disclosed in the Information.
(aa) NO DEFAULTS: The Company is not in default of any material
term, covenant or condition under or in respect of any
judgment, order, agreement or instrument to which it is a
party or to which it or any of the property or assets thereof
are or may be subject, and no event has occurred and is
continuing, and no circumstance exists which has not been
waived, which constitutes a default in respect of any
commitment, agreement, document or other instrument to which
the Company is a party or by which it is otherwise bound
entitling any other party thereto to accelerate the maturity
of any amount owing thereunder or which could have a material
adverse effect upon the condition (financial or otherwise),
capital, property, assets, operations or business of the
Company.
(bb) COMPLIANCE WITH EMPLOYMENT LAWS: Except as disclosed in the
Information, the Company is in compliance with all laws and
regulations respecting employment and employment practices,
terms and conditions of employment, pay equity and wages,
except where such non-compliance would not constitute an
adverse material fact concerning the Company or result in an
adverse material change to the Company, and has not and is not
engaged in any unfair labour practice, there is no labour
strike, dispute, slowdown, stoppage, complaint or grievance
pending or, to the best of the knowledge of the Company after
due inquiry, threatened against the Company, no union
representation question exists respecting the employees of the
Company and no collective bargaining agreement is in place or
currently being negotiated by the Company, the Company has
12
not received any notice of any unresolved matter and there are
no outstanding orders under any employment standards, human
rights, occupational health and safety, workers' compensation
or other similar legislation in any jurisdiction in which the
Company carries on business or has employees, no employee has
any agreement as to the length of notice required to terminate
his or her employment with the Company in excess of twelve
months or equivalent compensation and all benefit and pension
plans of the Company are funded in accordance with applicable
laws and no past service funding liability exist thereunder.
(cc) ENVIRONMENTAL COMPLIANCE: Except as disclosed in the
Information, the Company:
(i) and the property, assets and operations thereof
comply in all material respects with all applicable
Environmental Laws (which term means and includes,
without limitation, any and all applicable
international, federal, provincial, state, municipal
or local laws, statutes, regulations, treaties,
orders, judgments, decrees, ordinances, official
directives and all authorizations relating to the
environment, occupational health and safety, or any
Environmental Activity (which term means and
includes, without limitation, any past, present or
future activity, event or circumstance in respect of
a Contaminant (which term means and includes, without
limitation, any pollutants, dangerous substances,
liquid wastes, hazardous wastes, hazardous materials,
hazardous substances or contaminants or any other
matter including any of the foregoing, as defined or
described as such pursuant to any Environmental Law),
including, without limitation, the storage, use,
holding, collection, purchase, accumulation,
assessment, generation, manufacture, construction,
processing, treatment, stabilization, disposition,
handling or transportation thereof, or the release,
escape, leaching, dispersal or migration thereof into
the natural environment, including the movement
through or in the air, soil, surface water or
groundwater));
(ii) does not have any knowledge of, and has not received
any notice of, any material claim, judicial or
administrative proceeding, pending or threatened
against, or which may affect, the Company or any of
the property, assets or operations thereof, relating
to, or alleging any violation of any Environmental
Laws, the Company is not aware of any facts which
could give rise to any such claim or judicial or
administrative proceeding and the Company nor any of
the property, assets or operations thereof is the
subject of any investigation, evaluation, audit or
review by any Governmental Authority (which term
means and includes, without limitation, any national,
federal government, province, state, municipality or
other political subdivision of any of the foregoing,
any entity exercising executive, legislative,
judicial, regulatory or administrative functions of
or pertaining to government and any corporation or
other entity owned or controlled (through stock or
capital ownership or otherwise) by any of the
foregoing) to determine whether any violation of any
Environmental Laws has occurred or is occurring or
whether any remedial action is needed in connection
with a release of any Contaminant into the
environment, except for compliance investigations
conducted in the normal course by any Governmental
Authority;
(iii) has not given or filed any notice under any federal,
state, provincial or local law with respect to any
Environmental Activity, the Company does not have any
liability (whether contingent or otherwise) in
connection with any Environmental Activity and the
Company is not aware of any notice being given under
any
13
federal, state, provincial or local law or of any
liability (whether contingent or otherwise) with
respect to any Environmental Activity relating to or
affecting the Company or the property, assets,
business or operations thereof;
(iv) does not store any hazardous or toxic waste or
substance on the property thereof and has not
disposed of any hazardous or toxic waste, in each
case in a manner contrary to any Environmental Laws,
and there are no Contaminants on any of the premises
at which the Company carries on business, in each
case other than in compliance with Environmental
Laws; and
(v) is not subject to any contingent or other liability
relating to the restoration or rehabilitation of
land, water or any other part of the environment or
non-compliance with Environmental Law.
(dd) NO LITIGATION: There are no actions, suits, proceedings,
inquiries or investigations existing, pending or, to the
knowledge of the Company after due inquiry, threatened against
or which adversely affect the Company or to which any of the
property or assets thereof is subject, at law or equity, or
before or by any court, federal, provincial, state, municipal
or other governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, which may in
any way materially adversely affect the condition (financial
or otherwise), capital, property, assets, operations or
business of the Company or the ability of the Company to
perform the obligations thereof and the Company is not subject
to any judgment, order, writ, injunction, decree, award, rule,
policy or regulation of any Governmental Authority, which,
either separately or in the aggregate, may result in a
material adverse effect on the condition (financial or
otherwise), capital, property, assets, operations or business
of the Company or the ability of the Company to perform its
obligations under this Agreement.
(ee) FLOW-THROUGH SHARES: Upon issue, the Flow-Through Shares will
be "flow-through shares" as defined in subsection 66(15) of
the Tax Act and are not and will not be prescribed shares
within the meaning of section 6202.1 of the regulations to the
Tax Act. The Company does not have and will not have prior to
the Termination Date a Prescribed Relationship with any
partner or limited partner of the Subscriber.
(ff) PRINCIPAL-BUSINESS COMPANY: The Company is a
"principal-business corporation" as defined in subsection
66(15) of the Tax Act and will continue to be a
"principal-business corporation" until such time as all of the
Resource Expenses required to be renounced under this
Agreement have been incurred and validly renounced pursuant to
the Tax Act.
(gg) COMMITMENT AMOUNT: The Company has no reason to believe that
it will be unable to incur, on or after the Closing Date and
on or before the Termination Date or that it will be unable to
renounce to the Subscriber effective on or before December 31,
2004, Resource Expenses in an aggregate amount equal to the
Commitment Amount and the Company has no reason to expect any
reduction of such amount by virtue of subsection 66(12.73) of
the Tax Act.
9. COVENANTS
The Company hereby covenants and agrees with the Subscriber as follows:
14
(a) REPORTING ISSUER: The Company shall maintain its status as a
"reporting issuer" in, not in default of any requirement of
the Securities Laws of, the Reporting Provinces for a period
of at least 18 months after the Closing Date.
(b) CORPORATE STATUS: For a period of a least 18 months after the
Closing Date, the Company shall remain a corporation validly
subsisting under the laws of its jurisdiction of
incorporation, licensed, registered or qualified as an
extra-provincial or foreign corporation in all jurisdictions
where the character of its properties owned or leased or the
nature of the activities conducted by it make such licensing,
registration or qualification necessary and shall carry on its
business in the ordinary course and in compliance in all
material respects with all applicable laws, rules and
regulations of each such jurisdiction.
(c) LISTING ON STOCK EXCHANGES: The Company shall maintain the
listing on the Stock Exchange of the class of shares of which
the Securities form a part for a period of at least 18 months
after the Closing Date. The Company shall, not later than the
Closing Date, obtain approval from the Stock Exchange to issue
the Securities, and shall immediately upon issuance of the
Securities, take or cause to be taken all steps necessary for
such Securities to be posted for trading on the Stock
Exchange.
(d) SECURITIES FILINGS: Forthwith after the Closing, the Company
shall file such forms and documents as may be required under
applicable Securities Laws relating to the offering of the
Securities which, without limiting the generality of the
foregoing, shall include a Form 45-103F4 as prescribed by
Multilateral Instrument 45-103 of the Canadian Securities
Administrators.
(e) OUTSTANDING COMMON SHARES: The Company shall not do or omit to
do any thing or take any action if the result of such act or
omission could reasonably be expected to be that the ownership
of Common Shares by the Subscriber would exceed 10% of the
number of then outstanding Common Shares, assuming the issue
of the Securities.
(f) INFORMATION: The Company shall provide, forthwith upon the
request of the Subscriber, such publicly-available information
as the Subscriber requires concerning the mineral exploration
program pursuant to which the Company has incurred or will
incur Resource Expenses and the business affairs of the
Company. The Company shall not disclose to any Person either
the percentage discount upon which the Purchase Price is based
or the Purchase Price set forth in this Agreement unless, in
either case, required to do so and in accordance with
applicable laws or the rules of applicable regulatory
authorities.
(g) FURTHER INFORMATION: The Company shall provide such
information as the Subscriber may reasonably request to enable
the Subscriber to comply with the terms and conditions of any
exemptive order or ruling obtained by the Subscriber from any
applicable regulatory authority.
(h) ACCOUNTING RECORDS: The Company shall keep proper and complete
books, records and accounts in accordance with generally
accepted accounting principles showing true and accurate
records of all Resource Expenses and charges and make such
books, records and accounts available for inspection and audit
by or on behalf of the Subscriber at the Subscriber's expense.
(i) FILING SELLING INSTRUMENTS: The Company shall file with
Revenue Canada within the time prescribed by subsection
66(12.68) of the Tax Act the forms prescribed for the purposes
15
of such legislation together with a copy of this Agreement and
any "selling instrument" contemplated by such legislation or
by this Agreement and shall forthwith following such filings
provide to the Subscriber a copy of such forms certified by
two officers of the Company.
(j) PRINCIPAL-BUSINESS CORPORATION: The Company shall maintain its
status as a "principal-business corporation" as defined in
subsection 66(15) of the Tax Act until such time as all of the
Resource Expenses required to be renounced under this
Agreement have been incurred and validly renounced pursuant to
the Tax Act.
(k) PERFORMANCE OF ACTS: The Company shall perform and carry out
all of the acts and things to be completed by it as provided
in this Agreement.
(l) INCURRING AND RENOUNCING OF CEE: The Company hereby agrees to
incur Resource Expenses in an amount equal to the Commitment
Amount on or before the Termination Date in accordance with
this Agreement and agrees to renounce to the Subscriber, with
an effective date no later than December 31, 2004, pursuant to
subsections 66(12.6) and 66(12.66) of the Tax Act.
(m) INVESTMENT TAX CREDIT: Notwithstanding any other provision
hereof, the Company hereby agrees to use its reasonable best
efforts to ensure that the Commitment Amount will be incurred
on CEE that also qualifies as a Flow-Through Mining
Expenditure.
(n) RENUNCIATION: The Company shall deliver to the Subscriber, on
or before March 1, 2005, the relevant Prescribed Forms, fully
completed and executed, renouncing to the Subscriber Resource
Expenses in an amount equal to the Commitment Amount with an
effective date of no later than December 31, 2004, such
delivery constituting the authorization of the Company to the
Subscriber to file such Prescribed Forms with the relevant
taxation authorities.
(o) PRIORITY: The Company shall incur and renounce Resource
Expenses pursuant to this Agreement before incurring and
renouncing Resource Expenses pursuant to any other agreement
which the Company may enter into after the date hereof with
any Person with respect to the issue of Flow-Through Shares.
The Company shall not, without the prior written consent of
the Subscriber (which consent may be withheld in the sole
discretion of the Subscriber) (i) enter into any other
agreement which would prevent or restrict its ability to
renounce Resource Expenses to the Subscriber in the amount of
the Commitment Amount, or (ii) enter into any agreement in
2004 with any Person which provides for the issue of
Flow-Through Shares or securities exchangeable or exercisable
for, or convertible into, Flow-Through Shares at an effective
price per Flow-Through Share which is less than the Purchase
Price. If the Company is required under the Tax Act to reduce
Resource Expenses previously renounced to the Subscriber, the
Company shall not reduce Resource Expenses renounced to the
Subscriber under this Agreement until it has first reduced to
the extent possible all CEE renounced to Persons other than
the Subscriber.
(p) RESOURCE EXPENSES: The Resource Expenses to be renounced by
the Company to the Subscriber:
16
(i) will constitute CEE on the effective date of the
renunciation and the Company will use its reasonable
best efforts to ensure that such CEE will qualify as
a Flow-Through Mining Expenditure;
(ii) will not include expenses that are "Canadian
exploration and development overhead expenses" (as
defined in the Regulations to the Tax Act for
purposes of paragraph 66(12.6)(b) of the Tax Act) of
the Company or amounts which constitute specified
expenses for seismic data described in paragraph
66(12.6)(b.1) of the Tax Act or any expenses for
prepaid services or rent that do not qualify as
outlays and expenses for the period as described in
the definition of "expense" in subsection 66(15) of
the Tax Act;
(iii) will not include any amount that has previously been
renounced by the Company to the Subscriber or to any
other Person;
(iv) would be deductible by the Company in computing its
income for the purposes of Part I of the Tax Act but
for the renunciation to the Subscriber assuming the
Company had sufficient income; and
(v) will not be subject to any reduction under subsection
66(12.73) of the Tax Act.
(q) REDUCTION IN RESOURCE EXPENSE: The Company shall not reduce
the amount renounced to the Subscriber pursuant to subsection
66(12.6) of the Tax Act.
(r) VALID RENUNCIATION: The Company shall not be subject to the
provisions of subsection 66(12.67) of the Tax Act in a manner
which impairs its ability to renounce Resource Expense to the
Subscriber in an amount equal to the Commitment Amount.
(s) APPLICATIONS FOR PRESCRIBED GRANTS: If the Company receives,
or becomes entitled to receive, any government assistance
which is described in paragraph (a) of the definition of
"excluded obligation" in subsection 6202.1(5) of the
regulations made under the Tax Act and the receipt or
entitlement to receive such government assistance has or will
have the effect of reducing the amount of CEE validly
renounced to the Subscriber hereunder to less than the
Commitment Amount, the Company shall remit to the Subscriber
the benefit of all amounts received or receivable in respect
of such government assistance to the extent of such reduction.
(t) USE OF COMMITMENT AMOUNT: The Company shall use the Commitment
Amount solely to incur Resource Expenses and shall deliver to
the Subscriber, on or before March 1, 2005, a list of the
provinces, territories or other jurisdictions in Canada where
the Company has incurred Resource Expenses together with the
amount incurred in each such province, territory or
jurisdiction.
10. INDEMNIFICATION
(a) FAILURE TO RENOUNCE: If the Company does not incur and
renounce to the Subscriber, effective on or before December
31, 2004, Resource Expenses equal to the Commitment Amount,
the Company shall indemnify and hold harmless the Subscriber
and each of the partners thereof (for the purposes of this
paragraph each an "Indemnified Person") as to, and pay in
settlement thereof to the Indemnified Person on or before the
twentieth Business Day following the Termination Date, an
amount equal to the amount of any tax
17
(within the meaning of subparagraph 6202.1(5)(b) of the
regulation to the Tax Act) payable under the Tax Act (and
under any corresponding provincial legislation) by any
Indemnified Person as a consequence of such failure. In the
event that Revenue Canada (or any similar provincial tax
authority) reduces the amount renounced by the Company to the
Subscriber pursuant to subsection 66(12.73) of the Tax Act (or
any corresponding provincial legislation), the Company shall
indemnify and hold harmless each Indemnified Person as to, and
pay in settlement thereof to the Indemnified Person, an amount
equal to the amount of any tax (within the meaning of
subparagraph 6202.1(5)(b) of the regulation to the Tax Act)
payable under the Tax Act (and under any corresponding
provincial legislation) by the Indemnified Person as a
consequence of such reduction.
(b) INDEMNITIES HELD IN TRUST: To the extent that any Person
entitled to be indemnified hereunder is not a party to this
Agreement, the Subscriber shall obtain and hold the rights and
benefits of this Agreement in trust for, and on behalf of,
such Person and such Person shall be entitled to enforce the
provisions of this section notwithstanding that such Person is
not a party to this Agreement.
11. GENERAL
(a) ACCEPTANCE OF SUBSCRIPTION. The Company's acceptance of the
subscription herein shall be indicated by executing and
delivering to the Subscriber a copy of this Agreement.
(b) HEADINGS: The division of this Agreement into articles and
sections and the insertion of headings are for convenience of
reference only and shall not affect the construction or
interpretation of this Agreement. The terms "this Agreement,"
"hereof," "hereunder", "herein" and similar expressions refer
to this Agreement and not to any particular article, section
or other portion hereof and include any agreement supplemental
thereto and any exhibits attached hereto. Unless something in
the subject matter or context is inconsistent therewith,
reference herein to articles, sections and paragraphs are to
articles, sections, subsections and paragraphs of this
Agreement.
(c) NUMBER AND GENDER: Words importing the singular number only
shall include the plural and VICE VERSA, words importing the
masculine gender shall include the feminine gender and neuter
and VICE versa.
(d) SEVERABILITY: If one or more of the provisions contained in
this Agreement shall be invalid, illegal or unenforceable in
any respect under any applicable law, the validity, legality
or enforceability of the remaining provisions hereof shall not
be affected or impaired thereby. Each of the provisions of
this Agreement is hereby declared to be separate and distinct.
(e) NOTICES: All notices or other communications to be given
hereunder shall be delivered by hand or by telecopier, and if
delivered by hand, shall be deemed to have been given on the
date of delivery or, if sent by telecopier, on the date of
transmission if sent before 5:00 p.m. and such day is a
Business Day or, if not, on the first Business Day following
the date of transmission.
18
Notices to the Company shall be addressed to:
Xxxxxx Gold Corp.
00000 - 00xx Xxxxxx
Xxxxxx XX
X0X 0X0
Attention: Xxxxxx Xxxxxxx, President
Telecopier: 000-000-0000
Notices to the Subscriber shall be addressed to the address of
the Subscriber set out on the execution page hereof.
Either the Company or the Subscriber may change its address
for service aforesaid by notice in writing to the other party
hereto specifying its new address for service hereunder.
(f) FURTHER ASSURANCES: Each party hereto shall from time to time
at the request of the other party hereto do such further acts
and execute and deliver such further instruments, deeds and
documents as shall be reasonably required in order to fully
perform and carry out the provisions of this Agreement. The
parties hereto agree to act honestly and in good faith in the
performance of their respective obligations hereunder.
(g) SUCCESSORS AND ASSIGNS: Except as otherwise provided, this
Agreement shall enure to the benefit of and shall be binding
upon the parties hereto and their respective successors and
permitted assigns.
(h) ENTIRE AGREEMENT: The terms of this Agreement express and
constitute the entire agreement between the parties hereto
with respect to the subject matter hereof and no implied term
or liability of any kind is created or shall arise by reason
of anything in this Agreement.
(i) TIME OF ESSENCE: Time is of the essence of this Agreement.
(j) AMENDMENTS: The provisions of this Agreement may only be
amended with the written consent of all of the parties hereto.
(k) SURVIVAL: Notwithstanding any other provision of this
Agreement, the representations, warranties, covenants and
indemnities of or by the Company contained herein or in any
certificate, document or instrument delivered pursuant hereto
shall survive the completion of the transactions contemplated
by this Agreement.
(l) LANGUAGE: The parties hereto acknowledge and confirm that they
have requested that this Agreement as well as all notices and
other documents contemplated hereby be drawn up in the English
language. Les parties aux presentes reconnaissent et
confirment qu'elles ont convenu que la presente convention
ainsi que tous xxx xxxx et documents qui s'y rattachent soient
rediges dans la langue anglaise.
(m) GOVERNING LAW: This Agreement shall be governed by and
construed in accordance with the laws of the Province of
British Columbia and the laws of Canada applicable therein,
excluding British Columbia conflict of laws rules.
19
(n) COUNTERPARTS: This Agreement may be executed in two or more
counterparts which when taken together shall constitute one
and the same agreement. Delivery of counterparts may be
effected by facsimile transmission thereof.
(o) FACSIMILE COPIES: The Company shall be entitled to rely on a
facsimile copy of an executed subscription and renunciation
agreement and acceptance by the Company of such facsimile
subscription shall be legally effective to create a valid and
binding agreement between the Subscriber and the Company in
accordance with the terms thereof.
If the foregoing is in accordance with your understanding, please sign and
return this Agreement together with the other required documents signifying your
agreement to purchase the Securities.
20
TO: Xxxxxx Gold Corp.
The undersigned hereby accepts the foregoing and agrees to be bound by the terms
set forth herein and, without limitation, agrees that you may rely upon the
covenants, representations and warranties of the undersigned contained herein.
DATED as of this 23 day of December, 2004.
Number of Securities to be purchased
at $.15 each: 1,000,000
--------------------------------------------
Aggregate Purchase Price: $ 150,000.00
--------------------------------------------
Name (full legal name
of Subscriber) Canadian Small Cap Resource Fund 2004
--------------------------------------------
Limited Partnership
--------------------------------------------
#000 - 000 Xxxx Xxxxxx, Xxxxxxxxx XX X0X 0X0
--------------------------------------------
(address, including postal code)
000 000 0000
--------------------------------------------
(telephone number)
000 000 0000
--------------------------------------------
(facsimile number)
XXXX@XXX.XXXXXXXXXXX.XXX
--------------------------------------------
(e-mail address)
By: /s/ Xxxxxxx Xxxxxxxxx
--------------------------------------------
(signature)
Xxxxxxx Xxxxxxxxx
--------------------------------------------
(please print name)
President & CEO
--------------------------------------------
(official capacity)
Will provide at a later date
--------------------------------------------
(social insurance number OR federal
corporate/business account number OR
partnership filer identification number)
TS 070029
--------------------------------------------
(federal tax shelter identification number)
--------------------------------------------
(Quebec tax shelter identification number,
if applicable)
The above-mentioned subscription is hereby accepted by Xxxxxx Gold Corp.
DATED as of this 23 day of December, 2004.
XXXXXX GOLD CORP.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx, President
21
SCHEDULE A
FORM 4C
CORPORATE PLACEE REGISTRATION FORM
The Subscriber either [CHECK APPROPRIATE BOX]:
[_] has previously filed with the TSX Venture Exchange (the "Exchange") a
Form 4C, Corporate Placee Registration Form and represents and warrants
that there has been no change to any of the information in the
Corporate Placee Registration Form previously filed with the Exchange
up to the date hereof; or
[_] hereby delivers a completed Form 4C, Corporate Placee Registration Form
filing with the Exchange.
Where subscribers to a Private Placement are not individuals, the following
information about the placee must be provided. This Form will remain on file
with the Exchange. 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 companies. 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) 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
22
____________________ [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
------------------ ----------------- --------------------------- ---------------
------------------ ----------------- --------------------------- ---------------
------------------ ----------------- --------------------------- ---------------
------------------ ----------------- --------------------------- ---------------
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 (See for example, sections 87 and 111 of the
SECURITIES ACT (British Columbia) and sections 176 and 182 of the SECURITIES ACT
(Alberta).
Dated at on
--------------------------- ----------------------------------------
--------------------------------------
(Name of Purchaser - please print)
--------------------------------------
(Authorized Signature)
--------------------------------------
(Official Capacity - please print)
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please print name of individual whose
signature appears above)
THIS IS NOT A PUBLIC DOCUMENT
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SCHEDULE B
ALL SUBSCRIBERS
REGISTRATION AND DELIVERY INSTRUCTIONS
1. DELIVERY: Please deliver the certificate representing the Securities
to:
Canaccord Capital Corporation
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Name
16J903A9
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Account reference, if applicable
Xxxxxx Xxxxxxx
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Contact name
#0000 - 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX X0X 0X0
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Address, including postal code
604-643-0258
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Telephone number
2. REGISTRATION: The certificate representing the Securities which is to
be delivered at Closing should be registered as follows:
Canaccord Capital I/T for Canadian Small Cap Resource Fund 2004 Limited
Partnership
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Name
16J903A9
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Account reference, if applicable
SAME AS DELIVERY INSTRUCTIONS
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Address, including postal code
Words and terms herein with the initial letter or letters thereof capitalized
and defined in the Agreement shall have the meanings given to such capitalized
words and terms in the Agreement.
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SCHEDULE C
CERTIFICATE OF ACCREDITED INVESTOR
TO: Xxxxxx Gold Corp.
The undersigned Subscriber/officer of the Subscriber (or in the case of a trust,
the trustee or an officer of the trustee of the trust) hereby certifies that:
1. he/she has read the subscription agreement and understands that the
offering of the Securities is being made on a prospectus exempt basis;
and
2. the Subscriber is an accredited investor as defined in Multilateral
Instrument 45-103, by virtue of being:
[PLEASE CHECK ONE]
a. _____ a Canadian financial institution(1), or an authorized foreign
bank listed Schedule III of the BANK ACT (Canada),
b. _____ the Business Development Bank of Canada incorporated under the
BUSINESS DEVELOPMENT BANK of CANADA ACT (Canada),
c. _____ an association under the COOPERATIVE CREDIT ASSOCIATIONS ACT
(Canada) located in Canada, or a central cooperative credit
society for shich an order has been made under subsection
473(1) of that Act,
d. _____ a subsidiary of any person or company referred to in
paragraphs (a) to (c), if the person or company owns all of
the voting securities of the subsidiary, except the voting
securities required by law to be owned by directors of that
subsidiary,
e. _____ a person or company registered under the securities
legislation of British Columbia, or under the securities
legislation of another jurisdiction of Canada, as an adviser
or dealer, other than a limited market dealer registered under
the Securities Act (Ontario), or the Securities Act
(Newfoundland and Labrador),
f. _____ an individual registered or formerly registered under the
securities legislation of British Columbia, or under the
securities legislation of another jurisdiction of Canada, as a
representative of a person or company referred to in paragraph
(e),
g. _____ the government of Canada or a province, or any crown
corporation or agency of the government of Canada or a
province,
h. _____ a municipality, public board or commission in Canada,
i. _____ any national, federal, state, provincial, territorial or
municipal government of or in any foreign jurisdiction, or any
agency of that government,
j. _____ a pension fund that is regulated by either the Office of the
Superintendent of Financial Institutions (Canada) or a
provincial pension commission or similar regulatory authority,
k. _____ a registered charity under the INCOME TAX ACT (Canada), that,
in regard to the trade, has obtained advice from an
eligibility adviser or other adviser registered to provide
advice on the securities being traded,
l. _____ an individual who, either alone or jointly with a spouse,
beneficially owns, directly or indirectly, financial assets(2)
having an aggregate realizable value that before taxes, but
net of any related liabilities(3), exceeds $1,000,000,
m. _____ an individual whose net income before taxes exceeded $200,000
in each of the two most recent years or whose net income
before taxes combined with that of a spouse exceeded $300,000
in each of the two most recent years and who, in either case,
reasonably expects to exceed that net income level in the
current year,
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n. _____ a person or company, other than a mutual fund or
non-redeemable investment fund, that, either alone or with a
spouse, had net assets of at least $5,000,000 and, unless that
person or company is an individual, that amount is shown on
its most recently prepared financial statements,
o. _____ a mutual fund or non-redeemable investment fund that, in
British Columbia distributes its securities only to persons or
companies that are accredited investors,
p. X a mutual fund or non-redeemable investment fund that, in
------ British Columbia is distributing or has distributed its
securities under one or more a prospectuses for which the
British Columbia Securities Commission has issued receipts,
q. _____ a trust company or trust corporation registered under the
TRUST AND LOAN COMPANIES ACT (Canada) or under comparable
legislation in a jurisdiction of Canada or a foreign
jurisdiction, trading as a trustee or agent on behalf of a
fully managed account,
r. _____ a person or company trading as agent on behalf of a fully
managed account if that person or company is registered or
authorized to carry on business under the securities
legislation of a jurisdiction of Canada or a foreign
jurisdiction as a portfolio manager or under an equivalent
category of adviser or is exempt from registration as a
portfolio manager or the equivalent category of adviser,
s. _____ an entity organized in a foreign jurisdiction that is
analogous to any of the entities referred to in paragraphs (a)
through (e) and paragraph (j) in form and function, or
t. _____ a person or company in respect of which all of the owners of
interests, director or indirect, legal or beneficial, except
the voting securities required by law to be owned by
directors, are persons or companies that are accredited
investors.
(1) A Canadian financial institution means a bank, loan corporation, trust
company, insurance company, treasury branch, credit union or caisse
populaire that in each case is authorized to carry on business in
Canada or a province or territory of Canada, or the Confederation des
caisses populaires et d'economie Xxxxxxxxxx du Quebec.
(2) For the purposes of Multilateral Instrument 45-103 and this Certificate
the term "financial assets" means cash and securities.
(3) For the purposes of Multilateral Instrument 45-103 and this Certificate
the term "related liabilities" means (A) liabilities incurred or
assumed for the purpose of financing the acquisition or ownership of
financial assets, or (B) liabilities that are secured by financial
assets.
The statements made in this Schedule are true and accurate as of the date of
this certificate and will be true and accurate as of the Closing. If any such
statement shall not be true and accurate prior to Closing, the undersigned shall
give immediate written notice of such fact to the Company..
DATED _______________________________, 2004.
BY: /S/ XXXXXXX XXXXXXXXX
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Signature of Subscriber
CANADIAN SMALL CAP RESOURCE FUND 2004 LIMITED PARTNERSHIP
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Name of Subscriber
000-000 XXXX XXXXXX
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VANCOUVER, B.C.
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Address of the Subscriber
26
